Public Policy Archives - Regent University School of Law https://jgjpp.regent.edu/tag/public-policy/ Journal of Global Justice and Public Policy Thu, 23 Jan 2025 00:50:58 +0000 en-US hourly 1 https://wordpress.org/?v=6.8.1 https://jgjpp.regent.edu/wp-content/uploads/2022/02/cropped-Regent-Favicon-32x32.png Public Policy Archives - Regent University School of Law https://jgjpp.regent.edu/tag/public-policy/ 32 32 BAD LAW AND BAD POLICY: WHY THE MILITARY SELECTIVE SERVICE ACT IS UNCONSTITUTIONAL IN LIGHT OF THE POLICY DECISION TO ALLOW WOMEN TO SERVE IN COMBAT ROLES IN THE MILITARY https://jgjpp.regent.edu/bad-law-and-bad-policy-why-the-military-selective-service-act-is-unconstitutional-in-light-of-the-policy-decision-to-allow-women-to-serve-in-combat-roles-in-the-military/?utm_source=rss&utm_medium=rss&utm_campaign=bad-law-and-bad-policy-why-the-military-selective-service-act-is-unconstitutional-in-light-of-the-policy-decision-to-allow-women-to-serve-in-combat-roles-in-the-military Mon, 19 Aug 2024 21:42:33 +0000 https://jgjpp.regent.edu/?p=872 The post BAD LAW AND BAD POLICY: WHY THE MILITARY SELECTIVE SERVICE ACT IS UNCONSTITUTIONAL IN LIGHT OF THE POLICY DECISION TO ALLOW WOMEN TO SERVE IN COMBAT ROLES IN THE MILITARY appeared first on Regent University School of Law.

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BAD LAW AND BAD POLICY: WHY THE MILITARY SELECTIVE SERVICE ACT IS UNCONSTITUTIONAL IN LIGHT OF THE POLICY DECISION TO ALLOW WOMEN TO SERVE IN COMBAT ROLES IN THE MILITARY

 

Zachary S. Whiting* | 1 Regent J. Glob. Just. & Pub. Pol. 293 (2015)

 

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INTRODUCTION

 

This Note analyzes the legal and policy considerations of the Military Selective Service Act (“MSSA”), military conscription, and the role of men and women in combat. The author begins this Note by providing a historical context, reviewing the various legislative iterations of the Selective Service System and selective implementations of the registration and conscription requirements. The author then reviews the case law interpreting the Selective Service System, with a heavy review of the seminal case Rostker v. Goldberg,[1] in which the Supreme Court of the United States upheld the constitutionality of the MSSA against a Fifth Amendment due process challenge.

The author proceeds to make several legal and policy arguments and presents possible solutions. First, the author considers the constitutionality of the MSSA in light of the Defense Department’s decision to end restrictions on women in combat roles and open up combat positions to women in all branches of the military. The author argues that in light of recent developments, Rostker v. Goldberg is no longer the controlling precedent and the MSSA is unconstitutional. Second, the author considers possible solutions to remedy these constitutional concerns. While requiring women to register with the Selective Service System may alleviate some of the constitutional infirmities of the MSSA, the author argues that this is bad policy. Ultimately, the author concludes that Congress should repeal the MSSA and eliminate the registration and conscription requirements altogether and rely on an all-volunteer force.

 

HISTORICAL BACKGROUND

 

A. Various Legislative Iterations of the Selective Service System

1. Selective Service Act of 1917

The origins of the modern registration and draft regime began with the Selective Service Act of 1917 (“the 1917 Act”), enacted on May 18, 1917.[2] Even before the United States entered World War I, Congress and the President sought to increase the size of the regular army and reserve component through the National Defense Act of 1916.[3] Frustrated that volunteer enrollment was not meeting the benchmarks set by the National Defense Act, Congress passed and President Woodrow Wilson signed the Selective Service Act of 1917.[4]

The Selective Service Act of 1917, passed a month after Congress declared war against Germany, was designed to increase the number of troops available to fight in World War I.[5] The phrase “Selective Service” “refers to the need to be selective when conscripting from the local community because of the economic hardship placed upon the Nation during a draft.”[6] The goal of the 1917 Act was to increase the regular army to full force and increase the reserve component.[7] The means of achieving this goal was a regime of systematic registration for conscription rather than voluntary enlistment.[8] The 1917 Act contained a registration provision that “made it the duty of those liable to the call to present themselves for registration on the proclamation of the President so as to subject themselves to the terms of the act and provided full federal means for carrying out the selective draft.”[9]

The 1917 Act created conscription categories into which registrants were placed, created local boards that facilitated the registration and classification process, and allowed for certain classes to be deferred or exempted from the registration and conscription requirements (e.g., ministers, divinity students, married persons with dependents, or conscientious objectors).[10] There were three registration cycles during World War I:

 

The first, on June 5, 1917, was for all men between the ages of 21 and 31. The second, on June 5, 1918, registered those who attained age 21 after June 5, 1917. (A supplemental registration was held on August 24, 1918, for those becoming 21 years old after June 5, 1918. This was included in the second registration.) The third registration was held on September 12, 1918, for men age 18 through 45.[11]

 

The constitutionality of the 1917 Act was challenged in the courts and upheld by the Supreme Court of the United States in 1918 in the Selective Draft Law Cases.[12] Approximately twenty-four million men registered for the draft[13] and more than 1.66 million men were drafted under the 1917 Act.[14] The World War I Selective Service System, originally designed to be temporary, was liquidated and eventually phased out:

 

After the signing of the armistice of November 11, 1918, the activities of the Selective Service System were rapidly curtailed. On March 31, 1919, all local, district, and medical advisory boards were closed, and on May 21, 1919, the last state headquarters closed operations. The Provost Marshal General was relieved from duty on July 15, 1919, thereby finally terminating the activities of the Selective Service System of World War I.[15]

2. Selective Training and Service Act of 1940

Another looming world war led to the adoption of the first peacetime registration and conscription regime in American history.[16] The Selective Training and Service Act of 1940 (“the 1940 Act”) was enacted on September 16, 1940.[17] Similar to the 1917 Act, the 1940 Act initially “authorized the President to ‘create and establish a Selective Service System . . . and [to] establish within the Selective Service System civilian local boards . . . .’”[18] The World War II regime employed a lottery system to draft soldiers.[19] When the United States entered into World War II, the 1940 Act was amended to require men between the ages of eighteen and sixty-five to register, and made men between the ages of eighteen and forty-five eligible for conscription.[20] By the end of World War II, more than ten million men had been drafted under the 1940 Act.[21]

The 1940 Act also contained a number of deferments and exemptions from the registration and conscription requirement for those in certain occupations, married with dependents, ministers and divinity students, and conscientious objectors.[22] The constitutionality of the 1940 Act was challenged in the courts on a number of grounds—namely, lack of Congressional authority, the nondelegation doctrine, and religious freedoms—but the lower federal courts consistently upheld the 1940 Act.[23]

Like the 1917 Act, the 1940 Act was intended to be temporary; the Act was allowed to expire, and the System was liquidated:[24]

The Selective Service System created by the 1940 Act was terminated by the Act of March 31, 1947, which established an Office of Selective Service records “to liquidate the Selective Service System, which liquidation shall be completed as rapidly as possible after March 31, 1947, but in any event not later than March 31, 1948 . . . .”[25]

3. The Current System: The Military Selective Service Act

The beginning of the Cold War and concerns about the rise and spread of communism led to a renewed call for a registration and conscription regime.[26] The result was the creation of the current Selective Service regime, which has gone through several name changes and substantive amendments since it was adopted in 1948 as the Selective Service Act of 1948.[27] The 1940 Act had expired and the previous regime had been liquidated by the time the 1948 Act was enacted.[28] The court in Groupp noted, “although patterned after the organization created in 1940, the Selective Service System established in 1948 was a new and separate system. It has remain[ed] in existence, albeit with amendments, extensions, and changes of name, since 1948.”[29]

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  1. 453 U.S. 57, 78–79 (1981). ↩︎
  2. See Selective Draft Act, ch. 15, 40 Stat. 76 (1917) (codified as amended at 50 U.S.C. § 451 et seq. (2012)). ↩︎
  3. National Defense Act of 1916, ch. 134, 39 Stat. 166 (1916) (codified as amended in scattered sections of 10 & 32 U.S.C.). ↩︎
  4. See Selective Draft Law Cases, 245 U.S. 366, 375–76, 380–81 (1918); see, e.g., Jeremey K. Kessler, The Administrative Origins of Modern Civil Liberties Law, 114 COLUM. L. REV . 1083, 1102 (2014). ↩︎
  5. Selective Draft, 245 U.S. at 375. ↩︎
  6. SELECTIVE SERV. SYS., SELECTIVE SERVICE SYSTEM: AMERICA’S INSURANCE POLICY 10, available at http://www.sss.gov/PDFs/Educational%20Materials/Primer.pdf. ↩︎
  7. See Selective Draft, 245 U.S. at 375–76. ↩︎
  8. See id. ↩︎
  9. Id. at 376. ↩︎
  10. See id; see also Anne Yoder, Military Classifications for Draftees, SWARTHMORE C. PEACE COLLECTION, http://www.swarthmore.edu/library/peace/conscientiousobjection/MilitaryClassifications.htm (last visited Dec. 15, 2013). ↩︎
  11. World War I Selective Service System Draft Registration Cards, M1509, NAT’L ARCHIVES, http://www.archives.gov/research/military/ww1/draft-registration/index.html (last visited Feb. 22, 2015). ↩︎
  12. Selective Draft, 245 U.S. at 381. ↩︎
  13. NATIONAL ARCHIVES, supra note 11, at 1. ↩︎
  14. SELECTIVE SERV. SYS., supra note 6, at 11. ↩︎
  15. NATIONAL ARCHIVES, supra note 11, at 2. ↩︎
  16. See Selective Service Records, NAT’L ARCHIVES, http://www.archives.gov/st-louis/archival-programs/other-records/selective-service.html (last visited Dec. 15, 2013). ↩︎
  17. Selective Training and Service (Burke-Wadsworth) Act of 1940, ch. 720, 54 Stat. 885 (repealed 1973). ↩︎
  18. United States v. Groupp, 459 F.2d 178, 180 (1st Cir. 1972). ↩︎
  19. See Take a Closer Look at the Draft, NAT’L WWII MUSEUM, http://www.nationalww2museum.org/learn/education/for-students/ww2-history/take-a-closer-look/draft-registration-documents.html (last visited Dec. 15, 2013). ↩︎
  20. See Selective Training and Service Act §§ 2–3; cf. Yoder, supra note 10 (noting the age range became eighteen to sixty-five during World War II, whereas the Selective Training and Service Act originally set the range as twenty-one to thirty-six). ↩︎
  21. SELECTIVE SERV. SYS., supra note 6, at 11. ↩︎
  22. See Yoder, supra note 10. ↩︎
  23. See, e.g., United States v. Lambert, 123 F.2d 395, 396 (3d Cir. 1941); United States v. Herling, 120 F.2d 236, 236 (2d Cir. 1941); United States v. Newman, 44 F. Supp. 817, 822 (E.D. Ill. 1942); United States v. Garst, 39 F. Supp. 367, 367 (E.D. Pa. 1941); Stone v. Christensen, 36 F. Supp. 739, 743 (D. Or. 1940); United States v. Cornell, 36 F. Supp. 81, 83 (D. Idaho 1940) (all rejecting challenges that Congress lacked authority to require registration and conscription during peacetime). See also Seele v. United States, 133 F.2d 1015, 1019-20 (8th Cir. 1943) (rejecting challenge based on nondelegation doctrine); Rase v. United States, 129 F.2d 204, 210 (6th Cir. 1942) (rejecting challenge based on religious freedom). ↩︎
  24. SELECTIVE SERV. SYS., supra note 6, at 10. ↩︎
  25. United States v. Groupp, 459 F.2d 178, 180 (1972). ↩︎
  26. See SELECTIVE SERV. SYS., supra note 6, at 10. ↩︎
  27. Military Selective Service Act, 50 U.S.C. app. §§ 451–471(a) (1948); Groupp, 459 F.2d at 180 n.6 (“In 1951, the name was changed to the ‘Universal Military Training and Service Act.’ Pub. L. 82-51, § 1, 65 Stat. 75, June 19, 1951. The name was changed in 1967 to the ‘Military Selective Service Act of 1967.’ Pub. L. 90-40, § 1, 81 Stat. 100, June 30, 1967. In 1971, the name became the ‘Military Selective Service Act.’ Pub. L. 92-129, § 101(a), 85 Stat. 348, September 28, 1971.”). ↩︎
  28. Id. at 180. ↩︎
  29. Id. ↩︎

 

 

* Zachary graduated from the Regent University School of Law in 2014. He graduated summa cum laude and Phi Beta Kappa from Stetson University in 2010 with a B.A. in Political Science. Zachary thanks Matthew Poorman for his editorial guidance, and Professor David Wagner for his service as faculty advisor during the writing of this Note.

 

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]]> U.S. APPROACHES TO COUNTER CHILDHOOD BULLYING https://jgjpp.regent.edu/u-s-approaches-to-counter-childhood-bullying/?utm_source=rss&utm_medium=rss&utm_campaign=u-s-approaches-to-counter-childhood-bullying Mon, 19 Aug 2024 20:29:51 +0000 https://jgjpp.regent.edu/?p=752 David W. Collier*; Sherri B. Lantinga† | 1 Regent J. Glob. Just. & Pub. Pol. 247 (2015) Download PDF INTRODUCTION The particular expressions of interpersonal cruelty vary across times, cultures, genders, and age groups; but bullying has undoubtedly been part of all human communities. Now, with the widespread use of hand-held communication technologies, adults and children have available an even broader range of ways to torment others. Although families and...

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]]> David W. Collier*; Sherri B. Lantinga† | 1 Regent J. Glob. Just. & Pub. Pol. 247 (2015)

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INTRODUCTION

The particular expressions of interpersonal cruelty vary across times, cultures, genders, and age groups; but bullying has undoubtedly been part of all human communities. Now, with the widespread use of hand-held communication technologies, adults and children have available an even broader range of ways to torment others. Although families and schools have long tried to deter and punish childhood bullying, the rapid onset of “cyberbullying” has outpaced the effectiveness of such measures. Further, the pervasiveness and public nature of cyberbullying may increase the risk of serious and violent responses such as suicide or school shootings.[1] In this paper we review how the American family and schools have attempted to prevent or punish traditional bullying. We next examine how the legal systems can be used to respond to serious consequences of traditional bullying. We also discuss the prevalence of cyberbullying in the U.S. and focus on how legal systems can be effectively used to deter cyberbullying.

WHAT IS BULLYING IN THE UNITED STATES?

The first step in any discussion on bullying is to define terms. For the purposes of this paper we refer to traditional bullying as “unwanted, aggressive behavior among school-aged children involving a real or perceived power imbalance.”[2] In addition, the behavior is “repeated, or has the potential to be repeated, over time.”[3] Bullying has typically taken three main forms, though they can overlap. First, verbal bullying entails name-calling, inappropriate sexual comments, and verbal threats.[4] Second, social bullying includes spreading damaging rumors, excluding someone from a group, and publicly embarrassing someone.[5] Third, physical bullying refers to hitting, kicking, pushing, tripping, and taking or breaking someone’s things.[6] All three types occur frequently in the United States.[7] A U.S. government-funded survey indicates that, nationwide, 73% of students in grades 6–12 experienced bullying in the last school year.[8] Admittedly, bullying statistics are difficult to assess, as researchers use different age groups, methodologies, timespans, and differently worded questions; as a result, 20% to 90% of students report being victims of bullying in the United States.[9]

Advances in communication technology have given rise to new and widely accessible ways of harming others. The popularity of and easy access to mobile phones and social media sites have led to a new form of bullying, so-called “cyberbullying.” Cyberbullying is “the intentional and repeated mistreatment of others through the use of technology, such as computers, cell phones and other electronic devices.”[10] In addition to the range of devices, cyberbullying also encompasses an array of forums. Cyberbullying has quickly become a common form of bullying in the U.S.[11] A national survey found that nearly one in six high school students (grades 9–12) were electronically bullied in the previous year.[12]

The basic appeal of cyberbullying may be similar to traditional bullying (e.g., sense of control, social status) but the constraints are significantly decreased, which may mean far more bullies and victims. Both parties may experience serious mental and physical health The basic appeal of cyberbullying may be similar to traditional bullying (e.g., sense of control, social status) but the constraints are significantly decreased, which may mean far more bullies and victims. Both parties may experience serious mental and physical health outcomes,[13] making bullying a significant concern for families, schools, and the government.

INDIVIDUAL AND FAMILY STRATEGIES FOR DETERRENCE OF TRADITIONAL BULLYING IN THE U.S.

Traditionally, American fathers (and other males in multi-generational, extended family households) have encouraged children (especially sons) to stand up for themselves and their families, which included fighting back against bullies. Thus, men taught children how to physically defend themselves. It was believed that hitting a bully who has been sufficiently warned was an effective deterrent to future confrontations.[14] In addition, the ability to defend oneself was thought to strengthen a child’s self confidence, elevate respect from peers, and protect him from bullying. These values and skills were reinforced by local community stories and in radio and television programming.[15]

Many Americans now consider such teachings to be ignorant, old-fashioned, or even brutal.[16] Indeed, American support for even occasional spanking by parents has significantly declined in recent decades, particularly among women.[17] Interestingly, this trend coincides with significant changes in family structure in the U.S.: the number of children under age 18 living in single-parent (no father) homes jumped from 23% to 36% between 1980 and 2012.[18] Rather than physical defense tactics taught at home, today’s promoted strategies to deter bullying focus primarily on parental and school-based development of a child’s social-emotional skills.[19] For example, Project SEATBELT (Safe Environments Achieved Through Bullying prevention, Engagement, Leadership, and Teaching respect) aims to help children “become resilient, respectful, and responsible and prevent their involvement in bullying, either as the child who bullies or the child who is bullied, or both.”[20] Other programs focus on making systematic or cultural changes within children’s social groups to prevent bullying[21] rather than training one child at a time.

Some critics believe these newer, “soft” psychological approaches to bullying address victims’ feelings, but fail to address the root of the bullying problem. In other words, social-emotional approaches teach children to be “good victims” instead of deterring bullies.[22] Thus, in an interesting adaptation of the older family-based coping strategies, some private organizations are attempting to prevent bullying by enhancing potential victims’ ability to physically protect themselves. For example, the Gracie Bullyproof system, run by a family of long-standing jiu-jitsu masters, trains children to understand appropriate rules of engagement and to use non-violent techniques to neutralize opponents who have physically assaulted them.[23] The Gracies believe “there are only three solutions to bullying: bullyproof the victims, bullyproof the bullies, and bullyproof the schools.”[24] A featured story describes a bullied 12-year-old who completed a one-week Gracie Bullyproof program, then returned to school and put his training into practice once he was bullied again: “He went through the entire cycle of standing up for himself verbally first, then physically, but not violently. He kept it humble, and allowed the bully to save face. No punches. No kicks. He just held him with Gracie jiu-jitsu. It’s the gentle way.”[25]

Although less publically visible and therefore more difficult to measure than organizational training, parents may still punish their children for engaging in bullying. Creative or unusual punishments sometimes garner news attention, as in a widely publicized U.S. incident in 2013, when parents learned their 10-year-old daughter was bullying another child because of her unstylish clothing.[26] The parents then forced their daughter to wear unattractive, second-hand clothing to school; within two days, she demonstrated remorse for bullying and showed empathy for the other girl.[27]

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  1. Alana Vivolo-Kantor et al., Bullying and Suicide: What’s the Connection?, STOP BULLYING (Dec. 30, 2013), http://www.stopbullying.gov/blog/2013/12/30/bullying-and-suicide-whats-the-connection. ↩︎
  2. Id. ↩︎
  3. Id. ↩︎
  4. Id. ↩︎
  5. Id. ↩︎
  6. Id. ↩︎
  7. Id. ↩︎
  8. Jill Fleury DeVoe & Lynn Bauer, Student Victimization in U.S. Schools: Results from the 2009 School Crime Supplement to the National Crime Victimization Survey, NAT’L CENTER FOR EDUC. STAT. (Nov. 2011), http://nces.ed.gov/pubs2012/2012314.pdf. ↩︎
  9. Sandra G. Boodman, Gifted and Tormented, WASH. POST (May 16, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/05/15/AR2006051501103.html; Bullying Statistics 2010, BULLYING STA., http://www.bullyingstatistics.org/content/ bullying-statistics-2010.html (last visited July 10, 2014); Danice K. Eaton et al., Youth Risk Behavior Surveillance – United States, 2011, 61 MORBIDITY AND MORTALITY WKLY. REP., no. 4 (June 8, 2012), http://www.cdc.gov/mmwr/pdf/ss/ss6104.pdf. ↩︎
  10. Definitions Related to Name-Calling, Bullying and Bias, ANTI-DEFAMATION LEAGUE, http://www.adl.org/education-outreach/bullying-cyberbullying/c/definitions-bullying-and-bias.html#.U46qTnK1aRY (last visited July 11, 2014). ↩︎
  11. Cyber Bullying Statistics, BULLYING STAT., http://www.bullyingstatistics.org/content/cyber-bullying-statistics.html (last visited July 11, 2014). ↩︎
  12. Eaton, supra note 9. ↩︎
  13. Effects of Bullying, STOP BULLYING, http://www.stopbullying.gov/at-risk/effects (last visited July 11, 2014). ↩︎
  14. Justin Case, Bullying Prevention: The Old Fashioned Way, MONT. PIONEER, http://www.mtpioneer.com/2011-April-bullying-prevention.html (last visited July 10, 2014) ↩︎
  15. E.g., Little House on the Prairie: The Bully Boys (Paramount Studios, NBC television broadcast Dec. 6, 1976). ↩︎
  16. Sue Edgerley, Teaching Kids to Protect Themselves, 5 KEYS PARENTING (Sept. 24, 2010), http://5keysparenting.com/blog/2010/09/teaching-kids-to-protect-themselves. ↩︎
  17. Attitudes Toward Spanking, CHILD TRENDS, http://www.childtrends.org/wp-content/ uploads/2012/10/51_Attitudes_Toward_Spanking.pdf (last updated Apr. 2013). ↩︎
  18. Family Structure and Children’s Living Arrangements, FED. INTERAGENCY F. ON CHILD AND FAM. STAT., http://www.childstats.gov/americaschildren/famsoc1.asp (last visited July 11, 2014). ↩︎
  19. E.g., Laura Markham, 10 Ways to Bully-Proof Your Child, AHA! PARENTING, http://www.ahaparenting.com/parenting-tools/raise-great-kids/socially-intelligent-child/Helping_Bulllied_Child (last visited July 11, 2014). ↩︎
  20. What is Seatbelt?, RFK CENTER, http://bullying.rfkcenter.org/what-is-seatbelt (last visited July 12, 2014). ↩︎
  21. E.g., About the Bully Project, THE BULLY PROJECT, http://www.thebullyproject.com/about_the_bully_project (last visited July 9, 2014); NO BULLY, http://nobully.com (last visited July 11, 2014); PACER’s National Bullying Prevention Center, PACER CENTER, http://www.pacer.org/bullying/about (last visited July 11, 2014). ↩︎
  22. Elisabeth Wilkins, School Bullies: How the Parents of One Child are Fighting back, EMPOWERING PARENTS, http://www.empoweringparents.com/blog/bullying/school-bullies-how-the-parents-of-one-child-are-fighting-back/ (last visited July 12, 2014). ↩︎
  23. GRACIE BULLYPROOF, https://www.graciekids.com (last visited July 10, 2014). ↩︎
  24. Id.; see also Gracie Bullyproof, GRACIE JIU-JITSU ACAD., http://www.gracieacademy.com/bully_proof.asp (last visited July 11, 2014); Steve Henson, Bullying Victims Fight back with Help from Brazilian Jiu-Jitsu Royalty, THE POST GAME (Aug. 24, 2011, 1:17 AM), http://www.thepostgame.com/features/201108/real-it-gets-victims-schoolyard-bullying-can-fight-back-help-ufc-royalty. ↩︎
  25. Henson, supra note 24. ↩︎
  26. Brittany Green-Miner & Caroline Connolly, Thrift Shop Clothes Punishment for Bullying Tween Gets Mixed Reviews, FOX 13 NEWS (May 21, 2013), http://fox13now.com/2013/05/21/ ugly-clothes-punishment-for-bullying-tween-gets-mixed-reviews/. ↩︎
  27. Id. ↩︎

* Professor of Law, Handong International Law School; J.D., Regent University School of Law. Professor Collier has served as an Assistant Commonwealth’s Attorney for Buchanan County, Virginia, where he prosecuted misdemeanor and felony criminal cases.
† Classroom consultant and editor, Handong International Law School; M.A., Ph.D. Social/Academic Psychology from the University of Illinois-Chicago. Sherrie Lantinga has served as a Professor of Psychology at Dordt College, Iowa and as the Dean for Curriculum and Instruction.

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]]> FUNNY MONEY: WHY BITCOIN DOES NOT WARRANT INCREASED GOVERNMENTAL REGULATION https://jgjpp.regent.edu/funny-money-why-bitcoin-does-not-warrant-increased-governmental-regulation/?utm_source=rss&utm_medium=rss&utm_campaign=funny-money-why-bitcoin-does-not-warrant-increased-governmental-regulation Mon, 19 Aug 2024 18:28:36 +0000 https://jgjpp.regent.edu/?p=680 Aaron Lindquist* | 1 Regent J. Glob. Just. & Pub. Pol. 79 (2014) Download PDF INTRODUCTION Money is defined as “something generally accepted as a medium of exchange, a measure of value, or a means of payment.”[1] Even though the origins of money are hard to trace, money has come in many different forms throughout history.[2] Egyptians under Roman rule used grain to pay grain-taxes and rent.[3] During the fifth...

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]]> Aaron Lindquist* | 1 Regent J. Glob. Just. & Pub. Pol. 79 (2014)

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INTRODUCTION

Money is defined as “something generally accepted as a medium of exchange, a measure of value, or a means of payment.”[1] Even though the origins of money are hard to trace, money has come in many different forms throughout history.[2] Egyptians under Roman rule used grain to pay grain-taxes and rent.[3] During the fifth and sixth centuries, arrowheads were used as “coins” in the Black Sea Region.[4] Coinage was introduced in western Asia Minor during the sixth century.[5] Paper bills were first used during the Tang Dynasty in China before catching on in Europe during the seventeenth century.[6]

The Internet has only further aided the transfiguration of money. The Internet boom of the 1990s saw the advent of digital currencies, with the most famous of all, albeit slightly different in scope than when originally introduced, being PayPal.[7] However, the trendiest digital currency on the market is Bitcoin. Bitcoin is a digital currency based on cryptographic proof that is exchanged on a peer-to-peer network.[8]

This note explores the origins and workings of Bitcoin, its popularity and regulation in Germany, how criminal enterprises have used Bitcoin, and governments’ ability to regulate it. To date, there have been no cases challenging the power of individuals to make transactions using Bitcoin. However, policymakers and consumers around the world are calling for enhanced government regulations. This leads to the question of whether national governments can regulate a currency that is not their own, and if so, what exactly those regulations should look like.

This note will show that national governments around the world have no legal basis to prohibit Bitcoin users from entering the marketplace. National governments should refrain from passing legislation or regulations that would have a chilling effect on the use of Bitcoin. This note suggests that if a dispute arises, contract law provides a suitable solution for all consumers, and taxation provides sufficient regulation for governments.

Section II of this note provides an overview of Bitcoin, its technological foundations, and its use in the marketplace. Section III analyzes Germany’s loose regulatory approach to regulating Bitcoin.
Section IV examines how Bitcoin has been, or could be, utilized for illicit purposes by criminal enterprises around the world. Section V analyzes the arguments against increased regulation and proposes solutions that will not have a chilling effect on the adoption of Bitcoin.

OVERVIEW OF BITCOIN

A. What is Bitcoin?

Satoshi Nakamoto[9] created Bitcoin to be the world’s first viable decentralized currency.[10] Like other fiat currencies, Bitcoin has no intrinsic value.[11] Bitcoin’s valuation is based on supply and demand—what the market is willing to pay for the currency.[12] Because Bitcoin has no intrinsic value, it is a complete departure from prior digital currencies such as E-gold, and from other fiat currencies, which were historically backed by precious metals or underwritten by sovereign states.[13] Bitcoin also utilizes peer-to-peer technology to manage transactions and to issue bitcoins.[14] It is an open-source technology, designed to be accessible to everyone.[15] Individuals, businesses, or technology developers can utilize Bitcoin.[16]

Bitcoin provides users with a secure yet cheap, quick, and easy way to transfer money.[17] Bitcoin transactions utilize military-grade cryptography to protect users.[18] Additionally, Bitcoin helps protect users’ identities by creating a unique Bitcoin address that contains no identifying information.[19] One of the biggest complaints from small businesses concerns the swipe fee that is charged every time a debit or credit card transaction occurs.[20] Swipe fees represent the second highest operating expense for merchants, even though technological advances have lowered the processing costs of credit and debit transactions.[21] Bitcoin eliminates such processing fees, except in cases of very small payments.[22] Additionally, Bitcoin allows for fast international payments because there is no third party to slow down the process, charge exorbitant fees, or freeze transfers.[23] Bitcoins can be transferred with mobile phone payments and require no particular software because Bitcoin utilizes open-source technology that is compatible across the board.[24] Ease of transfer makes Bitcoin a great alternative to fiat currencies and precious metals.

B. Mining & Distribution

  1. Mining

The creation and transfer of Bitcoins is known as “mining.”[25] Mining adds transactions to Bitcoin’s public ledger of previous transactions.[26] The ledger is known as the “block chain” because it is a chain of blocks of data that help prove the validity of the current block.[27] Mining is a resource-intensive and difficult consensus process.[28] Because mining is the mechanism by which bitcoins are created, miners are paid transaction fees as well as a “commission” for newly created coins.[29]

Miners must utilize the best hardware available to mine blocks.[30] There are currently four ways to mine bitcoins. The first method is called central processing unit (CPU) mining.[31] CPU mining allows users to utilize their home computer to mine. While CPU mining is very inefficient and the Bitcoin software has disabled CPU mining as a default setting, CPU mining can still be accessed, and is still used.[32] The second method of mining is called graphics processing unit (GPU) mining. GPU mining is much faster and more efficient than CPU mining.[33] The third type of mining is known as field-programmable gate array (FPGA) mining. FPGAs consume small amounts of power and are extremely quick.[34] The most recent mining development is application-specific integrated circuit (ASIC) mining. ASIC is a microchip designed and manufactured to accomplish very specific purposes.[35] ASICs consume very little power and are vastly faster than all the other mining technologies.[36]

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  1. Money Definition, MERRIAM-WEBSTER.COM, http://merriam-webster.com/dictionary/money (last visited Nov. 9, 2014). ↩︎
  2. Henry S. Kim, Archaic Coinage as Evidence for the Use of Money, in MONEY AND ITS USES IN THE ANCIENT GREEK WORLD 7, 9 (Andrew Meadows & Kirsty Shipton eds., 2001). ↩︎
  3. Id. ↩︎
  4. Id. ↩︎
  5. Id. at 9–10. ↩︎
  6. Top 10 Things You Didn’t Know About Money: The First Paper Money, TIME, http://content.time.com/time/specials/packages/article/0,28804,1914560_1914558_1914593,00.html (last visited Aug. 21, 2014). ↩︎
  7. History, PAYPAL, https://www.paypal-media.com/history (last visited Aug. 21, 2013). ↩︎
  8. SATOSHI NAKAMOTO, BITCOIN: A PEER-TO-PEER ELECTRONIC CASH SYSTEM 1 (2009), available at http://bitcoin.org/bitcoin.pdf. ↩︎
  9. Who is Satoshi Nakamoto?, COIN DESK, http://www.coindesk.com/information/who-is-satoshi-nakamoto/ (last modified Apr. 2,
    2014). Satoshi Nakamoto is likely a pseudonym as the identity or identities of the individual(s) behind Bitcoin are anonymous. Id. ↩︎
  10. NAKAMOTO, supra note 8, at 1. ↩︎
  11. Myths, BITCOIN WIKI, https://en.bitcoin.it/wiki/Myths#Bitcoins_have_no_intrinsic_value_.28unlike_some_other_things.29 (last visited Aug. 29, 2014). ↩︎
  12. Id. ↩︎
  13. See generally Bob Sullivan, Feds Accuse E-Gold of Helping Cybercrooks, NBC NEWS TECHNOLOGY (May 2, 2007, 5:19 PM), http://redtape.nbcnews.com/_news/2007/05/02/6346006-feds-accuse-e-gold-of-helping-cybercrooks?lite (explaining that E-Gold was a digital currency that was backed by precious metals); see, e.g., Pascal-Emmanuel Goby, All Money is Fiat Money, FORBES (Jan. 8, 2013, 5:23 AM), http://www.forbes.com/sites/pascalemmanuelgobry/2013/01/08/all-money-is-fiat-money/ (describing the nature and origin of fiat currencies). ↩︎
  14. BITCOIN, http://bitcoin.org/en (last visited Oct. 19, 2013). ↩︎
  15. Id. ↩︎
  16. See id. ↩︎
  17. Bitcoin for Individuals, BITCOIN, http://bitcoin.org/en/bitcoin-for-individuals (last modified Oct. 22, 2008). ↩︎
  18. See generally Myths, supra note 11 (relating the fact that Bitcoin utilizes well-known industry standard algorithms SHA256 and ECDSA). The United States government uses and endorses SHA256. Id. ↩︎
  19. Id. ↩︎
  20. Doug Kantor, Create Jobs by Ending the Swipe Fee Rip-Off, REAL CLEAR POLITICS (Oct. 13, 2013), http://www.realclearpolitics.com/articles/2013/10/13/create_jobs_by_ending_the_swipe_fee_rip-off_120306.html. ↩︎
  21. Id. ↩︎
  22. Bitcoin for Individuals, supra note 17. ↩︎
  23. Id. ↩︎
  24. Id. ↩︎
  25. Mining, BITCOIN WIKI, https://en.bitcoin.it/wiki/Mining (last modified Oct. 29, 2013, 10:38 AM) (discussing that the process of introducing new Bitcoins into the market is called mining because it requires exertion, in the form of computing power, and steadily makes new currency available at a rate similar to mining physical commodities like gold). ↩︎
  26. Id. ↩︎
  27. Bitcoin Mining in Plain English, CODING IN MY SLEEP (Sept. 6, 2012, 11:49 PM), http://codinginmysleep.com/bitcoin-mining-in-plain-english/. Blocks are large chunks of data linked together that prove the previous block as valid. Id. See also Blocks, BITCOIN WIKI, https://en.bitcoin.it/wiki/Block (last modified June 15, 2013, 3:06 PM) (providing an in-depth look at blocks). ↩︎
  28. Mining, supra note 25. It is called a consensus process because each block must contain proof of work to be valid and each Bitcoin node verifies proof of work when it receives a block. Id. ↩︎
  29. Id. The transaction fee consists of the fees paid by users sending transactions. Additionally, everyone in the network agrees upon the number of Bitcoins that may be awarded to a block discoverer. Id. The current “commission” for discovering a block is 25 Bitcoins. Id. ↩︎
  30. Id. ↩︎
  31. Id. ↩︎
  32. Id. ↩︎
  33. Id. ↩︎
  34. Id. ↩︎
  35. Id. ↩︎
  36. Id. ↩︎

* Regent University School of Law, J.D. Candidate May 2015. I would like to thank Associate Dean Eric DeGroff for his assistance as I edited and revised multiple drafts of this paper. I would also like to thank my beautiful wife, Kristen, for supporting me throughout this process.

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