Possessing Intangibles

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and related duties. As such, possession builds upon the concept of thinghood; it is a subsequent analytical step through which the law can normatively and efficiently expect individuals to comply with their duty to not interfere with the property of others. Given its centrality in property law, then, possession should not be so quickly discarded in the context of intangibles.The Article dissects the relationship between property, possession, and thinghood, deriving a new tech-neutral theoretical model of possession grounded in information theory. By unpacking the process through which the social institution of property emerges, this Article provides the rationale for a new theory of possession. This theory aims to be more descriptively accurate, analytically coherent, and parsimonious in the face of an ever more diverse set of assets that are subject to resource governance regimes. It also highlights the importance of distributed, accessible information. Clearly conveying the allocation of rights and duties is critical for the success of any resource governance regime, digital or otherwise.Ultimately, property law relies on possession’s communicative function to ensure that the enforcement of rights and duties is fair and expected. The theory of possession proposed in this Article provides a robust way for property law to retain these same benefits in the age of digital and crypto-assets

Escaping Circularity: The Fourth Amendment and Property Law

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.Such an approach presupposes that property law is not itself circular. If it were, then property would be subject to the very same criticisms that plague the reasonable expectation of privacy test. The ubiquitous “bundle-of-sticks” interpretation of property law, however, is inherently circular. Therefore, this common realist analysis of property fails to offer a coherent solution to the Supreme Court’s doctrinal concerns. In spite of this, property law can nonetheless provide solutions to circularity when viewed through another lens.This Article applies the “New Private Law” research framework in the context of the Fourth Amendment and property law, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that an intensional definition of property, as well as of thinghood and possession, provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, would require that the realist approaches to property law—currently embraced by courts and legislatures—make way for a more nuanced vision informed by the growing interdisciplinary approaches to private law

Data Types, Data Doubts & Data Trusts

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property— demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies

Escaping Circularity: the Fourth Amendment and Property Law

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.Such an approach presupposes that property law is not itself circular. If it were, then property would be subject to the very same criticisms that plague the reasonable expectation of privacy test. The ubiquitous “bundle-of-sticks” interpretation of property law, however, is inherently circular. Therefore, this common realist analysis of property fails to offer a coherent solution to the Supreme Court’s doctrinal concerns. In spite of this, property law can nonetheless provide solutions to circularity when viewed through another lens.This Article applies the “New Private Law” research framework in the context of the Fourth Amendment and property law, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that an intensional definition of property, as well as of thinghood and possession, provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, would require that the realist approaches to property law—currently embraced by courts and legislatures—make way for a more nuanced vision informed by the growing interdisciplinary approaches to private law

Unravelling the evolution of the Allatostatin-Type A, KISS and Galanin Peptide-Receptor gene families in Bilaterians: insights from Anopheles Mosquitoes

Allatostatin type A receptors (AST-ARs) are a group of G-protein coupled receptors activated by members of the FGL-amide (AST-A) peptide family that inhibit food intake and development in arthropods. Despite their physiological importance the evolution of the AST-A system is poorly described and relatively few receptors have been isolated and functionally characterised in insects. The present study provides a comprehensive analysis of the origin and comparative evolution of the AST-A system. To determine how evolution and feeding modified the function of AST-AR the duplicate receptors in Anopheles mosquitoes, were characterised. Phylogeny and gene synteny suggested that invertebrate AST-A receptors and peptide genes shared a common evolutionary origin with KISS/GAL receptors and ligands. AST-ARs and KISSR emerged from a common gene ancestor after the divergence of GALRs in the bilaterian genome. In arthropods, the AST-A system evolved through lineage-specific events and the maintenance of two receptors in the flies and mosquitoes (Diptera) was the result of a gene duplication event. Speciation of Anophelesmosquitoes affected receptor gene organisation and characterisation of AST-AR duplicates (GPRALS1 and 2) revealed that in common with other insects, the mosquito receptors were activated by insect AST-A peptides and the iCa(2+)-signalling pathway was stimulated. GPRALS1 and 2 were expressed mainly in mosquito midgut and ovaries and transcript abundance of both receptors was modified by feeding. A blood meal strongly up-regulated expression of both GPRALS in the midgut (p < 0.05) compared to glucose fed females. Based on the results we hypothesise that the AST-A system in insects shared a common origin with the vertebrate KISS system and may also share a common function as an integrator of metabolism and reproduction. Highlights: AST-A and KISS/GAL receptors and ligands shared common ancestry prior to the protostome-deuterostome divergence. Phylogeny and gene synteny revealed that AST-AR and KISSR emerged after GALR gene divergence. AST-AR genes were present in the hemichordates but were lost from the chordates. In protostomes, AST-ARs persisted and evolved through lineage-specific events and duplicated in the arthropod radiation. Diptera acquired and maintained functionally divergent duplicate AST-AR genes.Foundation for Science and Technology, Portugal (FCT) [PTDC/BIA-BCM/114395/2009]; European Regional Development Fund (ERDF) COMPETE - Operational Competitiveness Programme; Portuguese funds through FCT Foundation for Science and Technology [PEst-C/MAR/LA0015/2013, UID/Multi/04326/2013, PEst-OE/SAU/LA0018/2013]; FCT [SFRH/BPD/89811/2012, SFRH/BPD/80447/2011, SFRH/BPD/66742/2009]; auxiliary research contract FCT Pluriannual funds [PEst-C/MAR/LA0015/2013, UID/Multi/04326/2013]info:eu-repo/semantics/publishedVersio

Possessing Intangibles

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and related duties. As such, possession builds upon the concept of thinghood; it is a subsequent analytical step through which the law can normatively and efficiently expect individuals to comply with their duty to not interfere with the property of others. Given its centrality in property law, then, possession should not be so quickly discarded in the context of intangibles.The Article dissects the relationship between property, possession, and thinghood, deriving a new tech-neutral theoretical model of possession grounded in information theory. By unpacking the process through which the social institution of property emerges, this Article provides the rationale for a new theory of possession. This theory aims to be more descriptively accurate, analytically coherent, and parsimonious in the face of an ever more diverse set of assets that are subject to resource governance regimes. It also highlights the importance of distributed, accessible information. Clearly conveying the allocation of rights and duties is critical for the success of any resource governance regime, digital or otherwise.Ultimately, property law relies on possession’s communicative function to ensure that the enforcement of rights and duties is fair and expected. The theory of possession proposed in this Article provides a robust way for property law to retain these same benefits in the age of digital and crypto-assets

Data Types, Data Doubts & Data Trusts

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property— demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies

Tangibility as Technology

Property law has traditionally relied on tangible boundaries to delineate legal thinghood and to inform the bounds of in rem rights and duties. Unfortunately, property doctrines have fossilized around tangibility, causing fragmentation in the legal treatment of digital assets. In the United States, for example, cryptocurrencies and non-fungible tokens (NFTs) may simultaneously be classified as commodities, securities, currencies, assets, or not property at all, depending on the jurisdiction, domain, or specific asset in question. This fragmented system of overlapping legal treatments increases the information cost of using digital assets, decreases efficiency, and ultimately hinders future innovation. In this Article, I propose a unified and tech-neutral approach to legal thinghood, providing a theoretically coherent and robust way to increase property law’s resilience in adapting to future technologies. Specifically, I deconstruct the conceptual purpose of tangibility in traditional doctrines of legal thinghood, uncovering its role as a technology (i.e., a tool) in property law to delineate rights. From this insight, I derive a coherent doctrinal test for distinguishing between digital assets that fulfill all conceptual requisites to be legal things and assets that do not. By doing so, I conclude that the traditional ontological categories of property law, such as choses in possession, are sufficiently robust to incorporate new and evolving digital assets. This tech-neutral approach paves the way toward an elegant and efficient legal treatment of digital assets and digital resource management in the twenty-first century

Escaping Circularity: the Fourth Amendment and Property Law

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.Such an approach presupposes that property law is not itself circular. If it were, then property would be subject to the very same criticisms that plague the reasonable expectation of privacy test. The ubiquitous “bundle-of-sticks” interpretation of property law, however, is inherently circular. Therefore, this common realist analysis of property fails to offer a coherent solution to the Supreme Court’s doctrinal concerns. In spite of this, property law can nonetheless provide solutions to circularity when viewed through another lens.This Article applies the “New Private Law” research framework in the context of the Fourth Amendment and property law, thereby incorporating findings from cognitive science, sociology, and complex systems theory alongside doctrinal private law analyses. The Article demonstrates that an intensional definition of property, as well as of thinghood and possession, provides the necessary analytical tools to understand when and how property law can aid in avoiding circularity. Such a solution, however, would require that the realist approaches to property law—currently embraced by courts and legislatures—make way for a more nuanced vision informed by the growing interdisciplinary approaches to private law

Possessing Intangibles

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and related duties. As such, possession builds upon the concept of thinghood; it is a subsequent analytical step through which the law can normatively and efficiently expect individuals to comply with their duty to not interfere with the property of others. Given its centrality in property law, then, possession should not be so quickly discarded in the context of intangibles. The Article dissects the relationship between property, possession, and thinghood, deriving a new tech-neutral theoretical model of possession grounded in information theory. By unpacking the process through which the social institution of property emerges, this Article provides the rationale for a new theory of possession. This theory aims to be more descriptively accurate, analytically coherent, and parsimonious in the face of an ever more diverse set of assets that are subject to resource governance regimes. It also highlights the importance of distributed, accessible information. Clearly conveying the allocation of rights and duties is critical for the success of any resource governance regime, digital or otherwise. Ultimately, property law relies on possession’s communicative function to ensure that the enforcement of rights and duties is fair and expected. The theory of possession proposed in this Article provides a robust way for property law to retain these same benefits in the age of digital and crypto-assets