CCR Symposium: CCR and the Law of the Horse 2.0

For my last post in this symposium (which has, btw, been lots of fun—thanks to the organizers for including me and to Danielle Citron for writing such a provocative piece), I’m going a bit farther afield. In the late 1990s, just as the internet was beginning to explode, two major figures—Frank Easterbrook and Larry Lessig—wrote a pair of essays in which they disagreed about how law should react to and regulate cyberspace.

Easterbrook’s essay, “Cyberspace and the Law of the Horse”, came out in 1996, and as the title suggests, the judge took issue with the idea that cyberspace should be treated by lawyers and academics as a sui generis field. Easterbrook argued that regulating cyberspace with extant legal mechanisms was sufficient, and that there was no more need to offer “the law of the internet” course in law school than there was to offer “the law of the horse”.

Lessig’s 1998 response, “The Law of the Horse: What Cyberspace Might Teach”, unsurprisingly took a more sanguine view of the internet as a distinct subject for legal study. While Lessig did not call for an entirely separate and distinct body of regulations to govern cyberspace (as some scholars at the time did), he did argue that studying the internet could impart distinct lessons about separation of powers, transparency, and the tailoring of law that any other subject matter (e.g., horses) could not.

CCR engages the issue that was joined by Easterbrook and Lessig over a decade ago. It takes some familiar topics—civil rights, sex harassment—and re-situates them in cyberspace in order to cause us to understand them in a new way, though Citron’s calls for regulation leverage traditional legal frameworks. What does this I offer a few thoughts about how CCR fits into the Easterbrook/Lessig debate, and who appears to have won that debate over a decade later, below the fold.

The first issue is whether CCR illustrates the merits of Easterbrook’s or Lessig’s position. I’ve found this a harder question to answer than I first suspected. My initial reaction was that Citron’s argument shows us the value of internet exceptionalism. She argues that something is importantly different about how sex harassment works in cyberspace that should cause us particular concern. There are ways you could slice sex harassment that wouldn’t generate meaningful insights or warrant social action—sex harassment in large companies versus mom-and-pop operations likely is all the same—but looking at the issue in cyberspace does seem meaningfully different, which seems to be more or less n line with Lessig’s point.

On further consideration, though, one could cast Citron’s approach as pretty traditional. She doesn’t call for the creation of new, internet-specific laws or causes of action to combat the problem, but instead suggests application of civil rights laws that date, in some cases, to Reconstruction. This seems more consonant with Easterbrook’s approach because his essay was a call for the study of general legal principles, and that is in a sense what I understand Citron to be arguing. Mob violence is mob violence, and threats of assault are threats of assault—regardless of whether they take place in real space or cyberspace.

Thinking about CCR through this lens has also caused me to think about the state of the law of the horse debate a decade-plus after the fact. Part of Easterbrook’s claim at the time was that there wasn’t enough data about the internet to make any general points that would stick, and back in 1996 I think that was right—we didn’t really know what cyberspace would look like, let alone how it would best be governed. Now that the internet has boomed and busted and reached something like a more stable equilibrium, this objection seems less salient. And it does seem that, as Lessig suggested, the internet has caused us to think about law in new and interesting ways, producing insights that benefit not only our understanding of regulating cyberspace, but regulation and law more generally.

Nevertheless, I think that (as Easterbrook would have predicted) existing law has done a pretty good job of governing the internet. In some places, there has been need for substantive modification of existing tests (e.g., the Zippo approach to general jurisdiction in civil procedure), but this seems to have happened without requiring a fundamental re-envisioning of the substantive law in these areas. And the calls for sui generis cyberlaw (e.g., a U.S. District Court for the District of Cyberspace) that prevailed in the mid-late 1990s now seem a bit dated.

So I remain ambivalent about both where CCR fits into this debate, and whose position has better stood the test of time. If we understand Easterbrook’s position to be that the internet has not warranted a distinct body of law, then he’s clearly right. Preexisting legal principles, with a few significant tweaks here and there, have done a serviceable (though imperfect) job in regulating cyberspace. But Lessig seems right too that Easterbrook’s wholesale rejection of the internet as a separate field of study is too dismissive. In my writing about property and copyright, I’ve found that what is most engaging about studying law’s regulation of abstractions is that it forces me to ask foundational questions about longstanding legal principles. The resolution of the law of the horse debate, then, might be a boring but honest compromise: general principles will always be with us, but are given new life by novel and unforeseen applications.

You may also like...