Review: Greg Lastowka’s Virtual Justice
posted by Joshua Fairfield
Professor Greg Lastowka, one of the top lawyers writing about virtual worlds, just published his book “Virtual Justice,” from Yale University Press. I have a more complete review of the book coming out in Jurimetrics pretty soon, but here’s the short version. Lastowka’s book stands apart from prior efforts in the field because it recognizes that the study of law in virtual worlds is not a niche, but is instead a compelling example of how communities produce law through their encounter with novel technologies. Lastowka’s core premise is that virtual worlds are cultural spaces that generate law. His insights reach beyond the technology to produce a narrative about the common law itself. Technology cases, he notes, are by definition common law cases, because they present novel questions, often fall outside statutes, and invite reasoning by analogy. Thus, development of law online tracks the path of the common law elsewhere. Communities generate norms, which are adopted by judges, and finally codified by legislatures. Lastowka’s book offers a compelling and foundational narrative of how law is currently being formed at the very edge of cyberspace.
However, it is important to properly understand the interface between virtual worlds and law precisely because virtual communities will have such a great impact on real law. Therefore, I do offer two critiques of Lastowka’s premises regarding virtual worlds as games. First, Lastowka argues that law defers to game rules because games lie outside of ordinary life. My response is that law defers to players’ consent to suspension of default rules, rather than to game rules. Consent, not the rulebook, is the important legal element for me. Lastowka’s second argument is that games ought to be exempt from law because they are not economic activity—that is, that games are “pure waste.” But it seems to me that both the designers who make games and the players who play them are in fact maximizing their social welfare: just as going to the opera creates value for both actors and audience, game designers and game players increase overall social utility by respectively creating and paying to play a game. Thus, while Lastowka has done a masterful job in writing a foundational document for the field, the conversation about how law should interface with virtual worlds is just beginning in earnest.