My immediate reaction when this question was asked last week and this week was “because law is slow to change in relation to most things.” For example, last Friday (the 18th) was Persons Day, the 85th anniversary of the Persons Case. Sure took a while for that (now obvious and self-evident to most, I hope) decision to be made, and it had to go all the way to the Privy Council. There’s the old magical assertion of Crown sovereignty and the fact that aboriginal title has just been officially found by the courts this summer in Tsilhquot’in, despite it having been there all along. Human rights and the introduction of the Charter just 32 years ago. Animal rights – still waiting on that one, but with incremental signs of recognition and improvement (for example, a beautiful dissent in the 2011 Lucy the Elephant case Reese v City of Edmonton, and today’s dissent can always be tomorrow’s majority!). In the communication slides from today’s class, I saw hope for the new paradigm that could come with the age of virtual reality. For example, at the Animal Law Conference in Portland this weekend we learned about the use of technology, including computers and VR, and individualized cellular testing – both in lieu of animals – for greatly improved testing of medical procedures, drugs, and toxins. As technology continues to develop, I am hopeful that the incremental changes that will follow in the law will improve the circumstances for everyone, from gamer/creator/connectors to non-human animals. (Also, speaking of Portland, there is an amazing bar there called Ground Kontrol which has two storeys full of arcade games (pic below) – highly recommended! (http://groundkontrol.com/)
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I think some of the technological changes you mentioned Megan may lead to change in the law because new technologies provide alternate solutions to existing problems without some of the current trade-offs involved in animal testing debates. In some ways, I feel like this is letting the law off too easily, as VR or individualized cellular testing are simply making the underlying conflict the law has failed to grapple with redundant. Your underlying issue – why is the law so slow to adapt – hasn’t been addressed as much as it has been elided.
But you hit the nail on the head with respect to incremental changes in the law – that’s the model for change in our legal system, and while it has many advantages, one of the key disadvantages is its enormous inertia. By inertia I don’t just mean that it is slow to change, but that the rate of change in the legal system is dependent on the mass of the law in question. In other words, more heavily developed areas of law (like contracts) are necessarily slower to change because of the weight of prior authority. Again, this can be a good thing as it leverages the collective wisdom of the law over generations to solve problems. But in some cases, namely those where our social circumstances have vastly changed from the original context in which the law has developed, it causes real problems.
A perfect example is Ground Kontrol’s Vancouver analogue: EXP. I’ve never been, in part because last I checked they don’t have video games you can actually play. According to the Georgia Strait, the LCLB prohibited the use of video game consoles within the establishment because they have a food-primary liquor license, and the LCLB Licensing Policy Manual holds that, “‘video arcade style games’ and other games that require patrons to get up from their tables are not allowed in the licensed areas of food-primary establishments. Meanwhile, Internet-connected computers, and board and card games are permitted, provided they “do not alter the primary focus on the service of food” and can be played by seated customers.” Furthermore, video game arcades are categorically prohibited from applying for a liquor-primary license. I don’t know, but my guess is that these rules developed when video games were seen as solely a children’s medium, so restricting the combination of the two made sense (https://www.youtube.com/watch?v=RybNI0KB1bg). Today, when the average age of a “gamer” is 30+ and gaming is an increasingly popular hobby, these restrictions seem excessive. I can go watch a movie and drink beer at the Rio, but if I want to drunkenly lose at NBA Jam… for now, my only options are drinking at home or driving to Portland.