Publications

Margaret K. Lewis and Jerome A. Cohen. How Taiwan’s Constitutional Court Reined in Police Power: Lessons for the People’s Republic of China. Fordham Law Review

The path toward abolition—albeit winding, long, and complex—is a glowing example of the judiciary, executive, and legislature carrying out their respective duties in a democratic, cooperative, and relatively transparent manner...

Jeremy Daum. Review Essay: Challenge to China: How Taiwan Abolished Its Version of Re-Education Through Labor. NYU Journal of International Law and Politics

Jerome Cohen and Margaret K. Lewis's recent book, Challenge to China, offers a unique historical vantage point from which to understand two recently abolished, severe forms of administrative detention: the liumang system from Taiwan, and China's re-education through labor (RTL) system. The two systems, both of which allowed police to bypass the normal criminal justice system in imposing punishments of several years' detention on light offenders, had long been viewed as indispensable tools for law enforcement. 

James B. Jacobs. The Eternal Criminal Record. Harvard University Press

For over sixty million Americans, possessing a criminal record over¬shadows everything else about their public identity. A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s inter¬actions with just about everyone else. The Eternal Criminal Record (Harvard) makes transparent an all-pervading system of police databases and identity-screening that has become a routine feature of American life.

Eva Pils. China's Human Rights Lawyers: Advocacy and Resistance. Routledge Research in Human Rights Law

This book offers a unique insight into the role of human rights lawyers in Chinese law and politics. In her extensive account, Eva Pils shows how these practitioners are important as legal advocates for victims of injustice and how bureaucratic systems of control operate to subdue and marginalise them. 

孔杰荣 (柯恩): 解决与中国的国际商事争端:过去与现在 (PKU Law Review)

原文刊载于第47卷第3期(2014年11月)北大法律评论. 点击此处阅读

英文版

解决与中国的国际商事争端:过去与现在

作者:孔杰荣(柯恩)

翻译者:蒋超翊

内容摘要:调解、仲裁和司法裁决作为解决与中国的国际商事纠纷的三大主要机制,在过去的40年里得到了长足发展。尽管中国政府对调解一贯有着传统偏好,但国际调解效果并不理想。国际仲裁的质量则因当事人所选择机构的不同呈现出较大的差异。值得肯定的是,中国法院已经为解决涉外商事纠纷和其他争端提供了一个合适的制度和程序框架。但这些改革仍不足以使外国公司确信,他们有一个持续公正和可靠的诉讼机构来解决纠纷。法官和法院的独立性、公正性和专业性仍有待提高。

全文参见: http://usali.org/wp-content/uploads/2015/03/JAC_PKULAWREVIEW.pdf

 

Li Ling. The Chinese Communist Party and People’s Courts: Judicial Dependence in China. American Journal of Comparative Law

By tracing the historical development of the relation between the Chinese Communist Party and China’s courts, this article finds that in order to subjugate the state as a whole to its superior power, the Party has confined judicial power to a ranking order which it has determined and administered. 

Jerome A. Cohen. Respect for International Laws can Keep the Peace between China and the US. SCMP (South China Morning Post)

Although China’s increasingly “assertive” international conduct has naturally stirred widespread concern in both Asia and the US, especially regarding the South China Sea, an overview of Beijing’s foreign policy suggests a less alarming perspective. 

Ling Li. ‘Rule of law’ in a Party-state – A conceptual interpretive framework of the constitutional reality of China. Asian Journal of Law

This article proposes a “dual normative system” as a conceptual framework for the interpretation of the structural features of the Party-state. It also contends that this dual normative system shapes the constitutional reality of China. 

Aaron Halegua. China’s restrictions on barefoot lawyers could backfire. SCMP (South China Morning Post)

n April 2005, the blind activist Chen Guangcheng led a group of families to a courthouse in rural China. After suffering unlawful detentions and forced sterilisations under the government’s one-child policy campaign, they planned to sue the township mayor. A judge initially refused to accept the case. But Chen and the villagers argued there was no legal basis to reject it and insisted it be accepted. The judge relented and the lawsuit proceeded

Jerome A. Cohen. Detention of Women Activists Makes a Mockery of China’s Rule of Law Aspirations. SCMP (South China Morning Post)

Although a veteran observer of Chinese efforts to secure a just and stable legal system, I was surprised when Chinese police formally detained five women opponents of sexual harassment ahead of International Women’s Day.

Aaron Halegua. China’s new collective bargaining rule is too weak to ease labour conflicts. SCMP (South China Morning Post)

Strikes in China are on the rise: 2014 witnessed over 1,378, double the number in 2013. This surge intensified in the run-up to the Lunar New Year. Guangdong is the hub of both export manufacturing and labour unrest. The strikes there have been increasingly well coordinated and growing in size – nearly 40,000 workers at a Nike footwear supplier last year, another 3,000 workers at a Hewlett-Packard subsidiary last month.

解决与中国的国际商事争端:过去与现在

原文刊载于第47卷第3期(2014年11月)北大法律评论. 点击此处阅读

英文版

解决与中国的国际商事争端:过去与现在

作者:孔杰荣(柯恩)

翻译者:蒋超翊

内容摘要:调解、仲裁和司法裁决作为解决与中国的国际商事纠纷的三大主要机制,在过去的40年里得到了长足发展。尽管中国政府对调解一贯有着传统偏好,但国际调解效果并不理想。国际仲裁的质量则因当事人所选择机构的不同呈现出较大的差异。值得肯定的是,中国法院已经为解决涉外商事纠纷和其他争端提供了一个合适的制度和程序框架。但这些改革仍不足以使外国公司确信,他们有一个持续公正和可靠的诉讼机构来解决纠纷。法官和法院的独立性、公正性和专业性仍有待提高。

Discussion. Rule of Law—Why Now? ChinaFile

Jerome Cohen, Professor of Law at NYU and Co-Director of the US-Asia Law Institute, Ira Belkin, Executive Director of the US-Asia Law Institute, Li Ling, Senior Research Scholar at the US-Asia Law Institute, and Margaret Lewis, Associate Professor of Law at Seton Hall Law School and an Affiliated Scholar at the US-Asia Law Institute, have contributed to a ChinaFile conversation on the upcoming Fourth Plenary Meeting of the CPC.

Jerome A. Cohen. Settling International Business Disputes with China: Then and Now. Cornell International Law Journal

The People’s Republic of China (PRC) has come a long way with respect to settling international business disputes. At the time of my first Chinese business discussions at the Canton Trade Fair in May 1973, the PRC was still using only Soviet-style foreign trade companies to conduct trade with the socialist world and other foreign entities.

Jerome A. Cohen. Zhou Yongkang case shows China’s rule of law still good only in theory. SCMP (South China Morning Post)

For decades, China’s communist leaders have admonished their cadres to “combine theory and practice”. This is sound advice for any society. Yet, it is easier said than done. This perennial challenge now confronts the party’s Central Committee as it prepares to convene the highly anticipated fourth plenary session in October.

Margaret K. Lewis and Jerome A. Cohen. How Taiwan’s Constitutional Court Reined in Police Power: Lessons for the People’s Republic of China. Fordham International Law Journal

For over six decades, police in Taiwan could lock up people they deemed “hooligans” (liumang) for years with at most a cursory review by the courts. It was not until Taiwan’s Constitutional Court (the “Court”)—also known as the Grand Justices of the Judicial Yuan—stepped in that important change began to occur, culminating in the ultimate repeal of the law that authorized the police-dominated process. As a result, in 2009, all of Taiwan’s imprisoned liumang who did not have concurrent criminal sentences were released.