Tangibility As Technology
69 Pages Posted: 11 Nov 2020 Last revised: 14 May 2021
Date Written: August 4, 2020
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, causing fragmentation in the legal treatment of digital assets. In the United States, for example, cryptocurrencies and non-fungible tokens (NFTs) may be simultaneously 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 piece, I propose a single, 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. This approach also addresses a current doctrinal gap: distinguishing between digital assets that are property and those that are not.
Through the lens of information theory and the New Private Law, I deconstruct the conceptual purpose of tangibility in traditional doctrines of legal thinghood, uncovering its role as a technology in property law. Finally, I demonstrate how a tech-neutral understanding of legal thinghood can differentiate between digital assets that do 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 are sufficiently robust to incorporate new and evolving digital assets in a tech-neutral way, paving the way toward an elegant and efficient legal treatment of digital assets and digital resource management in the twenty-first century.
Keywords: property law, private law, legal thinghood, Hohfeld, tech-neutrality, ownership, crypto, bitcoin
JEL Classification: K11, O33
Suggested Citation: Suggested Citation