Subject: Law of the Horse.
Brother and Sister | Protocol and Precedent
In order to apply old law to new cases, one must have a rigorous understanding of both the law and the technology its being applied to. The pace at which technology advances far outstrips the pace at which an individual can keep step, and beats the wisdom of committee by a country mile.
Each week we will tackle new cases. Sometimes we will agree and sometimes we will disagree. The point of this blog is to offer our two cents on emerging topic where there is an intersection between technology and law.
CHATGPT : what is the law of the horse?
As of my knowledge cutoff in September 2021, the term “law of the horse” does not refer to a specific legal principle or statute. However, it has been used in legal discourse to illustrate the application of existing legal principles to emerging technologies or specific contexts.
The phrase “law of the horse” gained attention in legal circles through a famous article titled “The Law of the Horse: What Cyberlaw Might Teach” written by legal scholar Frank H. Easterbrook in 1996. In his article, Easterbrook argued that it is more important to focus on general legal principles and concepts that can be applied to a wide range of circumstances, rather than developing specialized laws for every new technology or field.
In essence, the “law of the horse” represents the idea that the law should not be overly specific to particular subjects or technologies. Instead, it should rely on established legal principles and frameworks that can be adapted to new situations as they arise.
It’s worth noting that the term “law of the horse” is not an official legal doctrine but rather a metaphorical concept used to advocate for a flexible and adaptable legal approach.
Opinion: Nolan (Scientist) [Protocol]
Perhaps it is my own lax understanding of Law, but I understand the law of the horse stems from a discussion that took place in the 90s and around cyberlaw. The crux of the debate was whether a new medium of interaction required new law. At the time, the concept was that the online world wasn’t unique or large enough to justify distinction in the eyes of classical law. To wit, one doesn’t need specific laws for horses when laws governing animals and property are available.
There is a reason this concept is rarely cited outside of critique in the modern era. Today it is widely understood that the online space has unique properties that separate it from the physical world in which laws were established previously. Though there is much to say on how the internet has made matters of distribution and replication complex (Information Technology Law is its own field) as a researcher the theme that interests me the most is speed. The law of the Horse postulates that given robust law one should be able to apply or easily adapt legal frameworks to new technologies or novel scenarios. In a way I agree, Law should evolve to adapt to new scenarios if it is rooted in a solid understanding of the rights of all participants.
However, this core assumption of robustness is where the Law of Horses may not survive reality. In order to apply old law to new cases, one must have a rigorous understanding of both the law and the technology it’s being applied to. The pace at which technology advances far outstrips the pace at which an individual can keep step and beats the wisdom of committee by a country mile.
In brief, the “horse” in law of the horse aptly describes both underlying theory about generalized law and the biological constraints when faced with mechanical competition
Opinion: Morgan (Attorney) [Precedent]
The “Law of the Horse” stems from a University of Chicago dean that was happy that the school did not have courses about specialized application of the law but instead opted for general legal knowledge that would then be able to apply for those specialized topics. Property law can apply to real estate in similar ways to internet service providers and for the most part I tend to agree. In law school the purpose is to build general practitioners that can work in any industry of their choosing. My choosing was tech. I took the required legal course that every 1L takes and then I opted for specialized courses that piqued my interest in law school (art law, drone law, blockchains etc.)
For example, in American common property law we believe that you have a bundle of rights for your private property the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition. Horse owners can possess the horse, herd the horse, reject buyers from purchasing the horse, pet and feed the horse, and humanly kill the horse.
Elon Musk owns a horse — Twitter. If we apply the same logic Musk can possess Twitter, he can change the order of Tweets on the platform, Musk can remove users or delete tweets, and of course like memes posted by other users on the “horse”. However, there are much larger implications with this kind of horse. This kind of property might interfere with the use and enjoyment of another’s property on the horse so typically many other laws come into play defamation, statutory laws like Section 230, copyright laws, regulatory agencies have laws as well. It all becomes a little more complicated.
What applies is probably a lot less interesting than what should apply to code and technology.
