UCLA Law Review Volume 54, Issue 3

Claiming Ownership, but Getting Owned: Contractual Limitations on Asserting Property Interests in Virtual Goods

Virtual worlds, and the subset known as massively multiplayer online games, have grown in popularity to encompass tens of millions of participants and billions of dollars in revenues per year. Participants make sizable investments of social, human, and economic capital in these virtual worlds, often with the questionable expectation that the items they have collected and creations they have developed are their property. This Comment builds on previous scholarship by looking past abstract theoretical possibilities of whether property can exist in a virtual world to perform a systematic analysis of how end user license agreements actually allocate the property rights of use, exclusion, and transfer among virtual-world providers and participants. While there are some small differences from agreement to agreement in the commensurability of virtual goods and in the ability of participants to recognize profit from their virtual creations, the agreements consistently give providers the plenary ability to impose sanctions on participants and to change the terms of the agreements. This uncertainty severely curtails the ability of participants to enjoy the fruits of their investments. This Comment proceeds from this analysis to explore assertions of a reasonable right of access, contract claims, consumer protection claims, and possible legislative action that might help participants to protect these investments and encourage continued growth on this innovative frontier.

Pharmacist Refusals and Third-Party Interests: A Proposed Judicial Approach to Pharmacist Conscience Clauses

The issue of pharmacists refusing to dispense birth control or emergency contraception recently has become a major debate in the battle over reproductive rights. Several states have enacted legislation to protect refusing pharmacists, and many more are considering such laws. I explore these new laws against the backdrop of the existing legal landscape governing the actions of pharmacists, including tort law, Title VII of the Civil Rights Act of 1964, and free exercise jurisprudence. I then consider how courts might interpret refusal clauses upon which pharmacists may rely. I argue that courts should read pharmacist refusal statutes narrowly by limiting the protected act of conscience to the actual refusal to dispense medication, and not extending protection to behavior that could violate the pharmacist’s duty of care to patients. Such an approach will not only minimize the impact of refusals on the interests of patients and employers, but will meld these new statutes with the existing legal framework addressing religious objectors, which has consistently shown concern for third-party rights.

Friendship & The Law

This Article’s central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses—family and special professional relationships are obvious ones—but the status of the friend is rarely relevant to legal decisionmaking and public policymaking in a consistent way. After defining the concept of the friend, I offer a normative argument for why the law should promote a public policy of friendship facilitation and for why the law ignores friendships only at its peril. I highlight how the law already finds friendship relevant in certain issue areas without any self-conscious or systematic understanding of it, and I recommend other issue areas where friendship could matter more to legislators, courts, and legal scholars. We are regulating friendships without even recognizing that we are doing so, and friendship commands more attention from legal scholars and legal decisionmakers. I offer a framework to show how the law could exact certain duties from friends and confer certain privileges upon them as well.

Autonomy and Informed Consent in Nontherapeutic Biomedical Research

The common law and federal regulations create overlapping legal regimes that require researchers to obtain the informed consent of most human subjects of medical research. The fast-growing field of biomedical research generally, and stem cell research in particular, gives rise to a range of unresolved and contested legal issues concerning the extent and implementation of the informed consent requirement. This Article identifies and assesses a series of these: (1) Must researchers obtain the informed consent of participants in nontherapeutic research not covered by federal research regulations? (2) As part of the process, must researchers disclose their financial interests in their projects? (3) Must informed consent be obtained before researchers use tissues stored in tissue banks? (4) Must informed consent be obtained from both gamete donors before research use may be made of a stored human embryo? The Article argues that these questions can be best resolved by focusing the analysis on the core value of subject autonomy that underlies the principle of informed consent.

The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics

Five years ago, in Zelman v. Simmons-Harris, the U.S. Supreme Court upheld the constitutionality of a Cleveland program that provided school vouchers to low-income parents seeking private school alternatives for their children. Zelman was heralded as of great historical significance when it was decided. Yet, in the years since Zelman, school vouchers have made little political headway—only three jurisdictions have adopted voucher plans, and proposals have failed in over thirty-four states. This Article examines why school vouchers have failed to garner the support that so many assumed would follow the Court’s decision in Zelman. The explanation, I suggest, concerns religion, race, and politics. The original rationale for vouchers was what I call the “values claim”—vouchers protected the right of parents to send their child to a school that reinforced their values. Originally promoted by Catholics, the values claim was adopted by evangelical Christians concerned about the secularization of public schools after the 1960s. Although the values claim was central for most of the history of the voucher movement, in the decade leading up to Zelman, voucher advocates replaced the values claim with what I call the “racial-justice claim.” This rationale emphasized vouchers as part of a civil rights struggle to obtain academically rigorous private education for low-income and minority parents. Redefining vouchers in this manner had political and legal advantages, and paved the way for the Court’s decision in Zelman upholding vouchers. Since Zelman, however, two trends have emerged that spell trouble for the future of the voucher movement. First, there are tensions between the values and racial-justice claims for vouchers, as the two claims lead to very different types of voucher programs that appeal to divergent political constituencies. Second, the voucher movement has been hurt by the rise of the accountability movement in education. No Child Left Behind was enacted the same year that Zelman was decided, meaning that the Court gave the green light to the voucher movement at exactly the same time that state and national education policy began to demand greater oversight of all schools, including private schools accepting vouchers. For schools today, accountability means less local control, more tests, and stricter government standards. Conservative Christians, who once led the voucher movement, reject these intrusions into school autonomy. As a result, they are less likely to support modern voucher programs. My approach in this Article is historical, predictive, and normative. It is historical in that I trace the development of the values and racial-justice claims for school vouchers, exploring the tensions between the two claims. It is predictive because I suggest that the future of this educational reform is much less rosy than voucher supporters thought when Zelman was decided. Thus, I predict that Zelman may end up mattering much less than so many had thought it would. Finally, my approach is normative for I argue that it would be unfortunate if I am right about the demise of vouchers. While voucher defenders have vastly overstated the racial-justice claim, there is some prospect that vouchers might improve educational outcomes for low-income African American children. I argue that vouchers should be permitted at least until they can be more thoroughly evaluated to determine their impact on a group so in need of better educational opportunities.