The New York Times has an interesting story on the fate of some of Franz Kafka’s papers. The broad outline of the story is well-known: Kafka directed his friend, editor, and executor, Max Brod to destroy Kafka’s unpublished works, which included the manuscripts of Kafka’s two great unfinished novels, his diaries, and a number of his short stories. Brod could not bring himself to destroy the work because he regarded it as too precious, so Brod edited and published the work instead, earning the deceased Kafka a place among the great writers of the twentieth century. The Times reports that there evidently remains a collection of never-seen work by Kafka that Brod took with him when he fled Prague for Israel as the Nazis invaded the Czech Republic. Brod willed the papers to his secretary, Esther Hoffe, who refused to let anyone outside her family see them. Upon her death, the papers went to Hava Hoffe, a destitute Israeli senior citizen who the Times describes – to put it politely – as highly eccentric and erratic. For several decades, no Kafka scholars have had access to the papers. The Times notes that Hava Hoffe has announced that she will make a decision about what to do with the papers in the next few months, leaving literary scholars hanging on her word and whim.
What can be done about the papers? What if Hoffe decides to suppress them for another generation? There is an obvious legal solution.
Israel could exercise eminent domain over the papers, and compensate Hoffe with their fair market value. Although takings of chattel property are rare, they are not without precedent, at least under U.S. law, with the federal government’s taking of President Nixon’s presidential papers being the best known example. Upon taking the property, the government can make it accessible to scholars, duplicate it for dissemination on the Internet and ensure that the property is put to its highest value use, not locked away in an eccentric’s apartment or safe deposit box. Ordinarily, we would expect that a private owner is best positioned to maximize the value of a resource, but there are good reasons to doubt whether the Hoffes will do so any time soon, and eminent domain can function as a useful backstop to deal with irrational owners who seem insistent on wasting a useful asset.
A final wrinkle: I have written, and continue to believe, that Brod should have destroyed Kafka’s unpublished works, as per Kafka’s instructions, notwithstanding the immense literary value of the work. Kafka had legitimate privacy and artistic integrity interests in the works that should have been respected, and as their creator he was in the best position to decide upon their fate. Perhaps the Hoffes have not published Kafka’s works because they disagree with Brod’s decision to violate Kafka’s wishes. This seems unlikely – Hoffe does not seem to have had much connection to Kafka, and she tells a New York Times reporter that she is considering selling the work. But I am not completely confident in my own conclusions about the appropriate fate of Kafka’s unpublished work so many years after his death, and I am considerably less confident in Hava Hoffe’s conclusions on that score. It does seem as though the state where the property is situated may be well positioned to decide upon the answer to the wrenching moral, artistic, and economic questions that have arisen.