Let Ugly Ducklings Grow: Why Crypto Needs a Safe Harbor

Asked for his views on cryptocurrencies, Securities and Exchange Commission Chairman Gary Gensler likes to quote the poet James Whitcomb Riley, who wrote, “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” The point of Gensler’s “duck test” is that he believes the vast majority of crypto projects are in fact unregistered securities, with little ambiguity. In Gensler’s mind, almost all meet the more conventional Howey Test measure for that. It’s a nice line but perhaps not the best analogy. After all, a more famous literary reference also draws on the duck image to remind children that first impressions are not always reliable.
In Hans Christian Andersen’s classic fairy tale “The Ugly Duckling,” a newborn cygnet is mistakenly thought to be a member of a barnyard mother duck’s brood and is teased for being so plain-looking compared with the other ducklings. Eventually, it flees the farm and grows into a beautiful, graceful swan.

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