Legal Education Reform in China

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Legal Education Reorm in ChinaThrough U.S.-Inspired Transplants

Matthew S. Erie

Editors Note: With publication o Legal Education Reorm in ChinaThrough U.S.-Inspired Transplants, the Journal o Legal Education is launching

a series o articles exploring historical developments and contemporary trendsin transnational legal education. The Editors welcome submissions touchingon curriculum, pedagogy, and related topics in law schools rom all regions othe world.

Introduction

Over the past several decades, a salvo o development agencies, donors,NGOs, educational programs, law schools, and academics, many rom theU.S., have sought to reorm the Chinese legal system and, particularly, legal

education. At the same time, education ministries o the Peoples Republico China (PRC), increasingly mindul o the status o Chinese education ina global market, have adapted aspects o the U.S. legal education model inChina. While these exchanges have done much to improve understandingacross the Pacic, there is a lack o assessment to measure their progress. Inthis Article, I examine the viability o the U.S. law school model or legaleducation reorm in the PRC, its implications or Chinas legal modernization,and the experiences o Chinese law students, the would-be catalysts o therule o law (ROL), through a case study o Tsinghua University Law School(TULS). At the outset, I note that my study is ocused on TULS, where such

reorms are occurring at the margin; however, given Tsinghua Universitysnearly unrivaled prestige in Chinese education, they are inuential. Thus,

Journal o Legal Education, Volume 59, Number 1 (August 2009)

Matthew S. Erie is a Ph.D. candidate at Cornell University (Anthropology), JD University oPennsylvania, LL.M Tsinghua University. Research or this Article was unded by the Universityo Pennsylvania GAPSA-Provost Award or Interdisciplinary Innovation. The author thanksWang Chenguang, Jacques deLisle, Michael Dowdle, John Smagula, Tom Ginsburg, Mo Zhang,Kay-wah Chan, Yae-Ji Park, Bryant Garth, and an anonymous reviewer or JLE or reading earlierdrats. All mistakes are the authors.


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directional legal imperialism,4 A central premise o this Article is thatlegal education reorm in China proceeds by the pull o domestic actorsmore than the push o external reormers. While PRC legal elites are thearchitects o legal education reorm, state-led and centrally-planned reormsthat speciously replicate the U.S. model have had unoreseen consequences.On the other hand, grassroots reorms led by cultural brokers appear moreamenable to proessionalizing law students.

Section I o this Article introduces the case study o TULS andmethodologies employed. Section II describes the operation o the JMprogram and experimental teaching approaches at TULS. Section IIIdevelops the implications o the case study or U.S.-inspired legal transplantsin China. Section IV draws conclusions, makes suggestions, and oers some

provocations or uture collaboration between domestic and oreign legalreormers in the PRC.

An Ethnography of a PRC Law School

While enrolled as a oreign LLM student at TULS rom 2007 to 2008, Iexamined the impacts o American inuence at an elite Chinese law school. Icollected data at TULSs main campus in Beijing and the branch campus inShenzhen.5 The specic reorms I consider here are the introduction o the JMdegree program, patterned ater the American JD, and pedagogies that ostercritical thinking skills.6 These two aspects o reorm exempliy horizontal and

developing states in Latin America and Arica to reorm legal institutions, chie among them,law schools, to produce a new class o public interest lawyers who would protect humanrights and uphold democratic values. See David M. Trubek & Marc Galanter, Scholars inSel-Estrangement: Some Reections on the Crisis in Law and Development Studies in theUnited States, 4 Wis. L. Rev. 1062 (1974) (oering the denitive critique o L&D and, in sodoing, becoming the most oten cited o any article in the literature). As many scholars havedrawn parallels between the L&D movement and todays ROL initiative (see inra note 79),and the lasting legacy o L&D as that o a ailed movement, this Article, in the spirit o theChinese saying to know the road ahead, ask those coming back, compares legal educationreorm, or the aim o building ROL, to yesteryears L&D movement.

4. James A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America(The University o Wisconsin Press, Madison, 1980).

5. The LLM program in which I was enrolled is distinct rom the LLM program or the Chinesestudents. TULS oers a masters degree in Chinese law or international students. TsinghuaUniversity, The Master o Law Program (L.L.M. Program) in Chinese Law: An Overview,http://www.tsinghua.edu.cn/docsn/xy/english/llm/llmoverview.htm (last visited May 22,2009).

6. In assessing the viability o the U.S. experience or China, I am not claiming that U.S.law schools themselves are unchanging. U.S. law schools have changed both in termso curriculum and pedagogy. They have integrated legal writing and research into thecurriculum and clinical legal education since the 1960s. However, with these exceptions,which themselves are still viewed as sot subjects, U.S. law schools, as an institution, haveremained remarkably consistent or the past 125 years. See e.g., Todd D. Rako & MarthaMinow, A Case or Another Case Method, 60 Vand. L. Rev. 597 (2007). On the topic oclinical legal education, one o the most controversial aspects o the transplantation oAmerican pedagogies in China, see Michael William Dowdle, Preserving Indigenous


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vertical legal transplants.7 Although both demonstrate the same horizontalityas they originate in the U.S. tradition, they are dierent in their verticalorientation. Whereas the JM program is administered in a top-down manner,under the MOJ, the experiments in pedagogy are conducted in an ad hocashion by law school deans and law proessors. At the same time, the two areinter-related in that part o the mandate o the JM is to introduce practice-oriented teaching, although the new pedagogies have also been used to teachgraduate students in other programs such as the LLM and undergraduates.

My data gathering ocused on (1) the learning strategies o students, (2)teaching approaches o proessors, (3) student reections on legal instruction,and (4) how their learning prepares them or their proessional careers.Throughout, I sought to understand the learning experience as a student

mysel at TULS while linking classroom learning to the larger contexttheplace o students and lawyers in Chinese society. I used an ethnographicapproach developed by anthropologists o legal and political institutionssupplemented by a questionnaire given to students. In this section, I rstdescribe the institution o TULS and its graduate law degree programs. I thenintroduce my methodologies. Next, I provide a prole o the student groupsbeing compared. Lastly, I assess the two dimensions o legal education reormin China.

Institutional Setting

TULS is, in many ways, an atypical law school in China or its relativelyyoung history, its small size, the degree o its internationalization, and itsorientation toward preparing its graduates or high-level positions as decision-makers and lawmakers. Tsinghua University has always had a close relationshipto the U.S. The university was ounded on April 29, 1911, with part o theBoxer Indemnity, unded by the U.S. government, as Tsinghua Xuetang, ullname Qinghua LiuMei Yubei Xuexiao (Tsinghua Preparatory School or Study inthe U.S.).8 Tsinghua University is most well-known as a multidisciplinarypolytechnic university with an emphasis on training engineers, and particularly,

the ourth generation o Chinas current leadership including Hu Jintao,PRC President and General Secretary o the Chinese Communist Party

Paradigms in an Age o Globalization: Pragmatic Strategies or the Development o ClinicalLegal Aid in China, 24 Fordham Intl L.J. S56 (2000) (arguing that international eorts topromote clinical legal aid in China have impeded the development o indigenous legal aidpractices and institutions). But see Pamela N. Phan, Clinical Legal Education in China: InPursuit o a Culture o Law and a Mission o Social Justice, 8 Yale Hum. Rts. & Dev. L.J.117 (2005) (arguing that the American model o clinical legal education can play a signicantrole in the development o Chinese legal education).

7. Randall Peerenboom conceives o transplants as having two dimensionshorizontality

and verticalitywhere each orientation describes the direction o transplantation. SeeRandall Peerenboom, What Have We Learned about Law and Development? Describing,Predicting, and Assessing Legal Reorms in China, 27 Mich. J. Intl L. 823 (2006).

8. See Tsinghua University, History o Tsinghua University, http://www.tsinghua.edu.cn/eng/about/history.htm (last visited May 22, 2009).

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(CCP). The law school traces its roots to 1920 when the rst law departmentwas established at the university. In 1995, TULS was re-established as a stand-alone law school to answer the call or establishing and enhancing the rule olaw in China.9

TULS is seen as one o the pioneering law schools in China today becauseo its experimentation with curriculum, teaching, and overseas connections. 10The law school oers the our-year LLB, dual bachelor degree o at least ouryears, two-year LLM, three-year JM and our-year Ph.D. degree in law.11 It has53 ull-time proessors o whom approximately hal have obtained an advanceddegree abroad (U.S., Japan, Europe or U.K.) and a total current enrollment o1,350 students, 306 o whom are undergraduates, making it one o the smallerlaw schools in China.12 Further, it has engaged in a range o cooperative and

exchange programs with law schools rom the U.S., U.K., and Europe. TheU.S. exchange program or which it is most well-known is the LLM programin U.S. law taught by Temple Universitys Beasley School o Law, a programsupported by a range o private and public donors including the U.S. StateDepartment.13 Thus, TULS has strong ties to both the PRC government andthe international community and, as such, provides ertile ground or thestudy o the cross-pollination o legal education reorms.14

9. See Tsinghua University, Introduction: Tsinghua University Law School, http://www.tsinghua.edu.cn/docsn/xy/english/About.htm (last visited June 3, 2009).

10. Both Tsinghua University and TULS enjoy remarkable prestige in China. Over the past veyears, since rst studying Chinese at Tsinghua University, I have traveled throughout China.When my Chinese interlocutors hear I study at Tsinghua, whether in Shanghai or rmqi,Kunming or Haerbin, the near universal response is Zhongguo mingpai daxue! (Chinasbrand-name university). In todays China, where higher education is seen as essential orupward mobility, Tsinghua carries a kind o talismanic authority, much o it produced bythe Party-state whose ourth generation leaders nearly all attended Tsinghua. See ChengLi, Chinas Leaders 15 (Rowman & Littleeld, Lanham, MD., 2001). The only other schoolrivaling Tsinghua or national prestige is, o course, Peking University, 1.5 km away. As orthe ranking o TULS, a popular ranking among Chinese students is that o Wu Shulian,Head o the Study Group, Evaluating Chinese Universities, which puts TULS in the top5. See e.g., 2009nian Zhongguo daxue axue Adeng xuexiao [2009 A Class Chinese Law

Schools], http://edu.sina.com.cn/gaokao/2008-12-24/1729180847.shtml (last visited May22, 2009).

11. Much o the inormation on TULS that ollows was obtained rom internal TULSadministration documents on le with the author.

12. By comparison, East China University o Political Science and Law accepts roughly 2,500incoming students per year.

13. The Beasely School o Law has had a long history in China ollowing Deng Xiapings visitin 1979. See Anon., Deng Xiaoping Fuzongli jieshou Meiguo Danpuer Daxue mingyual boshi xuewei [Vice-Premier Deng Xiaoping Receives an Honorary Doctorate in LawDegree rom the U.S.s Temple University], Peoples Daily, February 2, 1979.

14. TULS is conscious o its modeling ater American law schools. Faculty told me TULSis modeled ater Yale Law School. Multiple copies o The Spirit o Yale, translated into


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Writing In/On Law Schools: Methodologies

The study o Chinese legal education has historically relied on quantitative

approaches.15

This preerence is tied to the number-orientation o centralministries that evaluate law schools and determine which schools are awardedadditional programs and resources. Scholars oten rely on the ofcial statisticalyearbooks which have their own limitations. Most importantly, statisticalsurveys that stress quantitative indicators have at least two shortcomings.One, they equate increase with progress and such statistics can become parto the problem in creating incentives that emphasize quantity over quality.Second, they create blind spots in the experiential aspects o learning (e.g., thedierent kinds and sources o pressures students ace) that can be addressedby more participatory approaches.

More recently, scholars have introduced more qualitative methods to thestudy o PRC law schools.16 Over the past decade, ethnographies have gained aoothold in the classroom, elucidating particular aspects o classroom learningin late reorm China17 with American law proessors and students contributingrst-hand accounts o their classroom experiences.18

At TULS, I was enrolled in the LLM program or oreign students.However, as the classes or oreign students are in English and separate romthose o Chinese students, I also audited courses with the Chinese students. Iaudited both LLM courses and JM courses. Occasionally, the proessor would

single me out as the oreign expert and ask me to expound, beore the class,on the dierences between PRC and U.S. property law, or example, makingme experience not a small degree o the discomort o the observer beingobserved. Additionally, I took every chance to participate in student activitiesrom ormal events such as the 2008 TULS Doctoral Student Conerence in

Chinese, on the bookshel o one teacher corroborated this point.

15. See Sharon K. Hom, Beyond Stufng the Goose: The Challenge o Modernizationand Reorm or Law and Legal Education in the Peoples Republic o China, in ChineseEducation: Problems, Policies, and Prospects 287, 291-92 (Irving Epstein ed., Garland Press,New York, 1991).

16. See, e.g., Dowdle,supra note 6 and Phan,supra note 6.

17. See, e.g., Kai-Ming Cheng, Understanding Basic Education Policies in China: AnEthnographic Approach, in The Ethnographic Eye: Interpretive Studies o Educationin China 29 (Heidi A. Ross, Judith Liu & Donald P. Kelly eds., Routledge, New York,2000); Michael Agelasto, Educational Disengagement: Undermining Academic Quality ata Chinese University (1998); Vanessa Fong, Only Hope: Coming o Age Under ChinasOne-Child Policy (Stanord University Press, Palo Alto, 2006).

18. See, e.g., Sharon K. Hom, American Legal Education Methodology in China: TeachingNotes and Resources (Prospect Publishing House, Beijing, 1990) (providing a descriptiono attempts to introduce various American legal teaching methodologies in Chinese law

school classrooms while developing an intensive one-year teacher training program at ChinaUniversity o Politics and Law); Kara Abramson, Paradigms in the Cultivation o ChinasFuture Legal Elite: A Case Study o Legal Education in Western China, 7 Asian-Pac. L.& Poly J. 302 (2006) (describing her experience as a lecturer at Sichuan University LawSchool).



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nearby Hebei Province to student union-sponsored events on studying abroadin the U.S. My underlying goal was to (re)learn the study o law aside myChinese classmates.

I employed semi-structured interviews with both LLM and JM students aswell as our groups o legal academics and practitioners to gain a better ideao how these groups view masters degree law students, their training, andpreparation or a career in lawyering. To understand the goals and rationaleo teaching approaches, at TULS, I conducted interviews with proessors,clinical legal education and legal aid instructors, administrators and the thendean, Wang Chenguang. The second group I interviewed was Americanand European visiting law proessors at TULS to determine, rom theircomparative perspective, the dierences in teaching Chinese law students as

opposed to those o their home country. Third, I interviewed American lawproessors teaching at other law schools in Beijing to assess American-styleteaching at other law schools. Last, I interviewed partners at both oreign andChinese law rms to evaluate the job market or LLM and JM students. In all,I conducted 38 interviews.19

I supplemented my ethnology and interview with a ocused questionnairedesigned to elicit responses to specic issues or which I wanted eedback romthe class as a whole. Although Chinese students are generally not amiliarwith completing surveys, the TULS administration was encouraging.20 Eachclass has a banzhang (class monitor) who liaisons between students, aculty,and administration. The administration had me work with the banzhang toadminister the questionnaires. I distributed and collected the questionnairesduring individual classes.21

Proiles o Comparison Groups

For my study, I sought to compare the two main graduate degrees in lawin the PRC: the LLM, which is a traditional civil law graduate degree, andthe JD-inspired JM. As such, I collected data rom rst year students in bothprograms during the 2007-2008 academic year. Sixty-ve o the seventy-nine

LLM students in the class o 2009 (who began their studies in the all semestero 2007) responded, which comprises 82 percent o the class (n1=65). Ninetypercent o the LLM students ell within the category o age twenty-one totwenty-ve while only 8.3 percent were older. Female and male students wereabout evenly represented. The students were nearly all Han Chinese mostlyrom the eastern provinces and provincial-level cities.

For the JM class o 2010, which also began classes in the all o 2007, 193o the 253 students or 76.2 percent responded to the questionnaire (n2=193).

19. All names o Chinese students are pseudonyms.

20. But c. Kai-Ming Cheng,supra note 17, at 33 (explaining the dierences between Chinese andnon-Chinese notions o research in the eld o education).

21. But c.Abramson, supra note 18, at 305-06 (describing her survey which was blocked by theadministration o the Sichuan University Law School).


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As a whole, the JM students were slightly older than their LLM counterparts:76 percent were between twenty-one to twenty-ve years old and 19.8 percentwere twenty-six to thirty. Male students were more prevalent at 59.1 percent othe class. JMs were also almost exclusively Han Chinese and came rom themore developed, eastern provinces.

Legal Education Reform from Above and Below

Assessing the JM Program: Top-Down Reorm

The JM program at TULS illustrates problems endemic to the proessionaldegree in law. Many o these problems are an eect o central planning misre:the consequences o trying to introduce top-down, piece-meal reorm into an

existing legal education system. The result is a program that has the supercialeatures o the JD (i.e., three years in duration, enrolling students with noprevious law training, training in legal practice, etc.) but which, in practice,exhibits conventional Chinese civil law education. I compare JM studentswith LLM students to show how TULS has designed its degree programs toavor the latter over the ormer.

Background to the JM Proessional Degree ProgramThe JM degree program has been undamental to the modernization o

Chinese legal education. In 1993, a research team consisting o legal educationexperts, jointly organized under the Ministry o Education (MOE) and MOJ,was convened to improve legal education. As part o this process, researchwas conducted on the American JD program.22 In 1995, the Academic DegreeCommittee o the State Council approved the Juris Master (al shuoshi)Proessional Degree Program.23 A pilot program was launched a year laterat eight universities; 539 students have now graduated rom this program.24The National Steering Committee o the Juris Master Proessional DegreeEducation was ormed in 1998, under the Academic Degree Commission andthe MOE and MOJ, but it is ultimately accountable to the MOJ,25 chaired

initially by Xiao Yang, then head o the MOJ and President o the SupremePeoples Court, to oversee the implementation o the JM.26 In 2003, 37,000

22. See Xiandan Huo, JM jiaoyu: yiazhiguo de rencaikuZhongguo al shuoshi zhuanyexuewei (JM) jiaoyu de tansuo yu gaige [JM Education: The Brain Bank or Ruling theCountry According to LawProbing and Exploring Chinas Juris Master ProessionalDegree (JM) Education], 7 Zhongguo Lshi 58, 59 (2002).

23. See Weidong Ji, Legal Education in China: A Great Leap Forward o Proessionalism, 39Kobe U. L. Rev. 1, 15 (2006).

24. See id.

25. The JM is, in act, the only law degree administered under the MOJ. All other degreesare under the MOE. The result has been a kind o inter-ministerial tur war in setting thecurriculum, teaching methods, and overall goals o the degree programs.

26. See Xianyi Zeng, Legal Education in China, 43 S. Tex. L. Rev. 707, 711-12 (2002). In 1999,the National Steering Committee established the curriculum or the JM degree. See Fal



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people took the entrance exam or this program and by 2004, it surpassed theMBA to become the top entrance exam or graduate studies.27 From 1996 to2006, 18,102 students earned JM degrees.28

There are currently JM programs at 80 universities, with some 30,000students enrolled, and the number o universities oering JM degrees isprojected to grow to 100 by 2010.29 It is the goal o the MOJ and most educatorsto transorm the study o PRC law rom the model o an undergraduate majorin a comprehensive university to a post-graduate proessional school with theJM being the main law track in China.30

The JM degree has been interpreted widely by Chinese academics asessential to the modernization o Chinas legal system and as a requirement tobuilding ROL. Scholars have viewed it as vital to realizing ormer President

Jiang Zemins yiazhiguo rule the county according to law31 and preparinglawyers to compete or legal services in post-accession WTO China.32 Theoverriding purpose o the JM is to produce better legal practitioners. The JMis part o an overall shit in the strategy o state legal education rom theoryto practice or rom legal article, legal principle, legal philosophy (atiao,ali,

azhexue) to legal article, legal principle, legal practice (atiao, ali, ashijian).33

shuoshi zhuanye xueli yanjiusheng zhidaoxing peiyang angan [Program and Guidelinesor the Training o JM Proessional Degree Graduate Students], promulgated by the StateCouncil Academic Degree Committee, amended 2006, available at http://www.ashuo365.

com/html/2006-10/3598.html.27. See Xiangshun Ding, J.M. haishi J.D.? Zhong, Ri, Mei uhe xing al rencai peiyang zhidu

bijiaox [J.M. or J.D.? A Comparison o Chinese, Japanese and American Composite Modelso Legal Personnel Training], 3 Faljia 137, 138 (2008).

28. See id.

29. See Xiandan Huo, Zhongguo al shuoshi zhuanye xuwei jiaoyu zhidu de shijian yu ansi[The Practice and Rethinking o Chinas Juris Master Proessional Degree EducationSystem], 5 Hebeisheng Zhenga Guanli Ganbu Xueyuan Xuebao 24, 28 (2008).

30. Id. at 26.

31. See Zhu Liheng, Lun al shuoshi zhuanye xuewei jiaoyu de xianzhuang yu gaige, [On thePresent Conditions and Reorm o the Juris Master Proessional Degree ], 26 Hebei Faxue159 (2008) (quoting Zhang Fusen, head o the Second National Steering Committee o theJuris Master Proessional Degree Education).

32. See Anon., Schools Aim to Help Law Experts Compete, Zhongguo Jiaoyu he KeyanJisuanjiwang [China Education and Research Network] (2002), available at http://www.edu.cn/200201_1478/20060323/t20060323_22506.shtml (quoting Huo Xiandan, DeputyDirector-General o the Ministry o Educations Legislation and Legal EducationDepartment, who provides guidelines to law schools and law departments in the PRC).

33. See Yongan Liao, et al., Luoshi al shuoshi shiwu xing rencai peiyang mubiao zhi wo jian:al shuoshi zhuanye xuewei yanjiusheng peiyang angan yu kecheng tixi gaige ketizu,

[Opinions on Ascertaining the Goals o the Juris Master Model o Practical Aairs andPersonnel Training: Study Group on The Reorm o the Training Program and CurriculumSystem o the Juris Master Proessional Degree Graduate Students], 30 J. Xiangtan NormalU. (Social Science Edition) 119, 119 (2008).


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Learning EnvironmentsOne o the most proound dierences between LLM and JM students

at TULS is their learning environment. Whereas all LLM students study atTULSs main campus in Beijing, since the introduction o the JM program in2000, most JM students have studied at the Shenzhen branch campus. TULSin Beijing is located on the campus o Tsinghua University, one o Chinaslargest universities, containing 31,000 students including undergraduatesand graduates. TULS is adjacent to the Tsinghua University Science Park, amajor R&D center, which houses the main ofces o Internet giants Google,Microsot, Baidu and Sohu. Tsinghua University is located in Haidian Districtin Beijing where Chinas other top universities are located. As such, TULSsMingli building on the main campus eatures a constant ow o students and

scholars rom throughout the country and the entire world.TULS moved the base o the JM program to the Shenzhen Graduate School

in 2004, a campus o relative luxury. The center o campus has the eel o aPacic island resort, replete with lush tropical oliage and owers, reectingpools, winding canal, tennis courts, and is adjacent to one o Shenzhensmost exclusive gol courses. It eatures the Shenzhen Science and TechnologyLibrary, in the orm o a dragon spanning the man-made canal, touted as therst public and national library in the country which has a capacity or 1.5million print volumes. But the librarys bookstore has no books and the coeeshop has no coee.

The Shenzhen Graduate School, which the law students share with studentsin the other schools, is a beautiul physical achievement, but it is not a vibrantintellectual climate. The JM program runs on a our-term academic calendar.Unlike the LLM program, there is no ull-time aculty in residence at theTULS branch campus at the Shenzhen Graduate School. Rather, proessorsrom the main campus spend approximately two months to teach two coursesin Shenzhen and then rotate out. Some aculty members expressed theirreluctance to travel to Shenzhen to teach the JMs. Furthermore, there are ewextracurricular activities, ew student organizations and clubs, no international

students, and no guest lecturers or speakers. There are around 5,544 ull-timegraduate students at the Shenzhen Graduate School,34 but unlike the busy rusho TULSs main campus, Shenzhen Graduate School, with a total capacityor approximately 16,500 students, eels empty.35 Further, Shenzhen GraduateSchool is isolated rom the city with, as yet, no aordable mass transportationor students. As one JM student conded, the hard environment (yinghuanjing)is very good but the sot environment (ruanhuanjing) is lacking.36 The JM

34. See University Town o Shenzhen, Brie Introduction to University Town o Shenzhen,http://www.utsz.edu.cn/Catalog_72.aspx (last visited May 22, 2009). Note that ShenzhenGraduate School administrators, in an interview May 24, 2008, put the number at 4,373.

35. This number is calculated rom the area built or student dormitories. There is 660,000 sq.m. o dormitory space or students and the minimum space or three graduate students (theaverage number o roommates) is 12 sq. m.

36. Shenzhen University Graduate School also has branch campuses or Peking University Law



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students were nearly unanimous in wanting to relocate to Beijing;37 some hal-joked they were sent down to the countryside (xiaxiangle). However, TULShas an economic incentive to keep students in Shenzhen. The Shenzhenmunicipal government gives 20,000 RMB or each law student it brings to theShenzhen Graduate School. In sum, while the Shenzhen Graduate School isimpressive in its inrastructure, it seems the LLM students benet most romthe academic environment o TULS.

CLASSROOM EXPERIENCE: LEARNING THE CURRICULUM

The JM program, as opposed to the LLM, which aims at training academics,was intended to train practicing attorneys (shiwu alren).38 The classroomoers one view into the merits o the program in accomplishing its intended

goal. The classroom experience, too, oers perhaps the sharpest contrastbetween the LLM and JM programs. The contrast shows that not only is thetransplantation o the JD as the JM in China one that is hollowed out o itsdening characteristics, but that the university has continued to lay emphasison the existing LLM degree program.

Neither the LLM nor the JM classrooms have the same kind o intensityand culture o competition that is the hallmark, or better or worse, o the JDclassroom. This characteristic o the Chinese law classroom is the product otraditional classroom ethics, enrollment, and teaching styles. The LLM classeswere mainly small or medium-sized seminars o no more than thirty students,organized around their area o specialization.39 In these seminars, studentswould take turns making presentations oten with PowerPoint (PPT). Thestudent presenter would take questions rom the proessor and sometimes

School, Nankai University, and Harbin Institute o Technology. Each o the universitieshas tried dierent ways to maintain a sizeable student body at Shenzhen Graduate School.Peking University Law School brought its JM students back to its main campus at the endo the 2007 academic year. That year, the School o Transnational Law (STL) under PekingUniversity took its place. STL has its roots in the oundation o the U.S.-China Joint Centeror Study o Law and Policy in 2005 when U.S. Supreme Court Justice Kennedy partneredwith Peking University and the Beijing Foreign Languages University. The idea was to

develop a three-year JD program or Chinese law students that would teach transnationallaw using American teaching approaches. While the PRC Academic Degree Committeeo the State Council approved STL in a record two months, STL must wait to apply orABA accreditation. STL began classes in the all o 2007 with 55 students. While the long-term impact o STL remains to be seen, most immediately, it will add to the intellectualcommunity o Shenzhen Graduate School.

37. O the JM students I interviewed, only one, Gao Zhihui, rom Gansu Province, said hepreerred Shenzhens University City, saying, here we have mountains and we have rivers.Beijing has only crowds and pollution.

38. See Yongan Liao et al.,supra note 33, at 1.

39. The LLM class was divided into two classes (banji) which were, in turn, sub-divided intomany specializations. Class 071 had 39 people sub-divided into the ollowing specializations:commercial law (28), economic law (11), and environmental law (3). Class 072 had 40people organized as ollows: international law (16), criminal law (6), jurisprudence (7),constitutional law and administrative law (6) and procedural law (5).


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the students ollowed by discussion. Students did not seem concerned withhierarchy in these oral participations; to the contrary, due to their amiliaritywith each other, there was a much more collaborative atmosphere to theirlearning (see Figure 1).

Figure 1. How competitive was your class?

While the LLM classroom reects the stated goal o the degree programto train students in a specialization, largely or an academic degree, the JMclassroom does not seem to meet the stated goal. JM instruction exemplies

the mainstream teaching approach known as stufng the duck (tianyajiaoxue), consisting o lecture and which encourages memorization o statutesor examination.40 JM students were organized into large lecture halls osometimes over 175 students.41 The proessor lectures with the aid o PPT,sometimes reading entire portions o statutes, and there is inrequent studentparticipation and almost no interaction. Very rarely are hypotheticals used orany sort o application o principles learned. For instance, in a contract law40. See Hom,supra note 15.

41. Mandatory courses or the JM degree include: Deng Xiaoping Thought, oreign language,jurisprudence, general introduction to civil law, general introduction to criminal law,criminal procedure law, civil procedure law, administrative law and administrative procedurelaw, economic law, international law, commercial law, and constitutional law. Electives rangerom Chinese legal history to tax law to property law and maritime law. The course legalpractice that teaches practical skills such as interviewing, drating, and research is anelective course.



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course, to explain contract modication, the proessor used a case exampleo a publishing house suing an author or breach o a modied provision othe contract. The proessor went through the plaintis claims, the damagessought, and then read the judgment. He did not review the courts reasoning,ask questions, or use subsequent hypotheticals to test students understanding(see Figure 2).

Figure 2. What teaching methods do your professors use?

Moreover, many students whisper among themselves during lectures,send text messages on their cell phones, or sleep. Students oten skip classand, instead, attend cram schools in Shenzhen to prepare or the bar exam.42Proessors rationalize that like undergraduates, JM students do not have abackground in the law and thus the proessor must give them the undamentals.However, in treating the JMs like undergraduates, proessors are oreclosingthe very aim o the programto produce legal proessionals.43

42. Alternatively, students will listen to ree recordings o cram school classes on-line. Studentsemphasize a disjuncture between their classes and their bar preparation, but oten theircriticism is that the latter ocuses merely on memorization and does not require the thinkingskills that they can develop through their degree program.

43. Wang Chenguang, ormer Dean o TULS, has written o many o the shortcomings o theJM. See Chenguang Wang, The Rapid but Unbalanced Growth o Chinas Legal Education


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73

THE STUDENTS

There is a prejudice against JM students in legal education and the job

market. They are viewed as second rate by teachers, law school deans, andprospective employers.44 Some o the dierence o opinion as to the quality oJM versus LLM students derives rom the ways in which they are recruited. Tomake the JM proessional degree the primary route or legal proessionals, theMOJ has sought to increase the number o incoming students.

Students can enter the JM program in one o two ways: through either takingthe entrance examination (yanjiu ruxue kaoshi) or by baosong(recommendation).The entrance examination tests a variety o subjects including studentsknowledge o the substantive law. In order to pass this exam, students otenstudy our or more months at a cram school (peixun xiaoxue). The baosongsystem

was started in the reorm period to improve the recruitment o students. All100 universities designated as members o Project 211, a designation bythe MOE beginning in the early 1990s, have the baosong system. TsinghuaUniversity began using the baosongsystem in the late 1990s, and the law schoolbegan using it in 2003 or undergraduates and in 2004 or the JM and LLMstudents. The baosongsystem is designed to encourage students to study certainmajors by allowing them to enter the degree program without having to takethe entrance exam. Rather, they are chosen based on their past grades and aninterview.

The baosong system exemplies this process o expanding JM classessometimes at the expense o quality. In the JM class o 2010, 100 studentswere given oers. Their evaluation was based on their undergraduate grades,their major, and a ve-minute interview. The interview is typically beoreour to ve teachers who each asked one question in English or Chinese.45This process, according to the students, was just a ormality. Once given anoer, students then accept or deny. Ater the admissions committee learns thetotal number obaosongstudents, it then extends oers to test-takers to ll theadditional slots. LLM students are also admitted through baosong, but thereare dierences.46 Signicantly ewer students are admitted by baosong; only

Programs, Spring (vol.) Harv. China Rev. 1 (2006) (identiying the JM programs ailingsas: 1) inability to attract top students; 2) mode o entrance via a substantive examinationthat tests students on law who have never studied law; 3) lack o new teaching materials;4) a pedagogy that does not lead to proessionalization; and 5) graduates cannot nd goodjobs).

44. See Xiangshun Ding,supra note 27, at 142.

45. A typical English question was explain your name in English.

46. In addition to the dierences in the baosong system, LLM and JM applicants also takedierent entrance exams. The ormer take the zizhu mingti (school-based written exam)generated by TULS that either tests all areas o law or just the legal specialization to whichthe applicant is applying. The latter take the quanguo timu (nation-wide exam). Thedierence between the Chinese recruitment system, consisting o both baosong and exams,diers greatly rom the U.S. system which puts heavy emphasis on the nation-wide LawSchool Aptitude Test (LSAT).



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twenty-nine in the class o 2009. Moreover, the interview is like an oral test(koushi) that examines the applicants knowledge o all areas o law, not justthe specialized area to which the student is applying. It lasts about twentyminutes and the student applicant must actively debate with the ve proessorinterviewers. Additionally, TULS recruits rom Tsinghua undergraduatesmuch more heavily or the LLM than or the JM class.

The admissions process reinorces Tsinghua Universitys status amongstudents as a brand-name university (mingpai daxue). In some cases, pressureto earn a TULS degree outweighs the students interest in studying law.47 Thismotive applies nearly equally to both JM and LLM students, however (seeFigure 3).

Figure 3. Why did you choose TULS?

47. This preerence is not unique to the study o law. The pressure to attend a top universityis so great that students will ignore the subjects or which they have a passion i studyinga less interesting major will aord them a spot at a top university. This phenomenon alsopartly explains wenpingre (diploma-seeking ever) by which students successively pursueacademic degree programs to advance their socio-economic status. See Fong,supra note 17, at89-90.


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The legal proession in China more oten looks down on the JM studentsthan the LLM students or this propensity. That perception, not unlike theway Japanese lawyers and judges regard students graduating rom American-style law schools in their country, is bolstered by proessional elitism andprotectionism. A Chinese associate at a top international law rm in Beijing,who earned an LLM at TULS, explained, we [LLMs] are the best. The JMsdid not get a good enough score initially on their [university entrance] exam tostudy law and they are given a second chance.48 International law rms show apreerence, in hiring rst year associates, or students who obtained an LLB atthe undergraduate level and then either went on to obtain an LLM in China orabroad.49 Domestic rms also preer LLM graduates. The newest trend is orChinese students, with a LLM or even with only a LLB, to obtain a JD in the

US.50

One partner at a leading Chinese rm reported that the LLB degree isrequired or joining all practice groups except or intellectual property. Thus,JMs are only hired or a specialized practice such as intellectual property ithey have an undergraduate background in the sciences.

FINANCING A LEGAL EDUCATION

Unlike their JM counterparts, LLM students stay in Beijing or theduration o their degree program. One would assume that the tuition costsor the degree programs would reect the dierence in living standard in thetwo respective locations, and the cost o tuition or the JM program would be

less than that or the LLM. However, the opposite is true.51 Just as the LLMtuition is cheaper than that or the JM, so, too, are there more options ortuition repayment or LLM students. As part o the restructuring o highereducation in the late reorm period, students are now more reliant on privatesources o unding or tuition repayment.52 Nevertheless, LLM students get

48. As with the university entrance exam, the graduate school entrance exam score determinesboth the quality o graduate program and the major itsel. Many students will attend cramschools to increase their chances o acceptance.

49. Obtaining an LLM abroad, preerably rom the U.S., is an unspoken rule or advancement

in most international law rms. This rule partly stems rom internal policies o the law rmsand rom restrictions on international law rms in China. For the regulations that placerestrictions on the activities o international law rms in the PRC, see Waiguo lshi shiwusuozhuhua diabiao jigou guanli tiaoli [Regulation on Foreign Law Firms RepresentativeOfces in China], promulgated by the State Council, Dec. 22, 2001, eective Jan. 1, 2002,arts. 15 and 16.

50. See Carole Silver, David Van Zandt & Nicole De Bruin, Globalization and the Business oLaw: Lessons or Legal Education, 28 Nw. J. o Intl L. & Bus. 399 (2008) (observing anincrease in JD-holding Chinese lawyers primarily because o PRC regulations preventinglocally-licensed lawyers rom practicing local law in association with oreign law rms).

51. For the JM program, years 1 and 2 (in Shenzhen) are RMB 16,000 and the third (in Beijing)

is RMB 10,000. The LLM students, in contrast, pay RMB 10,000 or the two or three yearso their program.

52. A decade ago, the government was still providing ull tuition assistance (gongei), but aspart o the reorms, the government provides only partial tuition assistance. Further, most



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more support rom TULS in the orm o scholarships than JM students.53More than 80 percent o JM students rely on parental support to pay theirtuition,54 whereas LLM students nance their education with a combinationo parental support, loans, and scholarships. JM students were mindul o thedierence in tuition between their program and their LLM counterparts inBeijing and resented it.

Experimentation with Critical Thinking Pedagogies: Bottom-Up Reorm

Beginning in the late 1990s, law schools introduced experimental pedagogiesthat oster critical and analytical thinking skills (pipanxing siwei). Theseapproaches include the Langdellian case method and Socratic teaching style,well-established in U.S. law school teaching. These methods cut across degree

programs whether LLB, LLM or JM. Although pedagogical experimentationis part o the larger objective o the JM program to produce more practice-oriented law students, in practice, LLM students may benet more rom thesepedagogies than JM students. Diering approaches may explain that whilesome proponents o introducing experimental teaching methods in PRC lawschools are U.S. proessors, most are Chinese law proessors or deans who havestudied abroad in the U.S.55 These educators bring with them a convictionthat the U.S. common law style o instruction is vital to instilling criticalreasoning in students, that is, to thinking like a lawyer. Thus, as opposedto the L&D movement where the agents o reorm were primarily oreign, in

the experiments in pedagogy in China today, Chinese instructors are adaptingAmerican methods to the Chinese classroom. In the L&D movement,the case method was seen as the pedagogy o choice to inculcate a greaterinstrumentalist perspective on the law with the goal being to push studentsto link doctrinal arguments with the underlying philosophical principles andpolicy objectives.56 Its use in China today has produced mixed outcomes.Some Chinese law proessors mimic American law proessors in teaching theSocratic Method, believing it the best approach. Others adapt the SocraticMethod in a much more nuanced ashion.

Critical Reasoning in the ClassroomTeachers at TULS have, or several years, been experimenting with critical

reasoning teaching approaches, largely borrowed rom the U.S., that hold

universities base nancial assistance on entrance examination scores, which precludesassistance to baosong students.

53. The LLM students are oered scholarships based upon their rst semester grades. Althoughthe scholarship usually does not cover the cost o tuition in ull, it can.

54. When JM students enter the program, they sign a zichou peiyang jingei shuoshi yanjiushengxieyishu (Written Statement o Agreement or Independently Raising the ExpensesRequired or Pursuing the Master o Arts Program) which precludes TULS rom providingor most orms o nancial aid.

55. See, e.g., Zeng Xianyi,supra note 26, at 715.

56. See Gardner, supra note 4, at 249-51.


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greater promise or proessionalizing students. Many Chinese educators spenttime in the U.S. either as graduate students or visiting proessors and serve asculture brokers57 who possess both transnational symbolic capital58 as wellas local knowledge.59 However, their eectiveness in adapting U.S. teachingapproaches to China depends on a number o actors including the durationthe Chinese educator spent abroad and the extent o his or her exposure toand involvement in U.S. law teaching.

Many o these educators overlook the importance o critical reasoning andocus exclusively on test preparation (yingshi jiaoyu). Reorm-minded educatorshave sought to modiy American-style teaching methods that emphasizecritical reasoning skills. For purposes o exposition, critical reasoning cantake two orms: what could be called thin and thick conceptions o critical

reasoning. Thin critical reasoning applies to the exercise o analyticalreasoning as applied to legal materials to urther the clients interests. It hasclose afnities with ormal logic. This is the critical reasoning tested in theLSAT: analyzing and evaluating argumentative statements. In law school,students acquire thin critical reasoning through questioning and argumentativeexchange during which proessors lead students to look or points o similarityor divergence in sets o acts that either support or undermine the staking o alegal claim based on precedent.60 Thin critical reasoning inorms many aspectso lawyering: conducting research including reading cases and statutes as wellas examining evidence; developing (multiple and alternative) case theories;

drating memos or contracts; and oral advocacy and client consultation.Thick critical reasoning widens the purview o analysis by ocusing

not only on policy analysis per se, but urther, on politics and institutionso authority more generally, whether governmental, corporate, religious,or ideological. This orm o critical thinking is not an explicit objective o

57. See Irwin Press, Ambiguity and Innovation: Implications or the Genesis o the CultureBroker, 71 Am. Anthropologist 205 (1969) (viewing the culture broker or marginal man ashaving a mandate, in the Parsonian sense, to innovate).

58. A growing number o social scientists are considering the role o agency in the orm o

transnational actors in the structures o globalizing processes. See, e.g., Hilary Cunningham,The Ethnography o Transnational Social Activism: Understanding the Global as LocalPractice, 26 Am. Ethnologist 583 (1999) (analyzing the development o transnationalidentities among political activists); Beth Baker-Cristales, Magical Pursuits: Legitimacyand Representation in a Transnational Political Field, 110 Am. Anthropologist 349 (2008)(examining the strategies o Salvadoran state actors to contain and control transnationalpolitical subjects in the postwar period); Aihwa Ong, Flexible Citizenship: The CulturalLogics o Transnationality (Duke University Press, Durham, 1999) (assessing theentrepreneurial, multiple passport-holding Hong Konger as an agent o transnationalism).

59. See Cliord Geertz, Local Knowledge: Facts and Law in Comparative Perspective, in LocalKnowledge: Further Essays in Interpretive Anthropology 167 (Cliord Geertz ed., Basic

Books, New York, 1991).60. See William M. Sullivan et al., Educating Lawyers: Preparation or the Proession o

Law (Summary) 5-6 (2007), available at http://www.carnegieoundation.org/dynamic/publications/elibrary_pd_632.pd.



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or American, are oten met with resistance by the school administration.66 Atthe same time, Chinese law students do learn critical thinking based on thecontinental civil law tradition. A JM student named Wang Bocai, who planned,ater graduation, to attend law school in the U.S., compared American andChinese critical thinking this way:

Ater studying the American LSAT, I understand critical reasoning in U.S.law schools to divide legal arguments into evidence, assumptions, andconclusion. Any one o these can be wrong or inaccurate which weakens thelegal argument. In critical reasoning, as it is taught in Chinese law, we are nottaught to think like this. In our approach, analysis proceeds by: one, statingthe denition and then, two, elaborating a beautiul system (wanmei tixi), butwe are not taught to look or aws.

Wang Bocais depiction highlights the dierence between common lawdeductive and analogical reasoning versus civil law inductive reasoning.Students begin with the legal denition or theory (one level o abstraction) andthen, rom there, develop a scientic structure (a second-order abstraction).Principles are taken out o their actual and historical context and actsrecede.67 One American law proessor teaching U.S. common law at TULSnoted that her Chinese law students were not used to the grinding down ocase material into actual distinctions which JDs are taught relentlessly theirrst year. Stphanie Balme, a visiting law proessor rom France, said that her

Chinese students logic was impressive in the ormal (i.e., thin) sense but theyhad much more difculty attempting what she calls vivid (legal) reasoningby which they question or criticizeeven in a constructive waypeople whohold more power than themselves.68

These comments suggest that civil law instruction takes place withindened social relationships between student and teacher, which are politicizedin the PRC. Both JM and LLM students told me that most proessors preerquestions to be asked one-on-one ater class. In these conversations, ideas orespect (zunjing) or saving ace (ai mianzi) were recurring. Students repeatedlyanalogized respect or the proessor to respect or the judge, law rm partner,or other authority gures. These hierarchical relationships determine theextent o ree speech inside and outside o the classroom and the thicknesso critical thought.

Since the June 4, 1989 Democracy Movement, which began as a studentprotest, the government has taken measures to co-opt students, seen as

66. Id. See also Huhua Ouyang, One-Way Ticket: A Story o an Innovative Teacher in MainlandChina, 31 Anthropology & Educ. Q. 397 (2000) (providing an account by a Chinese Englishteacher who tried to introduce more communicative pedagogies rom the West into herclassroom but aced sti opposition rom established teachers).

67. See John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systemso Western Europe and Latin America 64 (Stanord University Press, Palo Alto, 1985).

68. Interview with Stphanie Balme, a visiting law proessor rom France, in Beijing (Mar. 25,2009).



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among the most liberal elements o society, into its state-led modernizationproject.69 Such measures include introducing patriotic education as early asprimary school and increasing the prevalence o CCP organs in universities.70Most law schools have CCP branches with both the aculty and the studentbody. Further, student bodies have active membership in the CommunistYouth League o China (Youth League). At Tsinghua University, each classhas two or three presidents: a class president, a Youth League president, andsometimes a CCP president. Student representatives o the Youth League orCCP are responsible less or monitoring speech and imposing sanctions orerrant views than they are in thought development (siwei peiyang) throughstudent meetings as recitations o CCP doctrine. Similarly, the aculty oTULS has a CCP branch whose primary activity is to organize meetings to

ensure that CCP policy is disseminated to CCP members within the aculty.The CCP branch and the university administration (i.e., law school aculty)are seen as separate and distinct. However, CCP branches in universities havepower to introduce curriculum rom higher-level CCP authority, althoughthe exercise o this power is seen as intererence with the independence oteaching. Likewise, reporting on students speech is seen as undue intererencealthough this does not mean that it does not happen.71

Thus, or a variety o reasonspedagogical, cultural, and politicalstudentsare wary o their speech. While in private conversation, they express their viewso law and policy reely and say they could make such statements during class,

when they are actually in class, they exercise a orm o guarded sel-censorship.When they do exercise thick critical thinking, students oten use proxies. Forinstance, they might take U.S. law and American culture as the object o theircritique, such as an LLM Modern Western Philosophy course during whichstudents poked holes in the U.S. constitutional concept o police power,although the conversation steered clear o discussing China. In other courses,students discussed the divergence between statutory law and law in practice inthe areas o Chinese contract or administrative law to demonstrate how judgesand lawyers veer rom correct legal doctrine. Although proessors occasionallyused a case to highlight the problem o local corruption and even elicit strong

69. See Elizabeth J. Perry, Casting a Chinese Democracy Movement: The Roles o Students,Workers, and Entrepreneurs, in Popular Protest and Political Culture in Modern China:Learning rom 1989 74 (Jerey N. Wasserstrom & Elizabeth J. Perry eds., Westview Press,Boulder, 1994) (providing explanations or the movements genesis and ailure).

70. See generally Suisheng Zhao, A State-Led Nationalism: The Patriotic Education Campaign inPost-Tiananmen China, 31 Communist & Post-Communist Stud. 287 (1998).

71. In practice, the Party-state has erected multiple layers o surveillance between its organswithin the aculty and the students. For instance, students occasionally do monitor otherstudents views and even those o proessors. See, e.g., David Bandurski, Chinese StudentsInorm on Political Science Proessor, China Media Project, (November 27, 2008), http://cmp.hku.hk/2008/11/27/1407/ (reporting on the case o Proessor Yang Shiqun at the EastChina University o Politics and Law whose students had gone to the public security bureauto report that content in Proessors Yangs class was anti-government which has led to aormal investigation).


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responses rom students,72 such occasions were the exception and narrowlytailored such that there were ew wider discussions as to the governments orthe CCPs role in aecting legal outcomes where their interests are at stake.In all classes, the overall trend was or the proessor to set the parameters odiscussion and the bar or critical statements.

Students who exercise critical thinking outside o class are oten subjectto surveillance by state security bureaus. For example, in 2004, I witnessed apublic protest on the main quad o Tsinghua University when the universityshut down the students electronic bulletin board system ater politicallysensitive comments were posted. In vivid contrast to the style o studentprotests in the U.S. during the Iraq War, the Tsinghua students protest hadthe eeling o a wake. The students bowed their heads silently beore the

central sundial on which the expression is carved: xingshengyuyan actions speaklouder than words. A plainclothes public security ofcer, so identied by aChinese riend ater the incident, recorded the students with a camcorder.

By associating critical thinking in the law classroom with politicalliberalization and mass movements, oreign legal reormers oten makeerroneous assumptions about the role o lawyers in Chinese society and theircapacity to eect political change. Signicantly, o all the groups with whomI interacted during my eldwork, including American and European lawproessors, Chinese law proessors, and Chinese administrators, the groupmost pessimistic about the potential o lawyering to bring about social changein China was the TULS students themselves.73 Only 39.8 percent o JMs and51.7 percent o LLMs thought lawyers can inuence public policy. When askedwhether lawyers can push reorm, ewer than hal o JMs and LLMs (39.1percent and 45 percent, respectively) said they basically agree.

The law students views o the status o lawyers in Chinese society areclosely linked to their motives or attending law school and their ultimatecareer plans. Students were unabashedly pragmatic in their reasons orstudying law at TULS and their uture plans. While the name recognitiono Tsinghua University galvanized much o their decision-making, the law

career itsel oers ew benets (see Figure 4). Consequently, most studentsI talked to do not plan to become lawyers. Their primary reason was thatlawyering is difcult work with ew rewards in terms o income or prestige,unlike the stratospheric salaries and elite liestyles that await many Americanlaw students at comparable, elite law schools. They regard competition or

72. One example was a choice o law issue during a civil procedure JM class. The statuteprovided or the law o the deendants jurisdiction to be controlling but the loan agreementbetween the parties provided or the law o the plaintis jurisdiction to prevail. Because theborrower in the case was a state-owned bank, local legislators, under pressure by the localgovernment, issued special provisions to validate the claim o the borrower.

73. This nding accords with the growing law and society literature on Chinese lawyers. See,e.g., Ethan Michelson, The Practice o Law as an Obstacle to Justice, 40 Law & Socy Rev. 2(2006) (concluding that cause lawyers unction as gate-keepers to keep many grievancesout o the courts).



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entry-level positions in domestic law rms as too intense and even harsheror international law rms. Instead, most TULS students wanted to becomecivil servants (gongwuyuan) (see Figure 5). Although the income is not as highas partners in established law rms, civil servants have much more securityand a more collaborative and relaxed (qingsong) work lie. Many viewed TULSas more helpul in making social connections with classmates who wouldlater assume high positions in the government and the CCP than in termso acquiring proessional legal skills. As opposed to the career o an ofcial,lawyers just starting their careers must depend on themselves, which is toorisky. Those students who were public interest-minded, explained a male LLMstudent named Guo Richang, thought that rather than be seen as an agentoutside o and working against the government (as a lawyer),74 a much more

promising route was to work or the government.

Figure 4. Reason for attending law school

74. Students were acutely aware o the difculties o lawyering in the public interest in Chinawhether as legal aid attorneys, public deenders or working or an NGO.


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Figure 5. Career choice

The preerence o TULS law students to become civil servants over lawyershas implications or the teaching o law and, specically, the potential orcritical reasoning pedagogies. The Trojan Horse theory would posit that eveni law school graduates pursue careers as ofcials, they will still use the criticalreasoning skills they acquired in law school to promote the liberalizationo society, because, as ofcials, they are acting within the government.Unortunately, the experience o TULS students demonstrates this theorymay be wide o the mark. Students see the law-route and the ofcial-route astwo very distinct careers. The two career trajectories begin with their dierentqualiying exams, the national judicial examination (guojia sia kaoshi) and thenational civil servant examination (guojia gongwuyuan kaoshi), respectively, whichtest dierent material and dierent skills. More importantly, the two careershave dierent reward systems or promotion and advancement. While lawyersadvance through handling o cases and development o clients, both o whichactively call upon critical reasoning skills, civil servants rise through theirvertical organizations largely by ollowing orders and appeasing superiors inan approach colloquially known as pigu jueding naodai (your ass directs your

brain).



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84 Journal o Legal EducationA LAW TEACHER AMONG WOULD-BE OFFICIALS

Despite the propensity o TULS students or joining the government,

TULS is nevertheless one o the most dynamic Chinese law schools in terms opedagogical experimentation or critical reasoning skills. As law schools havemore discretion in structuring curriculum or graduate than undergraduateprograms, proessors at TULS have been able to introduce innovative coursesdesigned to bolster analytical, critical, and creative reasoning among thelaw students. These adaptive pedagogies dier starkly rom top-down legaleducation reorms. Whereas in planning the JM, considerable research wasconducted on the U.S. experience, the design and subsequent administrationo the proessional degree program were handicapped by a lack o experientialknowledge o the JD and a distanced view o the students. In contrast, some

educators who have benetted rom the dierent approaches to legal educationin multiple systems and who interact daily with students are designingmuch more tailored approaches to legal instruction. Proessor Betty Hosprogram Foundations in Common Law (Foundations) is one such example.Originally rom southern China, Proessor Ho (Chinese name: He Meihuan)has spent most o her career as a practicing attorney and law proessor outsideo China. She studied common law in Canada, the U.K. and U.S. She joinedthe TULS aculty in 2002 and taught ull-time through 2008. She brings herexperience in both the Anglo-American and civil law systems to her teaching.While she acknowledges globalization as Americanization, she seeks to rame

U.S. teaching approaches within the Chinese system through indigenization(bentuhua) and critical evaluation.75

Proessor Ho organized her Foundations course as a our-semester program:Foundation I teaches students how to read cases, Foundations II teaches caseanalysis, Foundations III teaches legislation, and Foundations IV consistso a moot court. The content o the course is Anglo-American common law.Both she and her students speak in English. She limits the class to abouttwenty students and requires each to take a written entrance exam. Third- orourth-year undergraduates can take the course, but it is mainly LLMs. JMs

can only attend i they are studying at Beijing. I observed her Foundations IIcourse.76

Foundations balances U.S. teaching methods with understanding o thelearning styles, experiences and expectations o Chinese law students. In therst class, Proessor Ho organized the students into groups o our who read,analyzed, and presented cases. She divided class time between a ull sessionwith all twenty students, small group discussions o drat reports assessinga line o cases, and presentations during which an assigned group wouldpresent cases and another group would critique the rst groups analysis and

75. See He Meihuan, Lun dangdai zhongguo de putong al jiaoyu [Discussing Chinas ModernCommon Law Education], (China University o Politics and Law, Beijing, 2005) (callingglobalization quanqiu al Meiguohua (global legal Americanization)).

76. Proessor Ho did not allow auditors or her course. To my knowledge, I am the only auditorshe permitted to observe her course in the six years she taught it.


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reasoning. During the ull class session, the groups would present cases in amanner analogous to how proessors in the U.S. go over cases in class (i.e.,parties, acts, case history, issues, reasoning, and holding). Proessor Hoelicited students responses as to the analysis o the case and then enteredthem on blank PPT slides. She employed a sot Socratic approach to testeach groups understanding o the case. Progress made through the casematerial was heavily act-specic and much time was used making sure thegroup on call brought out the nuances o the act pattern. While a groupwould know i it was on call and so those students had some orewarning,she would call reely on members o that group. While the general spirit othe ull class session was one o collegiality, the pressure and intensity elt inU.S. law classrooms was palpable beore class as students rushed to prepare or

review materials and talked nervously among themselves.Overall, the students exhibited little difculty or discomort in adaptingto their rst common law experience. The multiple challenges o studyinga signicant amount o oreign case material in a second language, throughnovel teaching approaches and under palpable pressure, had some noticeablebut not inhibitory eect on their classroom perormance. There were traces ocivil law reasoning in some o their presentations. For example, students wouldocus more on individual cases and the proposition(s) they stood or ratherthan the relationships between them. Also, during the group presentations, thestudents would generate PPTs that would graphically illustrate the structure

o a judges reasoning with a systematicity that would seem perhaps extraneousto U.S. law students.

Survey results showed students saw multiple benets.77 For FoundationsII, these can be grouped as 1) ability to analyze cases and legal arguments,2) ability to discern logical deects, 3) ability to comment on and criticize thereasoning o others, and 4) the ability to work in teams. Students appraisals othe work they did in the course urther suggested thicker critical reasoningskills. One emale LLM student said she learned bravery to challenge thejudge, to analyze the judgment and its reasoning, and to learn how precedents

have been used or dierent purposes. But, there were drawbacks to theprogram, attrition being the largest problem; very ew students completedFoundations IV, citing the volume o the work and the unaccustomed pressure.Students in Foundations II spent 3.6 hours per day preparing or class. Theaverage LLM spent approximately two hours per week preparing or allotheir classes. While the high rate o attrition and the resource intensiveness oProessor Hos program may shed doubt as to whether her approach can bereplicated without urther modication, her Foundations sequence out as oneo the more promising examples o reashioning U.S. pedagogies to Chineselaw schools. Proessor Hos Foundations program is one example o a hybrid

teaching approach that has promise in the reorm o Chinese legal education.LLMs and JMs selected a hybrid approach that combines some lecture and

77. Surveys were based on questionnaires that Proessor Ho collected each year rom the period2002-2008.



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proessor instruction to provide a baseline or discussion but then proceedsby interaction, dialogue, and exchange as their rst and second ideal teachingmethods, respectively (see Figure 6).78

Figure 6. Students ideal teaching methods

Implications for Legal Education Reform in China

The case study o TULS shows several problems inherent to the use otransplants in legal education reorm and law reorm, more generally, inthe PRC. These problems, building on Peerenboom, can be grouped intothe ollowing categories: the horizontality o transplants, the verticality otransplants, and the globalized context within which transplantation occurs.These categories provide a basis with which to assess the ndings o the TULScase study and its signicance or law school reorm in China.

Horizontal Transplants: Between the Push and the Pull

One o the central dierences between the exportation o U.S. legal

institutions during the earliest phases o L&D and the contemporary ROL78. Forty-one and seven-tenths percent o the JM students preerred the Socratic Method. I

ound that because they had such little exposure to the pedagogy, they idealized it to anextent greater than the LLMs who had some experience learning Socratically.


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87

initiative is the paramount role, today, o local political elites in steering thecourse o reorm. Domestic actors including law proessors, law school deans,and other educators are doing much o the heavy liting in terms o institutionalreorm. Nevertheless, legal transplantation occurs as a process with twoorces: promotion by the country o the transplants origin and reception bythe adapting legal system. The TULS case study evidences the two roles andsuggests that the viability o a transplant depends on such actors as activeparticipation and local knowledge.

Scholars have drawn parallels between the L&D movement hal a centuryago, and todays ROL movement, even calling the ROL initiative the newL&D movement,79 particularly given the ocus on reorming legal educationin non-western countries. The rst wave o the L&D movement did not aect

China as the county was embroiled in the upheavals o the Great Leap Forwardand the Cultural Revolution during the movements orescence.Yet since the early 1990s, a constellation o actors, with overlapping agendas

and mixed goals, have pushed ROL projects in the PRC by unding andexporting legal expertise or specic instrumental purposes. The genesis othe U.S. eort can be traced to the Ford Foundations unding o the rstU.S.-style legal aid center at Wuhan University in 1992.80 Since then, multipleplayers have entered the arena as part o the industry o exporting ROL modelsthrough transplantation. The actors include representatives o all brancheso the U.S. government, including the executive,81 the Supreme Court,82

79. See, e.g., Carol V. Rose, The New Law and Development Movement in the Post-Cold WarEra: A Vietnam Case Study, 32 Law & Socy Rev. 93 (1998); Michael J. Trebilcock & RonaldJ. Daniels, Rule o Law Reorm and Development 280 (Edward Elgar Publishing, London,2008); but see David M. Trubek & Alvaro Santos, The New Law and Economic Development(Cambridge University Press, New York, 2006).

80. See Benjamin Liebman, Legal Aid and Public Interest Law in China, 34 Tex. Intl L.J. 211,233 (1999). See also Stephenson, supra note 63, (assessing the ruits o the China rule o lawinitiative started by President Clinton in 1997 which gave ofcial imprimatur to theseeorts).

81. Interview with ormer State Department ofcer, in Beijing, P.R.C. (Apr. 2, 2008) (statingthat the State Department wanted Chinese law to move to a precedent system by, amongother causes, promoting case method analysis in law schools).

82. U.S. Supreme Court Justice Kennedy established the Joint Center or China-U.S. Law &Policy Studies in 2005. It has hosted several conerences on legal education exchange inboth the U.S. and China.



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and Congress;83 the American Bar Association;84 developmental agencies;85NGOs;86 law rms;87 law schools;88 scholars;89 and commercial outts.90 U.S.actors work in concert with members o the PRC legal community includingthe MOJ, All China Lawyers Association, legal practitioners and academics.Law school reorm has taken many orms such as those aimed at improvingthe training and continued education o Chinese law proessors91 and thosedirected at educating Chinese law students in U.S. law.92 However, reormsthat ocus on the institution o the Chinese law school itsel have had themost widespread impact on Chinese law students. From the U.S. perspective,the contemporary drive to institute ROL in China concentrates much o itsresources, manpower, and unding on training the next generation o lawyersvia methodologies developed in the U.S. with the intent that these lawyers will

be agents o change toward a more open, rights-based China.93

83. See, e.g., Congressional-Executive Commission on China, 108th Congress, The Rule o Law inChina: Lawyers without Law? Roundtable beore the Congressional-Executive Commissionon China (Comm. Print 2003), available athttp://rwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_house_hearings&docid=:87399.wais (discussing the impact o U.S.-ledeorts to reorm P.R.C. law schools).

84. The American Bar Associations Rule o Law Initiative in China includes a LegalEducation Reorm and Civic Education project. See ABANet.org, ABA Rule o LawInitiative: China, http://www.abanet.org/rol/asia/china.html (last visited May 25, 2009).

85. The Ford Foundations Law and Rights Program has been one o the most active donors in

Chinese legal education reorm. See, e.g., Weidong Ji,supra note 23, at 13 (discussing the FordFoundations establishment o clinical legal education programs in Chinese law schools inSeptember, 2000).

86. See ChinaDevelopmentBrie.com, Directory o International NGOs, (2007), http://www.chinadevelopmentbrie.com/dingo/ (last visited May 25, 2009).

87. See, e.g., OMelveny & Myers LLP, The OMelveny Scholarship Programs: Shanghai andBeijing, www.omm.com/aboutus/scholarships/ (last visited May 25, 2009).

88. Most top U.S. law schools now have exchange programs with Chinese law schools. For apartial list o summer study programs, see Wei Luo, Summer Study Programs o ChineseLaw in China or Hong Kong, http://law.wustl.edu/Chinalaw/chlsumm.html (last visited

May 25, 2009).89. See, e.g., Council or International Exchange o Scholars, Fulbright Scholars Program,

http://www.cies.org/ (last visited May 25, 2009) (sending a handul o U.S. law proessorsto Chinese law schools each year).

90. LexisNexis sponsored a conerence entitled LexisNexis-Peking University Law SchoolDiscussion Forum or the Integration o Sino-American Legal Education and LegalPractice on October 28, 2008. Westlaw has recently introduced a product called WestlawChina.

91. See Anne F. Thurston, The Committee on Legal Education Exchange with China (CLEEC):1983-1997. pt. 43 (1997) (detailing the workings o the CLEEC during 1983-1997, this reportdescribes the impact o the program, which nanced the overseas education o severalleading Chinese academics, on individual careers, teaching approaches, and rule o law).

92. LLM programs oered at U.S. law schools are increasing in number. See Zhenmin Wang,Legal Education in Contemporary China, 36 Intl. Law. 1203, 1207 (2002).

93. See, e.g., U.S. Dept o St., Supporting Human Rights and Democracy: The U.S. Record


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89

Interviews conducted during the 2007-2008 academic year reveal a spectrumo responses to this approach. Chinese law students were enthusiastic abouttaking a class with a law proessor rom the U.S. but were also quick to pointout the shortcomings o programs that bring U.S. law proessors without Chinaexperience to TULS and other PRC law schools. Students were skeptical othe impact o visiting scholars who have a light course load and teach or onlyone semester.94 Both TULS law students and U.S. law proessors teaching atTULS and elsewhere thought their interaction was, at times, supercial and thelong-term impact minimal. Moreover, many programs ail to provide trainingor visiting proessors who are told simply to teach like a U.S. classroom.Students were more appreciative o visitors who taught a heavy course loadand stayed or longer than a semester, such as Stphanie Balme who taught at

TULS or two years. Overall, students were appreciative, however, o visitingaculties eorts regardless o the duration o their teaching. In short, rom theChinese students perspective, the time the visiting proessor spent teaching inChina as well as that individuals China knowledge were important.95

Additionally, joint projects between oreign legal experts and Chinesecounterparts are sometimes rustrated by miscommunications aboutimmediate goals (i.e., dierence in expectations between the parties) as wellas long-term ends (e.g., disparate conceptualizations o ROL and the role olegal institutions in its promotion). One example is the Tsinghua Legal ClinicProgram (TLCP) ounded originally in September, 2000, as the Consumer

Protection Clinic with the support o the Ford Foundation. Modeled aterU.S. clinical legal education, the clinic was meant to provide students withopportunities to represent consumer clients in court; however, since manysuch disputes are settled through mediation and reconciliation, this objectivewas not met. By 2001, the Consumer Protection Clinic was replaced by theLabor Protection Clinic and the Disadvantaged Group Protection Clinic.The Ford Foundation encouraged the TLCP to take on high-prole cases butmany TULS aculty wanted to take on less sensitive cases.96 In 2004, when

2006 84 (2006), available athttp://www.state.gov/documents/organization/80699.pd.

94. Alison Anderson, an American law proessor who taught at TULS, commented: Icannot even begin to imagine all the dierences in concepts o school, the teacher-studentrelationship, career patterns, and so orth all o which impact learning. It would bepresumptuous to try to analyze all this ater mere[ly] eight weeks o teaching my students sixhours a week; C. Eli Wald, Notes From Tsinghua: Law and Legal Ethics in ContemporaryChina, 23 Conn. J. Intl L. 369 (2008) (providing a journal o a U.S. law proessor teachingproessional ethics in China or the rst time at TULS or one quarter or 14 meetings o 120minutes).

95. While most programs that bring U.S. law aculty to China teach U.S. law, with some inroadsinto international law, Chinese law students nevertheless spoke more highly about oreignaculty who knew how to communicate non-Chinese legal systems to them. Mandarin

language acquisition, knowledge o Chinese history and law, and sensitivity to Chineseclassroom etiquette were all skills valued by Chinese students.

96. Misunderstandings in U.S.-Chinese joint projects rarely eature a simple U.S. versus Chinesedierence in opinion. In the case o TLCP, many TULS aculty also pushed high-prolecases.



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the TLCP accepted more controversial cases, local authorities intervened andaculty were red. TLCP was subsequently re-organized and currently operatesin conjunction with two extracurricular programs: the Tsinghua BareootLawyers Training Program (started in 2006) and the Tsinghua Rural Legal AidCenter (established in 2004). The early difculties o TLCP can be attributed,in part, to misdirection in terms o matching certain types o disputes withappropriate channels or public interest law instruction. More undamentally,however, the collaboration was impeded by dierences between the unctionand ultimate aims o the project; U.S. sponsors viewed clinical legal educationas a vehicle or access to justice while Chinese hosts saw the clinics primarilyas an educational tool or students. Although the TLCP provides a cautionarytale, it has, over time, established a sustainable program that both instructs

students and provides pro bono legal service to the community.97

Vertical Transplants: Top-Down and Bottom-Up

Perhaps the central implication o my TULS case study is that bottom-up, grassroots adaptations o legal transplants are more responsive to localconditions and needs than grand schemes in the orm o state-sponsoredcentral-planning. This point conrms the theme o William Easterlys The WhiteMans Burden: Why the Wests Eforts to Aid the Rest Have Done So Much Ill and So LittleGood. In this book, long-time expert on oreign aid Easterly describes two idealtypes o oreign aid: the planner and the searcher:

In oreign aid, Planners announce good intentions but dont motivate anyoneto carry them out; Searchers nd things that work and get some reward.Planners raise expectations but take no responsibility or meeting them;Searchers accept responsibility or their actions. Planners determine what tosupply; Searchers nd out what is in demand. Planners apply global blueprints;Searchers adapt to local conditions. Planners at the top lack knowledge o thebottom; Searchers nd out what the reality is at the bottom.98

Although Easterlys depiction has been criticized or its idealized dichotomy,his characterization holds true or legal education reorm in China. Easterlystypes apply to (e.g., U.S.) oreign aid workers, but they can be extended equallyto their in-country counterparts. The JM proessional degree program beganas a result o a research study headed by PRC legal experts working underthe Academic Degree Commission and in conjunction with central ministries.The eect o the pilot program was an academic degree program that ailed tointegrate the more efcacious aspects o training in the American JD programwith the distinct character o learning in the Chinese classroom. Any ne-graindetails acquired by the planners rom actual teaching experience were muted97. The program is a our credit course or one semester, requiring three hours o classroom

instruction per week, with space available or a total o 40 students. Criteria or acceptingcases include the nature o the case, instructional value, merits o the case, securityconsiderations, and venue o the action (only Beijing cases are accepted).

98. See William Easterly, The White Mans Burden: Why the Wests Eorts to Aid the RestHave Done So Much Ill and So Little Good 5-6 (Penguin Press, New York, 2006).


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out in designing and implementing the JM program as the Chinese equivalento the JD. In addition, while the JM program encourages teaching thatacilitates practical training, the program lacks clear guidance or incentives orteachers to do so.

In contrast, searchers, such as Proessor Ho and other educators workingon the ground, have direct and constant interace with students and work tond practical ways to tie non-Chinese teaching approaches into classroomdynamics. These educators eect small-scale change based on accumulatedlocal knowledge and practical experience which allows the teachers to makenecessary adjustments whether curricular or pedagogical depending onstudents perormance and eedback. For example, the small group discussionso drat reports in Proessor Hos Foundations program provide a venue or

immediate eedback and teacher-student interaction to the benet o both theeducator and the learner. Nonetheless, Chinese teachers seeking to introduceexperimental approaches operate within the connes o the university acultyand administration, state-mandated curriculum, and the surveillance o CCPorgans. Each constraint works, in various ways rom budgetary to disciplinary,to thwart innovation.99

Context or Transplants: Globalization as Americanization

Todays legal transplants operate under a set o global conditions that diersignicantly rom those o ty years ago during the L&D movement. Thebipolar order o the Cold War has been replaced by American supremacythat still operates through traditional realist notions o military and economicpower, but also through sot powerthe role o the U.S. in globalization.Globalization, as conventionally understood, deterritorializes ows ocapital, technology, commodities, migrants, media, and law. As opposed tomodernization theory o the 1960s, which assumed identiable categorieso time and space as unilinear and evolutionary, globalization witnesses amarked acceleration o time-space compression in capitalist political economyas central to culture change.100 Transplants no longer operate in a one-to-one

trajectory but rather are diused, oten repeatedly (re)localized such that theysuccessively shed the skin o their origin (e.g., the U.S. JD is borrowed byJapan and then China borrows the JD based on the Japanese experience101).Nevertheless, this does not mean that the metaphor o the transplant is obsoletein the age o globalization. When observers speak o globalization, they areoten participating in the celebratory misrecognition o hegemonies that areidentiable. This is, more exactly, a partial misrecognition as, on the one hand,Chinese legal reormers102 valorization o the preeminent legal models o the

99. See, e.g., Ouyang,supra note 66.

100. See Michael Kearney, The Local and the Global: The Anthropology o Globalization andTransnationalism, 24 Ann. Rev. o Anthropology. 547, 551 (1995).

101. See Xiangshun Ding,supra note 27.

102. The Americanization o law schools has been a theme o reorm over the past couple o



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day has been a conscious endeavor,103 but, on the other hand, the entry oglobalization as a discourse elides the origin o legal models and transplants.This is not to dismiss globalization as a aux concept, but to suggest that

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Legal Education Reform in China

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