Pseudolaw

'Jesus Built My Strawman: The Church of the Ecumenical Redemption International and "minister" Edward Jay Robin Belanger' by Donald Netolitzky in 6 International Journal of Coercion, Abuse, and Manipulation comments 

The Canada-based Church of the Ecumenical Redemption International [CERI] falsely purports to be a community of strict King James Bible literalists. CERI's religious claims are a strategic mask for the "church's" true nature and objectives. CERI is a "legal cult," a group organized around a central guru figure: "minister" Edward Jay Robin Belanger. This fake church's doctrine combines stereotypic pseudolaw concepts derived from the US Sovereign Citizen movement, conspiratorial anti-government and anti-Semitic beliefs, with passages from the 1611 King James Bible. CERI and Belanger make no faith-based promises, but, instead, claim that a combination of esoteric paperwork, proclamations of Christian status, and demands for international treaty-based religious accommodation, grants CERI's members special and extraordinary advantages (e.g., to defy and neutralize government authority, eliminate debts, and escape sanction for criminal misconduct). This study investigates CERI and Belanger's nearly 25-year history of pseudolaw and criminal activity, using 21 Canadian legal proceedings conducted between 2009-2019 to develop a profile of CERI's followers, CERI litigation tactics, and to explore the usually short-lived relationships between Belanger and his followers. CERI is the most aggressive and litigious Canadian pseudolaw group, but CERI adherents and Belanger consistently fail in court. CERI and Belanger are relevant to the developing understanding of the broader social impact and operation of pseudolaw, as an example of a long-duration but small population group. While many pseudolaw groups are true social communities, CERI functions primarily as a parasite/host pairing, where Belanger exploits those who adopt CERI strategies. This legal cult of personality operates chiefly within the broader Canadian pseudolaw ecosystem, but in a marginal, though remarkably persistent, manner.

Abuse

'Victims and Observers: How Gender, Victimization Experience, and Biases Shape Perceptions of Robot Abuse' by Hideki Garcia Goo, Katie Winkle, Tom Williams and Megan Strait in (2023) IEEE International Symposium on Robot-Human Interactive Communication comments 

With the deployment of robots in public realms, researchers are seeing more and more cases of abusive disinhibition towards robots. Because robots embody gendered identities, poor navigation of antisocial dynamics may reinforce or exacerbate gender-based violence. Robots deployed in social settings must recognize and respond to abuse in a way that minimizes ethical risk. This will require designers to first understand the risk posed by abuse of robots, and how humans perceive robot-directed abuse. To that end, we conducted an exploratory study of reactions to a physically abusive interaction between a human perpetrator and a victimized agent. Given extensions of gendered biases to robotic agents, as well as associations between an agent’s human likeness and the experiential capacity attributed to it, we quasi-manipulated the victim’s humanness (via use of a human actor vs. NAO robot) and gendering (via inclusion of stereotypically masculine vs. feminine cues in their presentation) across four video-recorded reproductions of the interaction. Analysis of data from 417 participants, each of whom watched one of the four videos, indicates that the intensity of emotional distress felt by an observer is associated with their gender identification, previous experience with victimization, hostile sexism, and support for social stratification, as well as the victim’s gendering. 

 The authors state 

Much of existing research on robot abuse has focused on the potential for robot abuse to impact those perpetrating that abuse (typically negatively [11], [12], although cf. [13]). However, the impacts of abuse, and a victim’s response to it, extend not only to abusers, but to bystanders and observers as well. Although people may believe themselves disaffected in aggressing an artificial agent, the impacts of abuse, and an agent’s response to it, extend beyond individual inter- actions. Research on human-robot interaction dynamics, for example, has found that people react to the abuse of robotic technologies similar (to a lesser degree) to how they react to seeing the abuse of other people [14], [9], [10], and even the abuse of Cozmo – Anki’s minimally agentic, toy-like robot – has been observed to induce substantial distress in bystanders witnessing the interaction [15], [5]. 

Moreover, the effects of abusing a robot – as well as witnessing a robot’s abuse – likely extend beyond a single interaction (e.g., [12]). For example, the inability of a robot to respond to social aggression may risk normalization [16] – or even escalation [17] – of that behavior. This suggests that abuse, if left unaddressed, has the potential to weaken moral norms surrounding those abusive behaviors, both in perpetrators, observers, and ultimately those with whom perpetrators and observers interact. 

Consequently, agents unable to navigate antisocial dy- namics risk replicating, reinforcing, and exacerbating extant social inequities [18]. For example, consistent with the observations outlined above, many people verbally abused Microsoft’s chatbot Tay upon its 2016 deployment. Because Tay was designed to learn from its interactions with users – but lacked any mechanisms to recognize and respond to antisocial content – the bot quickly morphed from its intended cheery, teenage girl-like persona into an overt white supremacist, directing racist, sexist, and xenophobic hostility toward unconsenting users before Microsoft intervened [19]. 

People ascribe robots gender [20], even in the absence of intentional gender cueing [21], a phenomena that emerges at least as early as 8 years of age [22]. This enables robots to similarly evoke and reinforce gendered stereotypes in a complex way that interacts with interactants’ gender identities [23], [21], [24]; but also allows for the intentional subversion of gender norms and stereotypes [25], [26]. Given differences in perceptions (and realities) of gender-based violence [27], [28], [29], [30], it is critical for robot designers to have a nuanced understanding of these complex gender- mediated perceptions and their implications in the context of robot abuse.

Sovereignties

A ‘Kind of Sovereignty’: Toward A Framework for the Recognition of First Nations Sovereignties at Common Law' by James Aird and Allan Ardill in (2023) 46(2) Melbourne University Law Review (forthcoming) comments 

The common law rejects ‘Aboriginal sovereignty’ as being inconsistent with Crown sovereignty. Yet the common law defines ‘Aboriginal sovereignty’ as a single, homogenous sovereignty adverse to the Crown. The position at common law differs from the literature by First Australians which maintains that their sovereignties are a spiritual notion, have not been ceded, and are heterogeneous. In the same way that the Uluru Statement from the Heart conceives of its authors’ sovereignty as ‘shining through’ legal and political institutions, this article contends that the recognition of additional rights at common law would be an implicit recognition of sovereignty. This article puts forward three interconnected and alternate sources for such rights: as additional land-related rights as presupposed by native title, via the ‘preferable rule’ in Mabo, or via the connection to land as identified in Love.

The authors argue 

In Love v Commonwealth (‘Love’), in a 4:3 split, the High Court ruled that First Australians who were also non-citizens could not be deported as ‘aliens’ within the meaning of s 51(xix) of the Constitution. The four majority justices, while disavowing the word ‘sovereignty’, differed on the underlying principle prohibiting the deportation. Chief Justice Kiefel in dissent, however, was clear:

[T]he legal status of a person as a ‘non-citizen, non-alien’ would follow from a determination by the Elders, or other persons having traditional authority amongst a particular group, that the person was a member of that group. To accept this effect would be to attribute to the group the kind of sovereignty which was implicitly rejected by Mabo [No 2] — by reason of the fact of British sovereignty and the possibility that native title might be extinguished — and expressly rejected in subsequent cases. 

The cases cited by Kiefel CJ as rejecting ‘Aboriginal sovereignty’ maintain that ‘Aboriginal sovereignty’ is not compatible with Crown sovereignty. However, this article contends that the rejection of ‘Aboriginal sovereignty’ is really a rejection of a single, homogenous, Eurocentric, state-kind of sovereignty conceived as ‘adverse to’ the Crown. This article further contends that, on this basis, the notion of ‘Aboriginal sovereignty’ rejected by the common law is different to sovereignty as conceived by First Australians. 

The Uluru Statement from the Heart (‘Uluru Statement’) pronounced that the authors’ ancient sovereignties are a spiritual notion coexisting with Crown sovereignty which ‘can shine through as a fuller expression of Australia’s nationhood’. It follows that the Uluru Statement does not conceive of its authors’ sovereignties as a Eurocentric kind of sovereignty but instead as a ‘spiritual notion’ that exists outside of the law but that can nevertheless interact with it. Therefore, the two reforms proposed by the Referendum Council — a First Nations constitutional Voice to Parliament and an extra-constitutional Declaration enacted by all Australian parliaments — are not the authors’ sovereignties but rather incidents of sovereignty shining through the Constitution and Acts of Parliament. This article contends that, in the same way, rights that may arise at common law and vest in First Nations would be incidents of First Nations’ sovereignty shining through, or being recognised, at common law. Indeed, while the High Court clings to the notion of an undivided Eurocentric sovereignty to refuse First Nations sovereignties, it also houses an emergent degree of recognition of the continuity of certain elements of First Nations sovereignties (eg the authority of elders to determine membership and the existence of traditional law and custom underpinning native title). Thus, this article aims to navigate this tension in the jurisprudence by proposing a framework for how First Nations sovereignties might continue via the recognition of other land-related rights. 

The relevant right for the purpose of this article is a right to self-government to protect traditional authority in relation to land. We contend that, based on current authority, it is possible to argue that the common law can recognise other land-related rights in addition to native title. A successful argument for an additional right should accord with the Uluru Statement’s conception of sovereignty: that is, sovereignty as an ancient, spiritual notion shining through the common law as a fuller expression of Australian law. 

It should be said from the outset that it is not our view that common law recognition of First Nations sovereignties would be sufficiently broad as to satisfy all the aspirations tied up in First Australians’ understandings of sovereignty. This would be beyond the common law and necessarily raises issues of international law which the High Court has determined to be non-justiciable.  Any common law recognition of a specific First Nations right would complement the important political action, treaties, and international law advocacy taking place. This article aims to supplement the recent literature surrounding the Uluru Statement, emphasising constitutional recognition to argue that common law principles are not necessarily inimical to First Nations sovereignties. 

Any attempt to synthesise First Australians’ understanding of their sovereignties is prone to criticism, not least because such an undertaking is an attempt to ‘speak for’ First Australians. Part II argues that despite the complex and at times disparate literature, four fundamental propositions emerge: knowledge by First Australians has developed since Mabo v Queensland [No 2] (‘Mabo’); First Nations sovereignties have never been ceded; those sovereignties are heterogeneous; and they are fundamentally and inextricably in connection with land. 

Part III reviews the common law concept of ‘Aboriginal sovereignty’ and outlines three interconnected possible sources of other land-related rights. The conceptual distinction that animates this part is the difference between Aboriginal title to land on the one hand, and other land-related rights on the other. There is some slippage between these concepts and this distinction, we argue, is under-interrogated as a matter of Australian scholarship and law. To this end, we acknowledge the body of research, mostly from North America, based on the research of McNeil, Secher, Slattery and Walters, which was applied generally to British colonies and which applied earlier Australian law. This literature has informed our analysis of more recent Australian case law although we do not rely on it for the arguments we advance here. Instead, we focus on Australian judicial pronouncements and occasionally refer to this literature where that is appropriate. 

Following the Coe v Commonwealth (‘Coe’) cases, Crown sovereignty has been conceptualised so that the judicial focus has been on the narrow colonial concept of native title at the expense of recognising other land-related rights. Yet other land-related rights may expose sovereignties as interdependent, related, and connected ways of knowing and being. The three possible sources for other land-related rights identified in this part are those presupposed by native title, or arising via the ‘preferable rule’ in Mabo or via the connection to land as explicated in Love. Notwithstanding which source of other land-related rights is argued, Part IV puts forward considerations that any such argument must confront. The primary consideration is that any argument must be consistent with the act of state doctrine and must therefore be conceptualised as an effect of the Crown’s assertion of sovereignty rather than framed as ‘adverse to’ Crown sovereignty. In addition, such arguments must not be parallel to the Crown’s lawmaking function and must be consistent with decided cases, including Walker v New South Wales (‘Walker’). 

Consistently with respectful research protocols, we introduce ourselves as Australian-born men. One of us speaks with maternal English–German ancestry and paternal Scottish–Yugambeh ancestry, and the other speaks with maternal Irish–German ancestry and paternal English–Irish ancestry. We recognise this article would not have been possible to write without the knowledge, wisdom, history and experience of First Australians, both past and present. We also draw upon the literature written by other Australians. Often this latter body of literature recognises various forms of the continuing lived nature of First Nations sovereignties but tends to assume that the High Court has closed the door on any common law recognition of First Nations sovereignties or regards political action as more promising. This body of literature tends to urge recognition of First Nations sovereignties through political action, treaties, international law, or a combination of these.

Queer Marks

'Queer Trademarks' by Michael Goodyear in (2024) University of Illinois Law Review (Forthcoming) comments 

LGBTQ+ slurs can now be registered as trademarks. The U.S. Supreme Court’s decisions in Matal v. Tam and Iancu v. Brunetti allowed federal registration of disparaging, immoral, or scandalous trademarks. Appellee Simon Tam cheered, hoping that these decisions would usher in a new era of minority communities reappropriating harmful and offensive terms steeped in hate and prejudice. Others were less optimistic. Advocacy organizations, scholars, and others worried that these decisions opened the floodgates to the United States Patent and Trademark Office registering the vilest and most prejudicial terms in the U.S. lexicon to ossify hatred. Only time would tell who was right. 

Now, several years after Tam, this Article seeks to answer this question for LGBTQ+ slurs. A prior study found that affirming uses of racially-oriented marks by in-group members predominated over disparaging ones after Tam. This Article builds on that analysis and breaks ground on examining trademark law’s relationship with LGBTQ+ persons. To date, practically no scholarship has examined the relationship between trademark law and the LGBTQ+ community. This Article presents a new empirical analysis of 144 LGBTQ+-oriented trademark applications filed before and after Tam. This study finds that the number of LGBTQ+-oriented trademark applications has increased over twofold since Tam. More surprisingly, LGBTQ+-oriented marks have been overwhelmingly affirming in nature; not a single disparaging use of the slurs in trademarks was identified over the entire nine-year period. Based on these findings, I posit that Tam and Brunetti have facilitated increasing applications for and registrations of LGBTQ+-oriented trademarks by and for the LGBTQ+ community rather than as symbols of hate against it. 

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.