Edmund H.S. Brose


Suing for a Bit(coin) of Justice—Class Actions and the Role of Technology in Morrison Extraterritoriality Analysis

Edmund H.S. Brose

In the wild west of crypto, courts are slowly coming to realize that crypto assets present novel questions of law that challenge core assumptions of United States securities law. This online feature argues that a more comprehensive understanding of blockchain technology counsels courts to apply the antifraud provisions of the federal securities laws extraterritorially. Such a move will economize judicial capacity, deter fraud, and protect U.S. investors. Instead of relying on a nodular analysis, courts should look to the policy rationales of the Court’s Morrison decision, as well as the Second Circuit’s Absolute Activist opinion, to lead out of the jurisdictional morass of locating crypto transactions. In addition to relying on enumerated factual allegations laid out in Absolute Activist, courts should find that transactions occur where the parties are physically located rather than where the physical structure that underlies the crypto network is located. Further, they should utilize a plus factor of whether the company has marketed the product into a jurisdiction. As a result, courts can dispense with legal fiction and preserve the aims of the Morrison ruling. As private class actions only continue to increase in number, the time to develop a consistent and encompassing rationale is now.

Admitting Evidence of Climate Change Under Daubert: Climate Experts as Reliable, Hyper-Qualified Technicians

Edmund H.S. Brose

Climate change is here. Anthropogenic warming is currently increasing temperatures, the devastation of storms, and the incidence of droughts. If humanity continues on its current path, the next fifty years will see millions die due to extreme weather events, along with a drastic increase in the number of climate refugees seeking haven. In the face of this crisis, government inaction at all levels has fueled the flames. Private actors and state and municipal governments have stepped into the breach, bringing suits against polluters for the harms to their localities and citizens. The challenge that this Note seeks to address is how to take these dire predictions of the future, and damages of the present, and translate them into workable, reliable legal evidence that can be used in a court of law. While most courts have declined to allow suits to proceed on threshold questions, they will soon have to deal with scientific evidence of climate change as these suits grow more numerous and the plaintiffs more resourceful.

This Note serves as a plea to judges to approach climate modeling methods in the same way they approach comparable types of evidence. Under Federal Rule of Evidence 702, climate science should be admissible as sufficiently reliable, by a preponderance of the evidence. Climate science exists somewhere between pure science and specialized expert knowledge, due to the subjective nature of the discipline. While climate science may not be seen as sufficiently “scientific,” if climate scientists are considered a group of experts, the discipline should easily pass muster under lower court interpretations of the Supreme Court’s Kumho Tire decision. By comparing climate science to criminal forensic methods, the case for admissibility becomes obvious. Thus, if judges take their roles seriously as neutral, consistent referees of justice, the admissibility of climate science should not be a serious hurdle for plaintiffs.