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July 12, 2005

A call for legal polymorphism

"Polymorphism" is a term that is familiar to computer scientists but not to most lawyers. According to its Wikipedia definition, "polymorphism is the idea of allowing the same code to be used with different classes of data." One of the benefits of polymorphism is that it allows code to be written abstractly once, and to be applied to new and different classes of data without rewriting the code. In other words, polymorphic code is flexible enough to adapt to changing circumstances.

Lawyers are familiar with the same concept, although not under the same name. It is often said, for example, that the U.S. Constitution is a "living document" that was written abstractly in an attempt to make it flexible enough to deal with evolving circumstances without the need to rewrite the Constitution itself. Legislators, judges, and lawyers strive (or at least should strive) to write legal documents with the same forward-looking generality. In his book Code, Professor Lawrence Lessig used the term "translation" to refer to "finding a current reading of the original Constitution that preserves its original meaning in the present context." Those who know more about legal theory than I do could certainly give examples of other terms that capture the same concept.

One of the areas in which it is most difficult to achieve legal polymorphism is intellectual property law, because of the need for the law to adapt to rapidly changing, and sometimes revolutionary, technology. For example, the U.S. patent statute (written in 1952) defines the subject matter of patent law as "any new and useful process, machine, manufacture, or composition of matter." Although the drafters of the statute intended for this definition to be extremely general and hence flexible, they did not anticipate that computer programs would not fit easily into any of these four categories and hence cause (seemingly endless) controversy.

Fashioning intellectual property law to strike the right balance between clarity and predictability on one hand and flexibility on the other in light of changing technology is the challenge of legal polymorphism. Computer professionals and legal professionals have much to learn from each other about this enterprise and could promote legal polymorphism better in cooperation than either could hope to do separately.

Posted by Robert at July 12, 2005 11:27 AM
category: Intellectual Property Law

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