A Choice Architecture Perspective on China’s Central-Local Fiscal Arrangement

A Choice Architecture Perspective on China’s Central-Local Fiscal Arrangement

— Setting Reasonable Restraints of the Fiscal Powers of Chinese Central Government

Rui Guo


This paper sets forth a constitutional analysis on the allocation of fiscal powers between the central and local governments, and advocates for reasonable restraints of the central government’s fiscal power. Adopting a “choice architecture” perspective, I argue that the fundamental feature of China’s allocation of fiscal powers is the central government’s dominant influence on the area, amount and means of the local government’s fiscal spending, leading to the difficulty in realizing the central government’s policy goals, in local governments’ deciding their own policy goals, and in maintaining the quality of public service. The “choice architecture” perspective highlights the necessity to subject the central government’s fiscal powers to the constitutional principles on balancing the central-local relationship, which is provided in article 3 of the Chinese Constitution and article 89, 99 and 107 that define the powers and obligations of the National People’s Congress, the People’s Congresses of the local levels, the national government, and the governments of the local level. Based on the constitutional analysis, the reform of the allocation of fiscal powers between the central and local governments should (1) include the National People’s Congress as well as the People’s Congresses of the local levels, and (2) clarify that the judiciary should be in charge of solving potential conflicts related to the the fiscal power allocation.

Key WordsFiscal Separation of Powers,  Chinese Central-Local Relations, the Project System, the “Controlling Power”Theory, Choice Architecture, Fiscal Powers of Chinese Central Government



The Serenity Prayer 良心安宁祷告

The Serenity Prayer 良心安宁祷告

By K.P.R. Niebuhr 作者:尼布尔



God, give me grace to accept with serenity 神 啊,请赐我恩典,让我得良心安宁去接受

the things that cannot be changed, 那无法改变之事物

courage to change the things 请赐我勇气来改变

which should be changed, 那应该改变之事物

and the wisdom to distinguish 更赐我智慧去明辨

the one from the other. 何为无法改变、何为应该改变

Living one day at a time, 一天的事情一天当

Enjoying one moment at a time 为度过的每一时刻喜乐

Accepting hardship as a pathway to peace 知道所经历的苦难通向平安

Taking, as Jesus did 如基督耶稣 一样

This sinful world as it is 承受这世界本来就有的罪恶

Not as I would have it 而不是按着自己的意思来抱怨

Trusting that You will make all things right 因为相信神你 会让这世界恢复美善

If I surrender to Your will, 我只单单顺从你 的旨意

So that I may be reasonably happy in this life 如此,在今生我可以有相当的幸福,

And supremely happy with You forever in the next.  将来能与你 永享无上福分。

美国法院体系 The American Court System

美国法院体系 The American Court System
(copied from a blog site)
       Unlike most countries in the world, actually, there are fifty-two court systems in America—one for each of the fifty states, one for the District of Columbia, plus a federal system—similarities abound. The state court systems are established according to the constitution of each state. The federal courts are not superior to the state courts; they are simply independent systems of courts, which derives its authority from Article 3, Section2, of the U.S. Constitution. Although state court systems differ, Exhibit3-1 illustrates the basic organizational structure characteristic of the court system in many states. The exhibit also shows how federal court system is structured.

    与世界上大多数的国家不同,事实上,美国拥有52个法院系统——50个州每州一个,还有一个是哥伦比亚特区,再加上一个联邦法院系统——它们都是相似的。 美国州的法院系统是依据各州的宪法而确立的。联邦法院不是各州的最高法院;他们是相对独立的法院系统,联邦法院起源的依据是美国联邦宪法第三条第二款的授 权。虽然各州的法院系统各有不同,如图表3-1所阐释的各州法院的基本组织结构特征。这个图标同样显示出了联邦法院系统是怎样构成的。

1. State court System 州法院体系

Typically, a state court system will include several levels, or tiers, of courts. State courts may include (1) trial courts of limited jurisdiction, (2) trial courts of general jurisdiction, (3) appellate courts, and (4) the state’s highest court (often called the state supreme court). Generally, any person who is a party to a lawsuit has the opportunities to plead the case before a trial court and then, if he or she loses, before at least one level of appellate court. Finally, if a federal statute or federal constitutional issue is involved in the decision of the state Supreme Court, that decision can be further pleaded before the Federal Supreme Court.

就典型的来说,美国州的法院体系有若干个层级或审级。州法院体系可能包括(1)拥有有限司法管辖权的初审法院,(2)具有普遍管辖权的初审法院,(3)上 诉法院,(4)各州的最高法院。一般来说,案件的任何一方当事人都有申请初审法院予以审理案件的权利,而后,如果他或她败诉,还可以将案件上诉至上诉法 院。最后,如果州最高法院的判决涉及到联邦制定法和联邦宪法性的事项,那么,这个判决还可以被上诉至联邦最高法院。

a.     Trial Courts 初审法院

Trial courts are exactly what their name implies, courts in which trials are held and testimony taken. State trial courts have either general or limited jurisdiction. Trial courts that have general jurisdiction as to subject matter may be called county, district, superior, or circuit courts. The jurisdiction of these courts is often determined by the size of the county in which the courts sit. State trial courts of general jurisdiction have jurisdiction over a wide variety of subjects, including both civil disputes and criminal prosecutions. In some cases, trial courts of general jurisdiction may hear appeals from courts of limited jurisdiction.

初审法院正如其名称所述,是进行审判和采集证据的法院。州初审法院有普遍和有限司法管辖权之分。拥有普遍管辖权的初审法院就受理的诉讼标的的不同分别叫做 郡县法院,地区法院,高级法院和巡回法院。这些法院所拥有的司法管辖权范围是该法院所在郡县的大小来决定的。具有普遍管辖权的州初审法院对各种事物都有管 辖权,包括民事争议和刑事指控。在某些案件中,具有普遍管辖权的州法院可以受理具有有限司法管辖权的法院的上诉案件。

Some courts of limited jurisdiction are called special inferior trial courts or minor judiciary courts. Small claims courts are inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as $5,000 (the amount varies from state to state). Suits brought in small claims courts are generally conducted informally, and lawyers are not even allowed to represent peoples in small claims courts for most purposes. Another example of an inferior trial court is a local municipal court that hears mainly traffic cases. Decisions of small claims courts and municipal courts may be appealed to a state trial court of general jurisdiction.

一些有限管辖权的法院被称为特殊低级法院或者是次级法院。小额索赔法院都是只听取包括数额在某一特定范围内如5000美元以下索赔的民事案件的低级法院 (这个一定数额各州不尽相同)。小额索赔法院受理的诉讼案通常都采用的是非正式审理,并且在许多事项上,甚至不允许律师代表出庭。低级初审法院的另一种形 式是主要负责处理交通案件的地方市镇法庭。小额索赔法院和市镇法院的判决可以上诉至具有普遍管辖权的州初审法院。

Other courts of limited jurisdiction as to subject matter include domestic relations courts, which handle only divorce actions and child-custody cases, and probate courts.


b. Courts of Appeals 上诉法院

Every state has at least one court of appeals (appellate court, or reviewing court), which may be an intermediate appellate court or the state’s highest court. About three-fourths of the states have intermediate appellate courts. Generally, courts of appeals do not conduct new trials, in which evidence is submitted to the court and witnesses are examined. Rather, an appellate court panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error.

每一个州都至少有一个上诉的法院(上诉法院或者是重审法院),它可能是居中仲裁的上诉法院或者是州的最高法院。大概有3/4的州都有仲裁法院。通常来说, 上诉法院不受理新的案件,因为新的案件需要收集证据和询问证人。相反,上诉法庭将有三名或更多的法官重审案件在上诉阶段的纪录,包括检查初审诉讼程序中的 副本,并对初审是否有误做出裁决。

Usually, appellate courts do not look at the questions of fact (such as whether a party did, in fact, commit a certain action, such as burning a flag) but at questions of law (such as whether the act of flag-burning is a form of speech protected by the First Amendment to the Constitution). Only a judge, not a jury, can rule on questions of law. Appellate courts normally defer to a trial court’s findings on questions of fact because the trial court judge and jury were in a better position to evaluate testimony—by directly observing witnesses’ gestures, demeanor, and nonverbal behavior during the trial. At the appellate level, the judges review the written transcription of the trial, which does not include these nonverbal elements.

通常,上诉法院不审查事实问题,(例如事实上,一方当事人是否做了某种行为,如烧国旗),但是可以审查法律问题(例如烧国旗这种行为是否是美国联邦宪法第 一修正案中有关言论自由的一种表现形式)。只有法官,而非陪审团成员,才可以对法律问题做出裁决。正常情况下,在事实问题的查明上,上诉法院要尊重初审法 院的意见,因为初审法院的法官和陪审团在调查证据的时候处在一个更有力的位置上——他们可以在审理中直接观察证人的姿势,行为举止,还有非语言的动作。在 上诉阶段,法官重审的是初审法院提供的书面纪录,这当中当然不包括那些非语言的要素。

An appellate court will challenge a trial court’s finding of fact only when the finding is clearly erroneous (that is, when it is contrary to the evidence presented at trial) or when there is no evidence to support the finding. If a jury concluded that a manufacturer’s product harmed the plaintiff but no evidence was submitted to the court to support that conclusion, the appellate court would hold that the trial court’s decision was erroneous.

上诉法院只有当发现初审法院所查明的事实明显错误(也就是,审判中发现查出的“事实”与证据所证明的相反)或者根本就没有证据支持这些“事实”时,才能对 其事实问题提出质疑。如果陪审团得出结论认为一个商家的产品对原告造成了损害,但是法庭却不能提供相应的支持这个结论的证据,上诉法院就将裁定初审法院的 这个判决错误。

c. State Supreme (Highest) Courts 州最高法院

The highest appellate court in a state is usually called the supreme court but may be called by some other names. For example, in both New York and Maryland, the highest state court is called the court of appeals. The decisions of each state’s highest court on all questions of state law are final. Only when issues of federal law are involved can a decision made by a state’s highest court be overruled by the United States Supreme Court.


2. The Federal Court System 联邦法院体系

The federal court system is basically a three-tiered model consisting of (1) U.S. district courts (trial courts of general jurisdiction) and various courts of limited jurisdiction, (2) U.S. courts of appeals (intermediate courts of appeals), and (3) the United States Supreme Court.


Unlike state court judges, who are usually elected, federal court judges—including the justices of the Supreme Court—are appointed by the president of the U.S. and confirmed by Senate. All federal judges receive lifetime appointments (because under Article 3 they “hold their offices during Good Behavior”).


a.     U.S. District Court 美国联邦区法院

At federal level, the equivalent of a state trial court of general jurisdiction is the district court. There is at least one federal district court in every state. The number of judicial districts can vary over time, primarily owing to population changes and corresponding caseloads. Currently, there are ninety-four federal judicial districts.


U.S. District Courts conduct trials concerning federal matters, such as federal crimes and enforcement of federal statutes. Most federal crimes involve crimes against the government or crimes occurring on federal property. For example, one crime, kidnapping, is a federal crime even though it does not occur on federal land. Federal jurisdiction for the crime of kidnapping is based on taking of the victim across state or country lines and the statute provides that the failure to release the victim within twenty-four hours after seizure creates “a rebuttable presumption that such person has been transported to interstate or foreign commerce.”

美国联邦地区法院审理涉及联邦事务的案件,例如联邦刑事犯罪和执行联邦法律的事项。大部分的联邦刑事犯罪是反政府刑事犯罪和侵犯联邦财产的刑事犯罪。例 如,绑架儿童的刑事犯罪,就是联邦刑事犯罪,即便这宗犯罪不一定是涉及若干个州的。联邦对于绑架罪的管辖是根据受害者跨州或跨国界以及制定法规定的在受害 人成为人质24小时之后仍没有被释放的这个反驳性假设来推定的,这个人已经被转运到他州或者外国领地。

Moreover, it is possible to sue a federal court even though the claim is based on state law when the plaintiff and defendant are from different states and countries. Diversity of citizenship jurisdiction exists when a plaintiff is a citizen of one state and the defendant is a citizen of another state, or when one party is a foreign country or a citizen of a foreign country and the other is a citizen of the United States. The amount of claimed damages in a diversity of citizenship case must be at least $75,000.

另外,如果原告和被告是来自于不同的州或国家,那么即使这个案件可以根据州的法律来主张权利,它仍有可以诉诸联邦法院来予以解决。当原告来自于一个州,而 被告是另一州的公民;或者当事人一方是外国国家;再或者一方是外国公民而另一方是美国公民,就存在多元管辖的问题。多元管辖的案件中,当事人所主张的损害 赔偿不得低于75000美元。

Also, there are other courts with original, but special (or limited) jurisdiction, such as the federal bankruptcy courts and others show in Exhibit3-1.


b.     U.S. Courts of Appeals 联邦上诉法院

In federal court system, there are thirteen U.S. courts of appeals—also referred to as U.S. circuit courts of appeals. The federal courts of appeals for twelve of the circuits, including the U.S. Courts of Appeals for the District of Columbia Circuit, hear appeals from the federal district courts located within their respective judicial circuits. The Court of Appeal for the Thirteen Circuit, called the Federal Circuit, has national appellate jurisdiction over certain types of cases, such as cases involving patent law and cases in which the U.S. government is a defendant. Also heard before this court are appeals from specialized courts (e.g., the U.S. Claims Court and the U.S. Court of International Trade) and claims arising from decisions of federal administrative agencies.

在美国联邦法院体系中,一共有13个联邦上诉法院——也叫做联邦巡回上诉法院。它包括12个巡回去和1个美国联邦巡回法院的哥伦比亚特区。这些法院负责审 理其所在的巡回司法管辖区内的联邦地球法院的上诉案件。第十三个巡回审判区的上诉法院叫做联邦巡回法院,对于某些类型的案件,例如涉及专利权法的案件或者 是以美国联邦政府为被告的案件,拥有国家上诉管辖权。这类法院也审理特别法院的上诉案(如美国联邦索赔法院和美国联邦国家贸易法院)和联邦行政机构的判决 引发的索赔案。

c. The United States Supreme Court 美国联邦最高法院

The highest level of the three-tiered model of the federal court system is the United States Supreme Court. According to the language of the Article 3 of the U.S. Constitution, there is only one national Supreme Court. All other courts in federal system are considered “inferior”. Congress is empowered to create other inferior courts as it deems necessary. The inferior courts that Congress has created include the second tier in our model—-the U.S. court of appeals—–as well as the district courts and any other courts of limited or specialized jurisdiction.

美国联邦法院的三级体系模式中最高的一级就是美国联邦最高法院。根据美国宪法第三条的规定,联邦只有一个最高法院。联邦系统中其他所有的法院都被认为是低 于最高法院的法院组织。国会认为必要时有权创设较低级的法院。国会创设的较低级的法院包括体系模式中的第二级别——美国联邦上诉法院——还有地区法院和具 有有限管辖权和特别管辖权的其他法院。

The United States Supreme Court consists of nine justices. Although the Supreme Court has original, or trial, jurisdiction in rare instances (e.g. , in legal disputes in which a state is a party, cases between two states, and cases involving ambassadors), most of its work is as an appeals court. The Supreme Court can review any case decided by any of the federal courts of appeals, and it also has appellate authority over some cases decided in the state courts.

美国联邦法院由九位大法官组成。虽然最高法院只对几位有限的案件具有初审管辖权(例如,在州作为一方当事人的法律争议中,或者案件涉及两个州,或者涉及大 使的案件),它的大部分案件是受理上诉。联邦最高法院可以审查任何已经由联邦上诉法院做出判决的案件,它也同样有权受理经由州法院判决生效的上诉案件。

Appeals to the Supreme Court To bring a case before the Supreme Court, a party requests the Court to issue a writ of certiorari. A writ of certiorari is an order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review. The court will not issue a writ of certiorari unless at least four of the nine justices approve of it. This is called the rule of four. Whether the Court will issue a writ of certiorari is entirely within its discretion. The court is not required to issue one, and most petitions for writs are denied. (Thousands of cases are filled with the Supreme Court each year, yet it hears, on average, fewer than one hundred of these cases.) A denial is not a decision on the merit of a case, nor does it indicate agreement with the lower court’s opinion. When the Supreme Court declines review of a case, the practical effect is an agreement with the lower court decision, which continues binding the parties.

上诉到联邦最高法院:在案件被送至最高法院以前,当事一方要求法院出具一份由上级法院发出的诉讼文件移送命令书(调案复审令)。调案复审令是最高法 院要求下级法院移送案件的记录用以审查的命令状。除非是九位大法官中的至少四位同一,否则一般不会发布调案复审令。这个被称作四人规则。最高法院是否发布 调案复审令,全凭它的自由裁量。最高法院不比一定发布调案令,大部分的调案复审诉请都被拒绝了。(每年最高法院都会接到几千个案子,然而,经受理的却不到 一百件。)这个拒绝并不是表示这个案件有价值与否,也不表示最高法院对下级法院意见的认同。当最高法院拒绝对一个案件进行复审的时候,产生的实际结果是同 意了下级法院的判决,这个判决对双方当事人是具有约束力的。

China-EU School of Law (CESL, Beijing) in Trademark Dispute with Hamburg University

China-EU School of Law (CESL) is a rising star in China’s legal education. Located in Beijing, CESL is the only law school to be approved by the Ministry of Education under the “Sino-foreign Schools Agreement.” It bears the hope of reforming China’s legal education. However, a recent trademark dispute reveals many problems between China University of Political Science and Law (CUPL) and Hamburg University, the partner school from EU.

The acting Chinese Dean, Professor Fang Liufang, recently issued the following statement:

Statement on the Protection of CESL’s English Name

In the year prior to the China-EU School of Law’s establishment, all relevant documents including the Financing Agreement between EU and P.R.China, the Grant Contract between EU and University of Hamburg  (UHH) and the EU Guidelines for Grant Applicants Responding to the Call for Proposals 2007 universally used “Europe-China School of Law” as the English translation of the project’s Chinese name “中欧法学院”. Even in the earlier stage of the application for establishing a Sino-foreign Jointly Operated School, two parties of School Agreement, namely UHH and CUPL, used the English name Europe-China School of Law at China University of Political Science and Law as the English translation of “中国政法大学中欧法学院”.

In June 2008 the Ministry of Education questioned why the name on the application form was different in Chinese (中国政法大学中欧法学院) and in English (Europe-China School of Law at China University of Political Science and Law). CUPL therefore communicated with UHH on the issue of amending the English name. The Dean of the UHH Faculty of Law, wrote a letter on August 1, 2008 to the President of CUPL stating that as the EU did not have any objections, he would be willing to accept the Ministry of Education’s requirement that the English name be changed to the China-EU School of Law. When agreements between contractual parties change over time, earlier agreements are superseded by any subsequent agreements.

Ministry of Education documentation approved the CESL name as the China-EU School of Law in China University of Political Science and Law on September 17, 2008, and the EU did not raise any objections. After CESL was established, “China-EU School of Law in China University of Political Science and Law” has always been CESL’s full name, CESL is only an acronym. The two partners have never disagreed about this point. In order to prevent unauthorised usage of the CESL name, the full name and logo always appear on all publicity material and the website.

Currently the CESL name is experienced to the following infringements:

1. In July 2012, someone has registered the CESL English name, Chinese name and logo with The Trade Marks and Designs Registration Office of the European Union (OHIM) with the Faculty of Law at University of Hamburg listed as the sole owner, without permission from CUPL   http://www.uni-hamburg.de/Studium/CESL_e.html.

4. Someone produced show board at the 2012 Europe Day using the CESL name without CUPL’s authorisation. This board stated in the location section that CESL is only “hosted” by CUPL, and moreover designated the Ministry of Education as “Implementing Agency”.

5. Someone used the CESL name to publicise “the University of Hamburg led China-EU School of Law” (last visit: December 10,2012, and the original webpage was deleted quietly), this advertisement made an undisguised attempt to portray CESL as a part of the University of Hamburg.

6. Someone changed the name of the “China-EU School of Law at the China University of Political Science and Law Summer School” to the Summer School am Europa-Kolleg Hamburg and publicised it on the “Hamburg Liaison Office Shanghai” website contrary to the facts and without authorisation from CUPL http://www.hamburgshanghai.org/index.php?option=com_content&task=view&id=255&Itemid=3419_Summer School am Europa-Kolleg Hamburg_cn.

The above actions were taken by the University of Hamburg Consortium Office. After CESL was established, the University of Hamburg recruited a full-time marketing and fundraising manager, who started to describe CESL as a part of the University of Hamburg, and who took erasing the fact that CESL is a part of CUPL as the main part of his mission.

In order to obstruct the infringement against CESL’s name and trade mark, CESL will take all legal measures including raising law suit internationally against the relevant institution and individuals. 

Professor Fang Liufang
Chinese Dean and Executive Principal
China-EU School of Law
In China University of Political Science and Law

Perry Link: Why We Should Criticize Mo Yan

Why We Should Criticize Mo Yan

Perry Link

Henri Cartier-Bresson/Magnum Photos

The tenth anniversary of the People’s Republic of China, Beijing, 1958

At a recent conference at Princeton University, I met a Chinese language teacher whom I had not seen since 1989 in Beijing. Trying to recall our first meeting, she asked me, “Was that before or after the dongluan [turmoil]?” Teasing her, I asked, “What do you mean by dongluan? Student dongluan or government dongluan?” She replied reflexively: “Student dongluan, of course.” Then she peered at me for a moment, realized what I had meant, and said: “Oh, yes! Government dongluan. The massacre!” Then she went into a long apology to me: she herself had been a student protestor in 1989, had been in Tiananmen Square in the days before the massacre (but not during it); she was on the students’ side; she agreed with me. And yet the phrase “student turmoil” now rolled off her tongue as easily as “Wednesday.” How much does this kind of induced linguistic habit reinforce state power? And how much does the habit affect Chinese writers?

In my New York Review essay on the new Nobel laureate Mo Yan, I objected to the writer’s way of presenting twentieth-century Chinese history. I noted that when he arrives at catastrophic episodes like the Great Leap famine, he deflects attention by resorting to what I call “daft hilarity”—shooting sheep sperm into rabbits or forcing someone to eat a turnip carved to be a “fake donkey dick”—while making no mention of starvation that cost 30 million or more lives.

In a lengthy response to my essay, Charles Laughlin disagrees with me, arguing that “Mo Yan’s intended readers know that the Great Leap Forward led to a catastrophic famine, and any artistic approach to historical trauma is inflected or refracted.” Laughlin sees Mo Yan as doing satire, not cover-up, and when the point is put this way, I can, in a narrow sense, accept it (even though my personal taste in satire does not extend as far as donkey dicks). The problem, in my view, turns on Laughlin’s phrase “intended readers.” Mo Yan has said that he does not write with any particular readers in mind, so “intended readers” here needs to be understood not as actual readers but as the kind of reader that is implied by the writer’s rhetoric. In this meaning, “implied reader” is a well-established term in literary studies, and it is fair enough to analyze things this way.

My own worry is about the actual readers. How does “daft hilarity” affect them? I hope Laughlin will agree with me that Mo Yan’s actual readers are numerous, mostly young, and not very well schooled in Chinese history. To reach the level of what Laughlin sees as Mo Yan’s ideal “intended reader,” a young Chinese must leap a number of intellectual hurdles that Communist Party education has put in place: first, that there was no famine, because the story is only a slander invented by foreigners; second, that if there really was a famine, it was “three years of difficulty” caused by bad weather; third, that if the famine indeed was man-made, it still wasn’t Mao-made, because Mao was great; fourth, that if it was Mao-made, people died only of starvation, not beatings, burnings-alive (called “the human torch”), or brain-splatterings with shovels (called “opening the flower”), as Yang Jisheng’s book Tombstone documents.

But there is another problem with the arguments made by Mo Yan’s defenders, and that is what the Chinese call xifangzhongxinzhuyi. This phrase does not translate easily, so please pardon my awkward rendering as “West-centrism.” The late Chinese physicist and human rights advocate Fang Lizhi was good at pointing out double standards in Western attitudes. When Communist dictatorships fell in Europe, the Cold War was declared “over.” But what about China, North Korea, and Vietnam? If the reverse had happened—if dictatorships had fallen in Asia but persisted in Europe—would Washington and London still have hailed the end of the Cold War? What if Solzhenitsyn, instead of exposing the gulag, had cracked jokes about it? Would we have credited him with “art” on grounds that his intended audience knew all about the gulag and appreciates the black humor? Or might it be, sadly, that only non-whites can win Nobel Prizes writing in this mode?

Pankaj Mishra, in an essay in The Guardian called “Why Salman Rushdie Should Pause before Condemning Mo Yan on Censorship,” acknowledges that Mo Yan has offered deplorable support to China’s rulers. But the main point of Mishra’s essay is that Western writers have also been the handmaidens of powers that oppress people in distant places. He asks, therefore, that people like Rushdie (and me, whom he also mentions) “pause.” I admire some of Mishra’s penetrating observations, for example that “Jane Austen’s elegantly self-enclosed world” depended on unseen “hellish slavery plantations” in the Caribbean. But why does any of this mean that I should “pause” before criticizing Beijing or its acolytes?

Must Salman Rushdie hold his tongue about Beijing until London is squeaky clean? My guess is that Pankaj Mishra, if you could shake him by the shoulders, would say (as I would) that any citizen of any country should be free to criticize any government anywhere that oppresses anyone. But his article does not leave that impression.

Authoritarians in China and elsewhere regularly take the position that foreigners should keep criticisms to themselves; the reasons for their position are obvious. The reasons that Western liberals often take the same position are far less obvious but well worth probing. The kinds of problems in China that, in different ways, Mo Yan and Liu Xiaobo bring to our attention—suppression of speech to protect state power, harassment and prison for “offenders”—can also be found in democratic societies. But to stand on that discovery and say “look, the whole world is the same, so let’s calm down” is not only intellectually feeble; when uttered by people who live at comfortable distances from true suffering, it is also morally indefensible. How do you think a Chinese liberal, sitting on a bench in a drab prison, would feel to hear an American liberal, sitting on a couch with the Guardian, say “you and I both live under oppressive governments, my friend; I must pause before criticizing yours”?

Laughlin notes that I do not answer the question posed by the title of my Review essay: “Does This Writer Deserve the Prize?” Fair enough. The title was written by editors of the Review, and I did not see it until the piece came out. Let me address the question now.

Measures of excellence in the natural sciences are objective enough that the question “Did X really deserve a Nobel?” can be answered with some confidence (if never certainty). For the literature and peace prizes, though, the question is so beholden to subjective impressions that consensus is impossible. Henry Kissinger won a peace prize. If that happened, what is not possible? I can answer only the question, “Would I personally have chosen Mo Yan?,” and I would like to restrict it further by adding the phrase “among living Chinese writers.” (Only living writers are eligible for the prize.)

The answer is no. Mo Yan would not have been at the top of my own list, which would include writers who work both “inside the system” in China and outside it. For authenticity and control of language, I would rate Zhong Acheng, Jia Pingwa, Wang Anyi, Liao Yiwu and Wang Shuo more highly; for mastery of the craft of fiction, Pai Hsien-yung and Ha Jin are clearly superior to Mo Yan; for breadth of spiritual vision, Zheng Yi is one of my favorites. I would also have put Yu Hua or Jin Yong (the Hong Kong writer of popular historical martial-arts fiction) above Mo Yan. But these are only my views. Please help yourself to your own.

Is 1L one hell? Survival tips from a law professor

Is 1L one hell? Survival tips from a law professor

by The Record on Oct 8, 2009 • 12:00 am No Comments


10. Don’t Wait for the Ball

Many students complain that law professors are just hiding the ball, asking a series of questions without just telling students the answer. For my own first two months as a law school student, my notebook was largely blank because I kept waiting for the answer, which like Godot never came, just more and more questions. I wrote this limerick to express my mistaken attitude.

His friends used to tell Socrates
Now really, don’t be such a tease
Just give us the answer
And things will go faster
And thinking would be such a breeze

But obviously you shouldn’t wait for the ball or the answer. Instead, what you need to understand is the analytical structure of questions relevant to an issue, the range of valid positions, arguments made for and against them, and the process of thinking through them. Because, unfortunately, thinking isn’t such a breeze, and there is no simple ball that is hidden, but rather an array of balls that you need to learn how to juggle.

9. Don’t be boring

We are a polite people, but one can take that too far. A British professor once told me, “Americans are too damn polite, so that a conversation between them consists of each person trying to say what the other person would have said had it been their turn to speak. And that isn’t a real conversation at all.” Don’t be afraid to disagree or be provocative, or even to try on positions you aren’t quite sure about. And don’t close your minds to those who disagree with you. You may find that they are more convincing than you thought, or that discussion with them deepens your understanding of just why they are so wrong.

8. Don’t Ignore What Other Students Say in Class

Now, I don’t say this out of any painfully polite sentiment that everything your classmates say is sound and interesting. It isn’t. And I just told you not to be too polite. The reason to listen to fellow students in class is that, through student comments, professors often teach important lines of arguments or limits with those arguments. Even if you wanted to focus only on what the professor thinks, that may be hard to discern from what they actually say, because  professors often just take the opposite position of whatever the student happens to say, to make sure that both sides are developed. So professors may be enthusiastically pushing a position they don’t actually hold. Even if the professor has a position that is revealed during the class, that doesn’t mean it is the gospel or the only thing you should learn, because we’re all trying to prepare you for a world where many judges don’t agree with us – as perplexing as that is – and where the laws, issues, or jurisdictions may differ from the ones we are discussing.

7. Focus on the Forest, Not the Trees

Students often spend huge amounts of times methodically briefing details about case facts, procedural history, and holdings, and memorizing them all. Don’t. It’s a waste of time. As a student, I didn’t cite a single case in any first year exam I took. Professors use case facts and variations to develop doctrinal points, issues, principles, and broader theories. The point is not to know the cases themselves, but to understand the larger points made from them. The cases are only illustrations of the general issues and positions, and a means to the end of understanding them. So brief those larger points, and subordinate cases to what’s really important — the issues, valid positions, arguments, and reasoning about them.

6. Read Before and After Class

I once had a student who all semester complained that he couldn’t follow the class discussion – it was too confusing. Then, at the end of the class, during exam period, he came into my office said, “You know, the class actually makes a lot more sense, now that I’ve done the reading.” So reading is certainly important. But I think people often fixate too much on trying to understand everything when reading the assignments before class. Often the biggest payoff comes to re-reading the material right after the class, when you can incorporate what you have learned during the discussion.

5. Don’t Just Settle for Blackletter Law

There is a lot of blackletter law and it resolves a lot of cases. So not surprisingly, students often take comfort in just memorizing it. But professors don’t spend a lot of time on it in classes. Why? Is it because law professors are evil and enjoy torturing students with the confusing parts? Well, sure, that’s part of it. But mainly it is because we figure that after 17 years of schooling with top grades, most of you already know how to read. To the extent just reading the rule resolves the issue, we kind of think you got that covered on your own. We may spend some time at the beginning of classes summarizing the basic structure of the blackletter law, but that doesn’t mean that is the main thing to focus on and that you can just snooze through the following question and answer period. It is comforting to focus on the blackletter law because it is the clearest, but the debated issues are what you really need to focus on.

4. Law Is Not Distinct from Policy

Students often act like there are two subjects being taught – law and policy – the law part which they apply in figuring out how the law resolves particular cases, and the policy part which they apply to answer the question of what the law should be. Don’t make this mistake. Policy is the just continuation of law by other means. After all, what do we mean by “policy” in law other than arguments about what legal outcomes we should deem best? If you don’t have arguments on that topic, judges will be influenced by your opponent who does, so your opponent will win any area where blackletter law does not provide a clean answer as applied to your case. It can also be hard to understand what the blackletter law means or when it should apply, unless one understands the policies it furthers.

3. Ask What Future Parties Would Want

In addressing policy questions, one gets relatively little out of asking what the best outcome is for the two parties to the litigation, because they are in court precisely because they disagree about that. Instead, generally the best approach is to ask: “What Would Future Parties Want?” Often the answer is clearer before vested interests are acquired, when benefits to one party can be traded off against harms to the other. Or one might want a rule that is more likely to flag the issue to future parties, and elicit what they would want.

2. Go Meta

It won’t surprise you to learn that legal policy analysis often leads to unclear or conflicting conclusions. In these sorts of situations, it is often useful to switch to the meta-question of framing issues around who best is placed to decide the question. Every time one side argues that X is the best outcome, the response can be not only that Y is a better outcome, but also the meta-argument that judges are not the best placed to decide whether X or Y is best, so judges should defer to some other set of actors, such as legislators, agencies, or contracting parties who have chosen (or would choose) Y. Just remember the old saying, “Anything you can do I can do meta.”

1. Realize the Difference Between Being Confused and Understanding the Confusion

Often students have the following the experience. They read the materials and thought the law seemed pretty clear. Then they went to class. And now the issues seem confusing. So they wrongly conclude that class is actually lessening their understanding. What this reaction misses is that often the correct understanding is that the laws and issues are unclear. There is conflict about what the doctrine means, when it applies, when it trumps other doctrines, and what justifies it, and the same set of issues can be framed in multiple ways. Realizing this doesn’t me
an you are confused; it means you understand the confusion.

Others leap to the opposite conclusion that all legal issues are confused. But that doesn’t follow. Some things are resolved, and there is a structure to thinking about the unresolved issues. Unfortunately, sometimes students get so focused on spotting ambiguities and conflicts that they begin to jump at shadows, straining to find ambiguities and conflicts everywhere, even when they don’t exist. You have to understand the confusion that exists without seeing nothing but confusion.

Perhaps I can best explain this with a saying from Zen. So here it is, quite literally, your moment of Zen.

Before I studied Zen, mountains were just mountains and rivers were just rivers.
When I first took up the study of Zen, mountains were no longer mountains and rivers were no longer rivers.
But now that I am a Zen master, mountains are once again mountains and rivers once again rivers.

There will come a time for you this year when legal mountains no longer seem like mountains and legal rivers no longer seems like rivers. But have some faith that when the year ends, and you are a law master, that saying will actually make sense.

Prof. Einer Elhauge ’86 graduated first in his law school class.

William Stuntz’s Talk on Cancer at Park Street Church (with Chinese Translation)

(William Stuntz was the Henry J. Friendly Professor of Law at Harvard Law School. More introduction about him, please see here.)

Thank you.

The first thing I want to say is that I’m not standing here thanks to any wisdom or virtue on my part; I have little of those things.  I’m here this morning to tell you about three gifts our God has given me in the midst of some hard times.  Credit for those gifts goes to the One who does the giving, not to the one who does the receiving.  My hope is that there are a few others in this room who need these gifts, as I do.  To you, I want to say:  the gifts are there for the taking; they are for every one of us who finds ourselves in the midst of hardship and struggle.


So, let me say just a bit about my own struggle.  Ten years ago, when we were driving home from a family vacation, I stopped our car to change a flat tire.  Something bad happened at the base of my back.  Ever since, my back and right leg have hurt.  Three surgeries later, they hurt constantly—it’s a little like having an alarm clock taped to your ear, and you can’t control the volume.  That pain isn’t going away.


That was my first medical blow; the second came a year and a half ago, when I was diagnosed with stage-4 colon cancer.  Surgeons removed three tumors, and in between the surgeries I did six months of chemotherapy.  By the beginning of this year, it appeared that the cancer might leave me alone for a time.  It didn’t work out that way.  Last month, my doctors found five more tumors in my abdomen, one of them on my liver, and a sixth possible tumor in my chest.  No surgery is in the offing; these tumors aren’t going away.  My oncologist says I’m likely to die sometime between six and eighteen months from now.  I’m 51 years old.


How does God provide for us in circumstances like these?  I know the answer I wish were true:  I wish God’s provision always took the form of physical healing.  Like anyone else in my shoes, I’d love to be pain-free and cancer-free, and not just in the next life.  I know God is capable of doing that, but I also know He doesn’t usually work that way.  Thankfully, healing is not the only gift, and I believe not the best gift, God has to offer in circumstances like mine.  Three other gifts are sweeter still.  First, God redeems:  He uses life’s curses to bring about great blessing, both for us and for others.  Second, God restores:  He returns a portion of the dignity that diseases take from us.  And third, God remembers:  He holds us close to His heart, especially in hard times.  I want to say just a few words about each of those gifts, and then I’ll yield the microphone.


First, God redeems.


Joseph’s brothers sold him into slavery; later, thanks to Potiphar’s wife, Joseph was thrown into a dungeon in Egypt for a crime he didn’t commit.  Those were awful things:  I grew up in a family of rotten boys (that sounds like a redundancy), and even for my brothers and me, selling each other into slavery would have been a little extreme.  Joseph suffered terrible injustice.  And yet, awful as that injustice was, God used it to raise Joseph up to a position of power in Pharaoh’s court and thereby to save whole nations from starving.


I believe that story contains a promise:  that God will use the most awful pain and heartache and loss we experience to produce some larger good.  If He can redeem Joseph’s imprisonment, He can redeem my cancer and chronic pain, and He can redeem the worst things in your life.  I may never know precisely what form that redemption takes—and that’s fine with me.  It’s enough to know that I do not, and we do not, suffer pointlessly.  Our God delights in taking the worst of life and using it to produce the best of life.  That isn’t just what He does; it’s a part of who He is.  And it is an incomparably large gift.


Second, God restores.

This one requires a little explanation. One of the more unpleasant surprises of cancer is its sheer ugliness.  Cancer has tastes and smells, and they aren’t good ones.  More than that, the disease feels as though it covers me from head to toe in something foul. After I was first diagnosed and when I was first on chemo, there were days when I felt as if my clothes were soaked in sewage. Cancer does that: long before it kills, it steals the dignity and beauty from life; it’s as though tumors were attacking what little decency there is in me.


And yet, this thief does not have the last word.  God knows how foul it is, and He knows all too well how it feels to have one’s body beaten and brutalized.  Every piece of pain and discomfort I feel, Jesus felt too—plus infinitely worse.  And that fact changes everything.  I think this is part of our world’s Deep Magic:  When the One Man who is so supremely beautiful took on Himself all the worst ugliness this world has to offer, He changed forever what it means to live with that ugliness, to live in the midst of pain and loss and hardship.  My disease may be ugly, but I am not, and thanks be to God for that.  I no longer need wear those foul clothes that cancer gives me.  God the Son gave me cleaner clothes to wear, clothes I did not buy and do not deserve.  He elevates all He touches:  and He has touched ultimate suffering, and He has also touched me.


A better way to put it might go like this.  For years before His public ministry, Jesus worked in a carpenter’s shop.  That fact lends dignity and honor and even a little beauty to all honest work.  Jesus also gave Himself up to be tortured and murdered and, even worse, separated from the Father He so loves.  THAT fact lends dignity and honor and beauty to every pain-filled day every one of us lives.  That too is an incomparably great gift.


Third, God remembers.


For us, remembering is a small thing.  For me, it usually means putting a name and a face together, or summoning up the image of some past event that I had forgotten.  For our God, remembering is a very different enterprise.  When He says to the people of Israel, “Remember that I brought you out of Egypt,” He isn’t just saying “get your history right.”  A better paraphrase might go like this:  “Remember that I have loved you passionately.  Remember that I have acted on that love.  Hold that memory close to your heart, and you act on it too.”  Memory for Him is not mainly about recall.  It’s about a love so passionate and powerful it overwhelms us.  When God remembers, He doesn’t just connect a name to a face.  He connects a soul to His heart.  He remembers each one of us, in our worst moments, the way the prodigal’s father remembered his son, the way a lover remembers his long-lost love.


Job put it well when he was talking to God about what would happen after his death.  Job said this:  “You will call, and I will answer.  You will long for the creature Your hands have made.  Surely then you will count my steps, but not keep track of my sins.”  Notice the second sentence:  “You will long for the creature Your hands have made.”  Think about that for a moment.  God not only forgives my many sins; He LONGS FOR me, and He longs for you, and He will not rest until He has us secure in his fold.  Those arms are extended even here, even now.


There are curses in this life, ugly ones.  It’s a fallen world; we should expect nothing different.  But we should never forget that in the midst of those curses stands the God who longs to redeem and restore and remember and wrap you in His arms—not only in the next life, but in this one.  If there is one thing I have learned in the midst of cancer and chronic pain, it is this:  He is larger and lovelier and more powerful than the worst disease.  God grant that we would remember that truth, and act on it.  Thank you for listening.














但是,这个剥夺者并不能够最终决定。上帝知道它是何等肮脏,他也知道一个人被殴打和折磨的滋味是什么。我所感受到的每一点不适和痛苦,耶稣也都感受到了——他曾感受到的其实远远比我更糟。这个事实改变了一切我的认知。我认为这是我们世界的更深奥的真理: 当一个如此美好的人把所有世间丑陋都担当在身上的时候,他就永远地改变了承担丑陋、痛苦和艰难的意义。我的疾病也许丑陋,但我不是,感谢上帝。我再也无须穿着癌症给我的污浊衣物。上帝的儿子给了我干净的衣物,这些衣物我没有买来,也不配得到。他将所触摸到的提升:他已经触摸到苦难,同时他也触摸到了我。



对我们而言,记念是件微不足道的小事。对我而言,记念通常意味着把名字和长相对上号,或者回忆起我早已忘记的过去的世间。对我们的上帝而言,记念与此绝然不同。当他对以色列民说:“当记念我将你们从埃及领出来”,他并不仅仅是说“要把历史搞正确”,更好的解释是“记住我深深地爱了你们,记住我因爱你们而行动,把这段记忆藏在心里,按照它而行。” 它的记忆并非仅仅与回忆有关,而是那得着我们的深深的、大能的爱。当上帝记念,他并非把名字和长相对上号而已,而是将一个灵魂和他的心相连。他记念我们中每一个人,在我们生命中最糟糕的时刻,就象浪子的父亲记念他的儿子,就象爱人记念他逝去的伴侣。





China’s Procedure of Death Penalty Review

China’s Supreme People’s Court has adopted the procedure of death penalty review, which requires all pending death penalty cases to be reviewed and approved before the execution. However, a recent case shows that such procedure may be ineffective.

Yang Damin, an attorney from Jingdu Law Firm, said that his client Luo Li was executed even before the judges from the Supreme People’s Court approved the case. Luo Li’s case was among those trialed during Bo Xilai’s campaign against organized crime in Chongqing City.

Luo Li

Here’s Xinhua News’ report on Luo Li’s case:


Here’s Mr. Yang Damin’s original article (published on Zhou Dawei’s blog site):


杨大民 北京市京都律师事务所合伙人


我们到最高院去阅卷,不让阅一审二审的案卷,说最高院死刑复核程序中没有规定阅卷权。后来是一二审律师提供的卷,结果发现有重大嫌疑,这个人不 能杀。当时给他定的是一个故意杀人罪,他指使的人用的枪是布朗宁,结果现场取获的是柯尔特,枪型都不一样,这是重大的疑点,至少是不应该杀的,我们就提出 来了。


我说,第一,法律没这个程序,第二,你没这个资格。因为这个案件已经到了最高人民法院死刑复核程序了,已经离开重庆了,你一个重庆公安局的,所 谓专案组,有什么资格说必须由最高法院来决定。但是没办法,就给最高院打电话,最高院又给重庆高院打电话,重庆高院说同意会见,这样30日中午12点半正 式见到了,他们说这是破天荒了,中午从来没让人见过,他还挺有理。见完以后,罗力说要检举揭发一起案件,为了活命嘛。我们一看检举揭发可能会有重大立功, 就赶紧回到北京,第二天给死刑复核厅提交了一个报告,紧急情况反映,就是这个罗力已经检举一起重大案件,而且重庆公安局也准备继续侦查。

1月5日上午,我接到了家属电话,明天上午执行死刑。戏剧的是,这个电话刚打完,最高人民法院给我打电话叫我下午两点去一趟,说征求下我的意 见。去了以后,几个法官说,你们反映的我们非常重视,经过核实,这个事情和罗力没有关系,我说那看来就没有希望了,我说什么时候出结果呢?说很快你就知道 了,其实第二天就杀头了。


Sally Jenkins: What sustains Chinese truth-tellers (Washington Post)

What sustains Chinese truth-tellers

By , Published: May 6

Sally Jenkins is a Sports columnist for The Post.

Almost four years ago I sat in a back-alley bar with an activist lawyer named Teng Biao discussing the pitiless abuses the Chinese government committed against its people in the run-up to the Beijing Olympics. Teng had been warned not to talk to foreign reporters, and twice over a 45-minute conversation the secret police called his phone. They wanted to know where he was and, more important, what he was wearing. Teng habitually wore a T-shirt emblazoned with the likeness of his jailed friend and client Chen Guangcheng. They wanted to make sure Chen stayed shut in a drawer.

The face of Chen, with his elfin points of hair and aviator shades, is known around the world since his escape from confinement and six-day sojourn in the U.S. Embassy. His siege — it is unclear whether the Chinese government will honor a deal to allow Chen to study in the United States — is only partly about a diplomatic standoff between the United States and China over human rights. Just as Teng described it four years ago, it’s really an internal contest between China’s lawyers and its secret police for the soul of the country. Will a great-hearted nation continue to be held hostage by security thugs who break laws over the heads of fellow citizens in the name of enforcing order and protecting bureaucratic plunderers? Or can China’s lawyers persuade the ruling class to observe the rule of its own law? Continue reading