American Law Newsletter. Issue 1

Author: Lin Xiaoyun, Chen Weijie, Chen Xiaomin
Publisher:
Publish Date: 2003-08-01
Features: In the summer of 2001, at the invitation of General Manager Jia Jinghu of Legal Publishing House, we organized the Journal of American Law. Today, it has been nearly two years since its inception. During this period, the 9/11 incident caused a temporary halt to the preparation work. However, with the strong support of all authors, editorial committee members, advisory committee members, host organizations, and Legal Publishing House, this long-awaited publication, dedicated to introducing the trends and developments in the legal system of the United States, has finally been launched.
Since China's entry into the WTO, the new concept of "aligning with international standards" has deeply permeated society. On the path toward the rule of law, there is a stronger interest than ever before in the experiences and lessons of foreign legal systems and practices. This is an encouraging trend. As the saying goes, "A stone from another mountain can polish jade." Western legal systems have a history of hundreds of years of development. Those who come later do not need to "reinvent the wheel" in every aspect. Of course, when a country borrows and absorbs foreign systems, it should adapt them to its own circumstances, discarding what is unnecessary while retaining what is beneficial. Before doing so, however, one must first understand what others have to offer or, at the very least, gain a thorough understanding before drawing conclusions. This is precisely the starting point for us in editing the Journal of American Law. We hope it can provide a relatively concentrated, comprehensive, and systematic introduction to the historical origins and development trends of American law, serving as a platform for researchers and practitioners to showcase their achievements and experiences, and as a mirror for domestic readers to understand American law.
The United States is today's superpower. Despite having only over two hundred years of history, it has developed a comprehensive legal system based on English common law, with the constitution at its core. The principle of constitutional supremacy, judicial independence, and judicial review—key legal concepts and institutions that laid the foundation for Western rule of law—have been adopted and implemented by numerous countries around the world. Looking at the formation of American rule of law, it can be seen that it originally stemmed from a very practical philosophy, which was then manifested through highly operational legal procedures. Taking James Madison as a representative of the U.S. founders, the goal in designing the U.S. Constitution and political system was to recognize that governments, as entities, have a tendency to develop in a direction of authoritarian oppression. According to Madison's thinking, since human beings are driven by self-interest and ambition, a government, as an entity, will not necessarily become a good government just because it is composed of good people. However, to avoid anarchy, a government is still necessary. Therefore, the best government is one whose power is limited. This could be considered the greatest innovation in political thought up to that point in history. Although Madison and others proposed this idea with its own historical and class context, it is essential to constrain the power of the government itself, rather than the individuals within it, through procedural mechanisms. This fundamental concept holds great practical significance for China's efforts to build the rule of law after joining the WTO.
In this issue, we are honored to have secured the agreement of Justice Sandra Day O'Connor of the U.S. Supreme Court, Chief Judge John W. Walker of the U.S. Court of Appeals for the Second Circuit, and Judge Robert Henry of the U.S. Court of Appeals for the Tenth Circuit to contribute three articles exclusively written for their visit to China, discussing the rule of law and the impact of the U.S. Constitution on U.S. criminal procedure.
The rule of law is a common ideal for humanity, but there is always a gap between ideals and reality. The U.S. legal system also has many flaws and shortcomings in its operation. In criminal procedure, it is not uncommon for the innocent to be wrongly accused or punished excessively, while the guilty often escape justice. Police misconduct and judicial inefficiency are frequent topics in the media. At the same time, whether the U.S. faces the issue of "too much or too little" justice—such as miscarriages of justice—due to an overemphasis on the rights of criminal defendants, allowing them too many loopholes, is also a subject for debate. Additionally, the courts' tendency to handle everything and the complexity and length of procedures have overwhelmed the judicial system, leading to severe case backlogs. These problems are often criticized in the U.S. as well.
Furthermore, while institutional and systemic improvements can ensure overall procedural justice in the judicial process, they cannot prevent the abuse of judicial power in individual cases, resulting in extreme injustice or even catastrophic consequences that hinder social progress and divide the nation. We must have a clear understanding of this. Professor Wang Xi's article in this issue provides a vivid yet restrained introduction to the historical background, case details, and negative impact of the Dred Scott case in U.S. history, serving as an excellent illustration of this reality.
After China joined the WTO, strengthening intellectual property protection through law has become an urgent task. Since its founding and constitutional establishment over two centuries ago, the U.S. has always regarded intellectual property law as a crucial component of its legal system. Today, it is not only the world's largest exporter of intellectual property but also a major driving force behind the establishment of international intellectual property protection systems, motivated by its own interests. Lawyer Zhang Dongming provides a concise yet comprehensive introduction to the U.S. patent system for readers concerned with improving China's patent law system, while Lawyer Ling Zi-Dong summarizes the major patent cases decided by the U.S. Supreme Court over the past year.
As the saying goes, "Comparison reveals differences." Professor Xin Yahong's comparative analysis of U.S. and Chinese copyright laws offers a unique perspective for understanding the U.S. copyright system. Additionally, Lawyer Xin Cang's introduction to U.S. law regarding copyright and defamation in published works, as well as Mr. Liu Guizeng's article on trademark rights and conflicts with META tags in the internet, help fill gaps in domestic research in these areas.
In the early 21st century, China, growing increasingly powerful, has become one of the world's largest exporters of goods, while domestic foreign investment trends continue to rise. In the business world, as in battlefields, it is essential to know oneself and one's enemies. Therefore, relevant domestic authorities must gain legal insights while expanding markets and establishing a foothold. Regarding disputes over the delivery of goods, Lawyer Lin Xiaoyun's article provides a relatively comprehensive introduction and analysis of U.S. law concerning the buyer's rights to receive goods. In the context of foreign bank investment law, Lawyers Chen Xiaomin and Peng Haiyan offer a brief yet accurate overview of the procedures and standards for foreign banks to become "financial holding companies" in the U.S. At the same time, we hope these introductions can provide some reference for domestic courts and other relevant authorities.
The "Enron" scandal exposed the severe flaws in U.S. corporate and securities law, shocking both the U.S. government and the public, leading to a series of legal reforms. As the saying goes, "A lesson from the past can guide the future." We hope that Lawyer Chen Weiheng's review of the 2002 U.S. Accounting and Corporate Governance Reform Act, along with the contributions from Cleary Gottlieb Steen & Hamilton LLP, will provide some inspiration for domestic authorities in preventing a "Enron" tragedy in China and establishing effective corporate liability laws to protect investors' interests. Lawyer Zhang Xuan then introduces the U.S. anti-dumping law under the WTO framework.
Every country's legal system has a symbiotic relationship with its legal profession. It can be said without exaggeration that even the best laws are merely empty words without a well-qualified, independent, and rights-protected legal community. The high degree of rule of law in American society is inseparable from the status and influence of its lawyers. In fact, the U.S. political system itself is largely a product of its legal profession. Lawyer Zhang Hailing's article, "Lawyers in the Presidency," written in a lively and fluent style, reveals the unique relationship between American lawyers and the political sphere. However, the status and influence of American lawyers are also inseparable from the continuous improvement of their self-regulatory mechanisms over the past three centuries, dating back to the colonial era. Lawyer Huang Wangzhen's introduction to the American Bar Association, along with Lawyers Li Weiqi and Zhang Zherui's overview of the profit-sharing mechanism in U.S. partnership law firms, reflect different aspects of American lawyers' efforts to adapt to the needs of the global market and adjust their professional and organizational forms. For Chinese lawyers facing competition from foreign legal professionals after China's entry into the WTO, this information should hold significant reference value.
Additionally, Professor Luo Wei's article on how to freely search for U.S. law online provides a practical guide for Chinese lawyers seeking to explore American law.
The United Kingdom, a nation built on immigrant culture, has always prided itself on its tolerance toward immigrants. However, after the 9/11 terrorist attacks, what major changes have occurred in U.S. immigration policy? This is undoubtedly a topic of great interest to many domestic readers. Lawyer Feng Dawei's article provides a detailed introduction to the changes in U.S. immigration policies and regulations before and after the 9/11 attacks, reflecting to some extent the new challenges faced by countries worldwide after the Cold War: how to balance national security with personal freedom in the face of the spread of international terrorism.
In addition to the above articles, the editorial team has also written several short pieces introducing various aspects of U.S. federal court procedures, hoping to help readers better understand the specific operation of the U.S. legal system.
In recent years, legal exchanges between the U.S. and China have become increasingly frequent, from small streams to vast rivers. To share in the joy of these encouraging developments, we have introduced a section titled "U.S.-China Legal Exchange Briefs." Due to time constraints, many messages could not be included, and we apologize for any inconvenience. We welcome readers to submit such messages, which will be published verbatim starting with the next issue.
U.S. law is a vast and complex system. Regularly introducing its evolution and developments to domestic readers is no easy task. It is precisely for this reason that the U.S.-China Bar Association is particularly suitable to host this journal. The U.S.-China Bar Association is a non-profit organization dedicated to promoting legal exchange between the U.S. and China, established in New York in 1995. It currently has nearly 200 members, including practicing lawyers and legal professionals in the U.S. and China, as well as Chinese students studying at U.S. law schools.
In terms of academic exchange, the U.S.-China Bar Association has collaborated with institutions such as the Benjamin N. Cardozo School of Law, the New York Chapter of the Asia-Pacific Bar Association, and the China Institute in New York to hold multiple academic seminars. It also regularly hosts annual meetings and bi-monthly gatherings, inviting prominent legal professionals from both China and the U.S. to deliver lectures and publishes the U.S.-China Bar Association Journal periodically. Additionally, the association has participated in and assisted with numerous mutual visits between legal professionals from the U.S. and China.
Due to the majority of its members being experienced lawyers in the U.S. or scholars with teaching experience, with firsthand insights into the practical operation of U.S. law and strong Chinese language skills, the articles they write generally avoid the limitations of "looking at the flowers from afar" while being more accessible in style to domestic readers.