January 7, 2012
Vaclav Havel, Part II: The Power of the Powerless
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.
Mark A. Edwards
Cross-posted at Concurring Opinions
January 6, 2012
Call for Papers -- ALPS Reminder
I'm live blogging from AALS in DC. Attended a great session yesterday, co-sponsored by the Property and Real Estate Transactions Sections, on many facets of urban development in the current economic climate.
We were reminded during the session that property profs can return to DC shortly, on March 2-3, to attend the 3rd annual ALPS conference at Georgetown. The deadline to submit a paper topic is January 20th. If you don't have a paper in progress, they are recruiting moderators. All of the PropertyProf bloggers attended last year's conference. It is a great multi-disciplinary, yet property-focused, get together.
Get the details and register at the website: http://www.alps.syr.edu/
posted from my iPad
The Chicago Tribune lays out the basics of tree law:
[I]n every state in this country, self-help is permitted.
That means that you have the absolute right to cut any tree roots that are in your property, and you can cut down any tree limbs or branches that overhang onto your land. You cannot, however, trespass onto your neighbor's property.
Silbey on Entitlements to Parking Places on Snow-Filled Streets
Susan Silbey (M.I.T.) has posted J. Locke, Op. Cit.: Invocations of Law on Snowy Streets (Journal of Comparative Law, Forthcoming) on SSRN. Here is the abstract:
Each winter in the northern cities of the United States, a familiar scene illustrates tacit and deeply sedimented, yet common invocations of law. After a heavy snow storm, one can see old chairs, traffic cones, milk crates, light weight tables, dead house plants, or other noticeably bulky objects in recently shoveled out parking spots on an otherwise snow-filled public street. "Before snowfalls, a parking space belongs to the one who occupies it: you leave it, you lose it. In wintertime Chicago, however," writes Fred McChesney in an economic analysis of this practice, "excavating one’s car [from the snow that fell on it] changes the system of property rights... The initial digger of the spot is given a limited monopoly for its use."
Although calculating an efficient duration for the monopoly preoccupies some analysts, my attention to the practice of claiming parking spots on snowy streets derives from an interest in understanding legal culture, more specifically, how practices of everyday life sustain the rule of law. The practice of holding shoveled-out parking spots on snow covered streets is not a recent invention in northern American cities, neither is it universal, nor without contest. It is, however, widespread, a subject of regular and increasing discussion in public forums, newspapers and internet media. It has been subject to legal regulation, although uneven law enforcement, and a topic of scholarly analysis. This essay uses the example of the chair in the shoveled out parking spot to illustrate how cultural analysis can document both the practices and systematicity of legal culture(s), in this way hoping to unravel some of the confusion characterizing discussions of legal culture as well as culture more generally. Following a more extended introduction, the section following both describes and interprets the practice of space-saving on snowy public streets, using the actors’ own accounts to construct an interpretation of what placing chairs in parking spots on snowy streets means to the participants. I follow this descriptive and interpretive work with a short discussion of what such cultural analysis brings to legal inquiry.
January 5, 2012
Matt Ygelsias argues that America is experiencing a serious housing shortage:
Probably the least-understood economic issue in America today is that notwithstanding high vacancy rates in some portions of the country, we're now objectively undersupplied with housing relative to the size of our population. Since pre-recession America had the biggest houses in the known universe, we're finding it perfectly possible to physically accommodate all these extra people by having twentysomethings live with their parents, siblings doubling up, etc. But what's basically happened is that joblessness, high debts, and lack of income have caused net household creation to crater even as the population keeps growing.
Big Government in Action
A nice piece from the New York Times marks the 200th anniversary of the city's street grid:
It was in many respects a heartless plan. There were virtually no parks or plazas. The presumption was that people would gravitate east and west along the numbered streets to the rivers when they wanted open space and fresh air, and not spend lots of time moving north or south. That partly explains why there were only a dozen avenues.
In the abstract, the idea was really nothing revolutionary; grid plans went back to ancient Greece and Rome. But installing one in Manhattan was deeply subversive because, while still undeveloped, the island was already parceled into irregularly shaped, privately owned properties.
January 4, 2012
Medill on Developing Professional Skills in Property
I have previously blogged about my efforts (which are hardly unusual) to integrate more lawyering skills and practical considerations into my Property course. It is perhaps more difficult to simultaneously teach theory and practice in heavily doctrinal, common law 1L courses like Property. However, it seems more natural for me to teach Property doctrine in a practical context since that is how I experienced the material during 11 years of practice. For many professors who lack that background, teaching Property in an integrated way would be much more daunting.
Thankfully, Colleen Medill of the University of Nebraska College of Law (my father’s alma mater!) has come to the rescue with her new book, Developing Professional Skills: Property. Designed as a supplement to traditional casebooks, and keyed to the major titles, Medill’s slim volume (approx. 120 pages, $25 cover price, $18 for the online version), is concise but powerful. Ten chapters cover the topics of: finders, trespass and adverse possession, gifts, present and future interests, co-ownership relationships, landlord and tenant relationships, real estate disclosures, conveying title to real estate, easements, and takings. Each chapter focuses on a different skill, including replying to a client e-mail, interviewing a new client, negotiation, and limited drafting. The exercises are very focused and concise, and Medill provides checklists, forms, and questionnaires to guide inexperienced students. The problems are designed to be very flexible. Students can work alone or in groups, at home or in class, check each others’ work or submit to the professor for grading.
The teacher’s manual, which is nearly as long as the book itself, contains detailed information to allow professors to guide students through the activities and debrief afterwards. Each chapter begins with a clear outline of the problem, the legal rules, the skills implemented in the exercise, the student assignment, the practice norms covered, and optional professional responsibility concepts.
I am teaching two sections of Property beginning on January 17th, but I spent a few hours last night tearing apart my syllabus in order to make room for Medill’s exercises. I am planning to use nine of the ten (excluding only takings) and will supplement with two or three of my own exercises (title search, residential lease, and home purchase). I think that I will have the students complete the problems at home when we finish each section of material, then submit to me via TWEN or e-mail, and bring a print-out to class the next day. I will have students exchange papers within a small group and offer critiques. Then I will walk through the main issues and show a few (anonymous) examples to the class. We will work through the material at a slower pace if I devote this much time to the practical exercises, but I think that the students will have a deeper appreciation and understanding of the material, and hopefully will find Property to be as fascinating as I do!
Lifestyles of the Rich and Famous
(Photo: Newt Gingrich's Bathroom from Ann Kenkel Interiors)
Fennell on Property's Lumpiness
Lee Anne Fennell (Chicago) has posted Lumpy Property on SSRN. Here's the abstract:
A bridge that only spans three-quarters of the distance across a chasm is useless, although far from costless. This standard, intuitive example of a lumpy or step good illustrates a point about discontinuities and complementarities that has broad, and mostly unexplored, significance for property law. In this essay, I explain how, why, and when property might be regarded as lumpy, and examine the implications of that lumpiness for doctrine and theory. Viewing property through the lens of lumpiness matters for several reasons. The first is descriptive accuracy. Property law is lumpy as a positive matter, filled with doctrines and approaches that deal with the world in discrete, hard-to-divide chunks. Second, an appreciation of lumpiness can inform optimal entitlement design. In evaluating the chunkiness that is built into property doctrines, we must ask whether and how it corresponds to - or contributes to - underlying discontinuities in the production or consumption of property. A third reason for attending to lumpiness is that many of property law’s most important conflicts can be usefully framed as “lump versus lump.” For example, an exercise of eminent domain may achieve a valuable spatial aggregation by splitting up some other aggregation, such as lengthy temporal attachments to the land, or a cohesive community that shares social capital. Recognizing the work that nonlinearities do in such stories can offer new traction on contested property issues. Lumpiness also informs ongoing theoretical debates that turn out to have a similar “lump versus lump” structure, including the usefulness of the “bundle of sticks” metaphor and the tension between exclusion and social obligation.
January 3, 2012
Vaclav Havel, continued . . .
I've been wanting to write about Vaclav Havel, who died on December 18th. I'm going to use the opportunity of a short guest-blogging stint at Concurrring Opinions to write about him both there and here at PropertyProf.
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. Last summer, for example, I went so far as to sit in the very spot he sat when he was sentenced to prison (that’s me, with my law students in tow, at the courthouse). 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 became 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.
More on Havel in the days ahead . . .
Mark A. Edwards
Conference Announcement: Post-Zoning
On February 8th, Brooklyn Law School is hosting a conference entitled, Post Zoning: Alternative Forms of Public Land Use Controls. Here's a synopsis:
Roughly one hundred years ago, zoning emerged as a response to the vagaries and limits of nuisance law in controlling threats to public health and safety. It offered promise as a tool for comprehensive planning even as it rebalanced private property rights. A century’s worth of doctrine has evolved to mediate between the rights of property owners and the interests of the public.
We are now experiencing another revolution in land use regulation. The Trager Symposium will examine this next phase of development control: non-zoning land use controls. Governments, and New York City in particular, have begun to rely on contracts and novel property transactions to control development in their jurisdictions. Through development agreements, restrictive declarations,community benefits agreements, transferable development rights, conservation easements, and other tools, zoning has been both supplemented and supplanted by new techniques that challenge the traditional limits on government police powers.
The list of speakers is full of land use luminaries.
The End of Redevelopment in California?
For those of you that care about local government and urban development, Ken Stahl put up a must-read post on a recent decision out the California Supreme Court. Here's the gist:
Two days ago the California Supreme Court put a huge lump of coal in the Christmas stocking of California's very naughty redevelopment agencies, issuing an epochal (or perhaps apocalyptic) but not entirely surprising decision that puts an end to redevelopment in the state of California, probably the state where redevelopment has hitherto been most popular. As of 2008, there were 395 redevelopment agencies in California, holding $12.9 billion in assets in 759 redevelopment zones. Now, after the court's ruling, they are all history. The court upheld a state law abolishing all California redevelopment agencies, and struck down a compromise bill that would have permitted redevelopment agencies to stay in business if they shared some of their tax revenue with other local government agencies, mostly school districts. Forlorn city leaders are already predicting all sorts of doomsday scenarios for cash-strapped California cities. Critics of redevelopment such as the Institute for Justice, are, as you can imagine, more pleased with the result.
The whole this is worth a read.
Ellickson on the Bundle of Sticks
Robert Ellickson (Yale) has posted Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith (Econ J. Watch) on SSRN. Here's the abstract:
Viewing property rights as a “bundle of sticks” can be descriptively clarifying because the law commonly entitles an owner of a particular resource to split up entitlements in it. Nonetheless, Thomas Merrill and Henry Smith, the most prominent critics of the metaphor, assert that this conception both ignores the existence of various legal constraints on the decomposition of property rights, and also encourages lawmakers to support the excessive splintering of entitlements. These concerns are well-grounded. More controversial are Merrill and Smith’s inclinations to equate private property with property generally, to deny that human capital can be characterized as property, and to assert that affirmative duties never attach to property ownership.
January 2, 2012
Call For Papers
The Journal of Affordable Housing and Community Development Law has put out a call for papers for its 2012 issues:
The Journal of Affordable Housing & Community Development Law, the legal publication of the American Bar Association’s Forum on Affordable Housing and Community Development Law, is currently seeking submissions from students, professors, and practitioners. The Journal publishes full-length articles, book reviews, and shorter commentaries on a wide range of affordable housing and community and economic development issues.
The Journal has extended the deadlines for the Fall 2011 issue (Vol. 21:1) until January 9, 2012 and the Winter 2012 issue (Vol. 21:2) until March 5, 2012. Double-spaced manuscripts should be e-mailed to Jim Kelly, Editor-in-Chief, at J.Kelly@nd.edu and Wendy Smith, Managing Editor, at email@example.com.
Rwanda's Problems as Property Problem
The National Geographic Magazine recently ran an article on Africa's Albertine Rift that describes the property angle that swirls around the tragedy in Rwanda:
By the mid-1980s every acre of arable land outside the parks was being farmed. Sons were inheriting increasingly smaller plots of land, if any at all. Soils were depleted. Tensions were high. Belgian economists Catherine André and Jean-Philippe Platteau conducted a study of land disputes in one region in Rwanda before the genocide and found that more and more households were struggling to feed themselves on little land. Interviewing residents after the genocide, the researchers found it was not uncommon to hear Rwandans argue that "war is necessary to wipe out an excess of population and to bring numbers into line with the available land resources."
Recent SSRN Downloads
1. [560 downloads] Nine Bean-Rows LLC: Using the Limited Liability Company to Hold Vacation Homes and Other Personal-Use Property
J. William Callison (Faegre & Benson)
2. [399 downloads] Property Title Trouble in Non-Judicial Foreclosure States: The Ibanez Time Bomb?
Elizabeth Renuart (Albany)
4. [135 downloads] The Costs of Complex Land Titles: Two Examples from China
Robert C. Ellickson (Yale)
5. [100 downloads] A Bundle Theorist Holds On to His Collection of Sticks
Stephen R. Munzer (UCLA)
8. [65 downloads] The Social Function of Property: A Comparative Law Perspective
Sheila Foster, Daniel Bonilla (Fordham)
9. [64 downloads] McLaughlin on Kaufman: Tax Court Protects Public Investment in Conservation Easements
Nancy A. McLaughlin (Utah)
10. [60 downloads] Subprime Mortgages and the Case for Broadening the Duty of Good Faith
Chunlin Leonhard (Loyola New Orleans)