The Law of the Horse: What Cyberlaw Might Teach

Abstract

A few years ago, at a conference on the “Law of Cyberspace” held at the University of Chicago, Judge Frank Easterbrook told the assembled listeners, a room packed with “cyberlaw” devotees (and worse), that there was no more a “law of cyberspace” than there was a “Law of the Horse”;1 that the effort to speak as if there were such a law would just muddle rather than clarify; and that legal academics (“dilettantes”) should just stand aside as judges and lawyers and technologists worked through the quotidian problems that this souped-up telephone would present. “Go home,” in effect, was Judge Easterbrook’s welcome. As is often the case when my then-colleague speaks, the intervention, though brilliant, produced an awkward silence, some polite applause, and then quick passage to the next speaker. It was an interesting thought — that this conference was as significant as a conference on the law of the horse. (An anxious student sitting behind me whispered that he had never heard of the “law of the horse.”) But it did not seem a very helpful thought, two hours into this day-long conference. So marked as unhelpful, it was quickly put away. Talk shifted in the balance of the day, and in the balance of the contributions, to the idea that either the law of the horse was significant after all, or the law of cyberspace was something more.

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