Posted by Orin Kerr:
Code Is Law, Or Is It?:
http://volokh.com/archives/archive_2005_06_12-2005_06_18.shtml#1119050620
One of the buzzphrases common in cyberlaw circles is that "code is
law," an idea popularized by Lawrence Lessig. The basic idea is that
computer code can shape the experience and options available to
Internet users. Because law is also a means of attempting to shape
human experience and options, code and law are in essence trying to do
the same sort of thing. They are both ways of regulating environments.
I confess that I have never been particularly enamored of the "code
is law" formulation. It seems to me that "code is law" only to the
extent that lots and lots of things are law. If the test for law is
what regulates human behavior and experience, then it seems that
physics is law, chemistry is law, fear is law, greed is law, human
eyesight is law, etc. At such an abstract level, saying that something
is "law" doesn't seem to have a great deal of meaning. Indeed, in my
experience "code is law" has become a shorthand used among cyberlaw
types to remind ourselves that code is important. Law professors
naturally look for legal answers to human problems, and "code is law"
reminds us that techie solutions may work just as well or better than
legal ones.
So if code is not law, what is it? If you're interested in that
question, I recommend that you check out Yale Law student James
Grimmelmann's just-published law review note, [1]Regulation by
Software (.pdf). Grimmelmann has a somewhat similar skepticism about
the "code is law" formulation, and he offers an interesting and quite
useful discussion of the differences between regulation by law and
regulation by software. Here is the abstract:
This Note builds on Larry Lessigâs famous formulation that "code is
law" to argue that Lessig was wrong to equate computer software
with physical architecture. Although software resembles both law
and architecture in its power to constrain behavior, it has
features that distinguish it from both. The Note identifies four
relevant attributes of software: It is ruleish, potentially
nontransparent, impossible to ignore, and vulnerable to sudden
failure. By assessing the impact of these characteristics in a
given context, one can decide whether software is a good or a bad
choice to solve a regulatory problem.
While I'm at it, kudos to the editors of the [2]Yale Law Journal for
their smart and helpful way of publicizing their latest issue. I knew
that the Grimmelmann note was published and online because I signed up
for the YLJ's [3]online mailing list. The list sends out an e-mail
whenever a new Journal issue is published; the e-mail contains
abstracts of each piece in the issue together with links to .pdf
copies posted on the Journal's website. It provides a very easy and
convenient way of following, reading, and discussing new scholarship.
I hope other law reviews follow the YLJ's lead.
References
1. http://www.yalelawjournal.org/pdf/114-7/Grimmelmann.pdf
2. http://www.yalelawjournal.org/current.asp
3. http://mailman.yale.edu/mailman/listinfo/ylj-toc
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