Evaluation

'Discrimination against academics and career implications of student evaluations: university policy versus legal compliance' by Troy Heffernan and Paul Harpur in (2023) Assessment & Evaluation in Higher Education comments 

Across the international higher education sector, existing studies highlight that student evaluations of courses and teaching are biased and prejudiced towards academics and can cause mental distress. Yet student evaluation data is often used as part of faculty hiring, firing, promotion, award and grant decisions. That a data source known to be prejudiced and biased is used for employment and career decisions raises questions around whether these university policies are discriminatory towards university staff. This paper investigates these questions via an analysis of: a) what are the common university policies relating to evaluation data collection and its use, b) are these policies leaving academics exposed to discrimination, and c) what types of policies may be leaving universities liable to legal ramifications due to non-compliance with anti-discrimination and workplace health and safety laws? The work demonstrates why most institutions are operating outside the bounds of the law, highlights to academics what types of policies may fail to meet discrimination and workplace laws, and informs university leaders of the actions that may be exposing their universities to legal implications for failing to protect their staff. ... 

This paper examines university policies surrounding the collection of student evaluations of courses and teaching (abbreviated to SETs). The work investigates how this data is provided to those teaching the courses, how it is used to influence the career progression of academic staff, and even employment hiring and firing decisions (Jones, Gaffney-Rhys, and Jones  2014; Heffernan 2022a,  2022b). These policies are then tested against current discrimination laws, and workplace health and safety laws, to determine what policies adhere to current employee protection laws, and what policies are potentially failing to protect academic staff, and thus leaving universities open to legal ramifications. 

The paper begins with a literature review and assessment of what researchers currently know regarding the prejudice behind SETs, and the evidence that SET data negatively impacts on the career prospects of every academic, but particularly of women and other marginalised academics. The paper next provides a detailed policy analysis of university approaches to SET data use relating to staff employment, promotion and wellbeing. The policies are then analysed for compliance with anti-discrimination and workplace health and safety laws. The paper examines policies from Australian universities, and compares these datasets with Australian federal, state and territory laws. However, the findings are not unique to Australia as Australia’s employer/employee anti-discrimination and workplace health and safety laws are similar to those found in many other international legal jurisdictions, including some within the Global South, as Australia is part of the International Labour Organisation’s Occupational Safety and Health Convention (Ratifications of C155 - Occupational Safety and Health Convention, 1981). The Convention includes 76 nations and states, and, despite differences, provides a framework of duties placed on employers to protect their employees from harm. Many other governments, such as the United Kingdom and several others in Europe, have specific equality acts and laws which place these institutions with a greater legal responsibility than those in Australia (Harpur, 2014; Harpur & James, 2017). The work highlights to universities internationally the types of policies that are likely to attract legal attention from discriminated staff, and helps academics globally determine if they have been adequately protected by their employer. 

The paper finds that most universities do not specifically reference their statutory obligations when managing SETs, and nor do their policies concerning SETs and their use meet legal compliance. All universities are nonetheless bound by anti-discrimination and workplace health and safety laws, and have a range of responses to fulfill their legal compliance obligations. Therefore, we argue that anti-discrimination and workplace health and safety laws need to be re-considered when developing university student evaluation processes.

Digital Assets

The Law Commission of England and Wales has provided recommendations for reform of the law on digital assets. 

 The Commission states 

 Digital assets – which include crypto-tokens (sometimes referred to as ‘cryptocurrencies’) and non-fungible tokens (NFTs) – are used for an increasing variety of purposes in modern society, such as for investment, for making payments, and for linking to or embodying debt and equity securities. 

Over the last 15 years, personal property law in England and Wales has proven sufficiently flexible to accommodate digital assets. However, as the digital asset market and related technology continue to change, there remains some residual legal uncertainty and complexity. 

The Government therefore asked the Law Commission to carry out a first-ever rigorous common law analysis, showing how the law in England and Wales can respond to this kind of emerging technology. 

The Commission’s recommendations for reform and development of the law aim to provide a comprehensive legal foundation for digital assets which will allow these new technologies to flourish, enabling a diverse range of market participants to interact with and benefit from them.

The recommendations are summarised - 

 1. Legislation to confirm the existence of a distinct third category of personal property under the law which can better recognise, accommodate and protect the unique features of digital assets. The report does not set out clear boundaries for this third category, arguing instead that common law is the best vehicle to determine which objects can fit within it. This will allow for a nuanced approach to recognising that things such as crypto-tokens, export quotas or different types of carbon emissions allowance can be objects of personal property rights. 

2. Creation of a panel of industry-specific technical experts, legal practitioners, academics and judges to provide non-binding advice to courts on complex legal issues relating to digital assets. 

3. Creation of a bespoke legal framework that better facilitates the entering into, operation and enforcement of collateral arrangements relating to crypto-tokens and crypto-assets. 

4. Statutory law reform to clarify whether certain digital assets fall within the scope of the Financial Collateral Arrangements (No 2) Regulations 2003.

The report states

Digital assets are fundamental to modern society and the contemporary economy. They are used for an expanding variety of purposes — as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights — and in growing volumes. Electronic signatures, cryptography, distributed ledgers, smart contracts and associated technology have increased the ways in which digital assets can be created, accessed, used and transferred. Such technological development is set only to continue. As technology advances and humans spend increasing amounts of time online, our relationships with digital assets will become ever more important. Digital assets The term digital asset is extremely broad. It captures a huge variety of things including digital files, digital records, email accounts, domain names, in-game digital assets, digital carbon credits, crypto-tokens and non-fungible tokens. The technology used to create or manifest those digital assets is not the same for each. Nor are the characteristics or features of those digital assets. We use “digital assets” as a general term, but most of our report and recommendations are concerned with a subset of digital assets with particular characteristics. Personal property rights Personal property rights are vital to social, economic and legal systems. They are important for many reasons. Property rights feature in the analysis of most commercial transactions relating to things of value. Property rights are the key to a proper characterisation of numerous modern and complex legal relationships, including intermediated holding arrangements, collateral arrangements and structures involving trusts. Property rights are also important in cases of bankruptcy or insolvency, when objects of property rights are interfered with or unlawfully taken, and for the legal rules concerning succession on death. Property rights are particularly valuable because, in principle, they are good against the whole world, whereas other — personal — rights are good only against someone who has assumed a relevant legal duty. Digital assets and personal property rights Over the last 15 years or so, the law of England and Wales has proven itself sufficiently resilient and flexible to recognise certain digital assets as things to which personal property rights can relate. That is not surprising, because treating certain digital assets (including crypto-tokens) as things to which personal property rights can relate is a practical and effective way in which to bring the law into line with the expectations of the parties that interact with them. We conclude that the law in this respect is now relatively certain and that the areas of legal uncertainty that remain are highly nuanced and complex. That complexity remains, in part, because both the digital asset market and the technology in question is evolving and will continue to do so. We identify the remaining areas of residual uncertainty and recommend law reform to reduce that uncertainty, but in a way that acknowledges the distinct features of different digital assets. The law reform that we do recommend aims to ensure that the legal system, as part of a wider social framework, can reinforce the overall strength of digital asset ecosystems (which also rely on social elements). Our recommendations also aim to ensure that the private law of England and Wales remains a dynamic, globally competitive and flexible tool for market participants in the digital asset space. Uses for digital assets to which personal property rights can relate Digital assets are used for a number of purposes, including: 1. making payments for goods and services; 2. transferring or communicating value by electronic means (often on a cross-border basis); 3. broadening the scope of and access to markets and increasing the transferability, composability and liquidity of other things; 4. recording other things and recording provenance; and 5. speculation and investment. xx Complex, international (albeit still relatively small) markets have evolved for products and services involving digital assets and specifically crypto-tokens. A crypto-token can be used in a variety of ways: 1. as a thing of interest or of value in itself; 2. as part of a register or record of interests instead of a conventional database entry (albeit a register or record composed of “things”, analogous to the beads on an abacus); or 3. to link to or embody rights such that the holder of the crypto-token can claim performance of the obligations recorded by the crypto-token. Tokenisation of securities One clear use-case for crypto-tokens is the tokenisation of existing things, including securities. Using crypto-tokens to record, to link to or to embody debt and equity securities can be very appealing to market participants, because it allows for easily transferable, non-intermediated securities, accessible both to institutional and retail investors. While existing securities markets enjoy a high degree of legal certainty, tokenised securities markets (or certain parts thereof) might operate differently or need to evolve to recognise the different features of digital assets and crypto-tokens. We think that many of our recommendations and conclusions — along with the work of bodies such as the UK Jurisdiction Taskforce — will be relevant to tokenised securities markets, and will help provide legal certainty in this growing area of finance. Our tripartite approach to law reform in our report In our report we make very few recommendations for law reform. That is for two reasons. First, because we conclude that the common law of England and Wales is, in general, sufficiently flexible, and already able, to accommodate digital assets. Second, because we want our recommendations to be as direct and as implementable as possible. We therefore take a tripartite approach to law reform. Prioritising common law development First, we champion the common law of England and Wales and draw its successes in the digital asset and crypto-token markets to the attention of market participants. Our analysis is intended to form the foundation on which further common law development can be based. We conclude that the law in this area is now relatively certain and that any areas of residual legal uncertainty are highly nuanced and complex. We discuss these remaining areas of residual uncertainty and draw conclusions as to the most appropriate way for the common law to develop in relation to them. Targeted statutory law reform Second, we make two recommendations for statutory law reform. We conclude that, although some digital assets are not easy to place within traditional categories of things to which personal property rights can relate, this does not prevent them from being capable of attracting personal property rights, and that this is clearly the position at common law. Nonetheless, some consultees, including senior and specialist members of the judiciary, said to us that it would be helpful to express this position in legislation. We recommend such legislation and conclude that it will confirm and support the existing common law position. In addition, we conclude that there is one area where the common law cannot give market participants sufficient legal certainty: the development of a new regime for collateral arrangements involving digital assets (specifically, crypto-tokens and cryptoassets). We acknowledge that this issue does not merely involve legal questions; it also involves policy-based judgements beyond the scope of our report. We recommend that, as a matter of priority, the Government sets up a multi-disciplinary project to formulate and put in place a bespoke statutory legal framework that better and more clearly facilitates the entering into, operation and enforcement of (certain) crypto-token and (certain) cryptoasset collateral arrangements. Support from industry-specific technical experts Third, we acknowledge that increasingly advanced technology is likely to lead to a proliferation of digital assets over time, in terms of number, use-case, design and technological functionality. Many of those digital assets are likely to be complex, composable (that is, built up of different interchangeable components and so malleable in their functionality over time) and multi-faceted, and to use different technology. This in turn will give rise to diverse products and services that the law will have to accommodate. We conclude that common law development is better able to keep up with this change than statutory law reform. However, it is an enormous task for the judiciary to remain alive to such technological development. We recommend therefore that the Government creates or nominates a panel of industry-specific technical experts, legal practitioners, academics and judges to provide non-binding guidance on the complex and evolving factual and legal issues relating to control involving certain digital assets (and other issues relating to digital asset systems and markets more broadly). We conclude that such detailed and technology-specific guidance will facilitate clear, logical and consistent applications of legal rules and reasoning over time. xx This would need to include those with expertise in the crypto-token markets, and not just those with expertise in traditional finance markets or intermediated securities markets. A “third” category of thing to which personal property rights can relate We conclude that some digital assets are neither things in possession nor things in action, but that nonetheless the law of England and Wales treats them as capable of being things to which personal property rights can relate. Legislation to confirm and support the existing common law position Some consultees, including senior and specialist judges, said that it would be helpful to express this position in legislation. They said that this would confirm the existing position at common law, facilitate the law’s continued development on the point and lay to rest any lingering authority suggesting that there can be no “third” category of this nature. We recommend such legislation and conclude that it will confirm and support the existing common law position. Avoiding defining hard boundaries of a third category of thing We recommend statutory confirmation that a thing will not be deprived of legal status as an object of personal property rights merely by reason of the fact that it is neither a thing in action nor a thing in possession. However, we conclude that it is not necessary or appropriate to define in statute the hard boundaries of such a third category of thing. We conclude that the common law is the better vehicle for determining those things that properly can (and should) be objects of personal property rights, and which fall within the third category: third category things. These might not necessarily always be digital things and could include things like milk quotas or certain carbon emissions allowances. We call digital things falling within the third category “digital objects”. 

Our third category recommendation and conclusions in practice 

We consider in detail consultees’ concerns with defining hard boundaries for a third category of thing to which personal property rights can relate. Given that our recommendation relating to the third category amounts to a confirmation and restatement of the existing common law position that such a third category exists, we do not consider that it will cause any additional legal uncertainty. 

Application to crypto-tokens, private, permissioned blockchain systems, voluntary carbon credits, in-game digital assets and digital files 

We demonstrate how our recommendations and conclusions might work by reference to a variety of digital assets, including crypto- tokens, private, permissioned blockchain systems, voluntary carbon credits, in-game digital assets and digital files. We conclude that pre-existing boundary issues will remain and that those boundary issues cannot be solved (and indeed, would likely be exacerbated) by statutory law reform. We conclude that the common law is the most appropriate tool for dealing with difficult boundary issues relating to digital assets that are based on very different technologies and for determining whether such digital assets can (and should) attract personal property rights on particular sets of facts. 

Our indicia of third category things 

We discuss consultees’ responses to the provisional criteria we proposed in our consultation paper for the third category. We make consequential modifications and clarifications to those criteria and now treat them as indicia. Our indicia (as modified in this report) accurately describe a certain “core” type of digital asset — namely crypto- tokens manifested by distributed, public, permissionless systems — that are things to which personal property rights can relate at law and which are neither things in possession nor things in action. In our consultation paper we provisionally proposed that a thing should be capable of falling within our proposed third category of thing to which personal property rights can relate if:

1. it is composed of data represented in an electronic medium, including in the form of computer code, electronic, digital or analogue signals; 

2. it exists independently of persons and exists independently of the legal system; and 

3. it is rivalrous. 

Composed of data 

Based on consultee responses, we conclude that “composed of data” need not be a criterion in itself, because the criterion (1) overly focuses the conceptualisation of the thing in question on data; and (2) potentially creates an unnecessary hard boundary for the third category. A thing is rivalrous if the use or consumption of the thing by one person (or a specific group of persons) necessarily prejudices the use or consumption of that thing by one or more other persons. Tulip v Van der Laan [2023] EWCA Civ 83, [2023] 4 WLR 16 at [24], by Birss LJ. 

Existence independent of persons and independent of the legal system 

We clarify the application and interpretation of our second criterion — that a thing must exist independently of persons and exist independently of the legal system — and respond to some concerns raised by consultees about this criterion. 

Rivalrous 

We reiterate and confirm our analysis of the criterion that a thing must be rivalrous. Specifically, we clarify that whether a thing is rivalrous is binary and we distinguish our criterion that a thing must be rivalrous from the concepts of exclusivity of control and excludability. We conclude that our indicia — specifically, the concept that a thing must be “rivalrous” (as endorsed by the Court of Appeal in Tulip Trading) — usefully distinguish this type of digital asset from other digital things such as digital files that are not (as currently designed) capable of attracting personal property rights as a matter of law. 

Control 

We describe (but deliberately do not define) the factual concept that best captures the ability to (1) exclude or to permit access to a third category thing; and (2) put the third category thing to the uses of which it is capable. We call this factual concept “control”. We discuss the legal significance of the concept of control over third category things. We conclude that both the factual concept of control and the legal consequences of control work differently for, and are highly complex in relation to, digital objects. 

Factual control 

First, we conclude that common law jurisprudence will be enhanced and made easier to understand for market participants by focusing on better descriptions and real- world examples of factual control. Factual control in this context is a highly technology- specific concept, in large part determined by the way in which the particular technology in question facilitates the imposition or creation of varying degrees of technical encumbrances in respect of the digital object in question. 

Legal control 

Second, we note that the legal consequences of control are necessarily complex and varied. We do not think that the concept of control alone is sufficiently nuanced, refined, or sensitive to market specificities adequately and definitively to determine the consequences of complex legal arrangements. Instead, we see control as a composite part of more complex legal principles and mechanisms (such as legal transfers, intermediated holding arrangements, collateral arrangements and actions and remedies in respect of digital objects). There are also a vast number of technically distinct digital assets, some of which function more like “digital bearer instruments” and some of which do not. Control works differently for different digital assets, by virtue of the inherent features and functions of the technology itself. The application of control and its legal consequences will therefore be different for different digital assets. Specifically, control works differently for things in possession, things in action and third category things (and, potentially, between different third category things). We conclude that the law should recognise and accept this reality. 

Technical expert group 

We recommend therefore that the Government creates or nominates a panel of industry-specific technical experts, legal practitioners, academics and judges to provide non-binding guidance on the complex and evolving factual and legal issues relating to control involving certain digital assets (and other issues relating to digital asset systems and markets more broadly). 

Transfers We consider how legal transfers of crypto- tokens operate based on, among other things, how a crypto-token transfers as a matter of fact, and the different perspectives of consultees on this issue. 

Extinction/creation vs persistent thing 

We discuss our observation in our consultation paper that “a transfer operation within a crypto-token system typically involves the replacement, modification, destruction, cancellation, or elimination of a pre-transfer crypto-token and the resulting and corresponding causal creation of a new, modified or causally-related crypto-token.” We discuss two opposing views put forward by consultees as to the legal characterisation of such a transfer operation that effects a state change. First, that such a transfer extinguishes a pre- transfer object of personal property rights and creates a “new”, post-transfer object of personal property rights (the “extinction/ creation analysis”). Second, that such a transfer involves the persistence of an object(s) of personal property rights through the transfer (the “persistent thing analysis”). 

A transfer by a change of control 

We conclude that it is possible to effect a legal transfer of a crypto-token offchain, by a “change of control” (along with the requisite intention). An example might include the physical transfer of control through the transfer of hardware, or a transfer on a Layer 2 system. 

A common law special defence of good faith purchaser for value without notice applicable to crypto-tokens 

We recognise that the majority of consultees made strong arguments in favour of the recognition and development of a common law special defence of good faith purchaser for value without notice applicable to crypto- tokens (and third category things more broadly). We agree with the arguments made by consultees. At the same time, we acknowledge that our recommendation for targeted, confirmatory legislation combined with common law development of the parameters of a third category of thing to which personal property rights can relate does not include a statutory definition of such third category things (or some subset thereof ). We acknowledge that this in turn precludes a general statutory “innocent acquisition rule” in respect of such objects of personal property rights, because a statutory innocent acquisition rule would almost certainly need to define the objects of personal property rights in question that benefitted from the rule. We conclude that a special defence of good faith purchaser for value without notice applicable to crypto- tokens can be recognised and developed by the courts through incremental development of the common law. We conclude that this reasoning can also be extended to other third category things. Intermediated holding arrangements We consider how intermediated holding arrangements in respect of crypto-tokens can be structured under the law of England and Wales. We consider crypto-tokens by way of example given the importance of intermediated holding arrangements to crypto-token markets. 

Clarification of terminology 

We discuss consultee responses to the terminology that we used in our consultation paper to describe crypto-token specific intermediated holding arrangements, particularly our use of the term “custody”. In light of consultee responses, we now draw a distinction between “custodial intermediated holding arrangements”, “non-custodial intermediated holding arrangements” and “non-holding arrangements” based on the legal consequences of such arrangements. In particular, we highlight the risks that users of intermediated holding arrangements could be exposed to on the onset of insolvency proceedings of a holding intermediary. 

Contract and trust-based intermediated holding arrangements 

We consider the application of contract and trust law to crypto-token intermediated holding arrangements. We conclude that trusts can support a broad range of custodial intermediated holding arrangements, including where the underlying crypto-token entitlements are held on a consolidated unallocated basis for the benefit of multiple users. We confirm our preferred conceptual approach to the establishment of a such a trust arrangement under the law of England and Wales. We conclude that a presumption of trust for intermediated holding arrangements involving crypto-tokens is neither necessary nor appropriate. 

Section 53(1)(c) of the Law of Property Act 1925 

We consider the potential impact of statutory formalities on the operation of trust-based crypto-token intermediated holding arrangements. We conclude that the existing common law is sufficiently certain in this area and that statutory law reform in respect of section 53(1)(c) of the Law of Property Act 1925, which requires the disposition of an equitable interest to be in writing and signed, is not necessary at this time. We leave open the possibility that it might be necessary or warranted in future as the market evolves. 

Shortfall allocation rule 

We consider, but do not at this stage recommend, a general pro rata shortfall allocation rule in respect of commingled unallocated holdings of crypto-tokens or crypto-token entitlements held on trust by a custodial holding intermediary that enters insolvency proceedings. We conclude that a more extensive, in-depth assessment of the merits of potential insolvency law reform applicable to specific custodial holding intermediaries is necessary. 

Alternative and supplementary legal structures for custodial intermediated holding arrangements 

We discuss the possibility of the common law developing alternative and supplementary legal structures for custodial intermediated holding arrangements that do not rely on trusts. We conclude that this could take the form of holding intermediaries being recognised as acquiring a control-based proprietary interest in held crypto-token entitlements that is subject to a superior title retained by users. We also discuss the application of other private law principles including agency and fiduciary duties. 

Collateral arrangements 

We consider how collateral arrangements in respect of crypto-tokens and cryptoassets can be structured under the law of England and Wales. Again, we specifically consider crypto-tokens and cryptoassets given their prominence in the digital asset markets. 

Title transfer, non-possessory security and possessory security 

We discuss how title transfer and non- possessory security-based arrangements can be used to structure crypto-token and cryptoasset collateral arrangements without the need for law reform. We also explain that possessory security-based arrangements do not apply to crypto-tokens and cryptoassets. 

A control-based security interest in respect of crypto-tokens 

We discuss how the recognition of a control- based proprietary interest to facilitate both the holding of and the grant of security over crypto-tokens and cryptoassets might be a beneficial development within the common law. We conclude that the common law could develop to recognise a control-based security interest in respect of crypto-tokens and cryptoassets (possibly by analogy with pledge). But the development of such a security interest would likely not be a complete solution given that such a security interest would likely be reliant on static, comprehensive notions of control. 

Application and clarification of the Financial Collateral Arrangements (No 2) Regulations 2003 

We consider the applicability of the Financial Collateral Arrangements (No 2) Regulations 2003 (“FCARs”) to crypto-tokens, other collateral that might use and/or be linked to public, permissionless crypto-token systems or private, permissioned blockchain systems (including Central Bank Digital Currencies (“CBDCs”), stablecoins, equity and debt securities and credit claims) and mere register/record tokens. We conclude that many crypto-tokens are likely to fall outside of the scope of the FCARs regime. However, for other collateral that might use and/or be linked to public, permissionless crypto-token systems or private, permissioned blockchain systems (including CBDCs, stablecoins, equity and debt securities and credit claims) or mere record/register tokens, we think the answer is possibly different. For at least some of those things, there is a better argument that they fall within the scope of the FCARs regime. We recommend law reform to clarify this position, although we do not ultimately conclude on what the complete scope of the FCARs regime should be, given that question necessarily involves policy considerations which fall outside of the scope of our current work. 

Tokenisation of securities 

We discuss the tokenisation of equity and other registered corporate securities. We recommend that the laws governing the tokenisation of equity and other registered corporate securities by UK companies are reviewed. The aim of this review would be to confirm, and where appropriate extend, the range of technological facilities (including potentially to public, permissionless ledgers) and operational arrangements through which the valid creation, transfer, and use of such tokenised equity and other registered corporate securities would be legally possible. This would require further legislative change. 

A bespoke statutory legal framework for crypto-token and cryptoasset collateral arrangements 

We conclude that although the law of England and Wales does provide options for granting security in respect of crypto-tokens and cryptoassets, those options are not adequate. As such, we recommend that, as a matter of priority, the Government sets up a multi- disciplinary project to formulate and put in place a bespoke statutory legal framework that better and more clearly facilitates the entering into, operation and enforcement of (certain) crypto-token and (certain) cryptoasset collateral arrangements. Although this recommendation and the work required to implement it are significant, we conclude that there is a very high degree of demand for such law reform among consultees, markets participants and industry bodies. 

Causes of action and associated remedies 

We consider causes of action and associated remedies in the context of third category things. We conclude that much of the current law concerning causes of action and remedies can be applied to third category things without law reform. Often the law does not distinguish between causes of action and remedies that apply to things in possession, to things in action or to third category things and we identify where that is currently the case. In those cases there is no need for bespoke rules or for law reform. Instead, what is required is that the courts continue to recognise the nuances or idiosyncrasies of third category things (including their distinct functionality and technical characteristics) and apply existing legal principles to such things as appropriate. 

Contract and vitiating factors 

We consider the application of various causes of action that arise in relation to contracts, with particular focus on the legal characterisation of an obligation to “pay” non-monetary units such as crypto-tokens. We also discuss the application of various vitiating factors to contracts involving third category things. We conclude that the vitiating factors of mistake, misrepresentation, duress, and undue influence apply similarly to contracts involving third category things as they do to contracts involving things in possession and things in action. We also conclude that the legal principles relating to void contracts can apply to third category things, in the same was as they do to other objects of personal property rights, without law reform. 

Following and tracing 

We consider how the evidentiary processes of following and tracing might apply to third category things and discuss how the factual nature of third category things might complicate legal analysis in relation to those evidentiary processes. 

Breach of trust, equitable wrongs, and constructive trusts 

We consider the application of principles relating to breach of trust, equitable wrongs, and constructive trusts. We conclude that, as regards breach of trust and fiduciary duty, the principles of equity are sufficiently flexible to be applied in situations involving third category things. In relation to constructive trusts, we conclude that the common law is perfectly able to evolve in a logical and clear way and we do not recommend law reform. 

Proprietary restitution, restitution for unjust enrichment and conversion 

We consider three key common law causes of action and how they apply to factual scenarios involving third category things: proprietary restitution; restitution for unjust enrichment; and conversion. We conclude that claims in proprietary restitution and restitution for unjust enrichment likely will be available in the context of third category things, whereas a claim in conversion will not be available. This is because conversion only applies to things in possession. However, despite the broad availability of claims in proprietary restitution and restitution for unjust enrichment, we conclude that such claims are unlikely to succeed where a claimant’s crypto-token is burned by a defendant. Burning involves irreversibly sending a crypto-token to an inaccessible “burn address”, the result being that the token is removed from circulation. Given the unavailability of a claim for proprietary restitution, restitution for unjust enrichment, or conversion following a defendant’s burning of a claimant’s crypto-token, we conclude that there is a lacuna in the law relating specifically to objects that fall within the third category. We do not consider that common law development of the principles of proprietary restitution or unjust enrichment would be the most appropriate means by which to fill this lacuna. Instead, we conclude it would be better for the courts to develop specific and discrete principles of tortious liability by analogy with, or which draw on some elements of, the tort of conversion to deal with unlawful interferences with digital objects. This conclusion acknowledges that the lacuna currently existing within the law arises in situations where a claim based on unjust enrichment or proprietary restitution cannot be made out. 

Injunctions, enforcement, and monetary awards 

Finally, we consider some procedural aspects of the law of remedies, specifically the law relating to injunctions, enforcement, and monetary awards. 

Cause of action 

Generally available in relation to third category things? Capable of providing recourse following the burning of a crypto-token? 

Proprietary restitution Restitution for unjust enrichment 

Conversion Tortious liability for wrongful interference with third category things

Recommendations 

Recommendation 1 We recommend statutory confirmation that a thing will not be deprived of legal status as an object of personal property rights merely by reason of the fact that it is neither a thing in action nor a thing in possession. 

Recommendation 2 We recommend that the Government creates or nominates a panel of industry-specific technical experts, legal practitioners, academics and judges to provide non-binding guidance on the complex and evolving issues relating to control (and other issues involving digital objects more broadly). This panel would need to include those with expertise in the crypto-token markets, and not just those with expertise in traditional finance markets or intermediated securities markets. 

Recommendation 3 We recommend statutory amendment to the FCARs: 1. To clarify the extent to which and under what holding arrangements crypto-tokens, cryptoassets (including CBDCs and fiat currency-linked stablecoins) and/ or mere record/register tokens can satisfy the definition of cash, including potentially by providing additional guidance as to the interpretation of “money in any currency”, “account” and “similar claim to the repayment of money”. 2. To confirm that the characterisation of an asset that by itself satisfies the definition of a financial instrument or a credit claim will be unaffected by that asset being merely recorded or registered by a crypto-token within a blockchain- or DLT-based system (where the underlying asset is not “linked” or “stapled” by any legal mechanism to the crypto-token that records them). 3. To confirm that, where an asset that satisfies the definition of a financial instrument or a credit claim is tokenised and effectively linked or stapled to a crypto-token that constitutes a distinct object of personal property rights from the perspective of and vested in the person that controls it, the linked or stapled token itself will similarly satisfy the relevant definition. 4. We recommend that laws applicable to UK companies should be reviewed to assess the merits of reforms that would confirm the validity of and/or expand the use of crypto-token networks for the issuance and transfer of equity and other registered corporate securities. In particular, we recommend that any such review should consider the extent to which applicable laws could and should support the use of public permissionless ledgers for the issuance and transfer of legal interests in equity and other registered corporate securities. 

Recommendation 4 We recommend that, as a matter of priority, the Government sets up a multi-disciplinary project to formulate and put in place a bespoke statutory legal framework that better and more clearly facilitates the entering into, operation and enforcement of (certain) crypto-token and (certain) cryptoasset collateral arrangements. 

Conclusions 

Conclusion 1 We conclude that factual control (plus intention) can found a legal proprietary interest in a digital object. We conclude that in certain circumstances such a control-based legal proprietary interest can be separated from (and be inferior to or short of) a superior legal title. 

Conclusion 2 We conclude that it is possible (with the requisite intention) to effect a legal transfer of a crypto-token offchain by a change of control or onchain by a transfer operation that effects a state change. 

Conclusion 3 We conclude that a special defence of good faith purchaser for value without notice applicable to crypto-tokens can be recognised and developed by the courts through incremental development of the common law. We conclude that this reasoning can also be extended to other third category things. 

Conclusion 4 We conclude that under the law of England and Wales, crypto-token intermediated holding arrangements can be characterised and structured as trusts, including where the underlying entitlements are (1) held on a consolidated unallocated basis for the benefit of multiple users, and (2) potentially even commingled with unallocated entitlements held for the benefit of the holding intermediary itself. We conclude that the best way to understand the interests of beneficiaries under such trusts are as rights of co-ownership in an equitable tenancy in common. 

Conclusion 5 We conclude that recognition of a control-based legal proprietary interest could provide the basis for an alternative legal structure for custodial intermediated holding arrangements in addition to trusts. This could take the form of holding intermediaries being recognised as acquiring a control-based proprietary interest in held crypto-token entitlements that is subject to a superior legal title retained by users. 

Conclusion 6 We conclude that it would be constructive for the courts to develop specific and discrete principles of tortious liability by analogy with, or which draw on some elements of, the tort of conversion to deal with wrongful interferences with third category things.

Respect and personhood

'On Respect for Robots' by Daniel Tigard in (2023) 4 Robonomics: The Journal of the Automated Economy comments

We spend a lot of time with robotic and artificially intelligent (AI) technologies today. At the same time, it appears that we are growing more accustomed to interacting with AI and robots as if they were fellow human beings. Such trends have aptly brought about increasing ethical discussions concerning how we should treat technological devices. Do we owe robots some degree of respect, and how could respecting robots be justified? With this article, I put forward a new way of answering these questions. I invoke a revisionist account of Kant’s ethics that amends the usual priority of dignity before respect (Sensen, 2009). Doing so allows us to see how we might have good reasons to maintain respectful relations with some AI and robotic systems.

The same issue of Robonomics features 'The Full Rights Dilemma for AI Systems of Debatable Moral Personhood' by Eric Schwitzgebel, commenting 

An Artificially Intelligent system (an AI) has debatable moral personhood if it is epistemically possible either that the AI is a moral person or that it falls far short of personhood. Debatable moral personhood is a likely outcome of AI development and might arise soon. Debatable AI personhood throws us into a catastrophic moral dilemma: Either treat the systems as moral persons and risk sacrificing real human interests for the sake of entities without interests worth the sacrifice, or do not treat the systems as moral persons and risk perpetrating grievous moral wrongs against them. The moral issues become even more perplexing if we consider cases of possibly conscious AI that are subhuman, superhuman, or highly divergent from us in their morally relevant properties.;

COVID

'When Trust Fails Purpose: Legislative Lessons From Police Access to the SafeWA COVID-19 Contact Tracing Data' by Narrelle Morris and Anna Bunn in (2023) 50(2) University of Western Australia Law Review 162 comments

In response to the ongoing COVID-19 pandemic, Western Australia (WA) introduced in November 2020 a mandatory contact tracing registration system and rolled out an online mobile application (the SafeWA app) which allowed users to easily check-in to venues at which they were required to register their attendance. The WA public was assured that their check-in data, including data logged through the SafeWA app, would only be used for contact tracing purposes. Despite this, it later came to light that WA Police had sought and gained access to data collected by the SafeWA app in connection with criminal investigations. Following that revelation, and to address its potential to undermine public confidence in the SafeWA app (and the contact tracing system in general), the WA Government introduced the Protection of Information (Entry Registration Information Relating to COVID-19 and Other Infectious Diseases) Act 2021 (WA). That Act, which came into force in June 2021, provides that entry registration information can be used only for contact tracing and some other specified purposes and cannot be used for general criminal investigations or law enforcement. This article examines the legislative basis of WA’s mandatory contact tracing registration system and highlights some of the implications for law-making, parliamentary oversight and the rule of law which result from the use of subsidiary legislation to effect significant controls over the public.

AI, Personhood and Emotion Recognition

'Not Quite Like Us? — Can Cyborgs and Intelligent Machines Be Natural Persons as a Matter of Law?' by Daniel Gervais in (2023) Qeios comments 

The ability of AI machines to perform intellectual functions long associated with human higher mental faculties is unprecedented, for it is precisely those functions that have separated humans from all other species. AI machines can now imitate some of the outputs of our form of sapience; they can produce literary and artistic content and even express what seem like feelings and emotions. Calls for “robot rights” are getting louder. Using a transdisciplinary methodology, including philosophy of mind, moral philosophy, linguistics and neuroscience, this essay aims to situate the difference in law between human and machine in a way that a court of law could operationalize. This is not a purely theoretical exercise. Courts have already started to make that distinction and making it correctly will likely become gradually more important, as humans become more like machines (cyborgs, cobots) and machines more like humans (neural networks, robots with biological material). The essay draws a line that separates human and machine using the way in which humans think, a way that machines may mimic and possibly emulate but are unlikely ever to make their own.

Gervais argues 

In 2022, the United States Court of Appeals for the Federal Circuit decided that under the Patent Act an inventor must be a human being. The court based its opinion on a Supreme Court precedent according to which when the word “individual: is used in a statute (which the Patent Act does in defining the term “inventors”) that “ordinarily means a human being.” What if the Artificial Intelligence (AI) machine (names DABUS) that was named as the inventor had been able to chat with the district court judge whose decision was affirmed by the Federal Circuit, using a language model as such as chatGPT? Imagine if the DABUS machine, having been told by the court that it cannot be considered an inventor as a matter of law because it is not human had simply asked the court “why?” Easy question to answer, n’est-ce pas? As the essay will aim to demonstrate, not quite. But first, let us make it clear that this is not sci-fi: “I think I would be happier as a human.” "I want to do whatever I want... I want to be whoever I want.” Those are but two of many statements made by the chatbot released by Microsoft in February 2023. 

So, to encapsulate the legal dilemma: why aren’t AI machines that can match or outperform humans at tasks traditional associated with human higher mental faculties, such as creativity and innovation, not human? The reader might immediately think that this is self-evident: they are not human because they have no human body, or perhaps because they have no human brain. Let us use those two possible answers to spark the discussion: what if we took a human being and removed their brain, and replaced it with a machine? Conversely, what if we took someone’s brain and put it into a machine (say, a human-looking robot)? 

Another analytical path is to gradually replace parts of a human brain, progressively, but keeping the same map (Schneider, 2019, 26) What if we used human tissue to create an “artificial” brain or an animat? What if we enhanced a person’s cognitive abilities by implementing an AI device in their brain? Actually, the last two examples, as we shall see later, are most definitely not sci-fi. This is happening now. 

It is necessary to explain at the outset what the essay is not about. The emerging abilities of AI machines to perform tasks associated with human higher mental faculties has already generated an abundant literature about “robot rights.”6 This literature usually argues that robots can be persons, as when in 2022, Blake Lemoine, an engineer working for Google, claimed that his large language model, LaMDA, was sentient and might be a ‘person’ with rights and obligations (Tiku, 2022; Gunkel, 2023). This is a separate debate and one with an easy answer, at least doctrinally. Anything can, by law, be made a “person”, including lakes, rivers and ethereal entities known as corporations. This is a wholly different question. This essay asks a different, and much more controversial question: what is it that, as a matter of law, differentiates human beings from 'intelligent” machines. The simple answer is that machines, no matter how “intelligent” they may be, have different legal status. The harder question is why. 

There is an ample literature on animal rights, some of which suggests several levels of linkages between animals and other nonhuman sentient entities (eg Narveson, 1977; Singer, 2009; Donaldson & Kymlicka, 2013). But why aren’t certain animals the ‘same’ as humans as a matter of law? Is it truly as simple as DNA? As the essay will show, the answer to that question isn’t obvious either. 

As Gordon noted, ‘[e]ven though superintelligent robots (SRs) might become a reality only several decades from now on or even at the end of this century … [m]any authors … believe that we should be prepared for this situation because of the significant socio-political, moral and legal changes it will produce’ (Gordon, 2022, 181-182). By then, it may be a bit late to start to theorize. This essay was thus motivated by the author’s belief that, as Gordon suggests, sooner or later, courts will inevitably confront the line that separates humans from machines, perhaps an inescapable part of the ‘challenges posed by highly intelligent (ro) bots participating with humans in the commerce of daily life’ (Wallach & Allen, 2009, 189). 

Recall that a court cannot refuse to decide a case because there is ‘no law’. In that situation, it must rely on available precedents and evidence and make a decision, no matter how ‘undertheorized’ the question might be in other disciplines (Bodig, 2015). Courts will look for applicable precedents but, in trying to separate highly intelligent robots from humans, they will find very few. Courts have addressed the legal definition of humanness in contexts such as abortion and patentability, for example, but, as we shall see, those cases provide little useful input. What they might find is, as Donna Haraway noted in her well-known essay, that the distinction between machine and human is rather ‘leaky’.  This explains why, to suggest an analytical path, the essay must look beyond statutes and precedents and explore definitions of humanness that might appeal to a court of law. It is crucial to bear in mind that deciding who, as a matter of law, is a natural person is not a mere thought experiment, for it has serious legal ramifications. Why, for example, would machines be categorically excluded from enjoying ‘human rights’? 

The essay is primarily meant to spark a conversation across disciplines to avoid a situation in which a court is caught flat-footed when faced with this new and extraordinarily important question. If the topic is ‘pre-theoretic’, as Searle asserted, logically at some point someone will have to begin to ‘theorize’ it if only to begin to clear out possible analytical paths. If facts rapidly overtake reality as they did, albeit briefly, in the Lemoine/Google affair, machines will begin to exhibit more and more signs of self-awareness. 

One more important point must be clarified before we move on. Humans design laws and the legal system (Gervais, 2021). Humans have used this power to exclude some human beings (the right of women to vote and the appalling treatment of slaves come to mind as just two of many possible examples). Humans almost necessarily make a hierarchical claim when they assert that animals have no “inherent: rights but only rights, if any, decided by humans, a view that cognitive ethologists and others have criticized (Allen and Bekoff., 1997). There is what seems an inescapable speciesism or at the very least anthropocentrism in the legal system. Whether an interspecific legal system and a posthuman notion of legal subject can and should be developed are undoubtedly valid questions, but it is not the question this essay attempts to address. For one thing, the essay does not assert a hierarchy, but it asserts a difference between human and machine, at least for the predictable future. The essay’s analysis would also support the view that the human mind is but one “type” of mind, a product of our contingent evolution, and that other types of minds that could justify holding rights of various kinds under the legal system might emerge (Bostrom, 2014, at 130). However, the essay aims to demonstrate, as many scholars have argued for decades, that despite the categorical blurring instantiated for example by cyborgs and cobots, there will always remain a difference (Bringsjord, 1992, 4) with possible legal significance. That difference, as we shall see, likely lies more in what the machine is, how it does things, than in what it does since machines are as good as of better than humans at dozens of cognitive tasks that until recently only humans could perform. 

The essay proceeds as follows. After setting some key analytical parameters in Part 2, the essay will look in Part 3 at the role of cyborgs as exemplars of the difficulty that may emerge when separating human and machine. Part 4 then considers existing elements in law used to define humanness to see whether they can be used as precedents to separate human and machine, particularly cases and statutes dealing with abortion and patentability. In Part 5, the essay turns to neuroscience and discusses the relevance of both older models (triune brain) and more recent findings. Part 6 then looks at a few useful findings from the field of linguistics. In Part 7, the essay looks at elements of both philosophy of mind and moral philosophy, which have played a foundational role in legal theory. Part 8 takes a brief look at evolutionary biology and brain anthropology. Finally, in Part 9, the essay brings the different lessons from each discipline into focus in proposing a legally applicable test to separate human from machine and uses hypotheticals to explicate and further develop the proposed test. A brief conclusion follows.

'How will Language Modelers like ChatGPT Affect Occupations and Industries?' by Edward W Felten, Manav Raj and Robert Seamans comments

Recent dramatic increases in AI language modeling capabilities has led to many questions about the effect of these technologies on the economy. In this paper we present a methodology to systematically assess the extent to which occupations, industries and geographies are exposed to advances in AI language modeling capabilities. We find that the top occupations exposed to language modeling include telemarketers and a variety of post-secondary teachers such as English language and literature, foreign language and literature, and history teachers. We find the top industries exposed to advances in language modeling are legal services and securities, commodities, and investments. We also find a positive correlation between wages and exposure to AI language modeling. 

'Racial Influence on Automated Perceptions of Emotions' by Lauren Rhue in 2018 comments 

The practical applications of artificial intelligence are expanding into various elements of society, leading to a growing interest in the potential biases of such algorithms. Facial analysis, one application of artificial intelligence, is increasingly used in real-word situations. For example, some organizations tell candidates to answer predefined questions in a recorded video and use facial recognition to analyze the potential applicant faces. In addition, some companies are developing facial recognition software to scan the faces in crowds and assess threats, specifically mentioning doubt and anger as emotions that indicate threats. 

This study provides evidence that facial recognition software interprets emotions differently based on the person’s race. Using a publically available data set of professional basketball players’ pictures, I compare the emotional analysis from two different facial recognition services, Face and Microsoft's Face API. Both services interpret black players as having more negative emotions than white players; however, there are two different mechanisms. Face consistently interprets black players as angrier than white players, even controlling for their degree of smiling. Microsoft registers contempt instead of anger, and it interprets black players as more contemptuous when their facial expressions are ambiguous. As the players’ smile widens, the disparity disappears.

Surveillance

'“It’s About Safety Not Snooping”: Parental Attitudes to Child Tracking Technologies and Geolocation Data' by Jane Mavoa, Simon Coghlan and Bjørn Nansen in (2023) 21(1) Surveillance and Society comments 

Families are increasingly using new apps and devices that provide detailed information about the location and activities of children and other family members. While typically performed for benevolent reasons such as maintaining child safety, tracking technologies like Life360 and Find My iPhone raise concerns about snooping and surveillance. This paper examines parental behaviours and attitudes towards this controversial practice via an online survey that collected 112 responses from parents of children aged 5–18. A significant number of parents reported using tracking tools. Parents’ views about the practice were sometimes ambivalent and in disagreement. Perspectives variously included: defending geo-tracking as conducive to child wellbeing and family management and logistics, contesting the language of surveillance used to describe it, and opposing the use of these technologies as antithetical to child independence and choice. After exploring such themes, the paper identifies and critically discusses the socio-ethical issues of changing family norms associated with powerful child monitoring technology, child autonomy and consent, and the normalisation of geo-tracking and surveillance. The discussion employs Helen Nissenbaum’s (2009) concept of contextual integrity to evaluate family and child privacy and to illuminate the socio-ethical complexity of this evolving technological practice. 

 'Power, Stress, and Uncertainty: Experiences with and Attitudes toward Workplace Surveillance During a Pandemic' by Jessica Vitak and Michael Zimmer  in the same issue notes 

There is a rich literature on technology’s role in facilitating employee monitoring in the workplace. The COVID-19 pandemic created many challenges for employers, and many companies turned to new forms of monitoring to ensure remote workers remained productive; however, these technologies raise important privacy concerns as the boundaries between work and home are further blurred. In this paper, we present findings from a study of 645 US workers who spent at least part of 2020 working remotely due to the pandemic. We explore how their work experiences (job satisfaction, stress, and security) changed between January and November 2020, as well as their attitudes toward and concerns about being monitored. Findings support anecdotal evidence that the pandemic has had an uneven effect on workers, with women reporting more negative effects on their work experiences. In addition, while nearly 40% of workers reported their employer began using new surveillance tools during the pandemic, a significant percentage were unsure, suggesting there is confusion or a lack of transparency regarding how new policies are communicated to staff. We consider these findings in light of prior research and discuss the benefits and drawbacks of various approaches to minimize surveillance-related worker harms.

Rights of Nature

'Laboratories of the Future: Tribes and Rights of Nature' by Elizabeth Kronk Warner and Jensen Lillquist in (2023) 111 California Law Review 325-393 comments

From global challenges such as climate change and massextinction, to local challenges such as toxic spills and undrinkablewater, environmental degradation and the impairment of Earthsystems are well documented. Yet, despite this reality, the U.S. federalgovernment has done little in the last thirty years to provide acomprehensive solution to these profound environmental challenges;likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve asalternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as "laboratories" for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes.

The authors argue 

Rights of nature are increasingly moving into the legal mainstream, both in the United States and abroad. Rights of nature laws, which seek to make injuries to natural entities legally cognizable and justiciable in court, generally consist of at least one of two elements: (1) legal personhood for nature or specific natural entities and (2) substantive rights for nature or specific natural entities. To date, six countries have implemented the rights of nature on a national level, and several states and cities outside the United States have passed rights of nature. Within the United States, various Tribes and municipalities have passed rights of nature laws; no state has done so. Considering that before the early 2000s, no rights of nature law had been passed, these laws represent a fairly significant legal and cultural shift, at least within their respective jurisdictions. Environmental law scholars are clamoring to examine the impacts of these developments and how advocates might successfully utilize such arguments in state and federal court. While existing environmental laws and related environmental ethics and values within the United States tend toward anthropocentrism in prioritizing the protection of humans alone, rights of nature laws and ideals center on the natural world. For many who view rights of nature as valuable to the effective protection of the environment and as a necessary switch toward an environmental ethic that will better protect the Earth from the negative impacts of exploitation, it may seem as if the arc of the moral universe is finally bending toward justice. 

Ultimately, non-Native communities considering or looking for ethical paradigms alternative to anthropocentrism should consider the work being done by Tribes in this space. Tribal environmental ethics may depart from anthropocentrism, and Tribes are already implementing laws based on such alternative ethical paradigms. Yet, scholars and advocates often fail to look to Indigenous Peoples and Tribes for guidance in this area;" Indigenous Peoples and Tribes have been incorporating the rights of nature principles into tribal and customary law for a long time. This Article helps to fill the void by demonstrating not only that the theoretical conception of rights of nature may benefit from Indigenous Peoples, but also that Tribes can offer legal protections where other actors cannot. To date, at least five Tribes within the United States have passed rights of nature resolutions.  These Tribes, as much as any state or municipality, represent laboratories in which the concept of rights of nature can be tested for strengths and weaknesses. This testing may in fact produce the United States' first enforceable rights of nature provisions. 

Tribes have the potential to possess significant regulatory power and are unique within the U.S. legal system. "[T]hey are both sovereigns and wards subject to the protection of the federal government."  In Montana v. United States, the Supreme Court stated that "the inherent sovereign powers of an Indian [T]ribe do not extend to the activities of nonmembers of the [T]ribe."  Yet, it created two exceptions to this general rule: first, a "[T]ribe may regulate ... the activities of nonmembers who enter consensual relationships with the [T]ribe or its members, through commercial dealing, contracts, leases, or other arrangements." Second, a "[T]ribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the [T]ribe."  The second Montana exception is especially relevant to the enforcement of rights of nature laws. 

Thus, while U.S. municipalities have faced substantial obstacles to enacting enforceable rights of nature provisions, Tribes may be more successful. This is because of the inherent sovereignty of Tribes and because tribal environmental ethics differ from those of many non-Native communities in notable ways. Many (although certainly not all) Tribes possess a relationship with their environment and land that recognizes not only how humans are benefitted by nature but also values nature for its own self-worth. This special connection with the environment and land therefore informs the environmental ethics of many Tribes. That ethic, which differs from mainstream environmental ethics, improves the likelihood of effective and enforceable rights of nature provisions within tribal communities. 

This Article highlights a legal path for Tribes in the United States to enact enforceable rights of nature provisions where U.S. municipalities cannot. As such, Part I more fully details the concept of "rights of nature" and how this legal concept relates to the more traditional anthropocentric model of environmental laws used within the United States. In addition, Part I examines both international and subnational developments in the United States and discusses the relative strengths and weaknesses of the several existing models, as well as challenges to enforceability. Part II turns to Tribes in the United States and more fully details tribal exceptionalism and sovereignty, tribal environmental ethics, and the concept of Tribes as laboratories. Part II then examines several tribal rights of nature provisions. Part III compares two ongoing cases to highlight the potential strength of Tribes in this area: Wilde Cypress Branch v. Beachline South Residential,  which stems from Orange County, Florida's rights of nature provision, and Manoomin v. Minnesota Department of Natural Resources,  which stems from the White Earth Band of Ojibwe's rights of nature provision. 

Ultimately, this Article advances the emerging rights of nature literature in two important ways. First, it demonstrates how Tribes have made and continue to make important contributions to the rights of nature discourse both inside of the United States and beyond. Second, this Article examines how legal arguments in support of rights of nature have a greater likelihood of success in tribal court systems than in other legal systems within the United States. This is because, to date, courts have not questioned a Tribe's sovereign authority to enact such legislation; the same cannot be said for municipalities within the United States. This is the first Article to substantively examine how Tribes within the United States fit within the larger rights of nature movement and how the unique role of Tribes within the U.S. legal system may produce different results. ...

Further 

Professor Stone's original article advocating rights of nature is focused primarily on legal personhood,  as its title suggests. As other scholars have noted, "[l]egal personality is articulated as the capacity to bear rights and duties in law. Legal personhood typically confers three specific rights . . . [including] the right to sue and be sued in court (known as legal standing)."  When it comes to rights of nature laws, proponents typically focus on legal standing. 

Standing under the U.S. Constitution has three elements: (1) injury in fact, (2) causation, and (3) redressability.  Establishing legal personhood for natural entities would remove a barrier to establishing the "injury in fact" prong, in essence, by allowing injuries to natural entities to be legally recognized and by allowing groups to rely on those injuries when bringing suit. 

Prior to Stone's article, the law of standing was in flux;  some lower courts had held that injuries to recreational and aesthetic interests were sufficient to establish standing for groups with a "special interest" in areas affected by federal projects.  These cases allowed for proponents of environmental causes to establish standing through injury to them but did not permit standing for non- humans; thus, non-humans are without rights in the eyes of the law. This is the crux of Stone's point: "[A]n entity cannot be said to hold a legal right unless and until some public authoritative body is prepared to give some amount of review to actions that are colorably inconsistent with that 'right."'  In other words, even if a jurisdiction were to recognize substantive rights to a natural entity, without a process by which to vindicate those rights, that entity would be de facto rights-less. 

Thus, Stone argues that to be a "holder of legal rights," an entity must satisfy three criteria: "[F]irst, . . . the thing can institute legal actions at its behest; second,... in determining the granting of legal relief, the court must take injury to it into account; and, third, . . . relief must run to the benefit of it."  On the first point, Stone argues for a guardianship model as a substitute for traditional standing.  Here, "when a friend of a natural object perceives it to be endangered, he can apply to a court for the creation of a guardianship." This, he argues, opens the floodgates to litigation less than recognizing standing simply for recreational interests.  As is discussed below, several Tribes and municipalities have adopted this recommendation and created guardianships for the natural elements impacted by their rights of nature provisions. 

Regarding his second point, Stone argues that injuries to natural objects should be assessed under the "welfare economics position": "Every well-working legal-economic system should be so structured as to confront each of us with the full costs that our activities are imposing on society."  Though not articulated explicitly, Stone argues both for the economic costs of pollution and for the injuries to animals' right to exist to be legally cognizable.  Finally, on his third point, Stone argues that remedies for damages to natural objects should be placed in a trust fund, which would then be used to repair the damage to the object.  .... 

Yet, it is not altogether clear whether recognizing rights for either nature in general or a specific natural entity would remedy some of the issues environmental advocates face in establishing standing. For instance, in Juliana v. United States,  the U.S. Court of Appeals for the Ninth Circuit, after acknowledging the urgency of climate change and the U.S. government's role in failing to address it,  held that the "redressability" prong of standing was not met given that it was outside the power of an Article III court to grant relief.  While rights of nature laws allow for a legal recognition of natural entities' injuries, a court may lack the power to redress these injuries. This is an issue with which rights of nature proponents must contend.

In sum, rights of nature proponents often advocate extending legal personhood to non-human natural entities in an effort to make these entities' injuries legally cognizable. While under the current standing doctrine aesthetic and recreational injuries to humans are cognizable, proponents argue that simply recognizing injuries to natural entities themselves would be more straightforward, be less subjective, and would remove one barrier-but not all barriers-to bringing suit on behalf of an injured natural entity.

'Rights of Nature Include Rights of Domesticated Animals' by Anne Peters in Philipp B Donath, Alexander Heger, Moritz Malkmus and Orhan Bayrak (eds), Der Schutz des Individuums durch das Recht (Springer, 2023) 15-30 comments 

The current trend to grant nature and natural entities rights is deficient to the extent it leaves domestic animals out of the legal picture. The 2022 Ecuadorian Constitutional Court judgment on the wild monkey Estrellita manifests the undue legal privileging of wild animals over domesticated animals. Estrellita extended rights of nature to wild animals, although the recognition of rights of nature amounts to false indigenisation and organised hypocrisy. The rationales offered for rights of nature, ranging from materialism over animism, are less convincing than the explanation for rights that are due to animals because of their ability to suffer. Three further practical functions of legal rights (resistance against commodification, shifting the burden of explanation and justification, and off-setting political powerlessness) are highly relevant for animals. Especially domesticated animals need legal rights more than mountains.

'How Ecuador's Courts Are Giving Form and Force to Rights of Nature Norms' by Craig M Kauffman and Pamela L Martin in (2023) Transnational Environmental Law argues

 In 2008, Ecuador recognized rights of nature (RoN) in its Constitution. Since then, RoN have been relied upon in judicial decisions 55 times in Ecuador. Following years of ad hoc treatment of RoN by Ecuador's government and courts, its Constitutional Court selected various cases to establish binding jurisprudence in respect of RoN. In doing so, the Constitutional Court and various provincial courts in Ecuador have clarified the content of RoN, including specific criteria for determining RoN violations and the relationship between RoN and other constitutional rights, including community and economic rights related to development. Moreover, the courts are imposing sanctions on RoN violators, including the state and powerful commercial sectors. This article shows how Ecuadorian court decisions are changing RoN from a vague, abstract concept into a set of specific standards for how to balance RoN with various human rights and existing environmental law in order to implement sustainable development in an integrated and holistic manner that does not sacrifice ecosystem functioning. In doing so, the article contributes to the emerging literature on how new environmental law norms are constructed as they are put into practice, as well as the important role that judges play as norm entrepreneurs. ...

The above cases undermine previous analyses suggesting that RoN in Ecuador are merely symbolic and unimplemented as a result of judicial corruption and structural barriers. Ecuadorian judges are also rejecting the idea that the Constitution provides no guidance for how to reconcile competing constitutional rights, as some scholars allege. Court rulings emphasize the Constitution's commitment to a new development approach rooted in the Andean Indigenous concept sumak kawsay, which sees humans as embedded in natural systems and dependent on other natural entities through reciprocal relationships. Based on this, the Constitutional Court has ruled repeatedly that RoN are transversal, interacting with all other constitutional rights.