The rule of law is a public good; companies that damage it are imposing a negative externality on others for their own advantage, and should be penalised rather than rewarded.
Well, I called the SEC and they said they can't think of a way how these ICOs are not violating the Howey Test. Basically that in time, they be prosecuted.
So, those of us that decide that the potential for financial or criminal consequences is not with it miss out when it turns out all but the most egregious scams will get a pass.
Through my work we’ve been in contact with the SEC as well, a few times, and they are pretty clear on not stating any real absolutes unfortunately. We do more of the service side of things for the institutional space, however - so perhaps our questions were a bit different.
Well, yeah, exactly, but that's why it's the law. Stealing is a competitive advantage (for the thief), but a net negative for the society, which is why it's illegal and persecuted.
I agree with you, that the law should be as small as possible, but you're missing the second part (just as important IMO) - that the law (small as it should be) be enforced fully and applied fairly.