Notes: More than any other single work of scholarship, Lawrence Lessig’s The Law of the Horse created and defined the field now known as Internet law. Lessig himself has moved on to copyright policy, Creative Commons, and campaign-finance reform, but Internet law still shows his influence. This article provides a framework for the question this course asks: how does law change when software is involved?
Questions:
What kind of argument is Lessig making? It is a technical argument about how the Internet works? A doctrinal argument about how existing law treats the Internet? A policy or normative argument about how law should treat the Internet? A conceptual or jurisprudential argument about how to think about the nature of Internet law?
If your answer to the first question is “more than one of the above” (hint: it should be), how do the pieces fit together?
What does the slogan “code is law” mean?
Why was Lessig’s argument so revolutionary in the late 1990s?
How well does the article’s theoretical framework hold up? How about its case studies?
Additional Resources:
Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal Forum 207 (1996). This is the piece that Lessig uses as a jumping-off point. It’s interesting now to look at the substantive portions of Easterbrook’s argument to see how well they hold up.
Lawrence Lessig, Code: And Other Laws of Cyberspace (Basic Books 1999). This is the book-length version of The Law of the Horse. It was revelatory in 1999. If you want to engage seriously with Lessig’s theory of modalities of regulation, this is essential reading, especially the appendix. Lessig revised Code for a second edition in 2006, but I think it loses some of the focus of the first edition.
James Grimmelmann, Regulation by Software, 114 Yale Law Journal 1719 (2005). This was my student note in law school; it explores Lessig’s metaphor of software as architecture and tries to draw out some general lessons about what software does well and poorly.
Jonathan Zittrain, The Future of the Internet—And How to Stop It (2008). This is one of a small handful of academic books in technology law to have comparable impact to Code. It is also the one that most directly carries on Lessig’s scholarly approach.
James Grimmelmann and Paul Ohm, Dr. Generative or: How I Learned to Stop Worrying and Love the iPhone, 69 Maryland Law Review 910 (2010). This review of The Future of the Internet recaps the “architecturalist” tradition of legal scholarship that both Lessig and Zittrain are writing in. Have a look at this if you are wondering about that tradition’s theoretical commitments.
Bryan H. Choi, The Anonymous Internet, 72 Maryland Law Review 501 (2013). Another response to Zittrain’s book; Choi circles back to the issues of zoning and anonymity from Law of the Horse.