75 Am. U. L. Rev. F. 631 (2026).

Abstract

In recent years, scholars and policymakers have increasingly embraced regulation “by design” to address new problems, especially those caused by new technologies. These approaches go by various names, like privacy by design, security by design, even the rule of law by design. Despite the popularity of these approaches, though, describing what goes into regulation “by design” is surprisingly challenging. Different speakers use the term in strikingly different ways, with little consensus about why design is important, how design and new technologies interact, or how design can be harnessed to deliver policy results.

Design exists along multiple dimensions: process versus result, plan versus creation, form versus function. While the literature on regulation and design has recognized and grappled (sometimes implicitly) with the first two dimensions, the third has been unappreciated. Yet this is where the most critical regulatory problems arise. Design can refer both to how something looks and is experienced by a user—its form—or how it works and what it does under the surface—its function. In the physical world, though, these two conceptions of design are connected, since an object’s form is inherently limited by its function. That’s why a padlock is hard and chunky and made of metal: Without that form, it could not accomplish its function of keeping things secure. So, people have come, over the centuries, to associate form and function and to infer function from form.

Software, however, decouples these two conceptions of design, since a computer can show one thing to a user while doing something else entirely. Some of the most pervasive regulatory problems, like online tracking and profiling, stem from this misalignment between form and function, because companies can collect, use, and disseminate information without any formal indication that that will occur. Recognizing this third dimension of design, then, can help policymakers identify these problems and fashion reforms directed at inducing realignment.

* Professor of Law, University of New Hampshire. Faculty Fellow, Franklin Pierce Center for Intellectual Property. Affiliated Fellow, Information Society Project, Yale Law School. For helpful conversations and comments, I am indebted to Adam Candeub, Andrew Selbst, Christina Mulligan, Eric Goldman, Gus Hurwitz, Jennifer Berk, Kate Klonick, Kiel Brennan-Marquez, Margot Kaminski, Mark McKenna, Mark Verstraete, Nicholson Price, Rebecca Crootof, Risa Evans, Sandy Mayson, Sarah Fackrell, Sarah Wasserman Rajec, and Woodrow Hartzog, and to the organizers and participants at the Michigan State University Junior Scholars in Intellectual Property Workshop, the Nebrooklyn(ecticut) Law & Technology Workshop, the Works in Progress in Intellectual Property (WIPIP) Conference, the Junior Intellectual Property Scholars Association (JIPSA) Conference, and the Northeast Privacy Scholars Workshop. Copyright © 2026 by Roger Allan Ford. One year after its initial publication in the American University Law Review (Volume 75, Issue 3), this Article is available for reuse under the Creative Commons Attribution 4.0 International license, https://creativecommons.org/licenses/by/4.0.