By Chang Wang, contributor
[Editor’s note: This is the final remarks of Professor Chang Wang to “Legal Research in American Law: The Westlaw Approach” class at China University of Political Science and Law, the largest law school in the world. Wang is chief research and academic officer at Thomson Reuters, the world’s leading source of intelligent information for businesses and professionals. Since 2007, Wang has been lecturing legal research based on West’s Analysis of American Law and Westlaw at top law schools in the U.S., China and Europe. His lectures also have been viewed widely online at Erya Education and Chaoxing Academic Videos, two premier online learning providers in China. His bilingual textbook “Legal Research in American Law,” dedicated to the University of Minnesota and Thomson Reuters where the author “found and read the law”- is a bestseller on Amazon China. The lecture was delivered on July 4, 2014. China Insight has exclusive rights to publish this article in its entirety.]
First and foremost, I’d like to thank all of you for joining me to explore the fascinating world of American law and Westlaw™/WestlawNext™.
As I’m sure you remember, we started our journey by comparing common law and civil law.
As a common law country, the United States and its legal system are deeply rooted in precedent, or Stare Decisis, relying heavily on courts’ interpretations of both codified law and previous judicial opinions. This doctrine of precedent helps ensure the predictability, consistency and integrity of the American legal system.
In contrast, notwithstanding its civil law framework, current Chinese law is a “socialist legal system with Chinese characteristics,” a legal system designed to support “socialism” and the Chinese Communist Party (CPC). In China, the law is used primarily as a tool to reinforce party rules and strengthen its policies; the party itself operates outside the law.
In an attempt to prevent one branch of government from holding more power than others, the U.S. legal system incorporates a system of checks and balances and separation of powers. Because governmental responsibilities have been divided among different branches of government, and because the different branches of government are accountable to the American people, each branch can act independently, according to its own interpretation of what is best for the country. This is true even if the interpretations of the various branches of government are in conflict with one another. This is the very rationale that underscores the principle of separation of powers, especially “judicial review.”
Government in China, by contrast, is based upon single-party rule. The Chinese Constitution blatantly ensures that the CPC is the dominant political party in the country, in charge of all aspects of government. The Party reviews its own actions and is above the law.
Nevertheless, the CPC has promised to strengthen the “rule of law” in China. Let’s look closely at the definition of “rule of law” in Black’s Law Dictionary, the premier legal dictionary published by Thomson Reuters. Black’s defines “rule of law” as:
1) A substantive legal principle
2) The supremacy of regular as opposed to arbitrary power
3) The doctrine that every person is subject to the ordinary law within the jurisdiction; and
4) The doctrine that general constitutional principles are the result of judicial decisions determining the rights of private individuals in the courts.”
From these definitions, you can see that, as long as the CPC retains power over the Chinese legal system and judiciary – and, as long as the judiciary is not independent and is denied the power to review legislative and administrative actions – there will be no “rule of law” In China. Rather, there will be “rule by law:” that is, the CPC will use the law as a tool of governance.
It was said that “where the law ends, tyranny begins.” How, we ask, did Americans prevent tyranny? How did they “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty?” What kind of political and legal system did the founding fathers envision and devise?
We have read the United States Constitution, the Constitution of the State of Minnesota, the Freedom of Information Act (5 USCA § 552); ‘Public Access to Information” in Code of Federal Regulations (1 CFR § 456.4); Federal Rules of Civil Procedure; Federal Rules of Criminal Procedure; Federal Rules of Evidence; and the Rules of the U.S, Supreme Court.
John Marshall (1755 – 1835), the fourth Chief Justice of the United States.
To better understand the principle of “judicial review,” we have read Marbury v. Madison (5 U.S. 137), the 1803 case law that made the Supreme Court a separate branch of government, on a par with the legislative and executive branches, formally established the doctrine of “judicial review.” And, to better understand the life cycle of a litigation, we read “The Pentagon Papers Case.”
In light of the recent WikiLeaks and Edward Snowden incidents, the “Pentagon Papers Case” might be of particular interest to you – including the Memorandum issued by the United States District Court for the Southern District in New York, the decision of the Second Circuit Court, and the landmark U.S. Supreme Court decision in New York Times Co. v. United States (403 U.S. 713), a triumph of the First Amendment. The ruling made it possible for the New York Times and Washington Post to continue to publish the then-classified Pentagon Papers without risk of government censorship or punishment. As Justice Hugo Black articulated in his concurring opinion:
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
Let’s not forget that, in China, access to information is still a privilege, not a right. While reading this opinion or conducting legal research on Westlaw to understand a particular statute, it would be hard to swallow the fact that Chinese scholars, journalists and scholars can be charged with “divulging state secrets” for simply publishing a CPC leader’s internal speech or media censorship orders, and lawyers can be disbarred for representing those defendants.
Our task is to gain a whole picture of American law and perfect a way to find the law we need. Two hundred years ago, almost all the information a lawyer needed was contained in the American edition of Blackstone’s “Commentaries on the Law of England” – the great multivolume, comprehensive law text of the 18th century. “With Blackstone, a desk, and an inkwell, you were a lawyer.”
Today’s lawyer is no renaissance man. We have practical working knowledge of legal rules, legal institutions and the fundamental tools of legal research as they apply to the specialized areas in which we practice.
“Legal research,” as defined in Black’s Law Dictionary, is:
1) The finding and assembling of authorities that bear on a question of law”; or
2) The field of study concerned with the effective marshaling of authorities that bear on a question of law.
The American Bar Association identifies legal research as a “fundamental lawyering skill”: The long and challenging process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, ”legal research: describes a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.
Thus we swim in Westlaw™/WestlawNext™, a sea of legal information:
Primary authority - enforceable legal rules and principles that may be mandatory or persuasive - is the body of law. Primary authority includes cases, Constitutions, statutes, regulations and rules.
Secondary authority - comments upon, analyzes, discusses, interprets, and/or criticizes primary authority - includes treatises, practice materials, Restatements, periodicals, American Law Reports and much more.
We have also learned the value of using KeyCite™ to ensure that a law is still “good law,” so as to avoid citing “bad law” (i.e., law that is out-of-date) in court.
We learned how to do legal research with the help of West’s Analysis of American Law, or the Key Number System™. The West Outline of the Law organized the entire body of American law into seven categories: Persons; Property; Contracts; Torts; Crimes; Remedies; and Government. The law is categorized into more than 400 topics and 100,000 subtopics, the Key Number System™ is the most powerful tool available to legal researchers, making it easy for them to find any and all legal resources relevant to a given issue.
The “West” in West’s Analysis of American Law refers to Mr. John B. West, the founder of West Publishing. On Oct. 21, 1876, John B. West began publishing “The Syllabi,” in St. Paul, Minn., thus starting the National Reporter System, the genesis of legal publishing in the United States.
The Syllabi, Volume 1, Number 1, published by John B. West in St. Paul, Minnesota, on Saturday, October 21, 1876.
Can China really pattern its legal system after the Anglo-American system if, as the CPC argues, the Anglo-American system does not fit China’s reality and situation?
Our final research project required you to do a daunting task: Find a Chinese legal case of interest to you, transfer the fact pattern of the Chinese case to the great state of Minnesota, find relevant state and federal case law and statutes on Westlaw™/WestlawNext™, apply relevant American legal principles to the Chinese case, and then present your finding and analysis as if you were operating under the U.S. legal system, following its principle of precedents.
Are we subjecting ourselves to “incommensurability of paradigms?” As Thomas Kuhn, American physicist, historian and philosophers whose book “The Structure of Scientific Revolutions” gave rise to the term “paradigm shift” argued, proponents of different paradigms cannot fully appreciate or understand others’ points of view because they live in different worlds – with different ideas, vocabularies and experiences.
Can we reconcile the “incommensurability of paradigms” in law and legal research? Particularly when West meets East, when common law meets the “socialist legal system with Chinese characteristics”?
Perhaps we can. Perhaps we collaborate to build, to exchange ideas, to share knowledge, and to communicate in the neutral language of the law.
In this course, we have identified the legal issues; read and learned case laws, statutes, regulations and rules; examined and analyzed fact patterns and procedural postures in the light of governing laws and rules; and, finally, we have reached our conclusions.
If – after weeks of searching, reading and analyzing, and being constantly challenged – you are confident you have found the right authorities, put together the right resources, and thoroughly read and analyzed all relevant materials, then the law is in your hearts and minds.
Then you think like a lawyer!
In harmony with the truth expressed in Jane Austen’s “Pride and Prejudice”: “it is universally acknowledged, that a single man in possession of a good fortune must be in want of a wife,” we believe that a developing country with excellent potential for prosperity must be in want of some good lawyers.
The practice of law is a calling. “To our clients, we are advocates and advisors; to the courts, we are officers with a duty to speak for the justice system; to the public, we represent the rule of law and have an obligation to represent it honorably.”
I share with you the Attorney’s Oath I took eight years ago in St. Paul, Minnesota:
"I do swear that I will support the Constitution of the United States and that of the state of Minnesota, and will conduct myself as an attorney and counselor at law in an upright and courteous manner, to the best of my learning and ability, with all good fidelity as well to the court as to the client, and that I will use no falsehood or deceit, nor delay any person's cause for lucre or malice. So help me God."
This is the last lecture of Legal Research in American Law: The Westlaw Approach.
The last lecture, a hidden tradition at many esteemed universities and colleges, the teaching professor has the liberty to depart from the subject matter of the course and share some private thoughts with the students. The fundamental presumption of any “last lecture” is: “If this were your last chance to lecture your students, what would you say?”
I was most fortunate to sit in the late Law Professor Donald Marshall’s lecture at Mondale Hall, the University of Minnesota Law School, on April 27, 2005, when he shared the six clearly thought-through personal values and principles that had guided his life: discrimination is wrong; service is important; you have an obligation to teach; manipulation and exploitation are wrong; you should live a healthy life; and, you should devote yourself to creating a few genuine love relationships. His last lecture has become one of the most cherished moments in the University of Minnesota Law School community’s collective memory.
So please indulge me for a few minutes while I share with you a story that changed me from an artist to an attorney. I hope, however, that by doing so, I will not appear to be overly eager to be associated with the Last Lectures of past great teachers.
My story is inspired by an actual historical event which I have watched on the History Channel and ,which I have read in history books.
My story is a story about the courage of a lawyer – Joseph Welch – while standing in front of the most powerful Senator Joseph McCarthy.
On June 9, 1954, on the 30th day of the ArmyMcCarthy hearings being held by a United States Senate subcommittee, Senator McCarthy accused Fred Fisher, a junior attorney at Welch's law firm, of associating while in law school with the National Lawyers Guild, a group for which J. Edgar Hoover had sought designation as a Communist front organization.
Welch, acting as the head counsel for the Army, dismissed the charge as a youthful indiscretion and condemned McCarthy for naming the young man before a nationwide television audience without prior warning or previous agreement to do so. Welch said to McCarthy, in an unmistakable voice:
“Until this moment, Senator, I think I have never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us. Little did I dream you could be so reckless and so cruel as to do an injury to that lad. It is true he is still with Hale and Dorr. It is true that he will continue to be with Hale and Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty I would do so. I like to think I am a gentle man but your forgiveness will have to come from someone other than me.”
When McCarthy tried to renew his attack, Welch interrupted him:
“Senator, may we not drop this? We know he belonged to the Lawyers Guild. Let us not assassinate this lad further, Senator. You've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”
McCarthy tried to ask Welch another question about Fisher, and Welch cut him off:
“Mr. McCarthy, I will not discuss this further with you. You have sat within six feet of me and could have asked me about Fred Fisher. You have seen fit to bring it out. And if there is a God in Heaven it will do neither you nor your cause any good. I will not discuss it further. I will not ask Mr. Cohn any more questions. You, Mr. Chairman, may, if you will, call the next witness.”
The gallery of the hearing burst into applause.
This is one of the most beautiful moments in American history, and it was the beginning of the downfall of Senator Joseph McCarthy.
When I first saw this story, while thrilled by the audacious courage of Joseph Welch, I was mostly intrigued by the question:
How could he? Didn’t he fear consequences?
We all are well aware what the consequences that Joseph Welch would have faced had the hearing been held in China. In China, with their passports confiscated, the brave and outspoken cannot leave the country; the even more courageous and outspoken cannot even get out of their homes, as they suffer house arrest; and the most courageous cannot get out of the jail – as they are serving time for “inciting to subvert the state power.”
Years later, I found out my question was well-asked and answered by Lee Ross and Richard E. Nisbett in the book “The Person and the Situation”:
Indeed, when we are confronted with behavior that seems to suggest exceptional personal attributes of any kind we tell ourselves to pause and consider the situation. What were the details of the immediate context of behavior? How was the situation construed by the actor? And what was the broader social context or social system within which the actors were functioning? More pointedly, what objective situational features or subjective construals, or tension system considerations would make these seemingly exceptional actions less exceptional, and more congruent with what experience has taught us about the way ordinary people (ourselves included) generally behave?
The dramatic exchange between Welch and McCarthy led me to explore and appreciate the “broader social context or social system” in which Joseph Welch was operating: American legal system.
And I hope this story will also make you think about the reasons why you study law and why you want to become a lawyer.