保罗·R. Verkuil

The Values and Limits
of Substitutional Sovereignty

Innovations Case Discussion: Second Life

I have been asked to comment on Cory Ondrejka’s “Collapsing Geography” in part
because I have recently written about traditional sovereignty.1 I was not a partici-
pant in Second Life (SL), but as a result of this assignment I have become one. 这
experiment with virtualism serves to critique values of citizenship and geography
that form the core of traditional sovereignty; in so doing it suggests ways to
improve traditional approaches to the subject. When Ondrejka says “nations must
reexamine their sources of, and claims to, national power”2 he forces us, in Thomas
Mann’s words, to imagine another reality. 而且, to the extent that SL is an eco-
nomic market and more than a game (as Ondrejka urges over Thomas Malaby’s
反对意见), it invites governance by real world legal rules. These two themes—
what the SL offers the first and what the first world may impose on the second—
are the focal points of this comment.

CYBER LESSONS FOR THE SOVEREIGN

Traditional sovereignty has been subjected to stresses from globalism and concepts
of “new sovereignty”3. But it also suffers from immigration crises that challenge
geographical notions of sovereignty. In the U.S., the fence on the Mexican border
and plans to round up and expel those here “illegally”4 are demonstrations of tra-
ditional sovereignty. But an enforcement policy that expels rather than reforms (在
ways designed to legitimate those who are within our borders) tests the limits of
sovereignty and undermines international relations, especially in Mexico. In these
情况, we are in need of fresh ideas. The SL solution, which eschews geog-
raphy as an organizing principle, provides a refreshing alternative. The creation of
honorary citizens or virtual citizens who are equals no matter where they are locat-

Paul R. Verkuil, is a Professor of Law at the Benjamin N. Cardozo School of Law,
Yeshiva University, where he served previously as dean. Professor Verkuil served for-
merly as a president the College of William and Mary and as president and CEO of
the American Automobile Association. He is a life fellow of the American Bar
Foundation and of the American Law Institute. Professor Verkuil is most recently the
author of Outsourcing Sovereignty (Cambridge UK: Cambridge University Press,
2007).

创新 / summer 2007

从http下载的://direct.mit.edu/itgg/article-pdf/2/3/68/704159/itgg.2007.2.3.68.pdf by guest on 08 九月 2023

The Values and Limits of Substitutional Sovereignty

ed physically places value on contributions over presence. A world without geo-
graphic dimensions hardly seems relevant to these immigration issues. Still it chal-
lenges us to reconcile this community with our own. Ondrejka shows us that more
than one kind of citizenship is possible where geographical choices don’t have to
be made. Could it also be true that “citizenship” might vary in circumstances where
these choices have to be made? Reflection upon the kinds of multi-level relation-
ships that can exist in the physical world, such as guest workers or other varieties
of citizen commitment and interaction, is one way to integrate these worlds.
Thomas Malaby nicely makes this point with the concept of “flexible citizenship.”5
The ability to cross borders for work purposes (and for limited times) could be in
everyone’s interest. Dividing citizenship—or expanding it, as in Ondrejka’s
world—may provide a solution to most sovereignty problems, except the right to
投票 (which is an indicator of citizenship that is often devalued).

Since citizenship connects to sovereignty, dividing it divides sovereignty as
出色地. 我们. notions of sovereignty devolve from the Constitution, where it is placed
not in the government but in the people.6 The people may amend or modify it by
acting through their agents, congress and the executive. Perhaps their (我们的) mis-
take has been to conceive of sovereignty and citizenship too narrowly or rigidly
and as incapable of modification for specific purposes. If the view of citizenship
were expanded, the nativist fears engendered by undocumented aliens in our midst
might be ameliorated. SL helps us to appreciate these possibilities.

The SL experience also impliedly questions the value of other forms of geo-
graphic based programs, such as education. Ondrejka shows that the rate of inno-
vation is controlled by the cost of education. In the U.S., that proposition has seri-
ous implications since we have a higher education price index (HEPI) that exceeds
the normal consumer price index (CPI). Higher education defends the HEPI by
showing how extra educational services (卫生保健, safety, athletics, dormitories,
laboratories) all drive costs higher. But these expenses are mostly premised on the
model of a university as a residential experience. SL tells us that the values of vir-
tual education (pseudonymity, 相信, meritocracy) may be offsetting alternatives to
the face-to-face virtues of a residential college. 的确, Ondrejka even cites situa-
tions where students at top geographical places like the Harvard Law School some-
times prefer the virtual to the classroom world.

We have to take seriously the strengths of a virtual educational experience as
we plan new universities here and abroad (where the residential university is a lux-
ury). We know the distance learning option reduces the cost of education, but if it
improves the rate of innovation it must be considered more seriously. 当然
there is much to be said for the broader and deeper educational experience that
campus centered education makes possible. By definition the SL cannot replicate
this experience. The values that residential education brings for those lucky
enough to experience it are beyond the capacities of the virtual world.7 When it
comes to determing the rate of innovation, the effects of residential universities
may have to be examined over a student’s lifetime in order to measure it accurate-
莱. 这样, the costs of campus life may be more positively correlated to inno-

创新 / summer 2007

从http下载的://direct.mit.edu/itgg/article-pdf/2/3/68/704159/itgg.2007.2.3.68.pdf by guest on 08 九月 2023

保罗·R. Verkuil

休假, and to the interaction between personal satisfaction and achievement.

There is no doubt that the SL model can improve the rate of innovation.
Collaboration in safe environments where the power to fail “is not an option, 但
a requirement”8 encourages and accelerates innovation. I am reminded of the suc-
cess of InnoCentive, an online scientific research venture started by Eli Lilly but
now freestanding.9 InnoCentive has recently partnered with the Rockefeller
Foundation to solve problems in the developing world.10 By using a model of col-
laboration familiar to SL, this joint venture holds promise for solving what have
always been thought as intractable problems of poverty and vulnerability. 这
simultaneous interaction of brilliant minds engaged in social problem solving is a
compelling model for innovation and reform.

Ondrejka also asserts that avatars and the SL community experience help build
相信, an indispensable value in the educational setting. Francis Fukuyama’s notion
that a community based on mutual trust increases social capital and economic well
being11 produces respect for trust producing institutions. In the educational set-
ting, trust and rational discourse are enhanced when all can be heard. In the tradi-
tional classroom of course the instructor must balance the desire to call on those
with eager hands against the hope that someone with the most productive answer
will respond. Pseudonymity can revolutionize pedagogy in the university world by
making the best answers more likely.

THE FIRST LIFE STATUS OF SECOND LIFE

The fascinating question is whether SL has created a community with real world
结果. SL has many of the indicia of sovereignty: 地理 (virtual land)
经济 (Linden/U.S. 美元) and a governance structure (benign dictatorship).
These are sovereign attributes; only the power to wage war seems to be lacking.

Ondrejka highlights the governmental status of SL by emphasizing its eco-
nomic, property-rights-creating dimensions and by deemphasizing the game
aspects of the exercise. But the constitutional question is whether these factors are
sufficient to create company town status for the purposes of the state action doc-
trine.12 If that were to occur, due process protections over the decisions of SL would
be conceivable. This proposition has been seriously debated.13 The more important
the community becomes in an economic and cultural sense, the more likely the
state action conclusion is to be drawn. 拿, 例如, the possibility that an
individual is barred from the site for inappropriate behavior (intolerance, harass-
ment and indecency are grounds for expulsion). This expulsion has real world con-
sequences—the loss of resources as well as identity—and it could lead to litigation.
But does this make SL’s actions governmental in nature? SL is a monopolist. But is
it a public monopolist? From my perspective, the discretionary nature of the exer-
cise (you are not compelled to work there) and the unregulated (so far) state of the
Internet both counsel against imposing public status on SL. But as a cautionary
事情, it would be wise for SL to provide procedures by contract, so as to make it
less likely to provoke due process based state action determinations.

创新 / summer 2007

从http下载的://direct.mit.edu/itgg/article-pdf/2/3/68/704159/itgg.2007.2.3.68.pdf by guest on 08 九月 2023

The Values and Limits of Substitutional Sovereignty

SL seems to be inviting state action status by creating property rights and
behaving like a sovereign entity. But whether or not the courts intervene on a con-
stitutional basis, SL should create “private” due process procedures that protect its
residents. This can be done in several ways.14 The most obvious is to provide for
“hearings” when expulsion in suspension is proposed. These don’t have to be tri-
作为. Arbitration can serve a valuable role so long as the values of independence and
objective decision-making are respected. Once due process has been privatized and
its values have been incorporated in to the virtual world, adjudications can occur
in that world but on a contractual rather then due process basis.

The fascinating question is to
consider whether SL has created a
community with real world
结果. SL has many of the
indicia of sovereignty: 地理
(virtual land) 经济
(Linden/U.S. 美元) and a
governance structure (benign
dictatorship). These are sovereign
属性; only the power to wage
war seems to be lacking.

if SL
此外,
residents organize,
他们
may force the host (sover-
eign) to provide process as
a part of the basic under-
standing of the communi-
蒂. Take sports leagues, 为了
例子. They are like vir-
tual communities also
(video dominated with
fantasy leagues) 但他们
have real world conse-
序列. Collective bar-
gaining agreements pro-
vide for drug testing of
participants and private
hearings and penalties
(administered by a com-
missioner/Czar). 这些
requirements are only
possible because of
这
presence of contractual/community relationships. Collective bargaining agree-
ments constitute a form of private government and are exempted from the
antitrust laws as benign monopolies precisely because they reflect private ordering
原则.

Whether the residents of SL have the incentives to organize probably depends
on the purpose of the specific community arrangement. Many communities may
be more competitive and atomistic, but some will be collegial and collaborative.
Ondrejka might want to pursue how well his community values play out in each
环境. The creation of process oriented sub-groups is a further refinement of the
governance structure.

认为, 例如, that a group is engaged in a literary development proj-
ect that challenges or thwarts the established community standards. The group
could well surround its activity with a hearing process that guards against arbitrary
expulsion for offensive or “indecent” productions. The community substandards,

创新 / summer 2007

从http下载的://direct.mit.edu/itgg/article-pdf/2/3/68/704159/itgg.2007.2.3.68.pdf by guest on 08 九月 2023

保罗·R. Verkuil

thus established, would and should be recognized by SL just as they may be by
judicial process. 这样, the rules of Second Life and those of just life can merge
成功地.

结论

As a newcomer to this world, my avatar doesn’t look like my face in the mirror. 我
am still struggling with my identity.15 But I am impressed with SL’s sovereign
dimensions and its potential for rethinking and expanding education and innova-
的. Those of us in the first life have much to learn from Second Life, but the oppo-
site is also true. The more SL succeeds, the more it could be intruded upon by the
powers of the constitutional sovereign. We the people are increasingly becoming
citizens of these two worlds.

Acknowledgements

Thanks to my Cardozo colleague Susan Crawford for instructing me on the Second
Life model.

1. 保罗·R. Verkuil (2007), Outsourcing Sovereignty, Cambridge UK: 剑桥大学出版社.
2. “Collapsing Geography,” p. 29, in this issue.
3. See Anne-Marie Slaughter (2004), A New World Order, 普林斯顿大学: Princeton Press.
4. NY Times, 八月. 13, 2007 (editorial).
5. See Malaby, Contriving Constraints, p. 67, in this issue.
6. Verkuil, supra note 1, 在 14-16 (discussing assumptions of sovereignty at the Founding).
9. I say this as a former president of a proud, campus based institution, the College of William &

Mary.

10. “Collapsing Geography,” p. 38, in this issue.
11. 看 .
12. The project brings together over 100,000 online scientists to solve problems posed by nonprof-
its who work in the developing world. Rockefeller provides financial rewards to both the seekers
and the solvers.

13. See Fukuyama (1995), 相信, Free Press at 9-12. At the time Fukuyama wrote, the internet attract-

ed only a small part of his attention. See id at 195-96.

14. See Marash and Alabama, 326 我们. 501 (1946).
15. See Jack M. Balkin, Law and Liberty in Virtual Worlds, in The State of Play (Jack M. Balkin & Beth
Simone Noveck, 编辑。, NYU Press 2006) 在 86, 98; Jason S. Zack, The Ultimate Company Town:
Wading in the Digital Marsh of Second Life (on file with author).

16. These suggestions are drawn from Paul R. Verkuil, “Privatizing Due Process,” 57 Admin.L.Rev.

963 (2005).

17. See Susan Crawford, “Who’s in Charge of Who I am? Identity and Law Online,’ in Balkin &

Noveck supra note 14, 在 198.

创新 / summer 2007

从http下载的://direct.mit.edu/itgg/article-pdf/2/3/68/704159/itgg.2007.2.3.68.pdf by guest on 08 九月 2023
下载pdf