Teaching law in China - A view from within

Issue August 2004 By Judith Koffler

In 1998-2000, I taught law at one of China's most prominent universities, Wuhan University. A Fulbright took me there for the first year, but remarkable students held me for another year. The university extended me an offer to continue as a visiting professor at Mother Teresa wages (about $400 a month), and I eagerly accepted. The experience was one of the most rewarding of my career, whether as academic or practitioner.

Wuhan sits on the banks of the Yangtze River in central China. It's an artificial geographical entity composed of three separate cities: Wuchang, Hankou and Hanyang. Wuhan appears polluted, gray, crowded and featureless to many travelers, especially since guidebooks tell them that there are few reasons to tarry here. But one reason to tarry is to visit China's most beautiful campus, about a half-hour's taxi ride away from downtown Hankou and its touristy Holiday Inn.

Walk into the university and you'll find thousands of students strolling over the forested hills of the vast campus and, at the far end of the campus, you'll overlook a panorama of lakes, pavilions, woods and parks. If you went in 1998, you'd have seen various deteriorated buildings accommodating the law department and its 500 or so students. Now, with its new, state-of-the-art building, there is a center for hundreds more students seeking to join an increasingly prominent profession. They pursue its promises of good money, social esteem and a chance to influence China's destiny at home and in the world. And they study with a fervor you won't find among their American counterparts.

Chinese law students' curriculum includes international law, maritime law, intellectual property law and European Community law. They read voraciously and do legal research over the Internet. Currently, two Wuhan students have completed their L.L.M. at Harvard, and another has just been accepted. One graduate practices with a leading American firm in Beijing, one works with the UN's environmental program in Thailand, several have posts in the ministries, some are doing corporate and securities work, one is an assistant professor teaching jurisprudence and law and literature at Wuhan.

Although their courses include international subjects, they also have to sit through grinding lectures and spew back rote learning in many classes. Other courses, like Marxist theory, "are very boring and have no direct relation to law," in the words of one disgruntled student. By and large they welcomed my teaching style, a blend of gentle Socratic method with dramatic enactments of lawyers' arguments and the litigants' imagined negotiations over their contracts. "You give us some air that we've never smelled before. And we like it," said one student.

My students were undergraduate and graduate law students, all of whom had studied English for many years. Some, even those from poor peasant villages, had studied English for 13 years and had formidable vocabularies. Words like "degenerate" and "truculent" rolled off their tongues easily. They knew English literature - Shakespeare and Hemingway especially - as well as music and film. They spoke of Prince and the Beatles and Madonna, or films like "Saving Private Ryan," "Titanic" and "Forrest Gump," the latter of which many had seen several times. Some of the young men told me that they cried when they read Gone With the Wind. They spoke colloquial and sometimes frighteningly current slang, for whose interpretation I became dependent on e-mails from my teenage son.

China's imminent entry into WTO excited them; the idea of rule of law and of transparent government excited them. It was a time when China was abandoning its unwieldy and confusing legislation on contracts in favor of a streamlined statute resembling international commercial law and provisions of the Uniform Commercial Code. The government's latest crackdown on corruption promised room to them to fulfill their ideals.

Students told me that they wanted to be brilliant lawyers, exemplary judges, astute law professors, prosecutors devoted to the public interest, environmentalists and practitioners skilled in international trade, intellectual property and securities law. Many wanted to work in the ministries. Some had stars in their eyes and many had yen signs as well. Among the graduate students, some seemed far more cautious and a few more cynical than the young undergraduates, but they showed subtle minds, cautious thinking and unfailing affection that utterly seduced me. At the time, they displayed a healthy interest in the Clinton scandal as well at the process of impeachment. The American constitutional experiment fascinated them. But when NATO bombs mistakenly rained on the Chinese Embassy in Belgrade, the same students marched in outrage against the American government - and brought me flowers because it was Mother's Day.

I should add that I didn't go to China willingly. I had applied for a Fulbright to Cairo and failed. But Washington told me law professors were needed in China. With very little preparation and no Chinese but a few tourist words, I took off with my husband and considerable misgivings. The culture shock plunged me into a kind of exuberant joy at the utterly novel experience in a central Chinese city. Students, the dean and a few English-speaking colleagues were generous, kind, open, inquisitive and in sometimes boisterous good spirits. Their intelligence and love of ideas were some of the most seductive aspects of teaching at Wuhan.

There were many memorable moments. In the first weeks, students in my contracts class volunteered - or rather insisted - to hold a mock trial based upon a case we studied in the casebook. They rewrote the script and took over the class for an hour with judge, jury, witnesses, direct and cross-examination, introduction of exhibits, bench conferences, rulings on evidence, opening and closing statements, verdict, judgment and even swearing "to tell the whole truth and nothing but the truth" (they left out the "God" part). For lack of a Bible, we used the blue and gold-lettered casebook. And this was all in English.

In studying contracts, we struggled with offer and acceptance, damages for breach and even current law and economics theories, some students having read the works of Judge Richard Posner. Students considered the limits of contract law in cases involving surrogate mothers and in Shylock's famous bargain. They went to the blackboard to compare subtle contracts' questions under the UCC, the UN Convention on Contracts for the International Sales of Goods and China's new contract law. Bankruptcy students mastered thorny issues of bankruptcy law, including exemptions, rights of secured creditors, priority claims and "cram-down" of Chapter 11 creditors. Their diligence often astounded me. It was not unusual to see a thumb-nail sized comment in a dozen tiny Chinese characters written next to a knotty provision of their photocopied American Bankruptcy Code. In one hilarious exercise, students took turns mock-counseling Bill Gates in his envisioned corporate and personal bankruptcy cases.

Judith Koffler gathers with the students she taught law to for two years at Wuhan University in China. The students and Koffler often met outside of the classroom to talk about law, visit, play Scrabble and partake in other fun activities.

For several weeks of one semester, we had an experiment with Westlaw, courtesy of the Fulbright office. Students did research on corporate subsidiary rights, joint ventures, environmental subrogation, corporate mergers, admiralty law, mortgage foreclosures and legal issues of nuclear waste disposal (Karen Silkwood's case appeared on the screen). Students patiently waited a good half-hour for the Westlaw connection and were unperturbed when the connection repeatedly broke down. Silently, I bit back a well of profanities that had collected in my throat.

My subscription to the National Law Journal arrived irregularly. One issue carried a story about rampant depression among Harvard law students and the efforts of the administration to determine its causes. My students were deeply touched and wrote heartfelt letters inviting Harvard students to visit them. Rosie, a dark-eyed beauty with a mane of glossy hair, was typical.

"I know little about Harvard Law School, mainly by reading some articles and seeing movies. The famous 'Love Story' is one of my favorite foreign movies. I appreciate Oliver Barett IV and Jennifer very much because of their truly love with each other through their sad experience. Could you let me know more about HLS, more about you? It's always said that the study in HLS is so strict and hard that many students give up and have psychiatric problems because of the study burden. It's terrible. But I really admire you for studying there. Maybe several years later you will become one of the most successful lawyers in American history."

Those who welcomed Harvard students to Wuhan University did not mention that in winter the concrete classroom buildings had no heat and that they studied with layers of long underwear, woolen clothing, coats and hats and mittens to protect them from the blasts of cold air blowing in through open windows. Nor did they reveal that their dormitory conditions were atrocious, nor that rats sometimes bit them at night as they slept.

Outside of class, many students questioned prevailing orthodoxies. Some courageously criticized the repression of the Falun Gong movement, some were angry about the Tiananmen incident and lost all faith in the government. Others were disturbed by the harsh persecution of the China Democratic Party, a branch of which had developed in Wuhan. During my first year, just after I had witnessed a homicide trial and supped on turtle soup with the judges, the courtroom doors were locked and the CDP's adherents tried and sent to prison or labor camps. On the Taiwan issue as well, students doubted the government's saber rattling and asked why Taiwan shouldn't go its own way. They demonstrated fired-up conviction in the face of reports of imprisonment and torture of lawyers in the provinces. At the same time, a student who railed to an audience against government corruption mysteriously disappeared from campus.

Most of my contact with the students was outside of the classroom. They came over to my apartment nearly every day, sometimes in groups of seven or eight, often bearing fruit and flowers. We would connect to the Internet over my laptop, play fierce games of Monopoly and Scrabble, watch world soccer on the TV, have parties, eat mountains of food in the Barbarian Cafeteria downstairs. We went on long bike rides through the lovely surrounding countryside, enjoyed class "environmental appreciation" days at the parks and explored the local sights, the museums and restaurants in Wuchang. Often, I would take a few with me to Hankou for shopping or to Beijing to buy books and visit other universities. They were bright, voluble, good-natured and affectionate, full of questions and curiosity about American life, my family and American education. Many dreamed of studying in the states.

On lazy weekends, we would go boating on the lake and row to one of the parks where pavilions memorialized great poets. They would talk to me about ancient Chinese jurisprudence, tell me stories about their lives in remote villages or as sons and daughters of party officials, or quietly complain about discrimination against women in the job market.

Many students were members of the Community Party, not out of conviction but convenience. Jobs often depended on it. And even so, students still complain that Wuhan graduates do not find good jobs. "Sometimes, I am frustrated to think Chinese legal education has failed because so many excellent students cannot find a suitable position to serve society," lamented one student.

It was hard to leave them and return to the States. Indeed, for a time, I had planned on taking a job in Shanghai to help set up a new comparative law school and was studying Chinese. Messages from my former students frequently come over e-mail. One in particular stands out. It came from a rather shy young man whose intelligence and proficiency in English seemed to me extraordinary. He wrote that he had won a moot court contest in Hong Kong, principally because when asked a direct question about the law involved in the case, he put his index finger to his chin and said thoughtfully, "It depends." I suddenly imagined some 200 of my former students going around China with the same gesture and the same words. The student ended his e-mail with this comment, "Koffler, you gave us the inexhaustible treasure of learning to think independently. Thank you." But the real thanks are due to them.