DUKE LAW IN CHINA: A REMEMBRANCE
Paul D. Carrington
I came from Michigan to Duke in 1978 to serve as dean of the law school. I had in mind the opportunity to help improve legal education in the United States. Not considered was the possible internationalization of the Duke Law School, or that Duke might play a role in legal education in China.
When I arrived at Duke, there were three foreign students in the Law School, all of them from the Middle East, and all of them doing doctorates with Professor Kazimir Gryzbowski. Professor Arthur Larson, then the most noted member of the faculty, and former Secretary of Labor to President Eisenhower, had presided over a Center on World Law financed by private foundations, but by 1978 the Cold War and reactions to the war in Vietnam had chilled enthusiasm for his enterprise and he had gone back to his first love, labor law. There was no longer at the Law School any pretense of serious institutional interest in international matters. Had it been contemplated that the job of the new dean was to change that reality, I would not have been offered the job, and would not have accepted it.
But in 1978 there were some applicants from Europe who wanted to do a year of study at Duke. The Admissions Office planned to continue its practice of rejecting all foreign applicants absent the expression of interest in a particular applicant by a member of the faculty who wanted to supervise their study. But as I became aware of the existence of these applications, I was struggling with a budget in jeopardy caused by a shortfall in the expected number of entering students. A few international students would pay full tuition and that revenue would come to the law school. As budget officer, I first saw them as a means of easing moments of financial stress.
By the fall of 1979, we had a handful of students from Europe. Some faculty members questioned my judgment in admitting them and expressed doubt that foreign students could keep up despite the lighter loads imposed on them. Would they not require special attention? And could we afford a library of foreign law materials?
By the fall of 1980, we had six LLM candidates, including one from Japan. We had acquired the service of Professor Donald Horowitz, a comparatist, and his wife Judy, who became a part-time counselor to international students. One thing seemed to lead to another.
It was perhaps in December that I received a stunning letter from Shi Xi-min, then in China. To get a letter from China was itself an astounding event. No one born after 1960 can today imagine the degree of isolation of China, especially in its disconnection from America. Xi-min wanted to study law in the United States. The quality of his English was such that I was confident some American had written his letter, and he did acknowledge the help of a graduate of Wellesley College. He identified himself as a worker with the Ministry of Foreign Economic Relations and Trade, and a recent graduate of the University of International Business and Economics. But he also described his life as the son of an air force general who had himself served in the military as a helicopter pilot. And he had also been in prison twice during the Cultural Revolution. Once as his father�s son, and once on his own account. He was married to a woman who was on military duty in Tibet. All this was interesting, but what blew my mind was his claim to have translated into Mandarin two novels by William Faulkner, one of which (Absolom, Absolom) I had read and found to be absolutely incomprehensible. I much desired to meet such a person.
It was not until the early spring of 1982 that Xi-min actually arrived in Durham. Getting him out of China was not easy. There was the US Department of State to deal with. And then its Chinese counterpart. A call to our alumnus. former President Richard Nixon, did get the attention of the Chinese bureaucracy. Another alumnus, Al Philipp, General Counsel to Pan-American Airways, then the largest international airline, arranged for Xi-min to get a free ride from Beijing to New York. The law school bought him a ticket to RDU. Because we had a small endowment fund contributed by President Nixon�s classmates, I designated Ximin as the Nixon Scholar and used the bit of income from that fund to cover some of his costs.
Because Xi-min had never studied law in China, it was from the first planned that he would stay three years and do the JD program, with a lighter load in the first year. And that worked. I was able in effect to waive tuition. Given the rate of international exchange at that time (the annual income of a Chinese worker might then exchange for perhaps $200), it was unimaginable that tuition would ever be paid by a student from China. Less easily solved was the problem of living expenses. We put him to work in the library until he commenced study in the fall. My son Clark, then a graduate student in Pharmacology, owned and managed a rooming house, and I arranged for Xi-min to live there so that I could keep an eye on him. He quickly became an important member of the law school community. He was a strong personality and an adequate student of American law. He found employment for himself for the summer of 1983 (with some help from Professor George Christie) at Mudge Rose Guthrie Alexander & Ferdon in New York, the firm in which Richard Nixon had practiced in the 1960s.
From the first, Xi-min was ambitious to bring other students from China. He most urgently recommended his friend Gao Xi-qing, who had been his fellow student at the University of International Business and Economics. Somehow, Xi-qing had landed a tour as a paralegal at Graham & James in Los Angeles. In the summer of 1983, he arrived in Durham, having driven an ancient Ford Pinto from California. We sat on the back porch and he filled me in on his past. The most striking fact about him was that his father had been on the Long March of 1933, when the Communist force led by Mao Tse-tung escaped the trap set by the Kuomintang army led by Chiang Kai-shek. His English was very good, and he struck me as rather a Chinese patriot. So I admitted him as a second student from China, but wondering how we would cover his living expenses.
Also that summer, Xi-min was recruited by the Chinese Embassy in Washington to study New York law firms as possible counsel to the Embassy. The Embassy badly needed help, and the foreign exchange rates disabled them from contemplating the help they needed � the price of legal services was to them simply prohibitive. For example, sometime in 1982 someone had moved to reopen an ancient judgment against the Kingdom of China that had been entered by an Alabama court many decades earlier. The Embassy�s way of dealing with it was to insist that the United States Department of State should fix the matter. The result was a default leading to prolonged difficulty. On behalf of the Embassy, Xi-min talked to a lot of New York lawyers and recommended to the Embassy the names of three, for which they expressed gratitude.
But in the fall of 1983, Xi-min received an urgent call from the Embassy. Someone had initiated a proceeding in the United States Department of Commerce to impose a countervailing duty on Chinese textiles. Billions were at stake. But no one on Xi-min�s list would do. Xi-min was told that one of the lawyers he had recommended had a conflict of interest, another was in Europe, and the other wanted too much money. The list being useless, Xi-min and Xi-qing would have to take care of the matter! No one in our law school knew much about countervailing duties, but we knew a few lawyers in Washington who did. So they got some pro bono help in writing a memo to be filed by the Embassy. It was not likely a hard case to win, given the international political scene at the moment. But China won, and the Embassy was grateful to the Duke Law School for its cost-free victory.
A few weeks later, I received a visit from Wang Fusun of the Ministry of Education and Dean Gao of the People�s University Law School (Ren Da). They invited me to come to China in the summer of 1984 as a guest of the People�s Republic to recruit more students who might be able to win such cases after a few months at Duke. They did not offer to pay my air fare. That was almost a deal-breaker because I would not spend law school money on such a festive activity for myself. President Terry Sanford picked up the tab for that on his discretionary fund.
I was in China for over two weeks, accompanied by Bessie and our younger son, Will, then a Duke senior headed for graduate work in Economics at the University of Chicago. We were in Beijing for over a week, and in Shanghai for several days. We also visited Xian and Hangzhou. We were supplied with tour guides to see the Great Wall, the Palace, and other memorable sites. We also were taken to the univcrsities to meet Anglophonic faculty and the students whom they recommended for places at Duke.
We attended meetings at each university we visited. All universities were situated behind walls with elaborate gates; I amused some hosts by admitting that we had gates at Duke, but no wall. Furniture was memorably arranged so that everyone was provided with an arm chair and allowed the security of having his or her back to the wall. I would speak for a few minutes with anyone who might be curious, and then share some time with university administrators.
At Ren Da, I met ten law teachers and five law students who wanted to come to Duke. I provided the students with a copy of the opinion of the Court in Hickman v. Taylor, and then later got them to discuss it with me. I was satisfied that all were competent in English. One of them, Yuan Ping, was a professor of English and an ardent feminist. Yan Xuan was completing his training in the Institute of Foreign Languages; a native of Changchun, his ambition was to be present in Hong Kong the day the Brits were to be evicted. Lai Fang and Tien Hui were mature women whose lives had been adversely affected by the Cultural Revolution. Song Bin Xue was a native of Harbin, whom I would meet there in 1985.
An interpreter was needed for my visit with the faculty. The faculty did not have offices, but carrels in a library that had been thoroughly cleansed of capitalist dogma during the Cultural Revolution. Two of them were older women who manifested great curiosity about American teaching methods. It would have been a pleasure to spend more time with them. Dean Gao had teaching down pat; he was accustomed to using a microphone to teach a class of 500-1000. Their university was established in a cave in 1934 and its historic role was to train party leaders, and for that reason it had survived the Cultural Revolution. But in 1984 it was an arm of the Education Ministry and its students were selected by a national examination. They proposed to employ Shi Xi-min as a member of their faculty. It seemed to be supposed that I could arrange that.
We were taken to dinner by Dean Gao, Wang Zue Fu, and Wang Fusun. It was an elegant banquet that began with an introduction to the live duck that we were about to consume. The dishes served did include every part of the duck�s anatomy, including the feet and the bill. We were told that the restaurant had been serving duck parts in that location for over 200 years. It was in 1984 an arm of the state. Our hosts insisted on keeping our plates full, teaching us that in China it was an expression of hunger to leave a clean plate. We toasted every dish with a sip of mao tai, but we observed that our hosts� sips were mere gestures. The food was excellent, but we never acquired a taste for mao tai. We did buy a bottle to take home, where we learned that a mere opening of the bottle to allow an escape of aroma had the effect of making our dog desperate to leave the room.
Ren Da had never had foreign students, and one aim of our discussion was to consider what they might do with Duke Law students. They assured me that �Life is hard in China and we would not want your students to be miserable.� They would provide room, board, and instruction to Duke students in exchange for our working with their students. I agreed to take Yuan Ping and Yan Xuan in 1984, and perhaps the other three in 1985. In exchange, three of our alumni did later spend an academic year there. For Ross Katchman and Dan Scheinman, that experience proved to be very important to their future careers. Taking account of the support since given the Law School by them, it may have turned out to be a lot better deal for the Duke Law School than I thought that it was at the time.
Beijing University (Bei Da) the oldest university in China, was not opened until the 19th century, then as a consequence of efforts by American missionaries. Professor Wang Tieya was the most luminous legal academic in China, having survived the Cultural Revolution because his field was international law. He strongly recommended Ling Jia An, who was teaching English in the university. She charmed me with her account of the need for �law workers� in China, but she seemed a bit shy. Wang�s opinion was endorsed by Dean Zhao, who assured me that she would have a position as a law professor at Bei Da upon her return. The President of the university was a mathematician and a friend of Duke Provost Philip Griffith; he joined in the assurance. They all also assured me that their students were generally better qualified than those at Ren Da. I agreed to admit her in 1984 if we could get her out of the country. They also introduced me to Wang Jin, a young man of considerable presence and excellent English. I tried to put him over for a year.
We got an elaborate tour of the Bei Da library. Chairman Mao had begun his career there as a library page and a monument to him stands in front of the building. As is my wont, I checked the card catalogue for books by my colleagues. Don Horowitz�s Courts and Social Policy, was the only one I found.
At the University of International Business and Economics, we met with Vice President Sun Wei Yan, Professor Feng Datong, and Shen Si Bao. They were eagerly awaiting the return of Gao Xi-qing to their faculty. I enlisted their help in getting Xi-qing�s wife out of her job in Tientsin so that she could come to Duke to be trained as a librarian. It was my belief that Xi-qing needed her company.
Much of the instruction provided at that university was conducted in English. We also met with Xia Yuantao and had a separate dinner with him and with his wife. He was completing his degree program and so would not be available for a year. But his English was exceptional.
The other university visit of consequence was at Fudan in Shanghai. The campus was more spacious than that of Bei Da and more elegant than that of Ren Da. We were taken into a large building in which President Reagan had spoken the week before. The furniture was noticeably more fashionable. And we were shown a trophy case containing banners from all the institutions having ties to Fudan, an eclectic group that included Harvard, Chicago, and Lacrosse State. The University was founded in the 1920s. The Vice President who met me (the President, he explained, was in the US) boasted of its programs in medicine and science. He was himself a physicist. Fudan was rebuiding an undergraduate law program that had been long closed. They had recently had a visit from Richard Neely of the Supreme Court of West Virginia who had taught economics; he had taken one of their students back to Charleston to continue his study. A course in American law was required of students in the third year of their law course; it was taught in English. He introduced me to three students, two of whom, Wu Yan-lei and Zhou Jiu-su, I admitted for 1985, again wondering how I might pay for their expenses. Wu was an especially interesting person who asked about the state of the performing arts in Durham and about the status of African-Americans at the law school and in North Carolina.
The tour of Fudan included a visit to the best library we were shown in China. The Harvard Business Review was prominently displayed; I formed the ambition to place Law and Contemporary Problems next to it on the rack. In the faculty library were carrels where thirty or so professors were plugging away. A droll touch were the ping pong tables at the reserve desk.
And we were then taken to the computer building, where among the Honeywell equipment was a large computer they had built for themselves. I said to the Vice President that his institution brought to mind MIT; he was quick to say that he would not dare to compare his university to that institution. Crossing the campus to lunch, we observed that the students, like those at Ren Da, seemed to be especially interested in high jumping. Both men and women were gathered around adjustable high bars to compete. At lunch, the Vice President was especially eloquent in his toast to �the end of a quarter century of silence between our peoples.�
I also visited other universities, but without establishing contacts with any prospective students. I paid a visit to the China Academy for Social Science. That visit resulted in Huang Lie coming to Duke from that institution. She came for only one year and took the Master of Legal Studies degree. It would be of great interest to me to know how her work at CASS benefited from her year with us.
In 1985, we admitted six Chinese students to the JD program. Lai Fang and Tien Hui came from Ren Da; Wu Yanlei and Zhou Jiu-su came from Fudan; Xia Yuan-tao came from the University of International Business and Economics; and Wang Jie came from the Ministry of Foreign Affairs.
Other Chinese students came to Duke over the next two years as a result of contacts made on that trip. In 1986 came Fu Xiao-shang and Ma Hongli from Bei da; Mao Yi-bing from Jilin University; Sang Bin-xue and Wang Ya-xiong from Rin da; and Zhang Danian from Fudan. In 1987 came Chang Chi-yang from the Shanghai Institute of Foreign Trade, Li Xiao-ming from Jilin, and Wang Xian-ping from Ren Da. All these students did the JD program.
Incidental to these academic visits, we also visited some law offices. Law firms had been prohibited, but in 1984 the government was in haste to recreate them. Whole law faculties were designated as law firms. I paid a visit to Beijing Number 2 and to the Global Law Firm.
A visit to the China Council for the Promotion of International Trade provided a very interesting conversation. CCPIT was then the primary forum for arbitration of disputes involving foreign merchants. It would at that time have been a brave foreign capitalist who would have presented his or her case to the courts that were wholly populated by communist party apparatchiks. CCPIT arbitrators were among the groups to be designated as law firms. A CCPIT officer sought my advice. It seemed that a Danish firm had been in a dispute with a commercial unit of the government. It had consulted a law firm, and so had its adversary. The lawyers agreed that the dispute should be the subject of arbitration at CCPIT. The arbitration agreement was signed. Whereupon an award was promptly made in favor of the Danes. It was explained that the arbitrators appointed by CCPIT were already well informed about the dispute because they represented the Danes, and so no extensive hearing was necessary. Those running the adversary unit of the government were enraged. What, I was asked, would be done about this in America?
I will not here recount much of our sight-seeing, for better information can be had from travel guides. I will record a few memories. First, by far the high point of the trip was our dinner in the home of the parents of Gao Xi-qing in Xian. To meet and talk with someone who had been on the Long March was almost unimaginable to us. His father was at that time a retired general. They lived in a ground floor apartment in what we might describe as a housing development. The provincial government supplied the chef for a 24-course dinner. The first course was a butterfly with a wingspan of about 30 inches or so. It was made of diverse cheeses, meats and vegetables and it was a spectacular sight, especially in respect to the details of the butterfly the cook had been able to imagine. The event of the evening was service of Carp in Grass. The fish had been cooked inside out: caramelized on the outside, then filled with alcohol on the inside, and served with flame coming out its mouth.
I will also record our pleasure with our driver in Beijing. Mr. Wu understood no word of English but knew more about our schedule than we did. He was extremely punctual, very amiable, and very considerate of the traffic. In those days, the traffic was mostly cyclists. A sharp contrast was the driver in Xian. There, we were driven in a �Red Flag,� a monstrous vehicle bearing flags on each front fender and equipped with curtains on the windows. He had no regard for cyclists, as seemed to befit a driver for an esteemed apparatchik. He took us to the amazing site of the funeral army buried in 307 BC. As our Red Flag roared through the gate into the compound, pedestrians ran to get out of the way. One young woman grabbed two packages, but left a third on the ground. He ran over it and then stopped to let us out to see the site. We wanted to pull the curtain and stay in the car, but that was not a choice.
And then I might mention a night in Shanghai. Bessie had fallen asleep for the night, and I was in bed, but still reading when I felt a vibrator on my back. Things must be getting rowdy downstairs. The sensation became more intense. Then I heard a subway train, but I was on the eighth floor of the hotel. The coat hangers in the closet began to rattle. The drapes fell away from the windows as if blown, but the windows were closed. I looked at the wall opposite my bed and perceived that the molding on the wall was no longer straight. Nor was it parallel to the ceiling. Bessie did not wake up, even after I shook her. I went to the window to observe a crowd in the street, and a couple across the street getting dressed to leave. I thought maybe we should do the same. I went to the door and found a Japanese youth who explained to me that this was just an ordinary earthquake of the sort familiar to the people of his country. I went back to bed but not to sleep.
While we were in the Far East, we thought it wise to be tourists in Japan for a couple of weeks. In Tokyo, we stayed at International House in Roppongi. In the corridor there I encountered an old friend, Walter Gellhorn of the Columbia Law School. He invited me to join him the next day on a visit of the University of Tokyo (To Dai). There I met Professor Koichiro Fujikura, who soon became a regular visiting professor of law at Duke. His relationship cemented the Law School�s ties to Japan.
In 1985, the Council on Legal Education Exchange with China was organized and funded by the Luce Foundation and administered by Randy Edwards, a law professor at Columbia. My presence as a member of the five-member Council was an acknowledgment that Duke was for the moment far ahead in building a relationship with China. Harvard, Columbia, and Michigan, the three law schools of longstanding interest in training international students, were just beginning to catch up. Other law schools were also, like Duke, beginning to see the prospect of becoming international institutions and it was the role of CLEEC to connect them to Chinese applicants.
As a member of the Council, I taught for two weeks in 1985 in a program conducted in Chnagchun in Manchuria for Chinese students planning to come to American law schools. My colleagues were Whitmore Gray from Michigan and Walter Gellhorn. The program was conducted at Jilin University, while we were housed with our spouses and students in a rather grand hotel that seemed Soviet in style.
A secondary purpose for me was to renew relations with some students I had met the year before, and to enlarge my contacts. Some of that was achieved. But it was a cultural experience to try to manage my own trip at points. I wanted to go to Harbin to meet Song Bin-Xue, but was told that no seats were available on the train. Finally, I importuned my brother Gellhorn to ask in my behalf. �Soft seats� were immediately available. Walter was older than I, and so in the Chinese manners I needed his permission. Then I made an appointment in Beijing requiring me to take an early train. Again, no seats available. When I asked the assistant dean of the Jilin law faculty, whose uncle had once done a favor for someone on the railroad, to ask, seats were immediately available. I do not know what favor he was later called upon to perform for the ticket manager, but I remain in his debt. While this got me to Beijing in time for my appointments, I discovered when I got there that someone at Jilin had called up to cancel my appointment, presumably in retribution for my misdeed. Nevertheless, I did manage to visit the university in Nanjing as well as Jilin, and did meet some additional applicants to Duke.
How were the twenty JD students coming to Duke supported? The People�s Republic of China paid for their air fare. The law school effectively waived tuition. I succeeded in recruiting a law firm sponsor for each of the JD students I recruited. The students worked for two summers in those firms and were paid enough to cover modest living expenses. The following law firms participated:
Carrington Coleman Sloman & Blumenthal, Dallas
Covington & Burling, Washington
Dechert Price & Rhoads, Philadelphia
Krusen Evans & Byrne, Philadelphia
Isham Lincoln & Beale, Chicago
King & Spalding, Atlanta
Kirkpatrick & Lockhart, Pittsburgh
Lewis & Roca, Phoenix
McCutcheon Doyle Brown & Enersen, San Francisco
McGuire Woods Battle & Booth, Richmond
Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City
Mudge Rose Guthrie Alexander & Ferdon, New York
Paul Weiss Rifkind, Wharton & Garrison, New York
Salem Saxon & Nielsen, Tampa
Sidley & Austin, Washington
In varying degrees, these law firms may have hoped to secure future business, but in large measure, these were law firm contributions to the public interest. It was not hard to convince American lawyers that a country having almost no lawyers badly needs some. More than a few lawyers with whom I spoke thought perhaps China might be offered some of our excess legal manpower. I also got a little financial support from foundations and corporations.
For the most part, these first-generation Chinese JD students did adequate work as students, and most of them have returned to China. But it must be acknowledged that there were problems. The culture shock was considerable. Few of their marriages survived it. Some of our graduates were reluctant to return to China. Less than all of them proved to be academically competent. A few are now lost to our alumni records.
Gao Xi-qing was the first of our alumni to return to China, and we have appointed him, like Fuji, as a regular visitor to our law faculty. He was in Tianenmen Square with his students and was interviewed by the New York Times. When the soldiers marched in, he disappeared. But not for long. Maybe it mattered that he was an important talent. Or that his dad was on the Long March. But he was quickly rehabilitated and given a series of important roles to play in the establishment of Chinese legal institutions.
Sometime in the late 1980s, I noticed that we had five Koreans among our international students. I took them to lunch one day to find out how we were enjoying such success in attracting Koreans. The answer I was given was that it was not easy for a Korean to establish contact with anyone from the People�s Republic. The best place in the world to do that, they thought, was Durham, North Carolina.