Havel’s Presidency had its up and downs, but what is stunning to me is that he managed it all. There was simply no precedent for a transition of power in Czechoslovakia. Try to imagine, if you can, arriving in the White House tomorrow, to find it abandoned. You have no political experience. You are in charge of the country, and it is convulsing in revolution. Where do you begin? How do you begin?

Havel did what he knew best: he sat down to write, [...]]]> It’s been a joy visiting here at Concurring Opinions again – thank you to the Co-Op crew for the opportunity. I’m going to take my leap month early this year and consider this January 32nd so I can finish up the Havel posts.

Havel’s Presidency had its up and downs, but what is stunning to me is that he managed it all. There was simply no precedent for a transition of power in Czechoslovakia. Try to imagine, if you can, arriving in the White House tomorrow, to find it abandoned. You have no political experience. You are in charge of the country, and it is convulsing in revolution. Where do you begin? How do you begin?

Havel did what he knew best: he sat down to write, in this case not a play or essay, but a constitution. Havel was the principal architect and drafter of the Czech Charter of Fundamental Rights and Freedoms. As in the case of much of Havel’s writing, it is striking in its parsimony. Much of the bitter history of totalitarian and post-totalitarian society is starkly if implicitly revealed in each articulated principle:

Democratic values constitute the foundation of the state.
The freedom of thought, conscience, and religious conviction is guaranteed.
The inviolability of the person and of her privacy is guaranteed.
A person’s dwelling is inviolable. It may not be entered without the permission of the person living there.
Only a law may designate which acts constitute a crime.
Censorship is not permitted.
Everyone who suffers from material need has the right to such assistance as is necessary to ensure her a basic living standard.
Everyone has the right to the protection of her health.
Everyone has the right to education.
Everyone has the right to demand that her human dignity be respected.

A few final thoughts on Havel: He was not anti-communist. He was horrified by the effects of a system, created by and embodied through individuals, which had encouraged people to avoid two fundamental and ultimately inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. He did not ultimately seek a political revolution, but rather an existential one. The type of existence he imagined was incompatible with post-totalitarianism, so a political revolution would be an inevitable by-product of that existential revolution in post-totalitarian states.

But Havel’s critique was hardly limited to communist post-totalitarian regimes; it applied with equal force to capitalist, democratic systems, if such systems encouraged people to avoid their two fundamental and inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. In particular, Havel saw in the consumerist West a dangerous phenomenon: individuals attempting to sate themselves through by material satisfactions, to shirk moral responsibility to themselves, each other, and for the actions of their state. Havel saw that the he need for an existential revolution in such a society is just as great, and perhaps as inevitable, since people probably cannot withstand the internal pressure of alienation from themselves forever. In a consumerist society, we consume with increasing speed but can never quite consume enough to be satisfied. Eventually, perhaps, it will become clear that one cannot avoid one’s moral responsibilities with more and better things. As Havel forecast with amazing prescience about the sudden collapse of the East European regimes, such systems are vulnerable to “a sudden explosion of civic unrest, a sharp conflict inside an apparently monolithic power structure, or simply an irrepressible transformation in the social and intellectual climate.”

I, for one, hope that time is coming. And when I say hope, I mean hope as Havel meant it: “not the conviction that something will turn out well, but the certainty that something makes sense, regardless of how it turns out.”

In retrospect, they should have just killed him. They were afraid to do it – in fact, he was released from prison because they thought he was about to die in their custody – because the treatment of dissidents all over the world was, for the first time, being closely monitored internationally under the Helsinki Accords. (In fact, the International Helsinki Foundation [...]]]> Vaclav Havel was released from his longest prison term in 1983. He was hospitalized for the following month – a fact which alone speaks volumes about the conditions of his confinement. The Czechoslovak regime had tried almost everything it could to silence him, to no avail: internal exile, censorship, constant surveillance and harassment, imprisonment with hard labor, glittering offers to emigrate – nothing worked.

In retrospect, they should have just killed him. They were afraid to do it – in fact, he was released from prison because they thought he was about to die in their custody – because the treatment of dissidents all over the world was, for the first time, being closely monitored internationally under the Helsinki Accords. (In fact, the International Helsinki Foundation was headed by a Czech exile – Karel Schwarzenberg, who eventually became one of Havel’s closest advisors and is currently the Foreign Minister of the Czech Republic).  Havel and the other Charter 77 leaders had been shrewd enough to frame their dissent as a celebration of the Helsinki Accords — but it also reflected their fundamental commitment to human rights.

Totalitarian regimes had signed the accords to assure their survival – borders were recognized, aid made available. They did not know it, but they had sown the seeds of their destruction by agreeing, as an afterthought, to tie aid to their treatment of human rights advocates. They could not kill Havel and get aid, so they had to gamble: take the aid and try to control Havel, or kill him and try to survive without the aid. They let him live and lost.

As much of Eastern Europe began to open up following Mikhail Gorbachev’s ascension to power in the Soviet Union, the Czechoslovak regime went in the opposite direction: it cracked down especially hard, much harder in fact than neighbors such as Poland, Hungary and East Germany. Repression increased in Czechoslovakia as it decreased elsewhere. Havel was arrested and imprisoned yet again.

Arrests and searches grew more frequent, which caused some despair among the Charter 77 leaders – but not Havel. He recognized the increasing repression as a sign of weakness in the regime. It was growing afraid because its grip on power depended more and more upon the exercise of its own brute force, since the Soviets had made clear that this time – unlike 1968 – there would be no military invasion.

Students began holding illegal demonstrations and were beaten and arrested. But as totalitarian regimes began to fall around them, more and more Czechs and Slovaks were emboldened to speak out. Released in late 1989, Havel and others formed an umbrella organization, the Civic Forum, that newly emerging dissident organizations joined. As demonstrations increased in late 1989, the regime reacted violently. The revolution in Czechoslovakia is universally called the ‘Velvet Revolution’ but it was only soft in comparison the bloodbath that was feared. You can see it for yourself here, and it is well worth watching.

When the Civic Forum called for a general strike, the regime was shocked to find the country completely paralyzed. Millions of people took to the streets of Prague and other cities around the country and it became undeniably clear that the regime had no popular support at all, and thus no legitimacy.

It was in fact exactly as Havel had predicted years before in The Power of the Powerless: the moment people stopped playing their roles, and lived honestly, the totalitarian power structure would collapse. Members of the regime recognized now that without Soviet military support, their days were numbered unless they could effect a peaceful transition. The regime sought a meeting with Havel and other members of Civic Forum. Within a few days, the regime announced it was resigning. Here is the moment word of the resignation reached the dissidents, including Havel, in their headquarters in (naturally) a theater.

It was a triumphant moment, but it left two enormous, unanswered questions: what would come next? And who could be trusted to lead the country out of 40 years of totalitarian nightmare into a new and terrifying future?

Vaclav Havel never intended to become a political leader. He was a playwright and some time philosopher who simply refused to keep his mouth shut. But, quite suddenly, as Havel had predicted, the regime had collapsed. The cause for which Havel had nearly sacrificed everything – what he called the basic dignity of each person’s right to live in truth and love – stood at the precipice of success. But it would die there unless someone committed to those ideas, who had sufficient popular support, would fill the vacuum of power.There was no one with any political experience to turn to, because all of the leaders of Civic Forum were working as janitors and boiler-feeders, or were in prison.

Havel didn’t want to become President. He wanted to write. He repeatedly laughed off the suggestion until it became clear the revolution would die unless he did it. The suggestions had become pleas. The massive crowds gathering in Wencelaus Square chanted “Havel na Hrad” (“Havel to the Castle”).  Years before, in another startling display of prescience, Havel had written that “the real test of a man is not how well he plays the role he has invented for himself, but how well he plays the role that destiny assigned to him.” Now he faced that moment.

Havel had been willing to go to prison; now, against his own desires, he would go the castle.

There was no road map. No one knew what to do, starting on day one. It was impossible to get the phones to work, let alone to rid the palace of the secret police. But he went his way: simply, and living in truth. His first address as President captured the starkly honest spirit with which he assumed office:

“For forty years you heard from my predecessors on this day variations on the same theme: how our country was flourishing, how many million tons of steel we produced, how happy we all were, how we trusted our government, and what bright prospects were unfolding in front of us. I assume you did not propose me for this office so that I, too, would lie to you.”

As he had written years earlier, “even the toughest truth expressed publicly, in front of everyone else, suddenly becomes liberating.”

Havel found this first period of imprisonment particularly difficult. He had not yet learned how to deal with daily interrogations, [...]]]> Immediately after the Charter 77 Declaration was released, Vaclav Havel was arrested. At first he underwent daily interrogations at Ruzyne Prison and was released each night; by January 14, they stopped letting him leave. As I discussed in the previous installment, Charter 77 had painted the regime into a corner by couching its declaration as a celebration of the commitments the regime had made under the Helsinki Accords to respect human rights. The regime couldn’t very well prosecute Havel for agreeing with it, so they officially charged him with smuggling documents out of Czechoslovakia that were published abroad – including, of course, the Charter 77 declaration.

Havel found this first period of imprisonment particularly difficult. He had not yet learned how to deal with daily interrogations, and discovered that by trying to engage his interrogators in conversation he had given them ammunition against himself and other Charter 77 members. You can see Havel discuss how he learned to deal with interrogations here. After several months, Havel mentioned to his interrogators that he planned to resign as spokesperson for Charter 77 (the position was meant to rotate); the regime publicly announced that Havel had renounced his role in the group and released him as proof. Havel was humiliated and disgraced, but he recovered his bearings and began to work with the dissident group (and a second he co-founded – the Committee for the Protection of the Unjustly Persecuted or VONS — even more energetically than before).

The Czechoslovak secret police constantly watched and tormented the dissidents. Policemen literally followed Havel everywhere he went at all times – not secretly, but openly, within an arm’s length of him. They demanded identification from anyone he talked to; they walked with him when he walked his dog. The secret police took over the property immediately next to Havel’s house and built a watchtower on it, from which they watched him at all times. They smashed his car windshield, then arrested him for driving with a smashed windshield. They planted listening devices throughout his house and repeatedly raided it, taking any documents they could find. Dissidents were beaten and arrested. Repeatedly they were grabbed off the street; sometimes they were taken for interrogation, sometimes they were driven out into the countryside in the middle of the night and kicked out of the car, to find their own way back. Many dissidents escaped into exile (often with the eager agreement of the regime). Havel and a handful of others refused to budge.

And yet, despite the regime’s best efforts, Charter 77 and VONS survived. Havel and others occasionally managed to slip from the regime’s grasp as they became skilled in subterfuge. They smuggled out documents that were published abroad. Most amazingly, the Czech dissidents actually managed to meet clandestinely with Polish dissidents from Solidarity and KOR, who were living under martial law at home.  They met in the mountainous forests on the border between the two countries.

Secret meeting with Polish dissidents

Havel was put to work welding metal gratings and stripping insulation from wires (which he said “wasn’t too bad, as long as you could get used to the cold and endless filth”) every day, all day long. Work quotas were set impossibly high, and when the prisoners could not fulfill them, they were punished and given reduced rations. Havel and other prisoners were beaten and threatened with execution. He suffered repeated bouts of pneumonia.

Havel was allowed one half-hour visit from his wife Olga every three months, and he and the other prisoners were allowed to write one strictly censored four-page letter home each week. Havel was not officially allowed to write anything else, but his letters home formed the basis of his famous Letters to Olga. (I say officially because of a remarkable story: Havel’s prison guards were supposed to write detailed reports on him for the secret police. One guard hated writing so much that he asked Havel to write the reports on himself instead, which he did).

After enduring these conditions, every day, for three and a half years, the regime approached Havel with a remarkable offer. They told him the following things, each of which was absolutely true:

• His boyhood friend, now famous Hollywood director Milos Forman, who was living in exile in the United States, had arranged a playwright-in-residency position for him in at a theater in New York City.
• Havel would be released from his hell of a prison and allowed to move to New York City with Olga, where finally he could see his plays performed at last.
• He would be, undoubtedly, the toast of the city: the famous dissident artist, at last free.
• From New York, he could, of course, say whatever he wanted to about the Czech regime and coordinate dissident activities.
• No one in Czechoslovakia had given much thought to him in the past three years, and all of the former dissidents still in the country had been effectively silenced.
• If he refused the offer, the next morning he would be back to stripping insulation off wires, unable to communicate with an outside world that had almost completely forgotten him, probably until he was dead, and almost no one would care.

What would you have done? I’d have been out the door and on the plane so fast I’d probably have injured myself.

Havel, however, instantly realized three things: (1) he could never do it, because it would betray those he left behind in prison and Czechoslovakia; (2) if they were making this offer, he was still a problem for them; and (3) he could use this offer as an excuse to get an extra meeting with Olga. He told the regime he needed to discuss it with his wife; he got his extra meeting with Olga and stayed in prison.

Unknown to Havel, stories like his refusal to leave and his tricking the authorities into an extra visit with Olga gradually spread to the general population.  A whole sub-genre of Havel jokes began to be whispered.  Here’s one: Olga wrote to Havel and said she needed to plant potatoes to eat, but couldn’t dig up the yard on her own; what should she do?  Havel wrote back, telling Olga that she must under no circumstances dig up the yard, because that’s where he had buried the secrets documents.  A week later a letter arrived from Olga, saying that a dozen secret service agents had shown up, dug up the entire yard and left in a fury; what should she do?  Havel wrote back: plant the potatoes.

A few months after he refused to leave, suffering from his worst bout of pneumonia (which eventually cost him a lung), Havel was near death. He was sent to a prison hospital, likely to die, and no one in the outside world knew. Havel managed to send a note to Olga because the hospital had more lax censorship standards, letting her know what was happening. Dissidents got word out of Czechoslovakia, and the human rights community, which Havel had helped create, erupted into protest. Helsinki Watch and other groups, coordinated with sympathetic western European governments, demanded Havel’s release. The Czechoslovak regime was embarrassed and terrified Havel would die in their custody; it also recognized a potential public relations coup. It unilaterally granted Havel compassionate release into the care of a non-prison hospital.

Havel later recalled the month he spent in the hospital after his release as among the happiest of life (“just imagine – you scarcely see a woman for four years, and suddenly they plop you down among ten nursing school grads!”). He had been through the fire and emerged, eventually stronger. He would be imprisoned again, but now it began to seem that it was the totalitarian regime’s days that were numbered.

The quote above, and much of the detail of this post, comes from the collection of interviews of Havel in Disturbing the Peace, translated by Paul Wilson, who has a remembrance of Havel in the current edition of The New York Review of Books.

"there are things for which it is worthwhile to suffer"

Jan Patocka was the first casualty of the Charter 77 movement. He died following a brutal marathon interrogation in March 1977, two months after he was first arrested.

Because Patocka was killed at a time when many of his works were still banned from publication, his importance as a philosopher – quite apart from his [...]]]> Three members of the Charter 77 group were identified in its first declaration as its spokespeople: Jiri Hajek, a former member of Alexander Dubcek’s ill-fated reformist regime; Jan Patocka, a retired sometime professor of philosophy; and Vaclav Havel.  Today I want to write a little bit about the importance of Jan Patocka to the Charter movement generally, and specifically as an influence on Vaclav Havel.

"there are things for which it is worthwhile to suffer"

Jan Patocka was the first casualty of the Charter 77 movement. He died following a brutal marathon interrogation in March 1977, two months after he was first arrested.

Because Patocka was killed at a time when many of his works were still banned from publication, his importance as a philosopher – quite apart from his work with Charter 77 – was not as widely known as it might have been. Fortunately, his students collected and preserved much of his work. He is now recognized as a major figure among European philosophers of the 20th century. The vast majority of his work was entirely apolitical; or rather, was political only in the sense that individual responsibility for moral behavior is eventually, inevitably political.

Patocka was a student of Edmund Husserl’s in Freiburg, Germany in the early 1930s, as the Nazis came to power.  He returned to Czechoslovakia and became a professor of philosophy at Charles University in Prague.  In 1939, following the occupation of Czechoslovakia by Germany, all Czech universities were closed and Patocka could no longer teach.  In 1945, after the German defeat, he taught again at Charles University — but only until 1948, when communist totalitarians seized power.  He was banned from teaching again until 1968.  In 1968, during Prague Spring, he resumed his professorship — until, four years later during ’normalization’ under the hard line regime that was installed following the collapse of Prague Spring, he was retired.  From 1939 until his death in 1977, Patocka had been allowed to work as a professor of philosophy for a total of 7 years.

Vaclav Havel had hoped to study philosophy, but was not allowed to because of his family’s class background. However, Patocka befriended Havel, and Patocka’s influence on Havel’s thinking was profound. I am going to try to describe that influence, but I must say two things first: (1) I am only giving you my impression; as far as I know, no one else thinks Patocka influenced Havel in the manner I’m about to describe; and (2) I am not a philosopher, so I want to tread humbly here and defer in any instance of disagreement to the brilliant and prolific Patrick O’Donnell, who has been commenting on these posts and also writing about Havel on his own blog, Ratio Juris.  Patrick, please correct me wherever you think I go wrong.

I think Patocka’s influence on Havel had its roots in Patocka’s life’s work as a philosopher: the attempt to bridge the gap between the idea of an objective and subjective human reality, or rather to develop a new understanding of human reality that could encompass both an objective and subjective basis.  What I mean by that clumsy attempt is this: in the absence of an objective moral order (traditionally supplied by religion), man had only his subjective desires to fulfill, without measuring them against any moral standard. He was, perhaps, his own God, but if so, his moral standards were entirely subjective and perhaps arbitrary. On the other hand, if there is an objective moral order that exists outside the existence of man, then man is not entirely free; there is some other thing that transcends human existence by which the worth of human existence is measured.

Even in the absence of religious belief, the existence of that objective moral standard seemed true to Patocka – and frankly, I suspect it seems true to many of us. How, then, to describe a reality that rejects the false comfort of religious dogma and embraces the idea of the human as subject, and yet also identify some transcendent, objective moral standard by which we can measure human conduct? How to encompass both objective and subjective reality, which would seem to be incompatible, into a single idea? I think that was the question with which Patocka wrestled.

Havel, I believe, applied Patocka’s attempt to reconcile the apparently contradictory beliefs in objective and subjective human reality to his analysis of the post-totalitarian system. For Havel’s critical insight was that each individual was both object and subject within a post-totalitarian system: each person who functioned within that system was both its victim and its embodiment. In a totalitarian system, according to Havel, there was clear delineation between the rulers and the ruled. The rulers acted according to their subjective will and the ruled were the objects of that will. But in a post-totalitarian system, each person who obeyed the system enforced the system on everyone else, until the system became mutually and automatically reinforcing. As Havel said in The Power of the Powerless, “individuals confirm the system, fulfill the system, make the system, are the system.” In that way, individuals are both the object that the system acts upon, and the subject whose will either perpetuates or destroys the system. The very title The Power of the Powerless suggests that individuals within the post-totalitarian system are both objects and subjects.

Havel argued that as subjects rather than merely objects, individuals had the power but also responsibility of freedom. And, as Patocka argued, the free choices individuals made according to their subjective will should be measured against an objective moral standard.

I think what excited Patocka about the Helsinki Accords – he called them a new hope for mankind — was that they attempted to define that objective moral standard, by naming those things so fundamental to a fulfilling human existence that they must be recognized as rights inherent in being.  In some ways, human rights provided the frame he had been searching for – the idea of human rights could perhaps encompass both an objective moral standard and the free will of the human subject. It seems to me that even the term ‘human rights’ denotes both a subjective and objective element. In some ways, then, by embracing respect for human rights as the objective measure of moral good in a political system, and recognizing that each individual had the power and responsibility to create such a system, Charter 77 really did represent for Patocka the culmination of his life’s work.

Three days before he was arrested, Patocka wrote a short document called The Obligation to Resist Injustice, which attempted to explain both the motives of the Charter members, and his own motives in joining them. “The idea of human rights is nothing other than the conviction that even states, even societies as a whole, are subject to the sovereignty of . . . something unconditional that is higher than they are, something that is binding even on them, sacred, inviolable.”

In his last writing, Patocka celebrated Charter 77 for introducing “a new orientation to basic human rights, to the moral dimension of political and private life.”    He also recognized the risks involved in embracing that orientation but said, “there are things for which it is worthwhile to suffer.” Just five days after this document was clandestinely distributed in Czechoslovakia, Patocka was interrogated to death by the secret police.

I like to think — and I fervently, fervently hope — Patocka was right.

I highly recommend Erazim Kohak’s Jan Patocka: Philosophy and Selected Writings for an excellent philosophical biography of Patocka and collection of his works.  The quotes above are taken from that work.

What concerned the secret police was a document in the car written by a group of dissidents and signed by 243 very brave people. You can see the document here. It was the declaration of a group identifying itself as Charter 77. The occupants [...]]]> On the morning of January 6, 1977, in Prague, Czechoslovakia, the StB (secret police) surrounded and swarmed a car driven by the actor Pavel Landosky (if you’ve seen The Unbearable Lightness of Being, he plays the farmer with the pig who befriends Tomas and Tereza). In the car with Landosky were Ludvik Vaculik and Vaclav Havel, but to the secret police the people were the least important targets that day. They could be dealt with later and were – literally – tossed aside.

What concerned the secret police was a document in the car written by a group of dissidents and signed by 243 very brave people. You can see the document here. It was the declaration of a group identifying itself as Charter 77. The occupants of the car had been trying to deliver the declaration to the Federal Assembly; the secret police knew all about the group’s plans and were lying in wait. But what the police did not know was that the delivery of the declaration to the Federal Assembly was a sideshow; another copy already had been smuggled out of the country, and was to be published the next day in four leading daily European newspapers, from which it would inevitably make its way back into Czechoslovakia.

Two seemingly contradictory things about the regime’s response to the Charter 77 declaration are impressive: its severity, and its leniency. The severity of its response is remarkable because on its face, the declaration could hardly have been less revolutionary or more innocuous. Reading it today makes you wonder if you are reading the correct document – this caused all that fuss? The leniency of the regime’s response is remarkable because its clear preference would have been to kill the group’s leaders, or at least crush them, and it was quite capable of doing it. And yet, for perhaps the first time, the regime felt constrained in its response to domestic dissent by both the weight of world opinion and the logic of its own decisions.

The regime felt constrained because the Charter had framed its declaration, in its very first sentence, not as a complaint but as a celebration of Czechoslovakia’s adoption of the 1975 Helsinki Accords – formally, the International Covenant on Civil and Political Rights — into its domestic law. The declaration then stated that the basic human rights protected by the Covenant were routinely violated in Czechoslovakia (listing several examples), and that, in the future, the Charter group and other like-minded citizens should and would accept responsibility for fulfilling the aims of the Covenant and Czechoslovak law by “drawing attention” to violations of basic human rights.

The Helsinki Accords were the product of an intense and long negotiation process, the Conference on Security and Cooperation in Europe (CSCE), involving all of the independent countries of Europe, the United States and the Soviet Union. The purpose of the Conference in the eyes of the United States and its West European allies was primarily security – it hoped to get the Soviets to recognize permanent and inviolable borders between East and West, particularly in divided Germany; and the Soviets wanted the borders redrawn by Stalin after World War II recognized as well. The primary purpose of the conference in the eyes of the Soviets and their East European allies was cooperation – they wanted to secure badly needed trade and investment for their teetering economies. But the Accords also included the recognition of transnational individual civil and political rights, the positive obligation of governments to protect those rights, and the obligation of other states to monitor each state’s compliance with that obligation. And, because recognition of those rights was included in the Accords, compliance with that obligation was tied to badly needed trade and investment.

The recognition of transnational civil and political rights was included primarily at the insistence of West European countries. In his excellent analysis of the importance of the Helsinki Accords in the development of international human rights law and advocacy, The Helsinki Effect, Daniel C. Thomas notes that the Soviets and the United States were equally impatient with the European countries insistence on including a transnational ‘human rights’ agenda – President Nixon went so far as to scold his European partners that “We would not welcome the intervention of other countries in our domestic affairs and we cannot expect them to be cooperative when we seek to intervene directly in theirs.” And, as you can learn by watching the proceedings of the Woodrow Wilson Center’s conference Helsinki 1975 and the Transformation of Europe, Henry Kissinger and Leonid Brezhnev privately agreed that the human rights provisions of the Accords were meaningless and that nothing would change in practice. East German leader Erich Honecker reassured advisors worried about the adoption of human rights principles that “there will always be the Stasi.” In other words, the major players in the adoption of the Accords regarded the human rights provisions cynically and as an after-thought.

Dissidents in Eastern Europe, however, did not. A small group of dissidents in the Soviet Union started the first Helsinki monitor organization, claiming the privilege of monitoring whether the Soviet Union was meeting its Helsinki obligations domestically. In Czechoslovakia, concurrently, Vaclav Havel was organizing a group of dissidents who had decided to risk all by advocating for basic human rights. Three members of that group in particular — Zdenek Mlynar, Jiri Hajek, and Ladislav Hedjanek — seem to have developed the strategy of tying their advocacy directly to the Czechoslovak regime’s adoption of the Helsinki Accords into domestic law. The group called itself Charter 77, and its declaration expressly invoked both the human rights obligations the regime had agreed to as an afterthought, and the right of citizens themselves to monitor compliance with those obligations and report their findings to the world at large.

Framing Charter 77 as a supportive response to Czechoslovakia’s adoption of the Helsinki Accords was both tactical and substantive. Tactically, it was a masterstroke. The regime found itself practically check-mated before the game had begun, because it had already agreed to everything Charter 77 demanded. Western European governments, and human rights advocates, could and did insist that Eastern European governments meet their obligations under the Accords – or, if they were forswearing the Accords, the West could do the same and cut off trade and border recognition. And, since groups like Charter 77 were only helping to fulfill those obligations, and were very much in the Western eye, they could not be easily destroyed.

The Charter’s model of dissidence – using international human rights law as a lever against domestic repression – quickly spread across Eastern Europe and the world. In addition, the Charter’s insistence on a role for private citizens in monitoring respect for human rights – what Havel called civil society – helped create a model so ubiquitous today that it is hard to believe it was once an innovation: today we call such organizations NGOs. In direct response to Charter 77 and other similar groups in the East, civil initiatives such as Helsinki Watch – later Human Rights Watch – developed in the West. And as we’ll see, those initiatives eventually played an important role in bringing down the regimes of Eastern Europe. Indeed, it was the work of such initiatives, that simply took cynical governments at their word and insisted on respect for human rights, that created the practice of transnational human rights law and advocacy. That legacy obviously continues to reverberate in the world today.

A long, dark road lay ahead for the declaration’s signatories.  All were arrested and repeatedly interrogated;  many were imprisoned, beaten, harassed and placed under constant surveillance.  Vaclav Havel spent almost five of the next seven years in prison.  One of the three intial spokespeople for the group — philosopher Jan Patocka — would be dead at the hands of the secret police within a few weeks.  But more on that in future installments.

Amazingly, the catalytic event for Havel – that caused him to cross the Rubicon into dissidence – was the criminal trial of a Prague rock band, the Plastic People of the Universe. In a farce of a trial, the young members of the band were convicted of – well, that was never completely clear, but essentially of being out of the ordinary – and sentenced to lengthy terms in prison.

It was not because rock music was important that [...]]]> During the early 1970s in Czechoslovakia, following the failed attempts of reform communists to liberalize some aspects of society while maintaining a monopoly on political power, the old guard regime re-asserted its complete control with the help of Soviet tanks, through a process that was euphemistically called “normalization.”

Amazingly, the catalytic event for Havel – that caused him to cross the Rubicon into dissidence – was the criminal trial of a Prague rock band, the Plastic People of the Universe. In a farce of a trial, the young members of the band were convicted of – well, that was never completely clear, but essentially of being out of the ordinary – and sentenced to lengthy terms in prison.

It was not because rock music was important that Havel decided to speak up – rather it was precisely because it was so unimportant. What Havel recognized in that trial was this: that the regime had decided to deny people any sphere of autonomy whatsoever. If a handful of harmless eccentrics could not, in the privacy of their derelict flats, play awful music (I’ve heard them) simply because it seemed to them a genuine expression of their beings, then the last bit of autonomous space had been breached.

Under the old implicit rules, the regime had demanded, and gotten, public obeisance: you attended the proper rallies and you kept your mouth shut about politics otherwise, you lived where you were told, worked where you were told, ate and read what you were told, and the regime probably wouldn’t bother you. But Havel had been watching for years as what he called the post-totalitarian system permeated deeper and deeper into what little private space a person might have left. And he realized that the one hope people like he clung to – that if they did and said the right things in public, they could escape a little, sometimes, in private – was a delusion. One could not escape by moving into a deeper corner of the cage.

But Havel also realized something deeper and more profound, that he eventually explicated in his underground masterpiece essay, The Power of the Powerless. He realized that by playing the game – by doing the right things in public, and hoping for a little autonomy in private – people were not just surviving in the system: they were an essential part of the system. With what I suspect was his playwright’s eye, he saw that everyone, everyone, was playing a role that had been assigned to them. An implicit bargain had been struck: I will act the way the regime wants, and the regime will not punish me.

It was a type of play, a facade.  If you want to understand what he meant in the most visceral, shockingly literal way, watch this clip from a Czech state broadcast of Spartakiada, a ‘festival of health and optimism.’  Watch it all the way to the 5:00 minute mark, and I promise you won’t forget it.  Of course, in most ways the play was less obvious, but you get the point.

[Interestingly, it is very difficult to find photographic evidence of life in Prague during this period, other than in the files of the secret police.  This is the poster from an exhibit of secret police surveillance photos of the time.  It gives you a sense of daily life.] 

But Havel also saw that in a play, the most revolutionary act is for an actor to announce to the world of the play that it is in fact a play; to refuse to play one’s part; to refuse even to walk off stage but rather to stay on stage and be real. If even one actor would do that, he could not be ignored. And if a critical mass of actors would do that – would commit to what he called “living in truth” – the whole production would collapse.

That was what he meant by the power of the powerless – he had comprehended something so simple and terrifying, and articulated it so clearly, that it could not be tolerated – that the powerless, who felt they had no choice but to play the roles they had been assigned, actually had the power to bring the entire production crashing down. The play depended upon them.

But, Havel argued, if people had the power to end the system, then they also had the power to perpetuate the system. The decision was entirely theirs. They were not mere objects in someone else’s drama; they were subjects, capable of acting according to their will and so responsible for doing so. Consider the implication of that for a moment: if the decision was theirs, then on an essential level, past the reach of the regime, and despite its best efforts, they were free. But, because they were free, they were also responsible for their choices.

The essential core of humanity in each individual – what Havel described as the “longing for humanity’s rightful dignity, for moral integrity, for free expression” – was still there. As Havel put it, “Individuals can be alienated from themselves only because there is something in them to alienate.”

Continued after the break . . .

In Kurt Vonnegut’s novel Breakfast of Champions, Kilgore Trout has a pet bird named Bill. One day, Trout opens the cage door, allowing Bill to fly free if he wants to. Bill leaves the cage, flies to the window, looks out the window for a moment at what lies in wait for him, then flies back into the cage.

What Havel did was to say aloud, not just to his countrymen but to the entire world: the cage door is open. What they did next was up to them, because living in truth required enormous courage. The powerful recognized that they faced an existential threat and would use every means at their disposal to survive. It was a hell of a lot safer to be like Bill and stay in the cage, pretending not to notice that one could, if one was prepared to pay an enormous cost, be free. But there was no neutral ground: either one lived in truth, or one perpetuated the post-totalitarian system. As Havel said, by continuing to play the roles assigned to them, “individuals confirm the system, fulfill the system, make the system, are the system.”

As for Havel, he left the cage of lies, and as he knew he would be, was dragged into the cell of a brutal communist prison.

He walked through the door by authoring with a small group of like-minded people, and attempting to publish, a document called “Charter 77.” The publication of Charter 77 was one of the most significant events of modern times, in my opinion, for four reasons: (1) it was like a sudden radio signal out of the darkness to other, tiny groups of dissidents throughout eastern Europe; (2) it was, although no one could have known it at the time, the death knell of the east European totalitarian system; (3) it practically created, out of whole cloth, the use of transnational human rights law as leverage against domestic despotism – perhaps the most significant development in law in our lifetimes; and (4) it created a model that lives today – expressly – in the streets of Tunis and Damascus and New York City, and in dark basements in Minsk and Beijing and Rangoon.

I will write more about the origins and publication of Charter 77, its use of transnational human rights law, and its continuing reverberation in the world today in the next installment.

In future installments: Havel’s years of prison, torment and temptation; the revolution; and Havel’s I, Claudius moment.

Cross-posted at PropertyProf.

I’d like to use my visit to Concurring Opinions this month mostly to write about Vaclav Havel, who died on December 18th. And because I also blog over at PropertyProf, I’m going to post some of these entries over there as well.

My sense is that most people in the legal academy have a vague idea that Havel was very important during the collapse of East European totalitarianism in 1989, and that he even though he openly admired Frank Zappa he was allowed to be President. All of those things are true, but they badly miss the mark.

Havel’s contribution to the theory and practice of respect for human rights was incisive and [...]]]> Thanks so much to Sarah, Dan and the Concurring Opinions crew for inviting me back.

I’d like to use my visit to Concurring Opinions this month mostly to write about Vaclav Havel, who died on December 18th. And because I also blog over at PropertyProf, I’m going to post some of these entries over there as well.

My sense is that most people in the legal academy have a vague idea that Havel was very important during the collapse of East European totalitarianism in 1989, and that he even though he openly admired Frank Zappa he was allowed to be President. All of those things are true, but they badly miss the mark.

Havel’s contribution to the theory and practice of respect for human rights was incisive and profound. He left behind a body of work that merits our serious, sustained attention. If we miss that, we are depriving ourselves of something great and beautiful.

More after the break . . . .

It’s difficult for me to know where to begin when writing about Havel. He became a hero to me over the course of the past few years while I was teaching and researching in the Czech Republic. Last summer, for example, I went so far as to sit in the very spot he sat when he was sentenced to prison.  I attended a play in the tiny theater where he worked as a dramaturge until the totalitarian government forbade it, and where his first play was performed. It was in Czech and I understood about half of what was going on at best. I visited the tiny, two room library dedicated to him in Prague. I’ve read most of what he’s written and a lot of what’s been written about him. In other words, I’m not objective, but I am informed.

Because Havel’s biography is so extraordinary, people tend not to get past it to his actual writing. So it is with some trepidation that I begin there, but I think it is necessary both to understanding the man and the era in which he lived.

Havel was born into privilege in pre-war Czechoslovakia. When he was three years old Czechoslovakia was invaded and dismantled by Nazi Germany. The Czech lands were subsumed into the greater German Reich as the Protectorate of Bohemia and Moravia. The SS was given control of the Protectorate, exterminating most of the Jewish population and ruling with great brutality. After nearly seven years the Wehrmacht was driven out, primarily by invading Soviet forces. Czechoslovakia was reconstituted and a period of horrific ethnic cleansing ensued, in which 3 million ethnic Germans were stripped on their Czechoslovak citizenship and either murdered or driven out of the country. Within 3 years, the communist party seized control of the government, and Czechoslovakia decisively entered into the Stalinist camp in Eastern Europe.

The Czechoslovak communist government was one of the most repressive and brutal in Eastern Europe. It relied on its notorious secret police force, the StB, to repress all dissent and democratic expression.  It even followed the Stalinist model of paranoia and anti-Semitic show trials, publicly sentencing to death the party’s own Jewish leadership. It also launched a massive nationalization program, expropriating most private property in the country.

Children of formerly privileged families were not allowed to attend university. Havel had hoped to study philosophy but drifted for a while (after his compulsory military service) before taking a job as a stage hand at a small theater in Prague. That’s where he found his calling. Eventually he began to write plays which were performed there. His plays were cutting edge and comically absurd in a somewhat similar manner to those of Samuel Beckett and Harold Pinter – the characters live claustrophobic, paranoid lives, menaced by unseen forces. But in Havel’s case, as his audiences understood quite well, those menacing unseen forces were not merely a metaphor for modern existence; they were also very real indeed, they were likely sitting among them, and the fact that they could never, ever be named in his plays only made the sense of claustrophobia and fear more immediate.

Havel walked a very fine line with his plays and drew the attention of the secret police. But the period in which his plays were performed coincided with the great attempt at liberalization in the Czechoslovakia. Stalin had died and a new generation of communist party leadership was experimenting with allowing limited freedoms. The experiment was referred to in Czechoslovakia as “socialism with a human face” and is generally known in the West as Prague Spring. It did not last. In 1968, the Soviet, East German, Polish and Hungarian militaries invaded and re-installed the old guard.

Reformers in the communist party were expelled, and people who had supported the reforms were imprisoned, fired from their jobs, and watched very closely. Havel, for example, was fired from his job in the theater, and his plays were never allowed to be performed again.  He worked as a laborer at a brewery. Any suggestion of dissent was immediately and brutally repressed. It was a very, very dark period, and it was to last for the next two decades. But it was during this period that Havel eventually found his voice, his unbelievable courage, and his greatness.

Part II about Havel in the days to come . . . .

In China, impasses like this are sometimes resolved violently; specifically, the development agency dispatches ‘relocation [...]]]> An extraordinary article by Andrew Jacobs in the New York Times recently told the story of Qin Rong, owner of the Fish Castle Restaurant in Beijing.  She was told to clear out by a state-affiliated development agency that had purchased the land out from under the restaurant.  Her landlord knew about the pending sale at the time she entered her 3 year lease, but didn’t tell her.  She still had two years left on her lease but was willing to go – if the developer would fully compensate her for the renovations she had made to the building.  The agency said no.  She refused to budge.  That’s when things got crazy.  

In China, impasses like this are sometimes resolved violently; specifically, the development agency dispatches ‘relocation men’ who either reach agreement with, or beat the hell out of, the tenant.  Knowing what was coming, Qin Rong hired an ex-relocation man who had switched sides to help protect her and her business.  Apparently she hired the right guy, Lu Daren.

When 60 – yes, 60 – thugs showed up and dragged Lu Daren and other holdout tenants out onto the street, a pitched battle ensued, and the thugs left.  Police investigated but refused to intervene.  For the next few weeks, without heat or electricity, Lu Daren, Qin Rong, and the restaurant employees slept inside the Fish Castle, while thugs occasionally circled outside.  The standoff ended when the agency agreed to renegotiate.  The parties reached an agreement for full payment, and the Fish Castle was abandoned.  

To some, this story may sound like Kelo in China: a mom and pop business driven out by developers supported by the state.   But there are a lot of critical differences.  Among them: the crux of the Kelo opinion was not that under a set of particular circumstances private property rights must give way to the interest of the state, but rather that in the United States, local political institutions provide a forum for resolving local land use decisions of general application.  Qin Rong, and others angered by the actions of the development agency, had no political means of redress; they could not throw the bums out, so to speak.  The result was violence, as it often is in the absence of a peaceable means of redress. 

In many ways, both the reaction in the United States to Kelo, and the battle for the Fish Castle in Beijing, have proven the Supreme Court correct: political fora provide adequate means of redress for people angered by local land use decisions of general application; it is only when such institutions are unavailable that alternative means — whether judicial review or occasional self-defense – are required.

My current submission strategy

Many of us are trying to put the finishing touches on articles during the winter teaching break. And, according to ExpressO, a number of highly-regarded reviews that have been closed to submissions are opening themselves again in the very near future.  Therefore, I think it’s safe to say a tsunami of footnotes is bearing down upon many law review offices.

For the relatively new, untenured among us – oh say, for instance, me – this is an especially important moment, and it’s important to get it right.  The pressure can make us a little loopy.  Last week I sat listening to the lovely Christmas carol In the Bleak [...]]]> A little inside baseball discussion for the professoriate: it seems that law review submission time is upon us. 

My current submission strategy

Many of us are trying to put the finishing touches on articles during the winter teaching break. And, according to ExpressO, a number of highly-regarded reviews that have been closed to submissions are opening themselves again in the very near future.  Therefore, I think it’s safe to say a tsunami of footnotes is bearing down upon many law review offices.

For the relatively new, untenured among us – oh say, for instance, me – this is an especially important moment, and it’s important to get it right.  The pressure can make us a little loopy.  Last week I sat listening to the lovely Christmas carol In the Bleak Midwinter, and when it got to the verse, “What have I to offer, poor as I am?” the image that flashed in my mind was me, face smudged with dirt, sending out a crinkled copy of my current draft article.

Me, immediately following article submission

A wonderful professor of mine – then untenured, now safely ensconced in the tenured embrace of the Ivy league – once dressed for Halloween as ‘Notenuratu,’ a vampire-like creature whose cape was covered with pages of his draft articles. 

But how, exactly, does one get the submission process right?  It’s a question that I suspect takes up a lot of chat time among us junior scholars.   Do you have a submission strategy?  Want to share it?  Pretty please?

Very bad news (AP Photo)

In 1990, he also mis-stated the city of his birth on application for a U.S. social security number.  Now, that may sound as trivial as Jeffrey Dahmer tearing a tag off his mattress, but it’s not quite so meaningless.

Joint [...]]]> Anwar Awlaki is very bad news.  He is a cleric who has a history of advising people who later commit mass murder.  He met with three of the hijackers before the thousands of murders of 9/11; he was a confidant and e-mail correspondent with Nidal Hassan, who murdered and maimed dozens of soldiers at Ft. Hood; and it is now suspected that he was the recruiter of Umar Farouk Abdulmattulab, who yesterday attempted to murder 300 people over the skies of Detroit.

Very bad news (AP Photo)

In 1990, he also mis-stated the city of his birth on application for a U.S. social security number.  Now, that may sound as trivial as Jeffrey Dahmer tearing a tag off his mattress, but it’s not quite so meaningless.

Joint Terrorism Task Force investigators discovered his false statement in 2002, after the statute of limitations has passed for social security fraud.  But they also discovered that in 1993, he had used the social security number he had fraudulently obtained, in order to obtain a United States passport.  The statute of limitations for passport application fraud had not passed.  Therefore, in June 2002, the investigators convinced the U.S. Attorney’s office in Denver to file a criminal complaint against Awlaki, which it did.  It also applied for, and obtained, an arrest warrant for Awlaki for passport fraud.

Awlaki attempted to enter the U.S. four months later on a flight arriving at JFK International Airport, and was seized at the airport.  But there was a problem: the arrest warrant had been rescinded the previous day, at the request of the same U.S. Attorney who had obtained it.  Awlaki was released.  Alerted by his airport seizure that he was being targeted, he left the United States and settled in Yemen where, among other things, he recruited for Al Qaeda.

Why was the arrest warrant rescinded?

The U.S. Attorney, David Gaouette, had discovered that in 1996, three years after applying for his passport, Awlaki had corrected his mis-statement on his social security application.  The Social Security Administration now considered Awlaki’s social security number valid.  Therefore, according to Gaouette, the SSA would not testify that Awlaki had an invalid social security number, and without its testimony, Gaouette could not prove beyond a reasonable doubt that Awlaki held a passport obtained fraudulently.  

Gaouette may or may not have been right that he could not obtain a conviction for passport fraud; for purposes of this discussion, let’s assume that he was.  The question is: should Gaouette have asked that the arrest be rescinded?  The answer to that question is not so easy. 

One straightforward answer is: yes.  If you don’t have, and can’t get, the evidence necessary to convict, then an arrest warrant should be rescinded.  

But it is a basic nugget of constitutional criminal procedure that the standard for arrest is probable cause, which is a considerably less exacting standard than beyond a reasonable doubt.  Therefore, if Gaouette’s assertion is that he needed evidence of a crime sufficient to convict Awlaki in order to arrest him, that is simply wrong.  On the other hand, a principal justification for allowing arrests based upon mere probable cause is that the State believes it can develop evidence sufficient to convict the arrestee.  If that isn’t true – and it wasn’t in Awlaki’s case – then perhaps the arrest power should not be used.  After all, the court issuing the warrant relies on the State’s good faith assertion that arrest is now warranted, and by implication that conviction is at least somewhat likely to result.

But that’s a very academic answer, and in the real world of law enforcement, these niceties are not always observed, sometimes with good reason.  The power to arrest is often used for purposes other than obtaining the conviction of the arrestee for the crime for which he’s been arrested; often, the State wants to interrogate him in order to obtain information about other crimes, or even about non-criminal activities.  The cause of arrest, in other words, is a pretext.    

The FBI desperately wanted to arrest Awlaki on a pretext so that it could interrogate him — and, as it admits, not about passport fraud.

Often, we criticize law enforcement for arresting people based on pretexts.  Gaouette might be lauded for adhering to the letter and spirit of the law.  Now, with famously accurate hindsight, Gaouette can expect to face intense criticism for not allowing Awlaki to be arrested based on a pretext, so that the FBI could interrogate him.

Now it’s your turn: what should Gaouette have done, and why?

Believe it or not, even though mortgage lending sparked the crisis, the Act doesn’t provide much guidance on how the system should be reformed.  In essence, it punts the question to regulators, telling them to enact regulations that provide mortgage loan orginators with the proper incentives to create a competitive market that provides both affordable, and sustainable, mortgage loans.  Feel better?

I’ve spent a fair amount of time writing [...]]]> Lost in the glare of the health care reform conflagration: the House passed the Wall Street Reform and Consumer Protection Act of 2009.  If you had told me one year ago that Washington’s massive proposed long-term response to the worst financial crisis since the Great Depression would gather relatively little notice, I wouldn’t have believed it.  Or, at least, I wouldn’t have wanted to.

Believe it or not, even though mortgage lending sparked the crisis, the Act doesn’t provide much guidance on how the system should be reformed.  In essence, it punts the question to regulators, telling them to enact regulations that provide mortgage loan orginators with the proper incentives to create a competitive market that provides both affordable, and sustainable, mortgage loans.  Feel better?

I’ve spent a fair amount of time writing and talking about mortgage lending reform.  It seems to me that the most effective way to improve mortgage loan origination in the United States is to adjust the risk faced by mortgage loan originators.  Readers of Concurring Opinions probably already know that mortgage loan origination underwent a fundamental change in the latter half of the 20th century.  Unknown to most borrowers, the banks from whom they obtained their mortgage loans did not keep them.  They sold them, and the right to receive payments on them, to securitizers, who then bundled loans together and sold securities in the bundles to institutional investors.  The system had the positive effect of creating a robust market in mortgage lending, making home buying more affordable.  It also had  the negative effect of creating a market in which loan orginators received reward without risk, since the failure of the borrowers to repay the loan was no longer the originator’s problem.  That, in turn, created an enormous incentive for loan originators to make loans — any loans, to anyone, regardless of their ability to repay them.  Hello, subprime lending and the race to the bottom.  Remember Lending Tree‘s ad slogan: “When Banks Compete, You Win“?  Turns out, not so much, unless by “win” you mean “live in economically disastrous times.”

His People Know Mortgage Loan Origination

What to do then?  For guidance, look north.  The Great White North, specifically.  Canada came through the mortgage crisis just aboot fine.  There are lots of differences between the Canadian and U.S. banking systems [ironically, the Canadians based their system on Alexander Hamilton's national bank model, which we discarded] but there are enough similarities to make a couple of simple reforms modeled on the Canadian system.  In my opinion, they would go a long way to preventing a recurrence of the crisis.

First, a simple rule: mortgage originators must keep a certain percentage — say 10% — of the loans they originate in-house: no selling them on the secondary market allowed.  But here’s the rub: the orignators don’t get to choose which 10% stay in-house.  That’s done randomly, through a lottery system.  Now we have both a robust secondary market, and a strong incentive for originators to make quality loans.  A good balance of risk and reward.  One reason Canadian banks originated solid mortgage loans is that a high percentage of those loans stay in-house.  Consider the toxic asset metaphor: it’s one thing to produce toxic waste if you know you can dump it all someone else’s yard; quite another to produce it if you know you might have to keep it in your living room. 

If — and only if — we enacted the first rule, I’d suggest another, also borrowed from the Canadians: no fixed-interest rate loans longer than five years.  This redistributes some risk from the originating banks to the borrowers.  If a bank is caught in an interest rate squeeze because of a long-term fixed rate, the external effects are potentially much worse than if you or I are.  If banks have to hold some loans in-house, we want to make sure they don’t go under when interest rates increase.

Anyway, those are my ideas.  What are yours?

There are several potential responses, of course, to the difficulties of welfare-maximization presented by collective action.  Most Chicagoan, perhaps, is to recognize that collective action is an inadequate instrument, and to overcome it by the allocation of private property rights in the resource instead.  This bottom-up approach works very [...]]]> Today in Copenhagen, as the prospects for a workable climate change treaty grew very dim, President Obama said, “our ability to engage in collective action is in doubt.”  This couldn’t have been a revelation for a man who taught law at Chicago.  I think I could make a pretty good argument that what has made Chicago Chicago during the past half century is the attention its faculty has paid to the enormous obstacles to welfare-maximizing collective action in the management of a resource. 

There are several potential responses, of course, to the difficulties of welfare-maximization presented by collective action.  Most Chicagoan, perhaps, is to recognize that collective action is an inadequate instrument, and to overcome it by the allocation of private property rights in the resource instead.  This bottom-up approach works very well in many instances, but not very well between sovereign nations with regard to atmospheric emissions.  Among other reasons, attempting to create a system of allocation is itself beset by the collective action problems inherent in the management of the resource.

Another response to the collective action problem is to simply impose restrictions from above.  State-planned economies (including, in some respects and at some times, the United States) do this, in some cases disastrously, in some cases pretty well.  But there is no authority that can impose restrictions from above on sovereign nations with regard to atmospheric emissions. 

What we have, then, is the tragedy of commons without the usual means of overcoming it — dispensing with collective action.  If alternatives to welfare-maximization through collective action aren’t possible, what is left, other than collective action?  Not much.  That may be why even a man who taught at Chicago has pinned his hopes to that unlikely instrument. 

In my natural resources law seminar last semester, I had the students play a typical ‘tragedy of the commons’ game, in which a common resource was sufficient for the group to survive, but only if each member acted against her own strict self-interest, and someone was willing to incur the transactions costs associated with coordinatiing a group welfare-maximizing allocation system.  As Hardin would have predicted, the resource was soon destroyed and the students starved.  Something a student said to me then struck me as I watched President Obama’s speech today: “what we really needed was you to come in here and show us what we should do.”

In other words, what they needed — if they were to succeed collectively — was a deus ex machina to appear and, with the force of logic and moral suasion, persuade them to overcome their collective action problem.  It reminded me of Sophocles’s Philoctetes: even the good-hearted Neoptolemus cannot persuade Philoctetes give up satisfying his justifiable grudge against the Greek army at Troy, and by doing so make himself and the rest of the Greek army better off.  Only the last-minute intervention of Heracles, now a type of deity, can persuade him.  

Perhaps that is what President Obama is trying to be for the Copenhagen talks today.  It seems unlikely to work — after all, what makes the deus ex machina a deus is that it exists apart from the petty interests of the group.  President Obama will not be heard other than as the voice of one member of the group — a member which the others would rightly regard with suspicion, since it is likely to pursue its own self-interest.  I respect President Obama for trying, but I’m pessimistic.  Try as he might, he’s Neoptolemus, not Heracles.

Sorry if this sounds dramatic (so to speak), but consider this: one definition of tragedy is man’s realization that he can never be a god; that not matter how much he struggles, he is trapped within the bounds of human existence.  If that’s true, then if, as seems likely, we see President Obama fail today to successfully play the deus ex machina and persuade the individual nations from adherence to their own strict self-interest, then we will be witnessing a type of tragedy in the traditional sense of the word.  The inability of any one member of the group to assume a role above his self-interested existence, even if that is what he intends to do – in other words, to become a deus — would not surprise Sophocles.  But it’s sad to witness as member of the chorus.

Bunk shows how it’s done. 

I love showing this clip to my students.  It’s a great antidote to the myopia that develops from breathing too much of the rarified air of Supreme Court opinions.  Warning: every third word is m@#$!%$*&^!r.

Do you have any clips you love to show your students — interrogations or otherwise?

The answer, of course, is Woodsy. 

A fanciful owl

It’s unhealthy, but I’ve spent at least a few hours of my limited earthly existence pondering the so-called Woodsy Owl-Smokey Bear Act of 1974 and its implementing regulations.  Maybe it’s because I teach natural resources law.  Maybe it’s because I had recurrent nightmares about Woodsy as a kid (those huge eyes!).  Maybe it’s because I’m seriously screwed up.

In any case, in addition to defining Woodsy as described above, the Act defines “Smokey Bear” as “Smokey Bear” (no further description needed, apparently) and “Secretary” as the Secretary of Agriculture (sadly, the statute does not say what color [...]]]> Here’s a quiz: who is the creature defined by 16 United States Code sec. 580p(1) as a “fanciful owl” who wears forest green “slacks,” a brown belt, and “a Robin Hood style hat” with a red feather.  

The answer, of course, is Woodsy. 

A fanciful owl

It’s unhealthy, but I’ve spent at least a few hours of my limited earthly existence pondering the so-called Woodsy Owl-Smokey Bear Act of 1974 and its implementing regulations.  Maybe it’s because I teach natural resources law.  Maybe it’s because I had recurrent nightmares about Woodsy as a kid (those huge eyes!).  Maybe it’s because I’m seriously screwed up.

In any case, in addition to defining Woodsy as described above, the Act defines “Smokey Bear” as “Smokey Bear” (no further description needed, apparently) and “Secretary” as the Secretary of Agriculture (sadly, the statute does not say what color slacks the Secretary of Agriculture wore, or his preferred style of hat.  That would have been awesome.).

A few questions:

Why did Congress feel the need to define Woodsy as a “fanciful” owl?  Was it concerned that the statute might be overbroad, unintentionally encompassing real owls who wear green slacks and hats with feathers?

The Act claims that the United States government owns the phrase, “Give a hoot, don’t pollute.”  Later, the Department of Agriculture claimed rights in a second phrase: “Lend a Hand, Care for the Land.”  Did the Department of Agriculture exceed the scope of its authority under the Act?

Who came up with a lame saying like ”Lend a Hand, Care for the Land,” and did they notice it doesn’t scan?

What circumstances compelled the Department to state in its Smokey Bear Guidelines  (March 2009 at 13) that “The costumed bear should not force itself on anyone”?

Unfortunately, a man who might have been able to shed some light on these questions has died.  Herbert Bell, who died at age 90 last week, created Woodsy with a group of forest rangers.  He also marketed Smokey, Lassie, and Mr. Magoo.

According to his obituary in the New York Times, Mr. Bell considered using a trout instead of an owl.  A trout.  Now that would have caused nightmares . . . . but it could have been a great statute.

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how [...]]]> If the last two years of American economic life have demonstrated anything, it is that property rights are not static.  Sometimes things that were once private property become public property (see, e.g., Motors, General).  Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie).  And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated.  Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something  in between – some mixed proportion of free allocations and auctions.

Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that  (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways:  it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.

But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.

Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair.  Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it.  In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.

My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.

In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas.  Permits were issued to fishing vessel owners based on their average catches during a three-year test period.  New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange.  Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance.  In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.  

Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system.  Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights.  In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system. 

There has been considerable uproar over the potential free allocation rights to current carbon emissions producers.  Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness.  It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.

I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium.  I kept looking at the shots of the stadium itself, and thinking about two recent court orders. 

One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land.  There were four bids.  The winning bid? [...]]]> I’m very happy to be back adding my two cents to Concurring Opinions.  Thanks very much, Dan, for the invite, and Sarah, for the introduction. 

I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium.  I kept looking at the shots of the stadium itself, and thinking about two recent court orders. 

One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land.  There were four bids.  The winning bid? $583,000.  Total.  After auction fees, the current owner — the City of Pontiac, Michigan — will net about $430,000.  When professional sports tenants such as the Detroit Lions left, a property that cost $56 million to build was rendered practically worthless.  In fact, Pontiac was prepared to accept any bid for the property, since maintaining it was costing the City $1.5 million per year. 

The other order was issued in September by Judge Berrigan of the U.S. District Court for the District of Eastern Louisiana, ordering St. Bernard Parish not to interfere with the construction of a mixed market-rate and low income housing project.  The Parish, faced with an influx of low income tenants, had refused to issue building permits for the project, imposed a moratorium on building apartment complexes, and passed an ordinance making it illegal to rent to anyone other than a blood relative without special permission.  The New Orleans area faces an extreme shortage of low income housing, despite the population diaspora from the area generally.  Most of the housing destroyed by Katrina was low income. 

 There’s a lot to ponder about the Silverdome sale:  That there were three lower bids.  That the winning bid was less than the minimum salary for two NFL rookies.  That economically, everything Michigan touches seems to dissolve. 

There’s also a lot to ponder about the Louisiana case:  The race and class issues implicit in the development of low income housing.  The institutional role of courts as a check on the popular will.  The possibility that some of those in need of that housing once spent time sheltering in a hellish environment inside yet another domed stadium.  

But as a law professor who teaches property, I was also struck by was the extraordinary difference in power between commercial and residential tenants.  In Pontiac, the lack of willing commercial tenants for the Silverdome reduced the value of the property to a nominal amount.  In St. Bernard Parish, despite an abundance of ready and willing residential tenants, a court order was required to get a what should be a profitable property developed.  This week I’m teaching my students about the gradual importation of contract law concepts into the law of leasehold estates.  I tell them that those contract law doctrines tend to protect residential tenants, recognizing what is often unequal bargaing power between residential tenants and lessors.  They are less protective of commercial tenants, because commercial tenants often have as much bargaining power as lessors.

Watching the Vikings on Sunday, oddly enough, brought that lesson home.

In 1948, a graduate of an undistinguished and then defunct law school, whose parents had been born in slavery, stood before the Supreme Court and, against the urging of some of the greatest legal minds of the 20th century, made an argument that had been unanimously rejected by state and federal courts, including the Supreme Court: that court enforcement of private racially restrictive covenants constituted state action and, [...]]]> What a joy it has been blogging here at Concurring Opinions. I thank Dan Solove and the rest of the crew for the opportunity, and I thank the commenters for the great e-conversations that have followed my posts. For my last post, I want to enter the last installment in the Drop Everything and Emulate series.

In 1948, a graduate of an undistinguished and then defunct law school, whose parents had been born in slavery, stood before the Supreme Court and, against the urging of some of the greatest legal minds of the 20th century, made an argument that had been unanimously rejected by state and federal courts, including the Supreme Court: that court enforcement of private racially restrictive covenants constituted state action and, as such, was a violation of the Equal Protection Clause of the 14th Amendment.

Against all odds, he won, and Shelley v. Kraemer became a guidepost for the civil rights revolution that followed. Less than two years later, he was dead, and today is rarely remembered.

George Vaughn was born in 1885 in Kentucky. Little seems to be known about his early life. He earned an undergraduate degree from Lane College and a law degree from Walden University, both in Tennessee. Walden was founded by white missionaries as a school for African-Americans, but began to fail at about the time Vaughn attended, graduating just one law student in 1911. By 1925, Walden University was no more.

Vaughn served as an officer in the segregated army in World War I, then opened a law practice in St. Louis. In St. Louis, he became active in Democratic politics. He ran for one office – city alderman – and lost.

Vaughn attended a conference hosted by the NAACP regarding litigation strategies against racially restrictive covenants. (Leland B. Ware, Invisible Walls: An Examination of the Legal Strategy of the Restrictive Covenant Cases, 67 Wash. U. L. Q. 737 (1989). Ware’s excellent article is the source for much of the information that follows. If this was a law review article rather than a blog post, it would be full of ‘ids’ from here on out). Charles Houston and Thurgood Marshall urged the attorneys to challenge plaintiffs in such cases to prove that the defendants were Black, to introduce studies showing the sociological and economic effects of restrictive covenants, and to argue that the covenants were invalid under the common law doctrine of changed circumstances. They urged the attorneys not to rely on the enforcement-as-state-action argument, since it had failed repeatedly.

In 1945, an African-American man named J.D. Shelley bought a house on Labadie Avenue in St. Louis. The house was purportedly subject to a racially restrictive covenant that applied to the neighborhood (I say purportedly because, as Carol Rose has pointed out, the covenant was probably invalid as a matter of the common law of real covenants, for reasons unrelated to its racial restrictions). The neighbors sued to evict the Shelleys, and the Shelleys went to George Vaughn for help.

Vaughn used a strategy similar to the one urged by Houston and Marshall, but also raised the enforcement-as-state-action argument. He won at trial court on the ground that the restrictive covenant was defective as a matter of common law, but lost at the Missouri Supreme Court.

At the same time that Vaughn was bringing his case, other racially restrictive covenant cases were also proceeding, including Houston’s own case, Hurd v. Hodge, and one that Marshall would eventually take to the Supreme Court as a companion to Shelley, McGhee. The NAACP was attempting to coordinate the cases, hoping to pair the right case and the right attorney and take it to the Supreme Court. In the opinion of the NAACP, Shelley was not the right case, and Vaughn was not the right attorney. He was considered relatively unsophisticated, and some doubted his ability to persuade the Supreme Court.

Nonetheless, without consulting the NAACP, Vaughn filed a petition for a writ of certorari with the Supreme Court, which was granted. When a none-too-pleased Marshall found out, he quickly filed a petition in the McGhee case, which was paired with Shelley, as was Houston’s Hurd case.

At the Supreme Court, Vaughn argued first for the petitioners. Unlike Marshall and Houston, Vaughn didn’t focus his argument on economic and sociological data about the effects of racially restrictive covenants. He argued that court enforcement of them constituted state action. Racially restrictive covenants were, he told the Court, “the Achilles’ heel” of the American dream. He rapped his knuckles slowly on the table beside him and said, “the Negro knocks at America’s door and cries, ‘Let me come in and sit by the fire. I helped build the house.’” The question, from Vaughn’s viewpoint, was whether courts, as state actors, could hold the door closed.

Marshall is often credited with winning Shelley v. Kramer today, and perhaps justifiably so. His use of economic and sociological data to support Constitutional arguments became a hallmark of the civil rights litigation that followed, most famously in Brown v. Board of Education. But to me, it is Vaughn’s undaunted and courageous insistence that courts, too, were state actors bound by the limits of the 14th Amendment, that is the most powerful (and controversial, to this day) conclusion from the Shelley case.

I like introducing my students to Vaughn for so many reasons. Students at William Mitchell have often taken non-traditional paths to law, and they, like Vaughn, attend a school whose ‘ranking’ does not match its quality. He was a wise counselor for his community, a man to turn to in times of trouble. And his quiet insistence on basic principles helped launch a revolution in American law for which we all owe him a debt of gratitude.

Every once in a while, God inexplicably smiles upon law professors. To wit:

Driver of school bus full of middle school basketball players hits deer. Driver doesn’t stop. Deer gets caught beneath bus. Deer ruptures fuel line. Bus, on fire, pulls into school parking lot, and explodes.

Behold.

Best of all: no one was hurt.