You have probably noticed that algorithms are the new black in the antitrust world.
As I pointed out last year, writing about “big data” was fashionable in 2015 and 2016, but things have changed, algorithms are now KINGS. But here lies actually a doctrinal cheese soufflé (a great French reference, I had to) that focus much attention on a subject that probably does not deserve so much.
Let me first recall what Frank H. Easterbrook famously wrote in its Cyberspace and the Law of the Horse (1996):
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. » (…) 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.
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 » I don’t know much about cyberspace; what I do know will be outdated in five years (if not five months!); and my predictions about the direction of change are worth