The Faster Horse Fallacy: How the Law Idealizes Technology
Abstract
How does the legal profession understand new technology? Lawyers are involuntary experts in technology: we are not professionally trained in technology like engineers are but must know technology better than the typical citizen does, because the law must regulate how the typical citizen—that is, society—uses technology. The increasing complexity and variety of technologies that affect everyday life, such as artificial intelligence, make our jobs as involuntary experts in technology all the more important. To prepare lawyers to regulate technology effectively, we must first examine how lawyers understand—or misunderstand—technology in the present.
This Article examines a cognitive shortcut that comes naturally to lawyers, one that some scholars promote as a useful tool for understanding technology, but in fact encourages the legal system to misunderstand technology and warps outcomes in procedural law, substantive law, and public policy. This cognitive error, which I call the faster horse fallacy, refers to misunderstanding a new technology as identical to an old one, only cheaper and performing better. While cars and horses can both haul people or cargo, a car is not a faster equivalent of a horse because cars have features that horses lack, meaning that cars create problems that horses do not. In the modern context, the faster horse fallacy causes courts to perceive email as a faster and cheaper version of mail, thus undermining the right to notice; lawyers to view AI-assisted discovery as a faster and cheaper version of human review, distorting litigation outcomes; and regulators to present electric vehicles as cleaner and cheaper equivalents of gasoline cars, increasing the risk of traffic fatalities.
The faster horse fallacy arises from a failure to distinguish a product from its underlying technology. Technology is rarely presented solely as a technology; technology is presented as a product that consumers want to use. Such products are designed so that typical users need no knowledge of the underlying technology to use them to their fullest enjoyment: consumers need not study internal combustion to drive because, if one needed an engineering degree to drive a car, Ford would go out of business. However, the ability to use a product creates an illusion that one understands the technology as well—an illusion that legal scholars appear to have encouraged. In addition to diagnosing the problem, this Article also discusses potential solutions to the faster horse fallacy.
