Document Type
Article
Publication Title
University of Illinois Law Review
Publication Date
2025
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 (AI), 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 for understanding new technology that comes naturally to the legal profession but induces both practitioners and academics to misperceive technology and warps outcomes in both procedural and substantive law. This 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. The fallacy causes scholars to view AI-assisted discovery as a faster and cheaper version of human-centric review, thereby distorting litigation outcomes. The fallacy also causes courts to perceive email as a faster and cheaper equivalent of mail, which undermines the right to notice, and causes regulators to present electric vehicles as cleaner and cheaper equivalents of gasoline cars, which exposes motorists to new safety risks. The faster horse fallacy arises from a failure to separate a product from its underlying technology. Technology is rarely presented to the public solely as a technology; it is presented as a product that consumers want to use. Such products are designed so that users need no knowledge of the underlying technology to use a product. Consumers need not study internal combustion to drive a car because, if one needed an engineering degree to drive, Ford would go out of business. However, the ability to use a product creates an illusion that one also understands the technology an illusion that scholars appear to have encouraged. I submit that this illusion causes the law to idealize technology by overestimating what technology is capable of doing, thus entrusting technology with tasks that it cannot and therefore should not conduct on behalf of people and society.
Recommended Citation
Youngsieg P. Kim,
The Faster Horse Fallacy: How the Law Idealizes Technology, 2025 U. Ill. L. Rev. 609
(2025)
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1666