Tangibility As Technology
69 Pages Posted: 11 Nov 2020 Last revised: 20 Apr 2021
Date Written: August 4, 2020
Property law has long relied on the concept of tangibility to delineate legal thinghood and to inform the bounds of in rem rights and duties. This reliance has led to the calcification of traditional property doctrines and the fragmentation in the legal treatment of digital assets through ad hoc functional and technology-dependent judicial decision, legislation, and regulation. Cryptocurrencies, for example, are simultaneously classified as commodities, securities, currencies, assets, or as not property at all depending on the jurisdiction, domain, type of claim, or specific cryptocurrency in question. When other digital assets are analyzed, the picture becomes even more confusing. A fragmented system of overlapping legal treatments will increase the information cost of using digital assets, decrease efficiency, hinder future innovation, and ultimately undermine the very purpose of property law, which as the Supreme Court has held, is to empower individuals to shape and plan their own destinies.
In this piece, a single, unified, and tech-neutral approach to legal thinghood is proposed, providing a stable foundation for property law in the face of rapidly evolving types of digital assets. This solution provides a theoretically coherent and robust way to increase the resiliency of property law in adapting to future technologies while addressing a current doctrinal gap: distinguishing between digital assets that are property and those that are not. Though the lens of the New Private Law, I employ a Hohfeldian re-analysis to define traditional notions of legal things, the objects of property rights; I then deconstruct the conceptual purpose of tangibility in traditional doctrines of legal thinghood, uncovering its use as a technology in property law; I finally demonstrate how a tech-neutral understanding of legal thinghood can differentiate between digital assets that do fulfill all conceptual requirements necessary to be property and assets that do not. By doing so, I conclude that the traditional ontological categories of property law are sufficiently robust to incorporate new and evolving digital assets in a tech-neutral way. Applying a theoretically coherent and tech-neutral approach to novel digital assets will ensure that property law leads the way toward an elegant and efficient legal treatment of digital assets and digital resource management in the 21st century.
Keywords: property law, private law, legal thinghood, Hohfeld, tech-neutrality, ownership, crypto, bitcoin
JEL Classification: K11, O33
Suggested Citation: Suggested Citation