Identity Crisis By Dashka Slater
Battle Of The Bands By Joshua David Mann
Trial By Prosecutor By Hiroshi Matsubara
Guanxi In Guangzhou By Katherine A. Mason
For Credit By Avi Schick
In Defense of the Slippery Slope By Eugene Volokh & David Newman
Guanxi In Guangzhou
A Chinese client cuts his own deal.
WANG QING MAJORS IN LAW AT ZHONGSHAN UNIVERSITY in the city of Guangzhou, the largest city in the capitalist mecca of South China. Like many Chinese college kids, she often wears Gap shirts and carries a designer cell phone, and she would rather talk boys and clothes than politics. Wang plans to continue her studies, possibly abroad, in hopes of competing for a lucrative job. But she's also enrolled in a new labor law clinic designed to teach her generation about social justice.
Thirty years ago, during Mao Zedong's Cultural Revolution, privileged students like her would have been sent to toil with the clinic's migrant-worker clients in the countryside so that they could learn the peasant way of life. Today the workers are no longer idolized, but they still don't give their young lawyers much respectóa serious challenge for Chinese clinics and their effort to strengthen the rule of law.
One evening last November, Wang and two of her classmates were urging a client of theirs to sign documents they'd prepared for his arbitration hearing the next day, a pretrial step required by Chinese law. The client, who would not give me his name, was a construction worker who'd been hurt when a nail he was hammering broke in two and bounced into his right eye, tearing the lens. The students wanted their client to sue for about $8,500, the maximum he could win in Guangzhou for this sort of injury. The man's clothes and hair were unwashed but well-kempt, and he spoke Chinese with a thick rural accent. Though he said he was 25, he looked about 40.
The client and his 20-year-old lawyers sat uncomfortably at a long white table under fluorescent lights in the clinic's basement office. The stench from a nearby public toilet wafted through an open window. The man eyed the documents before him. "This company has a lot of experience with this," he said, skeptical about his chances. The students noddedóbig construction companies like their client's employer are known as stubborn adversaries. After 20 minutes of persuading, the students had the client reluctantly convinced. He signed and said goodbye, leaving Wang and her partners giggling nervously.
GUANGZHOU IS A CITY OF ABOUT 10 MILLION that lies 80 miles north of mainland China's border with Hong Kong. Far from the stifling politics and dying socialism of Beijing, it is home to some of China's most ambitious and materialistic young people. The city is also the site of an industrial boom that draws thousands of poor workers from surrounding villages where opportunity is scarce.
The Zhongshan law students are after power, prestige, and money. More so than in America, where clinics often attract students who are serious about public-interest law, Chinese students see their clinic as a place to practice, not to find inspiration. Still, their instructors hope that working with poor clients will make them think differently. "In the future, the students might be rich lawyers," said Luo Jianwen, a clinical professor. "But maybe they will keep [this experience] in their minds and remember to help the weak when they can."
Modern legal training began in China only in the 1970s, and the weak are often overlooked by the legal system. Many judges are former military men or party loyalists who got their jobs as cushy retirement rewards for years of loyalty and service. Little is expected of them aside from toeing the Communist line when the party has a stake. More than half of criminal defendants don't get a lawyer, though they're entitled to one, mostly because the judges find it troublesome to try someone who presents a defense. When lawyers are involved, they often seek only to lower a client's sentence rather than to win an acquittal. And politicians often pressure judges in cases that matter to them. Even when a worker wins a labor suit, employers often ignore court orders to pay compensation or disappear before the payments can be collected.
At the same time, Chinese law does offer a toehold for reformers. Labor laws, for example, include rights to compensation for injuries, to safe working conditions, and to a minimum wage. To help workers capitalize on potential protections like these, the Ford Foundation three years ago began launching public-interest clinics, now based at 11 universities.
Students can enforce their clients' rights by appearing in court as "citizen representatives," which in civil cases allows them to act much like certified lawyers. The government also funds some legal-aid organizations for the poor and has occasionally allowed suits fighting corruption to be brought and won against local and provincial governments. Beijing permits these suits because they're a relatively safe outlet: By keeping the focus on local wrongdoing, they take it off the central government. "The use of the system to control local corruption is within the comfort zone of the national government," said Carl Minzner, an American lawyer who works with a clinic at the Northwest University of Politics and Law in the city of Xi'an.
The system's flaws aren't lost on the clinic students. "The judges often know about the case or knew one of the parties before and they have already made a decision before court is in session," 21-year-old Xu Haiou said. The students' newfound confidence in making such observations is striking. "In a traditional Chinese classroom, the teachers talk and talk and the students write everything down," said Huang Qiaoyan, a labor law specialist and clinical professor. "What do the students feel? I don't know. What do they think? I don't know." Clinics change this dynamic by scrapping lectures for discussions in which teachers ask their students questions. But neither professors nor students are very comfortable with the role reversal. At the Zhongshan clinic, the instructors have compromised on an approach that blends East and West: There is more student involvement than usual, but plenty of talking by teachers.
Discussion is often lively. In a class a few days after Wang Qing's client interview, students in her clinic complained of clients who had used them to get information while resorting to their own, often illegal, means of solving problems. One said that a client had made threatening phone calls to the families of adversaries, extorting money by threatening to sue. As the class of 40 talked about their dilemmas, the three teachers disagreed with each other about the best way to handle them. Professor Yang Hong advised the students not to worry about what the client might be using them for and to concentrate on what they themselves could learn. Luo disagreed, urging the students to always "keep justice in [your] minds" while trying to accommodate the clients' wishes.
It's hard for teachers to limit their advice to legal approaches, because going outside the law is sometimes a client's best strategy. Guanxi, euphemistically translated as "special relationships," remain more powerful than law, and the trick to getting anything done in Chinafrom gaining a promotion to winning a legal casealmost always begins with maneuvering. At Carl Minzner's legislative lobbying clinic in the city of Xi'an, students have won over local officials like the mayor to help them lobby the provincial legislature. At a women's rights center at Beijing University, well-known figures like Wu Qing, the daughter of the prominent writer Bing Xin, use their star power to raise money and to push employers who mistreat their female workers to clean up their practices.
The idea is that using these old-fashioned tactics will allow for bigger reform later. The clinics have picked a good moment: China entered the World Trade Organization in December 2001, and the government has come under increasing pressure to reform and standardize the country's legal system. Last spring, for the first time, aspiring judges joined future lawyers in taking a unified bar exam, ending the days when anyone with a primary school education could qualify as a judge. And the government is looking for ways to integrate lawyers into its own bureaucracyusing the American system as a modelto help strengthen government accountability to the law.
Meanwhile, when guanxi look like a dead end, the clinical students struggle to make their clients believe in legal solutions. From the beginning, Wang Qing's client doubted that three bubbly 20-year-olds were going to win him the compensation for his injury that he desperately needed for his pregnant wife. While he assured them that he'd disclosed everything about his case, he didn't mention that, on his own, he was negotiating with his employer. The man struck a deal with the company minutes before his arbitration hearingfor a third of what he might have won in court.
When the company boss insisted that Wang's client come to the factory to sign the agreement, the student asked to go with him to make sure the terms were fairand because she felt responsible and wanted to stay involved. She didn't know how to get to the factory, so she took the only ride available, on the back of the boss's motorbike. Once inside, the client, to Wang's disappointment, quickly signed. Company security guards threatened the student and forced her to leave. She went away considerably less enthusiastic about helping the poor. "At first I sympathized," Wang said of her client. "But he lied to me."