A Horse Walks into a Bar: Comparing Easterbrook's Criticized Cyberlaw Analogy to the Study of Alcoholic Beverage Law & Regulation

Document Type

Article

Publication Title

Illinois Business Law Journal

Abstract

Bar and nightclub consultant Jon Taffer described alcohol establishments as "part of America's fiber", which is arguably true to this day and age. Between 2008 to 2018, the number of breweries in the United States rose from 1,574 to 7,450. Additionally, in 2018, 8,391 wineries were established in North America, 7,762 of which were in the U.S. As a result, the concept of alcoholic beverage law has become a niche area of practice. Continued Legal Education panels and boutique firms have recently appeared across the country specializing in alcoholic beverage law. With this apparent need for beer and wine attorneys and legislative advancement, one may think that more law schools would make developments to help facilitate this need. So far, some institutions have. In 2019, the University of Kentucky J. David Rosenberg College of Law founded a student organization called the Bourbon Legal Society. The first casebook on "craft beer law" will be published this year. And some universities in California have even taught "wine law" within the past few years. While all of these efforts are indeed commendable, it begs the question: Do any of these efforts illuminate the entire alcoholic beverage law and regulation framework? First off, why should this matter? Well, legal scholars may have a "long face" about the idea of teaching a course on craft beer law or the like, for fear that the subject would be too shallow to where it misses any unifying principles, and be ultimately doomed to fail. This concern derives from a curriculum debate that began almost twenty five years ago by Judge Frank H. Easterbrook when he criticized the idea of cyberlaw by comparing it to teaching the Law of the Horse. Despite its opposition to teaching specialized fields of law, Easterbrook's analogy has been relied upon in support of teaching other fields of legal study, such as equine law, cryptolaw, health law, and more. While much legal scholarship has been written particularly aimed toward craft beer law or wine law, this article will take a different approach by analyzing the evolution of the Law of the Horse analogy and applying it to advocate for the study of alcoholic beverage law and regulation as a whole, rather than craft beer law or wine law specifically.

First Page

41

Last Page

62

Publication Date

2020

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