Law as Design: Objects, Concepts, and Digital Things
This Article initiates an account of things in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual
... n of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of material things as conceptual things, so that digital goods become licensable. The regulatory consequences of the thing are increasingly built into the construction of the thing. These developments appear to be poised to envelop things beyond the digital sphere. It may no longer be apt to divide the world cleanly into conceptual and material objects. Things combine features of both. As a result, they can no longer be viewed solely as passive backgrounds against which relation-based legal analysis unfolds. To ensure that society maintains the ability to regulate as broadly as it deems legitimate, law must account for the creation and design of the things that increasingly dominate developments across a variety of legal domains, from intellectual property law to antitrust law to commercial law. The Article describes how things exercise the authority that characterizes classic legal regulation, and it reviews the different mechanisms that legal institutions have used to recognize and differentiate things. Understanding those mechanisms is a step toward appreciating the nature of the regulatory landscape in which both legal institutions and individuals exist.