Bar Journal - June 1, 2003
A Rule of Law Project Meets 'Arbitrary & Capricious' Obstacles in Vologda, Russia
By: Professors Cathy Frierson & Albert E. Scherr
Since September 1999, Franklin Pierce Law Center (FPLC) and the University of New Hampshire (UNH) have been engaged in a partnership with the law school at Vologda State Pedagogical University (VSPU) to support the development and reform of legal education. This partnership has been funded by the Bureau of Educational and Cultural Affairs (ECA) at the United States Department of State (State Department) through the Freedom Support Act. ECA, according to the State Department’s website, "fosters mutual understanding between the United States and other countries through international educational and training programs."
The FPLC/UNH partnership in Vologda shares the ECA goal of supporting "cooperation between U.S. colleges and universities and foreign post-secondary institutions," with a commitment to fulfill ECA’s requirement that our partnership "be beneficial to all partner institutions, although the benefits may differ significantly for each of them." Further, establishing this partnership with a provincial law school met the State Department’s policy goal of extending the reach of exchanges and partnerships beyond Moscow and St. Petersburg. The State Department knew —and our experience has confirmed — that the cultural pathways to provincial Russia are as uneven, rocky, laden with potholes and pitfalls, or clogged with the mud of previous political "seasons" as the roads one encounters a mere 20 miles from downtown Moscow.
In our partnership, faculty exchanges have provided the vehicle for cooperation: nine Vologda instructors have traveled to FPLC and UNH; four FPLC instructors and two UNH instructors have traveled to Vologda. For the Russian partners, trips have been as brief as one week but typically from two to eight months in length. Trips by New Hampshire participants to Vologda have been much shorter, typically three weeks in duration each spring. At first glance, ours seems a rather innocuous program of classroom observation, research, and visits to legal and judicial offices in New Hampshire for Russian participants, and demonstration teaching by New Hampshire participants in Vologda.
Our minimal goals for Russian participants were to assist in the establishment of clinical education at the Vologda law school, contribute to the development of new courses, introduce instructors to current U.S. pedagogical technologies and techniques, and provide opportunities for them to gather materials for their comparative teaching and research involving the U.S. legal system.
Our most ambitious vision involved contributing to the maturation of the rule of law in post-Soviet Russia. For U.S. participants, the grant has provided the opportunity for FPLC instructors to become familiar with post-Soviet Russia as a transitional legal system with transitional legal education and to expand their international profile and teaching experiences. For the UNH director/instructor, trips to Vologda enabled her to deepen her expertise in Russian culture, complete archival research in the Vologda regional archive, refine her fluency in spoken Russian, and continue her years of observing Russia’s transition from the pre-Gorbachev Soviet era to the post-Soviet Putin era on location. For the other UNH instructor, this trip provided the first international teaching experience of her career.
Despite this rather bland list of goals and activities, this partnership has generated intense resistance in Vologda, particularly from university administrators. After three years of active and problem-laden partnership and a fourth year of crisis and suspended activities, the U.S. co-directors of the project are negotiating with each other, our program officers in Washington, past participants in Vologda, and the Vologda university administration to determine whether to continue the partnership through the final sum of funds available.
The decision whether to continue the partnership hinges on our perception of what "beneficial" means in the local context of Vologda State Pedagogical University, where our program has simultaneously engendered a major labor dispute, challenged local hierarchies, placed young grant participants at risk, led to the dismissal of the Vologda grant director and one of the first two participants in the program, inspired changes in legal pedagogy, disrupted gender relations, and highlighted the contest between the rule of law (zakonnost) and arbitrary and capricious power (proizvol) in post-Soviet Russia, here in a local institutional setting. In this article, we will describe key moments, personalities, conflicts, and achievements. We welcome comments from readers; please send your insights to our email addresses listed below.
We can claim several achievements, defined as goals established in our grant proposal and embodied in our contract with the State Department.
Nine instructors have traveled to New Hampshire for anywhere from one week to eight months. Of these participants, six had never traveled outside of Russia before their travel to the U.S.
Six U.S. instructors have traveled to Vologda for anywhere from two to three weeks. Of these participants, two had never traveled outside the U.S. before going to Vologda.
In the U.S., FPLC and UNH participants have developed a rich and diverse program of demanding activities for Russian visitors, including: classroom observation, guest lecturing to classes and public forums, individual consultation with U.S. instructors about pedagogical methods, visits to legal and judicial institutions, consultations with legal/judicial practitioners, individual research on scholarly projects, visits to Washington, D.C. to meet with State Department officials and members of the New Hampshire congressional delegation, collection of materials for their teaching on comparative legal institutions, visit to the United Nations, attendance at regional and national scholarly conferences, and observation of such U.S. practices as mock trial competitions and election campaigns.
Throughout, we tailored activities to meet the scholarly and teaching interests of individual participants (e.g. for the visitor who teaches social welfare law in Vologda, we arranged a visit to the Portland regional social security office, where she was able to gather materials and interview a staff member about the functions, activities, and challenges of the office; for the instructor in environmental law, we arranged a visit to Vermont Law School’s Environmental Law Center.
We have supported the establishment of a clinical education program at the Vologda law school, primarily by introducing its initial director to the practice of the legal clinic at FPLC and conferring with her about her progress during follow-up visits to Vologda.
We have supported the introduction of intellectual property law at the Vologda law school, where a grant participant is the first to offer such a course in the entire Vologda region.
We have introduced Vologda grant participants to internet legal research by establishing contact with the Vologda regional library, which houses the only substantial computer/internet cluster in the city in the library’s "American Corner," a State Department project. Vologda grant participants have subsequently provided tutorials for their students in the "American Corner" on how to use the internet for research.
We also introduced the use of technology in the classroom by providing the equipment necessary to incorporate PowerPoint into law school teaching.
For evaluation purposes, we administered a questionnaire on attitudes and expectations related to legal pedagogy and to the rule of law to first-year law students in Vologda in spring 2000. In spring 2002, we were able to repeat this measure with the same cohort of students, now third-year law students. In both years, instructors at the Vologda law school also filled out the questionnaire.
During annual visits to the Vologda law school, FPLC and UNH instructors have done demonstration teaching with two purposes: to demonstrate U.S. pedagogical methods (from PowerPoint to the Socratic method to role-playing to case study) and to provide information on subjects of interest to the Vologda faculty (international human rights law, consumer protection law, evidence, criminal procedure, jury trials, U.S. and British scholarship on the history of the rule of law in pre-Soviet Russia). For those programs, we have translated articles on pedagogical methods selected by Vologda participants, as well as materials to use in case study exercises during demonstration teaching sessions.
Vologda grant participants have incorporated several elements of U.S. pedagogy into their teaching, including: the Socratic method, written quizzes, short essays, role playing, PowerPoint, and student evaluation of courses.
We have supported Vologda instructor research and teaching needs, as well as student research needs by purchasing roughly 300 recent Russian books on the law.
One Vologda grant participant has published an article on the history of U.S environmental law for the Russian journal Nature, which is the equivalent of National Geographic Magazine.
UNH, FPLC, and Vologda grant participants have prepared articles to be published in Russian on contemporary issues in legal education in the U.S. and Russia. We planned to publish this volume through VGPU and distribute it to all law schools in the Russian Federation. Because of recent problems with grant administration in Vologda, we do not know the fate of this volume.
This list captures only the more easily measured achievements of the grant’s various activities. As the visits back and forth by Russian and U.S. professors continued, a palpable sense that we were amidst a transition in Russian legal education, at least among some faculty members at one law school, developed. Those Vologda faculty who spent a significant time in New Hampshire appeared to return to Vologda with an added perspective on their roles as law professors and lawyers that distinguished them from their colleagues. They reported that they had begun to engage their students more actively in the learning process and that their students had begun to develop expectations of a less lecture-centered classroom experience. And, those on the Vologda faculty who had visited UNH and FPLC had developed a cohesive identity as a cohort committed to professional growth.
When U.S. faculty visited Vologda, the focus, energy and commitment of the Vologda cohort was apparent. Notably, their commitment was not to all things in American law being the best nor to the replacement of all Russian legal education practices with "better" American techniques or systems. Rather, the members of the cohort were selectively incorporating new pedagogical techniques into well-established substantive law courses mandated by the Russian Ministry of Education. And, they were using comparative law perspectives on the U.S. legal system to further expand their students’ thinking about the strengths and weaknesses of their own developing system.
For example, over the course of two days in Vologda, three FPLC professors and a significant group of VSPU students and faculty assessed the relative merits of the American jury trial system as a means for protecting against bias in judicial decision-making. This assessment occurred in the larger context of the Russian government’s emerging effort to implement the constitutional requirement for jury trials in certain cases. It also occurred in the classroom context of simulation exercises, role-playing and seminar-style discussion. What was most tangible was not any particular set of conclusions that were drawn but the energy and intensity with which, together, students and faculty adopted positions, changed them and, then, changed again, in an ongoing effort to evaluate the soon-to-be jury trial experiment in Russia of which they, as lawyers, would be a part.
Change was beginning in the culture of Russian legal education through pedagogical techniques that energized students and faculty. But, it was on these VSPU professors’ and students’ terms and at their pace. It seemed that change was coming from within rather than from an outside, imperialistic force.
Beyond these seeming changes in Vologda, the UNH and FPLC participants were benefiting from the partnership. Some were re-evaluating their own teaching techniques and others were developing or deepening their understanding of foreign legal systems. All were engaged at a number of levels with Russian colleagues in the joint enterprise of personal and institutional professional development across cultures, legal systems and languages. A true, mutual partnership had developed. Or so we thought.
With this list of achievements, why do we feel that our partnership has been less than fully successful so far? Of course the logistical frustrations have been manifold: no consistent email communication with the law school itself; fax machines in the law school that rarely worked; constant problems with procuring visas in the U.S. and Russia; accommodating academic schedules at three institutions; orienting Russian visitors to daily living in New Hampshire; transporting Russian visitors between Durham and Concord (all the while being reminded that no public transportation exists between the flagship university and the state capital of New Hampshire!); adjusting to Russian notions of timeliness or the lack thereof, and so on. But, ultimately, our sense of failure is attached to our most ambitious goal, that is, to contribute to the maturation of the rule of law in post-Soviet Russia.
We discovered how very Soviet Vologda still was when we began our program in the fall of 1999. Four years later, we observe that the younger generation of grant participants from Vologda is coming up against older, Soviet-era administrators and supervisors who have found their new ideas, attitudes, and behaviors a threat to their habits of supervision and teaching. Further, we ruefully have come to understand that for the older generation of instructors and administrators at Vologda State Pedagogical University, Cold War suspicions and sensitivities toward the U.S. and U.S. citizens are very much alive. The tenacity of Soviet attitudes and practices has challenged our efforts to develop genuine partnership among colleagues, rather than a contest between adversaries. Even the youngest of the Vologda visitors arrived in New Hampshire expecting to be humiliated by U.S. citizens eager to assert U.S. superiority over Russian culture.
In all cases, Vologda visitors have departed the U.S. with an explicitly stated, deep appreciation for the respect and welcome they received from professional colleagues, students, and ordinary citizens. Further, they have brought their new understanding of U.S. culture, legal system, and pedagogical methods to their classrooms. They also returned with more self-confidence and self-assertion, which generated hostility among their peers and determination to rein them in from their dean. All have found that the old-style Soviet arbitrary and capricious tyranny may still rule their work environment, not the rule of law as promised in the 1993 Constitution of the Russian Federation. To date, three have left the institution, including the grant director who was fired for "violation of labor discipline." One was removed within a year of his return from his stay in New Hampshire. The third left within a month of her return; we have not been able to establish conclusively whether the latter two were fired, or left under threat. We do know that the second left under duress and against his preference to stay on the faculty.
Despite the advice from the State Department to "resist the impulse to personalize issues," we have found the most consistent, albeit most colorful, source of frustration to be the dean of the law school in Vologda. We now turn to a discussion of his role in the grant with the goal of illuminating the continued power of personal caprice in localities in post-Soviet Russia, which in turn illuminates how very fragile the progress toward a rule of law constraining authorities continues to be outside Moscow.
KHRUSHCHEV REDUX, OR DEALING WITH THE DEAN
This grant originated with a conversation between Cathy Frierson (then director of the Center for International Education at UNH and associate professor of history, specializing in Imperial Russia, with several publications on Russian legal history before World War I) and a New Hampshire lawyer who had just returned from a visit to Vologda through the USAID rule of law project sanctioned by the NH Supreme Court and headed by NH Superior Court Associate Justice Kathleen McGuire. Frierson, as a specialist in Russian legal history, found his description of the USAID project intriguing and pursued his leads to Franklin Pierce Law Center.
At FPLC, she was soon working with then interim dean Richard Hesse, who had also traveled to Vologda on the supreme court program. Hesse said he was game, but warned Frierson that the dean of the Vologda law school was "impossible." Frierson was nonchalant, replying that he sounded like a typical Soviet bureaucrat of the type she had been dealing with for 15 years. She was confident that she would be able to stomach him, if he were willing to support a program that would facilitate the exchange of instructors among the three institutions. Further, she was confident that he would welcome a partnership that enabled significant numbers of the instructors in his new, post-Soviet law school to travel to the U.S., even though it would complicate his staffing decisions during their absence each semester.
The dean of the Vologda law school has proven to be the chief obstacle in the partnership’s success. He is the very embodiment of proizvol, that is, arbitrary and capricious behavior that is the antithesis of the rule of law. Try as we might to avoid personalizing our conflicts, we remain convinced that this critical player in the partnership not only has stood in the way of the full fruition of the serious efforts of Russian and U.S participants in our program, but also represents the elements in post-Soviet Russia who stand in the way of the successful transition to a rule of law and mature partnerships with U.S. institutions.
A product of the Soviet establishment, he displays all of the behaviors of those described by Konstantin Simis in his landmark expose of the Communist Party apparatus and the entire structure of the late Brezhnev era: USSR: The Corrupt Society.1 As a former lawyer in the Soviet judicial system in Moscow, Simis gathered evidence of local abuses of power by officials who were in a position to control both their subordinates and ordinary citizens through their hold over employment, housing, and resources. Simis dubbed these officials the "District Mafia" because of their similarity to neighborhood dons who simultaneously were able to provide benefits outside the law and to control and extort outside the law. When Yuri Andropov, KGB chief turned General Secretary, took over the leadership of the USSR following Brezhnev’s death, he launched a campaign to clean up such local proizvol. Following Andropov’s premature death and that of his successor, Konstantin Chernenko, Gorbachev took up where Andropov had left off, trying to use glasnost as a weapon against proizvol in his failed effort to revive the Communist Party by clearing out the debris of pervasive local corruption.
Proizvol was certainly no novelty in the Brezhnev era. In the mid-19th century, the great father of modern comic writing, Nikolai Gogol, wrote screamingly funny, grotesque tales of petty local bureaucrats of the imperial civil service. One has only to revisit his "The Inspector General," "The Nose," and "The Overcoat" to recognize arbitrary and capricious violation of the law as the cardinal feature of each and every one of the characters he labels "the Very Important Person." But, for those of you reading this article, the closest and most marvelous source close at hand is William Taubman’s brilliant new biography of Nikita Sergeievich Khrushchev.
Taubman’s biography provides the most astute and acute portrait to date of Khrushchev as a man determined not to be bested by those who were more highly educated or privileged in any way than he. His modus operandi was a combination of hypersensitivity to perceived slights or condescension and pugnacious, rude, aggressive behaviors designed to preempt, unsettle, and ultimately disable those inside the Communist Party or in the foreign services of western powers (most notably the U.S.) in any negotiation, indeed, in any meeting. Thus, no matter what the ostensible or formal agenda for any consultation, Khrushchev was always pursuing his own personal agenda of proving that he was not intimidated or awed by any interlocutor, whether in the person of a diplomat or fellow Politburo member, or in the contest between states. His justification for being grossly rude and combative, intentionally crude in language and manners, was that he represented a workers’ state, and that as a worker, he did not have to conform to the etiquette of arrogant, capitalist diplomats.
Taubman’s description of Khrushchev’s dealings with western counterparts makes clear that he entered every meeting pumped up for a verbal slugfest, and that he often succeeded in leaving those counterparts stunned. Harold Macmillan described Khrushchev’s assault on Eisenhower in Paris after the U-2 incident, where he set out to "pulverize Ike…with a mixture of abuse, vitriolic and offensive, and legal argument."2 The effect on Eisenhower was just as Khrushchev hoped: "Eisenhower got madder and madder, his face and neck turning redder, as Khrushchev roared on." Even as a bystander, Macmillan looked "stricken."3 When he took on John Kennedy for the first time in person, Khrushchev left him "completely overwhelmed" by his "ruthlessness and barbarity" and "shattered."4 Such were his impulses and motivations when he famously banged his shoe on the table at the United Nations in 1960, glorying afterwards at the Soviet Mission over his effect, "It was such fun!"5
Our dealings with the Vologda dean had a similar flavor. In fall 2000, we invited him for a one-week visit. We arranged for our program officer from the Department of State to travel to New Hampshire to meet with him. As we discovered, he had one goal when he arrived: to extract a promise that we would invite students rather than instructors on the exchange. He failed in this goal despite ever-more-vociferous threats to undermine the grant if we did not agree to bring students over, dismissing the fact that the grant regulations expressly prohibited student travel.
He devoted the entire meeting with the State Department officer to trying to browbeat her (and the table with his fist) into disregarding the regulations governing the partnership. Similarly, at a seminar of UNH and FPLC professors gathered in his honor for a session devoted to the discussion of ways the grant could contribute to the development of his new law school, and to how we might contribute to legal education in general in Russia, he turned the discussion back at every point to his demand that we use the grant to bring students over. At one point, he dramatically opened his briefcase and pulled out Russian newspapers with articles about a British student-exchange program, then screamed, "The British are doing it! Why can’t you? What’s wrong with you? Why can’t you do it?" and frantically slammed the rolled up newspapers on the table as he looked menacingly around the table. Suffice it to say, we resembled Eisenhower in Paris.
His brusque behavior extended beyond us to the officers of ABA/CEELI in Moscow. On the basis of our positive experiences with the younger instructors in the law school in Vologda, we encouraged ABA/CEELI to send someone to Vologda to explore programs through which the law school might be able to procure technology for the classroom. Much to her surprise, the ABA/CEELI representative found herself under assault as soon as she entered the office of the dean, who launched into an abusive assertion that ABA/CEELI owed him and his law school funds and that he refused to submit to any application process, which was only a humiliating process, and so on and so forth. The officer returned immediately to Moscow, reported to us that the dean had provoked her into screaming at him in response, and that Vspu was now blacklisted at ABA/CEELI.
Observing the damage his dean was doing to prospects for future funding and partnerships, our Vologda grant director complained to the VSPU rector. A year or so later, upon his return from a second U.S. visit, the grant director was fired for a sequence of "violations of labor discipline." The grant director then filed suit against the university. He lost both the original case and the appeal, because, in part, the judge accepted the representation of the university vice-rector that no partnership exists between Vologda State Pedagogical University itself (as opposed to the law school), the University of New Hampshire, and Franklin Pierce Law Center. It is a cruel irony that the judge who issued the decision has traveled to New Hampshire through the USAID rule of law project and is well aware of the existence of the parallel program within the law school through, albeit not the university, the educational partnership.
This outcome has had a chilling effect on the grant participants who remain on the faculty at the Vologda law school. Having been on the receiving end of the dean’s vituperative outbursts over the last four years, they are silent and frightened, especially as they are early in their careers, and several of them are critical wage-earners in their families. Only one is brave enough to maintain contact with us through email.
WHERE TO GO FROM HERE?
With roughly $80,000 remaining in the grant account, we must decide whether to terminate the grant or request a no-cost extension. The university vice-rector has been courting us through steady communication, offering to provide all logistical assistance necessary to bring the grant to a successful completion. At this stage in their negotiations, their only requirement is that the direction of the grant pass to an assistant in the rector’s office, thus imposing a centralized model that keeps the funds and the activities under the scrutiny of the vice-rector for international programs and the rector himself. We and our program officers in Washington disagree about whether to continue. In making our decision, we are trying to calculate what harm we might do to the rule of law concept by continuing to partner with the law school office responsible for a disingenuous representation in court and possible arbitrary and capricious dismissal of grant participants. We also are deeply concerned about the message we send to previous grant participants by our actions, as well as about the impact on their employment our decision to continue or terminate the grant might have.
In 1964, Politburo members ousted Khrushchev because they had concluded that his bombastic and impulsive style did harm to domestic and international policies. They also reintroduced many of the elements of Stalinism he had diminished through his more liberal domestic policies. Twenty years later, M. S. Gorbachev, having imbibed the liberal vision of reform and cultural thaw Khrushchev introduced in domestic policies, was finally able to reclaim and promote those policies after stealthily making his way up a system he already understood was faulty.
Those of us in our grant dilemma who are optimists believe that continuing the grant will encourage those previous grant participants in Vologda who are now silent to hold onto the concepts and practices they have brought back from the U.S. and to nurture them in their culture when the opportunity arises. The optimists also recoil at giving up in the face of proizvol and at modeling that behavior for the remaining participants of a rule of law project. The pessimists in the group fear that the dean and the rector imbibed only the xenophobic and combative elements of the Khrushchev model, and that any decision to continue to work with them will only encourage them to believe that they have successfully protected proizvol, and that they will look back on strangling the potential of this partnership in Khrushchev’s more destructive spirit, declaring, "It was such fun!"
Transitions being transitions, the challenge for us is to navigate our way through a landscape filled with principle, cultural difference, politics and entrenched institutional and personal behavior without the clarity of hindsight. Change in the culture of legal education at one northern Russian law school comes with as much ambiguity and struggle as it does at any other institution in any other place in the world. We look forward to wherever our commitment to the law school takes us.
Konstantin Simis, USSR: The Corrupt Society (Simon & Schuster 1982).
William Taubman, Khrushchev: The Man and His Era 462 (W.W. Norton & Co. 2003).
Id. at 463.
Id. at 495.
Id. at 476.
AuthorsProfessor Cathy A. Frierson is a Professor of History at UNH, where she currently holds the Class of 1941 Professorship. She earned her PhD at Harvard University (firstname.lastname@example.org).
Professor Albert E. Scherr, Professor of Law, Franklin Pierce Law Center (email@example.com).