Federalism and Federalization on the Fintech Frontier

Brian Knight · 20 Vand. J. Ent. & Tech. 129

Abstract

The rise of financial technology (fintech) has the potential to provide better-quality financial services to more people. Although these enhanced financial services have arisen in order to meet consumer need, their regulatory status threatens that progress. Many fintech firms are regulated on a state-by-state basis even though their transactions are interstate, and they compete with firms that enjoy more consistent rules through federal preemption. This dynamic can harm efficiency, competitive equity, and political equity. This Article examines developments in marketplace lending, money transmission, and online sales of securities in an attempt to identify situations in which greater federalization of the rules may be justified. It also considers a situation in which the federal government should abstain from intervening, even if it has the right to do so. Whether the states or federal government should take the lead in regulating fintech is an emerging and important question whose answer will affect the financial lives of consumers and investors. This Article seeks to begin a conversation about how to determine whether federalism or federalization is appropriate.