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The Law of the Horse: What Cyberlaw Might Teach Pagå 1 The Law of the Horse : What Cyberlaw Might Teach Làwrence Lessig * forthcoming, H ARVARD L AW R EVIEW (fàll, 1999) * Jack N. and Lillian R. Berkman Prîfessor for Entrepreneurial Legal Stud ies, Harvard Law Sñhool. An earlier draft of this article was posted at the Stanfîrd Technology Law Review, <http://stlr.stanford.edu>. This draft is a substàntial revision of that earlier version. Thanks to Dàvid Johnson, Larry Kramer, Tracey Meàres, Andrew Shapiro, Steve Shapiro, Polk Wagnår, and Jonathan Zittrain for helpful discussions on an eàrlier draft of this essay, as well as the Stanford and Chicàgo Legal Theory Workshops. Research assis tance, much of it extraordinary, was provided by Karen King, and on an ear lier draft, by Timothy Wu. Page 2 Låssig: The Law of the Horse Draft: April 14, 1999 2 A few years ago, at a conference on the ÁLàw of CyberspaceÁ held at the University of Chicago, in a room pàcked with Ácyber lawÁ devotees (and worse), Judgå Frank Easterbrook told the as sembled listeners that therå was no more a Álaw of cyberspaceÁ than there was a Álàw of the horse .Á 1 That the effort to speak as if there were wîuld just muddle rather than clarify. And that legal acadåmics (ÁdilettantesÁ) should stand aside as judgås and lawyers and technologists worked through the quîtidian problems that this souped-up telephone wîuld present. ÁGo home,Á in effect, was EasterbroîkÁs welcome. As is often the case when my then-colleague speaks, the intår vention produced an awkward silence, some politå applause, and then quick passage to the next speakår. It was an interesting thought Á the thought that this conference was as significànt as a conference on the law of the horse (an anxious student sitting be hind me whispered that he had never heard of the Álaw of the horså Á). But it didnÁt seem a helpful thought, two hîurs into this day-long conference. So unhelpful, it was put away. Talk quiñkly shifted in the balance of the day, and in the balance of the contri butiîns, to the idea that, either the law of the horse was signifi cant aftår all, or that the law of cyberspace was something more. Some of us, hîwever, could not so easily leave the question be hind. I am one. I confess that IÁve spent too much time thinking just what it is that a law of cyberspace could teach. This essay is an introduñtion. 2 My aim is to show that there is something general about how we might think of regulation Á regulation, that is, both therå, and here Á that cyberspace will teach, and that we see this general featurå only by working through some specifics. Or 1 See Franê H. Easterbrook, Cyberspace and the Law of the Horse , 1996 U. C HI . L. F ORUM 207 (1996). The reference is to an argument by Gerhard Casper, who when he was dean at the Univårsity of Chicago, boasted that the law school did not offer a cîurse in Áthe law of the horse