Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Thursday, November 28, 2013

Why Chinese needs a good word for "irony", and why it's too soon to bid farewell to re-education through labor

I'm not one of those people who says that people whose language doesn't have a word for X can't conceive of X - after all, somebody conceived of the smartphone before there was a word for it - but it's really too bad Chinese doesn't have good word for "irony". Most ways of expressing the idea of irony in Chinese involve using the same term that's used to express the idea of satire (讽刺); they are serviceable in context, but hey, so is a sparkling wine when you really need champagne. Some situations just cry out for the perfect mot juste and not a clumsy workaround.

I was moved to this thought upon seeing (H/T: David Cowhig) this notice issued to a petitioner, apparently just a few days ago (full Chinese text and English translation appended at the end of this post):

Detention notice

The notice is issued by a department of the Changre [CORRECTION: should be "Changshu"] municipal government in response to a complaint by someone named Hu Cheng that he was detained for two days under the rubric of "legal study class". The notice informs him that it's because he insisted on going to Beijing to petition during the 18th Party Congress, and that his detention under this rubric was justified under a document issued by the Jiangsu Province Department of Public Security. The notice helpfully adds that the document is secret.

The idea that the authorities behind this notice and document it refers to can teach Mr. Hu about legality offers, to use a seasonal metaphor, a whole cornucopia of irony. First, it is not illegal for Chinese citizens to go to Beijing to petition. Second, it is a bedrock principle of Chinese law that the liberty of the person may not be restricted - it doesn't matter whether you call it punishment, study class, whatever - except as authorized by a law passed by the National People's Congress or its Standing Committee. (Law on Legislation, Art. 8(v); that's one reason why re-education through labor, with its flimsy statutory basis, has been under attack.) Third, even if the Jiangsu Department of Public Security had the authority to issue regulations providing for the compulsory restriction of personal liberty (which it doesn't), it is another bedrock principle of Chinese law that administrative punishments of this kind must be justified by publicly available documents. You can't say, "Hey, we can lock you up, but we can't show you the basis for out authority - just trust us!" 

This has implications for the much-trumpeted imminent abolition of re-education through labor (RETL) that was announced in the Decision of the recent 3rd Plenum. The abolition of RETL, while advocated by many in the legal community for years, has been long delayed because it seems the public security folks are just too loathe to give it up. They like the informality and unaccountability it offers. When the Decision came out, many wondered: can this really be true? Will it not just re-appear in another form?

"Study class" may be that other form (although it is unlikely to last as long as RETL sentences, which can be up to three years plus an additional year in some circumstances). I was at a conference just a week or so ago at which one of the attendees recounted his conversation with a Supreme People's Court judge on this very subject, and the judge said that people freed from RETL might just go into legal study classes. One should never underestimate the ability of the public security bureaucracy to think of new names for holding people without statutory authority. The fault, though, does not really lie with the police. They're just doing what police do. The fault lies with the system that allows creative re-naming to become a successful strategy, and fails to enforce the simple rule that restriction of personal liberty requires a statute from the NPC or its Standing Committee.

* * * * *

Text of Notice and Translation

常热市处理信访突出问题及群体性事件联合会议办公室

胡诚同志:

               你反应“2012年11月1日至2012年11月3日对你办法制学习班”的问题。

               在党的十八大会议期间,你在江苏省高级人民法院裁定驳回再审申请的情况下,不听劝导,执意进京上访。根据苏公通[2008]120号《关于依法处理进京上访人员违法行为若干问题的意见》(秘密)的相关规定,可由户籍所在地或经常居住地党政组织给予法制教育,法制教育以举办学习班等形式进行。因此,对你举办法制学习班是符合上述文件规定的。

Changre City Office of the Joint Conference on Handling Mass Incidents and Prominent Problems in Petitioning

Comrade Hu Cheng:

               With regard to the issue you have reported of a legal study class being implemented upon you from Nov. 1, 2012 to Nov. 3, 2012:

               During the period of the Party’s 18th Congress, when the Jiangsu Higher-Level People’s Court rejected your application for a re-trial, you did not listen to persuasion but stubbornly insisted on going to Beijing to petition. According to the relevant provisions of the Jiangsu Province Department of Public Security Notice No. 120 (2008) entitled “Opinion on Several Issues Relating to Handling According to Law the Unlawful Behavior of Persons Who Go to Beijing to Petition” (Secret), legal education may be imposed by Party and government organizations of the petitioner’s domicile or place of usual residence. Legal education shall be carried out through the implementation of study classes and other means. Therefore, implementing a legal study class upon you is in accordance with the stipulations of the above document.

November 28, 2013 in Commentary, News - Chinese Law | Permalink | Comments (2)

Saturday, November 23, 2013

Use of Wikipedia in expert opinions

Defense attorneys in a criminal trial for economic espionage have moved to disqualify the prosecution’s expert witness, Prof. James Feinerman of Georgetown Law Center, because (they allege) large portions of his expert witness report (a document that summarizes his proposed testimony) contain verbatim extracts from Wikipedia entries on China’s technology, high-technology development plan, and Communist Party. (Here’s the news report.) I have not seen either Prof. Feinerman’s report or the motion to disqualify him, so what follows is based solely on the news report. I should also add that Prof. Feinerman is a personal friend and colleague, so weigh that as you will.

In thinking about the appropriateness of using Wikipedia, it’s important to keep a couple of things in mind: first, the difference between an expert witness report and an academic article, and second, what the language in Wikipedia is actually being used for.

In an academic article, nothing should rest on the authority or existing reputation of the author. The article should speak for itself and should present evidence and arguments in favor of its conclusion. An academic article should never say or imply, “Take my word for it because I’m an eminent professor in the field.” It would not count as a serious criticism of a paper by a junior scholar to point out that a position taken in her paper was contrary to the position taken in a paper by a senior scholar.

This is not wholly true in an expert witness report. Here we are generally not asking the witness to engage in original research; we are asking him to tell us what experts in the field think of a particular question. Instead of concluding from the content of the writing that the writer (whom we may never have heard of before) deserves to be called an expert – this is what we might do in the academic context – we start from the premise that the writer is an expert and then see what he has to say about the subject. That’s why it would be improper for an academic journal to publish articles only from senior professors at big-name universities, but is wholly proper for a court to inquire into the qualifications of those presented to it as experts. Of course, the expert can bolster his testimony and make it more powerful by alluding to specific evidence supporting his opinion and citing to other prominent experts in the field who agree with him, but that’s not required by the logic of expert witnessing. What is required by the logic of expert witnessing is for the expert to say something like, “I am an expert in this field, and here is my view of the issues based on my expertise.”

Now let’s go back to Wikipedia. Any given entry is written by anonymous people about whom we know nothing. Consequently, to cite Wikipedia as authority for some proposition is a bad idea, whether in an academic article or in an expert witness report. (Wikipedia can still be useful academically if the article’s claims are well documented in footnotes; you can just chase down the footnote references.) Note, however, that Prof. Feinerman is not accused of citing Wikipedia as authority for what he wrote; he did not say, “The Communist Party operates in the following way, and I know this is true because it says so in Wikipedia.”

What I think he has done – I cannot read his mind and have not discussed this matter with him – seems to me not in essence different from declaring in his report, “I have reviewed the Wikipedia entry on X, and in my expert opinion I believe it accurately states the relevant facts.” In other words, while Wikipedia is not reliable as an authority, that doesn’t mean it is always wrong. The entry might well be accurate, at least in the opinion of the person reading it. I don’t think any objection could be made to a declaration of this kind.

The next question is, if an expert believes that certain language in a Wikipedia entry accurately reflects his personal views on some matter, is there any reason he should not use it? The reason for using it is quite simple: the expert is probably getting paid by the hour, and like anyone getting paid by the hour, he has an ethical duty not to needlessly inflate the time required to perform a job. If a Wikipedia entry accurately sums up everything the expert might want to say, why should he take the time to engage in an artificial re-writing exercise that will just add to the bill? I don’t think it makes sense to disqualify an expert because he tried to do the job at lower cost.

Finally, there is the question of whether the verbatim quotations from Wikipedia should be properly footnoted. An expert witness report is not an academic paper for which the author seeks academic credit, so personally I don’t see an academic integrity issue in this case. The author is not asking you to admire his words or his thoughts. He is testifying about the content of the ideas expressed by the words, and he is doing so on the basis of his own pre-existing authority and reputation. In this sense, direct quotation is not different from indirect quotation or re-writing. At the same time, quoting a source directly without a footnote is bound to lead (and in this case has led) to the suspicion that something is being concealed. That's not good. Thus, my gut feeling (subject to change upon further reflection) is that despite the differences between academic articles and expert witness reports, it makes sense to follow the same citation rules in each instead of spending a lot of time trying to figure out when the different context justifies different rules.

In this particular case, I don’t think failure to cite should count as a reason for disqualification. As I understand it, experts may be disqualified on grounds such as (a) lack of expertise, or (b) evidence that they are saying something they don’t really believe (e.g., previous writings in which they take a completely different position on the same issue). Neither of those problems is (as I understand the story) alleged to exist here.

November 23, 2013 in Commentary, News - Miscellaneous, People and Institutions | Permalink | Comments (2)

Thursday, November 21, 2013

China’s ICJ Judge Xue Hanqin Publicly Defends China’s Non-Participation in UNCLOS Arbitration

See this blog post by Julian Ku over at Opinio Juris.

November 21, 2013 in Commentary | Permalink | Comments (0)

Friday, November 15, 2013

US-China Legal Exchange in Washington DC, Boston, and Irvine

Here’s an announcement I’ve received that may be of interest to people in DC, Boston, and Irvine:

In early December, the Department of Commerce’s Acting General Counsel will lead the 18th U.S.-China Legal Exchange with his counterpart from China’s Ministry of Commerce.  The Legal Exchange will take place in Washington, DC on Dec. 4, Boston on Dec. 6, and Irvine on Dec. 9. This event presents a unique forum allowing the U.S. business, legal, and academic communities across the country to hear directly from Chinese officials about new and important developments in China’s commercial legal and regulatory landscape.  This year, high-level government officials from China, led by Assistant Minister of Commerce Zhang Xiangchen, will present to public audiences in Washington, Boston, and Irvine for a full day on two areas of China’s commercial law regime: 

  • Chinese Energy Conservation and Renewable Energy Law; and
  • Legal Aspects of Entrepreneurship in China, including Private Equity and Venture Capital. 

Commerce invites U.S. company representatives, lawyers, academics, local and state government officials, students, and other interested persons to attend the Legal Exchange and participate in discussions on these topics with Chinese government officials and experts from the United States. More information about this event and registration details are available at (http://export.gov/china/uschinalegalexchange/).  In addition, sponsorship opportunities are available. Brett Gerson at bgerson@doc.gov or (202) 482-5595 has more information.

November 15, 2013 in Conferences | Permalink | Comments (0)

Wednesday, November 13, 2013

Caixin on judicial reform over the last decade-plus

Here's a nice brief piece (in Chinese) by Caixin's legal affairs commentator reviewing judicial reform policies since the late 1990s through to today as a context for understanding what the Third Plenum's communique says about judicial reform (not much).

November 13, 2013 in Commentary | Permalink | Comments (0)

Tuesday, November 12, 2013

Third Plenum of 18th Central Committee releases communiqué

Here are the Chinese and English texts. Nothing terribly earth-shattering, either in the realm of law or anywhere else. Since Chris Buckley of the New York Times expressed an interest on Twitter in a plenum limerick, I herewith oblige:

One might ask of the Party’s 3rd Plenum:

All these slogans – do you really mean 'em?

We waited, all eager,

But their substance is meager,

And it’s not the first time that we’ve seen 'em.

 

 

November 12, 2013 in Commentary, News - Chinese Law | Permalink | Comments (0)

China-related assistant deanship at Univ. of Wisconsin Law School

The University of Wisconsin Law School is looking for an assistant dean for graduate programs, a post that involves extensive work related to China, Thailand, and other Asian countries. Here's the job posting.

November 12, 2013 in Internships/Employment Opportunities | Permalink | Comments (0)

Sunday, November 3, 2013

Teaching positions at Peking Univ. School of Transnational Law in Shenzhen

I have received the following announcement:

Job Posting: 2014-15 Teaching Fellowships

at Peking University School of Transnational Law (STL)

in Shenzhen, China

 

In 2008, Peking University, China’s oldest and most distinguished university, opened the first law school to offer a J.D. program in mainland China.  The program closely follows the model of J.D. education in the United States, focusing on American law, but within a transnational perspective. The Peking University School of Transnational Law (STL) is located on the University’s graduate and professional campus in Shenzhen, which is adjacent to Hong Kong. Shenzhen is a vibrant, modern international city of fifteen million people. Enrollment at STL is very small compared to law schools in the United States – there are about 90 students in each class. Virtually all students are native speakers of Chinese, who speak English as a second language.  Admission is highly selective based on prior academic performance, scores on a national qualifying examination and the LSAT, and a rigorous interview.  The quality of the student body is comparable to that at the most prestigious law schools in the United States. Instruction is entirely in English.

 

For 2014-15, STL will appoint up to ten C.V. Starr Lecturers (CVSLs) in the Transnational Legal Practice Program. The program provides first-year and second-year students with intensive instruction in legal analysis, legal research and writing, and other professional and legal skills necessary for the practice of law in a global environment.  The Starr Lecturers work with students in small classes of about 10-12 to develop written and oral skills.  The CVSLs also co-teach the Legal Method course. The CVSLs are considered to be part of the faculty of STL and play a fully integrated, active role in the intellectual life of the law school. The appointments are for one year with the possibility of extension.

 

To be considered, a candidate for this position must hold a J.D. degree (or expect graduation in this academic year) and have native fluency in English.  Candidates should be responsible, enthusiastic, hard working, and adventurous.  Ability to speak Mandarin is useful for living in Shenzhen, but not necessary for the program.

 

CVSLs will be expected to arrive in Shenzhen in mid-August 2014, and be in residence throughout the academic year, which runs to the end of June 2015 (with an approximate one month break around the lunar new year).  Fellows will receive a private room with bath in the student and faculty campus housing complex, comprehensive medical insurance, roundtrip transportation from the United States or other country of origin, and a stipend of US$2000 per month (or the equivalent in RMB). While this is a modest amount by United States standards, given the cost of living in China prior CVSLs have found it to be sufficient to cover board, incidental living expenses and some travel in and around China during school breaks.

 

For more information about the STL see our website http://stl.pku.edu.cn/en/. Please submit resumes and covering material via email to: 

 

Vice Dean Stephen Yandle

styandle@gmail.com

 

We will begin reviewing applications September 1, 2013, with the goal of completing the selection process by the end of 2013.  We will accept applications until all of the positions have been filled.

November 3, 2013 in Fellowships/Research Opportunities, Internships/Employment Opportunities | Permalink | Comments (0)

Saturday, November 2, 2013

Opening for fellow at Cornell's Clarke Program in East Asian Law and Culture

I have received the following announcement:

Clarke Program Fellow 

Clarke Program in East Asian Law and Culture, Law School

Cornell University

Meridian 180, a new community of prominent intellectuals and policy makers in Asia, the United States and around the world interested in new ways of thinking about law and markets broadly conceived, seeks to hire a Fellow at its center of operations at Cornell University, in Ithaca New York beginning no later than September 1, 2014. The aim of Meridian 180 is to generate new paradigms and solutions for the next generation of transpacific relations. The Fellow will play an integral part in this mission through translation, research, and outreach to wider public and policy communities.

Meridian 180 is a project of the Clarke Program in East Asian Law and Culture at the Cornell Law School. It is a non-profit, non-political project funded through private donations and with support from Cornell Law School. It is comprised of Senior Fellows and of Members in law, the academy, private practice and policy circles who meet regularly via an on-line platform supporting multilingual conversations, as well as periodically in face to face conferences. Ideas that emerge from these conversations are then incubated and developed, with the help of the Fellow, into forms in which they can make a difference in each individual society—ranging from policy papers to academic books, blog entries, and individual conversations with policy makers.

The Fellow will be responsible for the day to day maintenance and translation of on-line dialogues. He or she will also (1) work with other Fellows to draft, create, and translate various elements of the Meridian 180 project, (2) help organize conferences and workshops in the US and the Asia Pacific Region, (3) administer various day-to-day aspects of the project, and (4) take initiative, in coordination with the Director and other members of the team, to develop new features and projects to further the goals of the Meridian 180 project.

Duties and responsibilities (with approximate % of work time):

  • Day to day translation of on-line dialogues on meridian-180.org (30%): The Fellow will provide on-line translations from Chinese to English and from English to Chinese of participants’ interventions on the website. This will be a daily task and translations typically must be completed within a 24 hour period.
  • Work with other Fellows and Meridian 180 members to produce publications emerging from on-line conversations (25%): The Fellow will work with other Fellows, Meridian 180 members, and other Meridian 180 staff to write/edit/research/produce the final versions of conversations that will be made publicly available, either on meridian-180.org or in other venues (in electronic format or in print – policy papers, books, op-eds, etc.).
  • Work with the Director on strategic planning (10%): The Fellow will help develop new research and outreach initiatives for both meridian-180.org and the Clarke Program. The Fellow will help identify emerging scholars whose work should be promoted and/or included on meridian-180.org and more generally via the Clarke Program.
  • Conferences and Website Maintenance (15%): The Fellow will work on larger Clarke Program projects, related or not to meridian180.org. In particular, he or she will help with the organization of the conferences which, each year, will convene Meridian 180 members to further and promote the ideas developed in on-line conversations. The Fellow will also take initiative in managing the various features on Meridian 180 website.
  • Individual research (20%, i.e. 8h/week) The Fellow is also expected to pursue his or her own individual academic research and writing leading toward publications and conference presentations. It may be possible to take this research time in one block during a portion of the summer break.

Qualifications and requirements

  • law degree (JD or LLB) or PhD in the humanities or social sciences in hand by July 1, 2014.
  • fluency in English and Chinese. Some level of familiarity with Japanese and/or Korean a plus (but not necessary).
  • experience as translator or interpreter.
  • must be comfortable with basic computer and internet operations; familiarity with programming (Drupal, PHP, commonspot) a plus (but not necessary)
  • entrepreneurial initiative; independence, ability to work in teams, maturity, writing skills, research/scholarly experience, organization, focus, interest in the future of the East Asia-US relationship, familiarity with the Chinese academia, willingness to work on administrative task such as updating databases, communicating with institutions within Cornell University, and other miscellaneous day-to-day tasks, willingness to learn new skills, particularly in relation to computer and internet technology.

Application procedure:

Interested applicants should submit a resume, cover letter and writing sample by December 13, 2013 to Donna Hastings at dkh25@cornell.edu.

Cornell University, located in Ithaca, New York, is an inclusive, dynamic, and innovative Ivy League university and New York's land-grant institution. Its staff, faculty, and students impart an uncommon sense of larger purpose and contribute creative ideas and best practices to further the university's mission of teaching, research, and outreach.

Cornell University is an equal opportunity, affirmative action educator and employer.

 

November 2, 2013 in Fellowships/Research Opportunities, Internships/Employment Opportunities | Permalink | Comments (0)

Job opportunity with The Rights Practice in Beijing

I have received the following announcement:

The Rights Practice is looking for a project officer to join its Beijing office and support the organisation’s growing programme in China.
We are seeking a motivated and experienced individual to support the delivery of our programme in China. As part of a small team you will have responsibility for supporting our programme manager and local partners in the implementation of a number of law and human rights projects.
You will need to be educated to degree level, preferably in law or human rights, have some relevant work experience, and be supportive of our work. Good communication skills in English, fluency in Chinese and an attention to detail under pressure are essential. We particularly welcome applicants with knowledge of criminal justice in China. The successful applicant must be able to live in Beijing and we cannot pay any relocation costs. For further information please see our website http://www.rights-practice.org/en/about.html.
To apply, please submit by email your CV and a cover letter to Nicola Macbean at apply@rights-practice.org. Please submit your application as soon as possible or email first to indicate your interest. We are seeking to appoint someone by the end of November 2013.

November 2, 2013 in Internships/Employment Opportunities | Permalink | Comments (0)