NFTs

'The thousand-and-second tale of NFTs, as foretold by Edgar Allan Poe' by Johanna Gibson in (2021) 11(3) Queen Mary Journal of Intellectual Property 3249–269 comments 

Everything went virtual in 2020, which may or may not have created the perfect storm for the apparent eruption of non-fungible tokens (NFTs) in the mainstream press. Of course, NFTs had been around for several years before this but, in March 2021, seemingly all of a sudden and everywhere at once, they were occupying almost the entire news cycle. Everything was NFTs, which is not bad for something that is nothing. The application of NFTs has continued with considerable momentum in recent months, with NFTs entering high-profile art markets in sales at the top auction houses, including: Christie’s, who sold Beeple, the first NFT based on an art work; Sotheby’s; and Phillips. But NFTs are now well beyond the elite world of contemporary art and moving into the mainstream consumer environments of fashion, film, music, food, publishing, and even architecture. I too am so under their spell, so to speak, that I have even minted my own NFTs into this article ... in a manner of speaking. 

The current excitement has led to a proliferation of commentary and explication (of which this is merely the thousand-and-second), articles teeming with somewhat predictably obligatory references to Walter Benjamin and the age of mechanical reproduction, frenzied denunciations of any connection between NFTs and art, money, property, and everything in between, met with an almost revelational rhetoric of reverence in their defence. The tale of NFTs is indeed an absurdist one. But it is also a tale of detection. It boils down to cryptography ... and it’s a puzzle worth solving. An absurd cryptogram? We need a cryptographer for this strange tale. And who better to ask than Edgar Allan Poe? ...

So much of the noise around NFTs is preoccupied with their perceived nothingness, faddishness, and technomancy; the apparent inconsequence and untethered explanation for their value – afloat, adrift, and unbound. At the same time, so much of the suspicion and fear betrays a certain nostalgia for traditions of ownership, property, and objects, including the traditions of intellectual property and of money. NFTs and the surrounding technology have been described variously as alchemy, snake oil and spin, and even a hoax. And far from democratizing the market, the NFT marketplace has been criticized as nothing more than a secret world of nerds, fortune-hunting, and tricks.  As well as confusion over what is being made, what is being sold, and what is being owned, cryptocurrency itself is notoriously volatile and described as a bubble or a fad, not a permanent development in representative currencies. That one of the newer cryptocurrencies is called Tether  is all too fantastically connected. Balloons and inflations, indeed. Just another block in the chain. 

But in the apparent emergence of NFTs from the elite world of art markets and into the mainstream, the tension between the original work of art and the mass production of consumer markets is persistent. What is the ‘original’ digital art to which the NFT relates, and what does owning that NFT mean? Is it originality in an idea? Is it ownership in an idea? Or is it all smoke and mirrors and nothing more than a date stamp? A contrivance of digital scarcity? Perhaps the joke is a twice-told tale, an originality in repetition, and this is where the real innovation, not only for art but also for ownership, might be found. Indeed, more than a digital provenance, or artificial scarcity, NFTs refer ownership not to the work, but to the encounter, the ritual, the communication itself. In this way, a multitude of NFTs might relate to one work, but what is repro- duced and yet produced anew each time is ownership in the original and unique encounter. In other words, the scarcity is not in the work but in each item of attention on the work. I would therefore disagree that the brand of digital scarcity created by NFTs is somehow at odds with the philosophy of the Internet. It is immaterial, quite literally, that Jack Dorsey’s tweet is still available, free as air even. NFTs place the value elsewhere, and bring res familiaris into play, a sociable property of affiliation and sympathy, as distinct from the rivalrous combat and traditional property lines of objects. As for the object, the NFT is a notice for taking; the objects proliferate because there is nothing for trade but preference. In other words, the competition is for attention – but not on the work or product amidst a sea of objects, as much as it is on the relationship between creator and buyer. Rather than scarcity, the value is generated through an abundance of encounters and an ownership of preferences: ‘This image is not an artwork, it is a description of an artwork. The artwork is how you feel when you read this’. No, an NFT is not art, at least not in the conventional, marketable sense. But the ritual may well be.

Tort, Social Justice and Feminist Theories

'Social Justice Tort Theory' by Martha Chamallas in (2021) 14(2) Journal of Tort Law comments 

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

Her 'Race and Tort Law' in Khiara Bridges, Devon Carbado and Emily Houh (eds) Oxford Handbook on Race and the Law in the United States comments 

Although Richard Delgado published the first critique of tort law from a critical race perspective in 1982, the role of race remains undertheorized in torts scholarship and torts theory, taking a back seat to the dominant approaches that rarely mention race or other social identities. This leave the misimpression that tort law is race-neutral and bears little connection to constitutional or civil rights law, where issues of racial justice are more frequently analyzed and debated. 

This chapter contests that conventional wisdom and demonstrates that the shape of contemporary tort law has been affected by the social identities of the parties and cultural views on race and ethnicity. The significance of race is not confined to a particular doctrinal area but crops up in intentional tort, negligence and strict liability cases and spills over into debates about the proper measure of damages. It enters tort law through a variety of pathways, sometimes explicitly, but more often the influence of race is beneath the surface and can be gleaned only by looking closely at judicial rhetoric or at implicitly biased assumptions relied on by judges and juries. 

This overview of the contemporary “race and torts” legal landscape borrows frames from critical race and interdisciplinary scholarship to organize the key cases, issues and debates into four, somewhat overlapping categories: (1) racial discrimination, harassment and insult; (2) stereotyping and racialized contexts; (3) racial devaluation; and (4) racially disparate effects. The portrait that emerges is of a flawed system that tends to reproduce rather than ameliorate racialized harms, while never quite losing its potential to change course and advance racial justice.

'Law and Economics Against Feminism' by Martha T McCluskey in Deborah L Brake, Martha Chamallas and Verna L Williams (eds) Oxford Handbook of Feminism and Law in the United States comments 

 This chapter analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century. Building on other accounts, I trace how non-academic organizations invested heavily in developing and institutionalizing law and economics as a seemingly neutral methodology that could build academic credibility for anti-egalitarian ideology and legal change. Further, the chapter explains how the substance of this law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best insulated from contested morality and politics. The central law and economics division between seemingly objective economic maximizing and subjective social distribution puts feminist law in a double bind, naturalizing a gendered baseline that generally makes feminist reforms appear costly, unfair, or ineffective. This core conceptual move closes off feminist legal efforts to question and redefine what counts as productive, legitimate economic gain. 

Finally, I explore how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics identifies freedom with an economy imagined to remove individual self-interested choices from public support or accountability. That ideal of freedom closes off analysis of how law’s gendered assumptions and unequal protections pervasively limit individual agency and meaningful choice in the economy and in society. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.

'Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive' by Linda C McClain and Brittany Hacker in the same volume comments 

Liberal feminism remains a significant strand of feminist jurisprudence in the U.S. Rooted in 19th and 20th century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism’s focus remains to challenge unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of autonomy, liberty, privacy, and governmental obligations to promote gender equality, including in the family. Addressing internal feminist critiques, liberal feminism shows the capacity to evolve. Maintaining its focus on disrupting traditionally-conceived gender roles and fostering meaningful autonomy, it adopts more complex, nuanced discourse about sex, gender, and the gender binary and embraces new demands for inclusion and equality.

'Sex-Positive Feminism's Values in Search of the Law of Pleasure' by Susan Frelich Appleton in the same volume comments 

In challenging traditional stereotypes of female sexualities centered on passivity, subordination, harm, and repronormativity, sex-positive feminism’s proponents criticize legal feminism generally for undervaluing women’s pleasure, which they celebrate. Yet these proponents often struggle with charting a supportive and affirmative course for law and legal institutions, which have long fostered sex negativity. 

This essay proceeds in three parts. Part I identifies sex positivity not as a distinct theory but rather as a thread that runs through multiple iterations and eras of feminisms, sometimes expressly and at other times latently, as a potential answer to criticisms and problems. Along the way, this Part demonstrates the importance of power and power disparities in sex-positive feminism and the role of gender. Part II turns to the place of law and legal institutions in sex-positive feminism, juxtaposing prevailing critiques of law’s sex negativity with promising opportunities for change. Part III continues on this note of optimism, consulting popular culture for possibilities to support a more fully developed sex-positive and feminist legal regime.

Identity and Indigenous Knowledge

'Indigenous Knowledge in a Postgenomic Landscape: The Politics of Epigenetic Hope and Reparation in Australia' by Megan Warin, Emma Kowal and Maurizio Meloni in (2020) 45(1) Science, Technology, & Human Values 87-111 comments 

 A history of colonization inflicts psychological, physical, and structural disadvantages that endure across generations. For an increasing number of Indigenous Australians, environmental epigenetics offers an important explanatory framework that links the social past with the biological present, providing a culturally relevant way of understanding the various inter-generational effects of historical trauma. In this paper, we critically examine the strategic uptake of environmental epigenetics by Indigenous researchers and policy advocates. We focus on the relationship between epigenetic processes and Indigenous views of Country and health—views that locate health not in individual bodies but within relational contexts of Indigenous ontologies that embody interconnected environments of kin/animals/matter/ bodies across time and space. This drawing together of Indigenous experience and epigenetic knowledge has strengthened calls for action including state-supported calls for financial reparations. We examine the consequences of this reimagining of disease responsibility in the context of “strategic biological essentialism,” a distinct form of biopolitics that, in this case, incorporates environmental determinism. We conclude that the shaping of the right to protection from biosocial injury is potentially empowering but also has the capacity to conceal forms of governance through claimants’ identification as “damaged,” thus furthering State justification of biopolitical intervention in Indigenous lives. 

It is well-documented that Indigenous peoples around the world have con- sistently rejected genetic research for ethical, cultural, and political reasons (Reardon and TallBear 2012; Kowal 2016). Genetic research conducted on “socially identifiable” populations can reinforce essentialist biological con- cepts of race (Foster, Bernsten, and Carter 1998; Tsosie 2007), and Indigenous populations have raised concerns over issues of consent, cultural ownership, the use (and abuse) of DNA and other bodily products, and the many differences between scientific and Indigenous understandings of bod- ies and kinship (Dodson and Williamson 1999; Reardon 2005; TallBear 2007; Garrison 2013; Hook 2009). In Australia, these concerns occur in a historical context where Indigenous people have been the focus of biologi- cal research that supported scientific claims of inferiority, the “doomed race” theory, and, later, policies of assimilation that removed children of “mixed” ancestry from their families (Anderson 2002; Human Rights and Equal Opportunity Commission [HREOC] 1997; McGregor 1997). Due to this fraught history, Indigenous Australians have, until recently, remained cautious about genetic and genomic research, and so very limited research has been conducted in this population (Kowal 2013). 

In sharp contrast to this resistance to genetic research, the recent rise of epigenetics has been embraced by Indigenous peoples in Australia, New Zealand, Canada, and the United States. Over the last five to ten years, there has been a remarkable increase in the use of environmental epigenetics1 as an explanatory framework that draws upon the relationship between biological mechanisms and social lives to understand ongoing intergenerational Indi- genous disadvantage and ill-health (Kowal 2016; Kowal and Warin 2018). Aboriginal and Torres Strait Islander Australians (hereafter Indigenous Australians) remain the least healthy population group in Australia (Australian Institute of Health and Welfare 2015), and it is well-documented that rapid cultural destruction, coupled with decades of slow violence in the form of government policies and marginalization from mainstream society, is to blame (Atkinson, Nelson, and Atkinson 2010; Boulton 2016). 

This paper argues that the uptake of Indigenous epigenetics in Australia points to a “political economy of hope” among those that produce and consume biological knowledge (Rose and Novas 2005; Petersen 2015). In this variation of Rose and Novas’s concept, biology is no longer a blind destiny but mutable, improvable, and potentially reversible. Epigenetics introduces a distinctive pathway to this view of the biological as a hopeful domain open to environmental and structural intervention and manipulation, a pathway that expands the potential sources and mechanisms of intervention in Indigenous people’s lives. 

We begin our exploration into this particular bioeconomy of hope with a vignette describing an event where a prominent Indigenous academic used the concept of epigenetics to frame Aboriginal health in an optimistic light (in comparison to the negative framing of “deficit discourse,” Fogarty et al. 2018). This framing is paradigmatic of the collective narrative of hope, co-constituted by Indigenous histories, environmental epigenetics, and health that we examine in this paper. 

Following a description of the study, we broaden the argument by describing how the molecular embodiment of colonial oppression provides a biological explanation for the intergenerational transmission of historical trauma. Moreover, we suggest that epigenetics is an appealing conduit for this discourse as it reconfigures singular and bounded concepts of the environment and personhood toward more dynamic and relational models. For many Indigenous people, personhood is not located in individuals but known in relation to other persons, Country, and across time and space. Epigenetics appears to correspond to Indigenous aspirations, to foster legal and human rights, and to reflect Indigenous knowledges. Thus, in the context that we write about, dominant (and counterhegemonic) Indigenous conceptions of personhood align with epigenetics and reinforce each other. As we explore, epigenetics is used in specific ways in the biopolitical economy of hope surrounding Indigenous health discourses. The uncertainty of the science, particularly surrounding the reversibility of epigenetic changes and their transgenerational inheritance, is, however, generally overlooked. The alignment of epigenetics and Indigenous knowledge is therefore provisional, dependent on features of human epigenetic change and inheritance that are not yet clear in the scientific literature. 

In the final sections, we question whether the humanitarian usage of epigenetics to reinforce notions of acquired multigenerational bio-injury as a platform for political reparations may give rise to new forms of biole- gitimacy (Fassin 2000, 2009) in which the epigenetic body is used as an historical testimony of colonial violence. 

In our argument, we coin the term strategic biological essentialism to understand the biological turn in the representation of Indigenous rights. Strategic essentialism, a term attributed to Spivak, describes the process by which a minority group represents particular qualities as (culturally or biologically) inherent to the group in order to foster claims for social justice and rights. A strategically essentialist claim strategically overlooks the fact that qualities (e.g., connection to land or vulnerability to the state) are not homogenously shared across groups: qualities are represented as inherent in what Spivak ([1985] 1996) describes as “a scrupulously visible political interest” (p. 214). In the case of Indigenous epigenetics, we point to the limitations of strategic biological essentialism. Enacting forms of citizenship through identification with a history of biosocial deprivation may not only lead to intensified biopolitical attention from the State but also consolidate quasi- essentialist notions of specific biological difference among certain popula- tions seen as epigenetically different (e.g., with distinctive methylation profiles as a result of their prolonged exposures to pathogenic environ- ments, Mansfield 2012, 2017; Meloni 2016). In conclusion, we argue that while epigenetics offers a bioeconomy of hope that the effects of settler colonialism can be recognized and reversed, the conjunction of epigenetics and Indigenous knowledges may lead to new forms of biolegitimacy that reproduce essentialisms.