Legal Ethics and Web 2.0: Revisiting the "Law of the Horse"
[9/3/2010 Update: Here's a transcript of the panel discussion published in the Emory Bankruptcy Developments Journal.]
Thanks to Emory University Law School, host of the 7th Annual Symposium of the Bankruptcy Developments Journal, for generously sponsoring my trip to Atlanta yesterday to participate in a panel discussion, moderated by my friend Mark Duedall, entitled Ethics 2.0--The Ethical Challenges and Pitfalls of Web 2.0. The panel included Kevin O'Keefe, founder of LexBlog (and purveyor of this blog and that of an amazing 3,000 other authors--I think I was in the first 30), and Scott Riddle, founder of the Georgia Bankruptcy Blog. Kevin even twittered a picture of me during my part of the presentation.
Drawing upon this fantastic 1996 essay by Chief Judge Easterbrook entitled Cyberspace and the Law of the Horse, my main point was that analyzing the ethical challenges of web 2.0 is like analyzing the "Law of the Horse." What is the "Law of the Horse," you ask? Here's how Chief Judge Easterbrook described it:
When he was dean of this law school, Gerhard Casper was proud that the University of Chicago did not offer a course in "The Law of the Horse." He did not mean by this that Illinois specializes in grain rather than livestock. His point, rather, was that "Law and . . . " courses should be limited to subjects that could illuminate the entire law.... We are at risk of multidisciplinary dilettantism, or, as one of my mentors called it, the cross-sterilization of ideas. Put together two fields about which you know little and get the worst of both worlds.
Dean Casper's remark had a second meaning--that the best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on "The Law of the Horse" is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. Far better for most students--better, even, for those who plan to go into the horse trade--to take courses in property, torts, commercial transactions, and the like, adding to the diet of horse cases a smattering of transactions in cucumbers, cats, coal, and cribs. Only by putting the law of the horse in the context of broader rules about commercial endeavors could one really understand the law about horses.
Now you can see the meaning of my title. When asked to talk about "Property in Cyberspace," my immediate reaction was, "Isn't this just the law of the horse?" I don't know much about cyberspace; what I do know will be outdated in five years (if not five months!); and my predictions about the direction of change are worthless, making any effort to tailor the law to the subject futile. And if I did know something about computer networks, all I could do in discussing "Property in Cyberspace" would be to isolate the subject from the rest of the law of intellectual property, making the assessment weaker.
For a contrary view, be sure to read Professor Lessig's 1999 commentary published in the Harvard Law Review entitled, The Law of the Horse: What Cyberlaw Might Teach.
Late last year, the ABA announced the formation of ABA Commission on Ethics 20/20, whose purpose is "to perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments, to study these issues and, with 20/20 vision, [to] propose policy recommendations that will allow lawyers to better serve their clients, the courts and the public now and well into the future."
The Commission’s preliminary outline (at pp. 7-9) suggests it won’t generate a “Law of the Horse,” but instead a thoughtful analysis of how existing rules should be modified to address the unique issues raised by burgeoning technology and its many applications. I highly recommend reviewing the outline for insight into the complexity of the issues being examined.
Meanwhile, to avoid suffering a "Woodsian" fall from grace, from which you’ll never fully recover, be sure to review existing ethics rules before you plunge into Web 2.0, for when it comes to legal ethics, the old saying "look before you leap" most assuredly trumps its counterpart, "he who hesitates is lost."
Kevin's take on yesterday's symposium is in his post entitled Focus on the Possibilities of Blogging and Social Media, Not the Challenges. Kevin's focus is certainly rightly placed, though every blogger I know will tell you that--ethics aside--blogging on a consistent basis is an unquestionable challenge.
© Steve Jakubowski 2010
We follow you often and even enjoy your family notes.
I would protest that the category listing of the Web 2.0 and Law of Horse under the realm as dirty lawyer tricks is misguided.
Meanwhile - much ado is transpiring - where are you now?