Appreciating Our Professors: Larry Lessig

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I’m never any good at these questions. I’m always stumped whenever I’m asked, “Who is your hero?” Similarly, although I enjoyed many of my classes, I don’t recall too many “ah-ha” moments in law school that didn’t come from reading a book or an article. For whatever reason, I’m more inspired by ideas than people.

And the idea that I picked up in law school that inspired me more than any other was the idea that law is part of a broader web of human culture, that it both influences other aspects of that culture and is influenced by it. I encountered (at least) two professors at Yale who were grappling with this concept, Bob Ellickson and Larry Lessig. Well, Lessig was only a visitor during the spring semester of my first year. On the other hand, I never took a class with Ellickson, and I’m not sure I’ve even ever met him. I know Ellickson primarily through his classic, Order Without Law: How Neighbors Settle Disputes.

So Lessig it is.

Lessig taught his Law of Cyberspace class for the first time while he was visiting at Yale. Since there wasn’t really any law of cyberspace at the time, the class was an interesting pastiche of ideas and what-if scenarios involving current law. We read the Communications Decency Act while it was still a bill. We read William Gibson’s Neuromancer. We set up a class newsgroup and debated the rules for it. (The newsgroup led to an ugly incident recounted in Chapter 6 of Lessig’s book, Code.)

What interested me most about the class was the fact that we were exploring the question of how law should, and would, adapt to changing social and technological circumstances. The interaction between law and social norms in particular was a focus of the class, and one that intrigued me even before I went to law school. I’ve long pondered the Zen-like koan, “What is the speed limit on I-95?” (Substitute your local highway here.) One answer is that the speed limit is what the signs announce it to be; say, 55 mph. But very few people driving on I-95 actually drive 55 mph. They drive closer to 65, or 70 mph. Another answer is that the “speed limit” is the speed at which drivers collectively calculate that the risk of enforcement exceeds the benefit of going faster. This speed limit varies according to location, conditions, and time of day. It’s an informal code worked out between drivers, and between drivers and the police. It’s related to the numbers on the sign, but far more complex.

Lessig, in his class, convinced me that Internet law was an area where I could watch this sort of phenomenon emerging and shaping legal doctrine. When an opportunity arose to actually practice Internet law at the firm where I worked, I jumped at the chance. That developed into an easy opportunity to turn into an “expert” on Internet law, because at the beginning there wasn’t much to learn. Over the years I’ve seen the development of a discrete, but expanding, body of law related specifically to the Internet. But the more interesting development has simply been to watch the evolution of law in action. And it was Lessig’s class that first clued me into where to look. Internet law has been very, very good to me.

Like others who have posted on this subject, there’s an ironic twist here, which is that I’ve come to disagree strongly with Lessig’s scholarship in certain areas, particularly copyright law. But the ideas I picked up from the Law of Cyberspace class are broader than any particular policy prescriptions, or even subject areas such as Internet law or copyright. It’s more of a method, or a pattern; even where we disagree, I now ask many of the same questions that Lessig does.

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