Professor Joshua Fairfield to Present His Work at Stanford-Peking University Conference on Internet Law and Policy

Prof. Fairfield

Washington and Lee law professor Joshua Fairfield will present his work on virtual currency and virtual property, as part of a panel discussing Virtual Items, at the Second Stanford-Peking University Conference on Internet Law and Policy 2013 hosted by Stanford Law School on May 3d and 4th (registration link: http://blogs.law.stanford.edu/ilpp2013/).

The conference is co-sponsored by Stanford Law School and Peking University, and draws together internationally-recognized scholars from the United States, China, and across the world.  The conference addresses issues of cutting edge intellectual property and e-commercial law, including the growing trade in virtual items and currency.

Professor Fairfield’s work, entitled “Virtual Gravity,” will address the emergence of virtual items, virtual currencies, and microtransactions as a major means of financing internet services.  For example, the virtual currency BitCoin has recently risen to prominence as parties seeking to shield money from the Cypriot banking crisis invest in the online money.  Professor Fairfield’s research explores the differences between Europe, the United States, and China in addressing the rise of virtual items.  It also explores the gravitational pull that the technology of digital objects exerts on the form and shape of the law.

New W&L Faculty Papers at SSRN

Several new papers by W&L faculty are available for download from SSRN, including articles by professors Benjamin Spencer, Christopher Seaman, Christopher Bruner and Joshua Fairfield. Titles and abstracts are below:

Avatar Experimentation: Human Subjects Research in Virtual Worlds
Tue, 07 Aug 2012 | Joshua A.T. Fairfield
Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds and the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This Article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles. Although hundreds of articles and studies examine virtual worlds, none have addressed the interplay between the law and best practices of human subjects research in those worlds. This Article fills that gap. Virtual worlds are valuable research environments precisely because the relationships and responses of users are measurably real. This Article concludes that human subjects researchers must protect the very real interests of virtual worlds inhabitants in their property, community, privacy, and reputations.

Conceptions of Corporate Purpose in Post-Crisis Financial Firms
Wed, 01 Aug 2012 | Christopher M. Bruner
American “populism” has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose – the aims toward which society expects corporate decision-making to be directed. This essay assesses the impact of American populism upon prevailing conceptions of corporate purpose – contrasting its unique expression in the context of financial firms with that arising in other contexts – and then examines its impact upon corporate governance reforms enacted in the wake of the financial and economic crisis that emerged in 2007. I first explore how populism has historically shaped conceptions of corporate purpose in the United States. While the “employee” conceptual category best encapsulates the perceived interests of average working people in the non-financial context, the “depositor” conceptual category best encapsulates their perceived interests in the financial context. Accordingly, American populism has long fostered strong emphasis on the interests of bank depositors, resulting in striking corporate architectural strategies aimed at reducing risk-taking to ensure firm sustainability – notably, imposing heightened fiduciary duties on directors and personal liability on shareholders. I then turn to the crisis, arguing that growing shareholder-centrism over recent decades goes a long way toward explaining excessive risk-taking in financial firms – a conclusion rendering post-crisis reforms aimed at further strengthening shareholders a surprising and alarming development. While populism has remained a powerful political force, it has expressed itself differently in this new environment, fueling a crisis narrative and corresponding corporate governance reforms that not only fail to acknowledge the role of equity market pressures toward excessive risk-taking in financial firms, but that effectively reinforce such pressures moving forward. I conclude that potential corporate governance reforms most worthy of consideration include those aimed at accomplishing precisely the opposite, which may require resurrecting corporate architectural strategies embraced in the past to reduce risk-taking in financial firms. As a threshold matter, however, we must first grapple effectively with a more fundamental and pressing social and political problem – the popular misconception that financial firms exist merely to maximize stock price for the short-term benefit of their shareholders.

Best Mode Trade Secrets
Fri, 27 Jul 2012 | Christopher B. Seaman
Trade secrecy and patent rights traditionally have been considered mutually exclusive. Trade secret rights are premised on secrecy. Patent rights, on the other hand, require public disclosure. Absent a sufficiently detailed description of the invention, patents are invalid. However, with the passage of the Leahy-Smith America Invents Act (“AIA”) last fall, this once black-and-white distinction may melt into something a little more gray. Now, an inventor’s failure to disclose in her patent the preferred method for carrying out the invention — the so-called “best mode” — will no longer invalidate her patent rights or otherwise render them unenforceable. In this Essay, we explain why it may become routine post-patent reform for patentees to attempt to assert both patent rights and trade secret rights for preferred embodiments of their invention in certain types of cases. We also consider potentially undesirable ramifications of this change and suggest one approach courts may use to limit claims of concurrent trade secret and patent protection when equity demands.

Class Actions, Heightened Commonality, and Declining Access to Justice
Fri, 20 Jul 2012 | A. Benjamin Spencer
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that otherwise would never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.

Prof. Fairfield on Do Not Track

Professor Joshua A. T. Fairfield, the Director of the Frances Lewis Law Center, recently published his article, “Do-Not-Track” as Contract, 14 Vand. J. Ent. & Tech. L. 545 (2012), in the Vanderbilt Journal of Entertainment & Technology Law.

In the article, Professor Fairfield discusses a do-not-track option in web browsing. While there could be support and enforcement under the Federal Trade Commission, Prof. Fairfield ultimately concludes that the FTC does not have the political will or technological ability to do so currently. Prof. Fairfield argues that instead, users should utilize the power of contract law to impose a do-not-track option on corporations. If websites are able to impose their rules on users, Fairfield concludes that users can likewise impose their rules on websites.

The article abstract can be found here.

Faculty Enclave

Every year, the faculty at W&L Law convene to share current scholarship and provide feedback to one another. Last week, seven faculty presented their papers and invited discussions, criticism, and suggestions for improvement. The presenters were as follows:

• Josh Fairfield: “Virtual Currency: How to Print Money for Fun and Profit”
• Aaron Haas: “The Marginalization of Religious Persecution in U.S. Asylum Law”
• James Moliterno: “Lawyer Regulation and Innovation”
• Robin Wilson: “Calculus of Accomodation”
• Doug Rendleman: “The Last Tour of Calabresi and Melamed’s Cathedral You Need to Take”
• Michelle Drumbl: “Decoupling Marriage and Taxes: Beyond Innocence and Income Splitting”
• Tim Jost: “The Affordable Care Act Litigation”

Prof. Millon SEALS President-Elect

Professor David Millon, the J. B. Stombock Professor of Law and Law Alumni Faculty Fellow at Washington and Lee University School of Law, was named president-elect of the Southeastern Association of Law Schools (SEALS) at its recent annual meeting. Millon will serve in this position during 2011-12 and will become president of the organization for the 2012-13 term.

Started in 1947, SEALS is comprised of 65 institutional member schools, 23 affiliate member schools and several foreign member schools. The primary activity of the organization is an annual legal conference held during the summer at a family-friendly venue. SEALS just completed its 64th annual meeting, which was attended by more than 500 scholars, the largest attendance in the history of the conference.

W&L Law faculty are very active within SEALS. This year Professors Christopher Bruner, Johanna Bond, Mark Drumbl, Jim Moliterno, Tim MacDonnell, Joshua Fairfield, and Robin Wilson all joined distinguished panels to present their research. In addition, John Keyser, Associate Dean for Administration and Technology, presented on teaching empirical methods, outcome measurement compliance and was also named chair of the conference technology committee.

The full press release can be found here.

Prof. Fairfield on Research in Virtual Worlds

Professor Joshua A. T. Fairfield, the Director of the Frances Lewis Law Center, recently presented his article, Avatar Experimentation: Human Subjects Research in Virtual Worlds, 1 U.C. Irv. L. Rev. ___ (2011), in the “Governing the Magic Circle: Regulation of Virtual Worlds” symposium at the School of Law at University of California Irvine. The article will also be published in the forthcoming edition of the school’s Law Review.

Professor Fairfield, widely considered an expert on virtual world law, addresses the principles and laws that govern researchers observing virtual worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. These very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds as the physical world. Prof. Fairfield argues that the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Thus, the article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles.

Virtual worlds are valuable research environments precisely because the relationships and responses of users are measurably real. Professor Fairfield concludes that human subjects researchers must protect the very real interests of virtual worlds inhabitants in their property, community, privacy, and reputation. To that end, the article outlines solutions and best practices for human subjects research in virtual worlds.

You may view the symposium website here. To view videos from the symposium, click here. You may read Prof. Fairfield’s article on SSRN here.

Congratulations to Professor Fairfield on the presentation and publication of this article.

Joshua A. T. Fairfield: Book Review

In the upcoming edition of the Jurimetrics Journal, Professor Joshua A. T. Fairfield, the Director of the Frances Lewis Law Center, will have his review of Rutger’s Professor Greg Lastowka’s Virtual Justice published.

Professor Fairfield notes that Lastowka’s book is not just an introduction to virtual worlds and the rules that govern them. Instead, it is more of a study on the “process by which law emerges from the interaction of community and technology at the bleeding edge of cyberspace.” He argues that the book demonstrates that virtual worlds are participating in the generation of common law. Professor Fairfield finishes the review with these words:

It is often the goal of legal scholars to write the definitive work on the subject; the last word. Lastowka has succeeded in doing even better – he has written the first word. With humor, exhaustive research, and precise, moderated analysis, he has written a foundational text that necessarily must undergird all that will certainly follow. As he set out to do, lastowka has not finished the debate. Rather, he has crafter a solid foundation on which the field can now build.

Professor Lastowka has made the text available online, licensed by the Creative Commons Attribution – NonCommercial 3.0 License. It may be found on Lastowka’s website.

Congratulations to Professor Fairfield for getting his review published.

Professor Joshua A.T. Fairfield: Schwarzenegger v. Entertainment Merchants Association

In the upcoming Spring edition of the Law Alumni Magazine, Professor Joshua Fairfield, Associate Professor of Law and Director of the Frances Lewis Law Center, commented on the recently argued Supreme Court case, Schwarzenegger v. Entertainment Merchants Association. Professor Robin Wilson also commented on the case. Fairfield’s views, in their entirety, are below:

2010 Supreme Court Preview

Each year, the W&L Law chapter of the American Constitution Society sponsors a Supreme Court Preview, where law faculty discuss some of the key cases on the U.S. Supreme Court docket for the upcoming term. During the panel discussion, W&L professors frame the important issues of the case and explain the routes the cases took through the lower courts before being accepted for review by the Court.

This year’s preview is Tuesday, Oct 19, at 6:30 p.m. in the Millhiser Moot Court Room, Sydney Lewis Hall. Presenting during the event will be:

• Professor Brian Murchison, who will discuss Snyder v. Phelps and its potential implications on First Amendment jurisprudence.
• Professor Ann Massie, who will discuss Flores-Villar v. United States and the application of equal protection gender discrimination in the  transfer of citizenship to children.
• Professor Joshua Fairfield, who will discuss Schwarzenegger v. Entertainment Media Association and the constitutionality of California’s ban on the sale of violent video games to minors.
• Professor Bruck, who will discuss Connick v. Thompson and Skinner v. Switzer and issues of liability and evidence access in criminal cases.

In a “preview of the preview,” Profs. Bruck and Fairfield shared some thoughts about their respective cases in video interviews, which can be viewed below. We will post video of the entire panel discussion following the event.

Prof. Bruck on Connick v. Thompson and Skinner v. Switzer

Professor Joshua Fairfield on Schwarzenegger v. Entertainment Media Association

Professor Brian Murchison, on Snyder v. Phelps and its potential implications on First Amendment jurisprudence.