In a recent post on the Harvard Law School Forum on Corporate Governance, Jai Massari discusses a new paper that argues fungible cryptoassets are not securities under existing U.S. federal securities laws while initial coin offerings (ICOs) and similar token sales should be regulated as securities. The paper, which is posted as a draft, was prepared by four members of the DLx law firm.
I was amused by the paper’s title – The Ineluctable Modality of Securities Law: Why Fungible Crypto Assets are Not Securities. The phrase “ineluctable modality” is found in the first line of Chapter 3 of James Joyce’s Ulysses:
Ineluctable modality of the visible: at least that if no more, thought through my eyes. Signatures of all things I am here to read, seaspawn and seawrack, the nearing tide, that rusty boot. Snotgreen, bluesilver, rust: coloured signs. Limits of the diaphane. But he adds: in bodies. Then he was aware of them bodies before of them coloured. How? By knocking his sconce against them, sure. Go easy. Bald he was and a millionaire, maestro di color che sanno*. Limit of the diaphane in. Why in? Diaphane, adiaphane. If you can put your five fingers through it it is a gate, if not a door. Shut your eyes and see.
Based on the above, it is understandable why many people give up on Ulysses upon encountering chapter. Chapter 3 is commonly referred to as Proteus, although Joyce did not assign names to his chapters. Proteus was a minor Greek deity who could change his shape. In Book 4 of Homer’s Odyssey, Menelaus relates to Telemachus how he escaped from Egypt while pinning Proteus down. The Odyssey is the substrate for Joyce’s Ulysses (the Latin form of Odysseus). The DLx authors are obviously aware of this connection because they begin their paper with an excerpt from Book 4 of the Odyssey.
The ineluctable modality of the visible describes how the sense of sight involves seeing things nebeneinander (side by side or simultaneously). In Chapter 3, Joyce contrasts this with ineluctable modality of the audible which involves hearing things nacheinander (one after another or successively).
*The master of those who know. The phrase is from Book 4 of Dante’s Inferno and is a reference to Aristotle. Those who know are philosophers.