Pioneering the Study of Chinese Law in the West

Pioneering the Study of Chinese Law in the West As one of the many students who have benefited, directly and indirectly, from the unconventional choice that Jerome A. Cohen (“Jerry” as we all know him) made to undertake the study of Chinese law in the 1960s, I have long been aware of the great debt that we owe to Jerry for his adventurous spirit and infectious enthusiasm. He was uniquely able to both inspire and energize his students while at the same time building an academic enterprise—and later a thriving international legal practice—at two great American law schools (Harvard and New York Universities) and a major international law firm (Paul, Weiss, Rifkind, Wharton & Garrison). Looking back at what has been accomplished in this field, it is truly astonishing what his intellectual ambition and focus on international understanding have achieved. All the more remarkable, given the international situation at the inception of Jerry’s extraordinary career, was the foresight of Jerry and his original sponsor, the Rockefeller Foundation, to imagine the future importance of the People’s Republic of China (PRC) and its legal system. Remembering the antipathy of the Western world following the creation of the People’s Republic China in 1949 (thenceforth known as “Red China”) and the circumstances of the Cold War, the very idea of the PRC having a legal system—much less one worthy of academic attention—was almost laughable. Even the Union of Soviet Socialist Republics (USSR), the antagonist of the United States and the West during that era, was considered a better bet; indeed, at Harvard and Columbia Law Schools, the academics Harold Berman and John Hazard had been studying the USSR’s legal order. Japan also emerged, following its defeat in World War II, as having a legal order worth the legal academy’s attention. First, at the University of Washington, and later at a few other U.S. law schools, scholars such as Dan Fenno Henderson began documenting both the legal history and postwar legal development of Japan. The PRC at this time seemed like another planet, and its legal order would be unlikely to merit serious study. Jerry writes that his study of the Chinese legal system, beginning with the Chinese language, commenced in August 1960. The timing might have proven auspicious. A new generation was about to contest the U.S. presidency, represented by Richard Nixon and John F. Kennedy. While Nixon was seen as a staunch anticommunist and unlikely to make overtures to Red China, he had visited the USSR as Vice President and even confronted the country’s leader, Nikita Khrushchev, about the merits of capitalism and communism in the famous “Kitchen Debates.” Kennedy was seen as a young visionary who might blaze new paths and bring fresh analysis to long-lasting international impasses. Of course, Kennedy won the presidency; however, Cuba, rather than China, became his administration’s focus. Before and after Kennedy’s assassination, tension in Southeast Asia leading to the Vietnam War made any rapprochement with the PRC increasingly unlikely. During this time, Jerry was living and studying in Hong Kong, interviewing refugees to learn what could be gleaned about the legal system of the PRC from them, many of whom had been involved—actively or passively—with what passed for justice in the PRC at that time. In the mid-1960s, two groundbreaking conferences on U.S.–China policy were held in 1964 and 1965. A one-day “Institute on China Today” conference held at the University of California, Berkeley, in 1964, and a “National Conference on the United States and China” in Washington, D.C., in 1965 helped lift an unofficial ban on public debate about China policy and gave a common platform to leaders from many sectors to reshape the U.S. approach toward China.1 At the time, U.S. presidents wanted to move closer to normalization of relations with China but faced resistance in Congress. This was hardly surprising, in the light of the Cold War and anticommunist sentiment in the United States. For example, even after normalization of relations with the PRC in 1979 by President Jimmy Carter, Senator Barry Goldwater brought suit2 against President Carter for abrogating the Sino-American Mutual Defense Treaty that had obligated the United States to come to Taiwan’s defense; its termination was a precondition for the normalization of U.S.–PRC relations. In the mid-1960s this eventuality was quite unthinkable. The first steps toward normalization followed in two conferences, which occurred in 1964 and 1965, part of what we would now term “civil society.” Two organizations emerged from these events. One was the National Committee on U.S.–China Relations, a nonprofit educational organization that encourages understanding of China and the United States between citizens of both countries. The National Committee became known early on in U.S.–PRC relations for its organization and sponsorship of the famous “ping pong” diplomacy, initiating people-to-people contacts between the two countries.3 The other, the Committee on Scholarly Communication with the People’s Republic of China (later known by the acronym CSCC)—jointly sponsored by the American Council of Learned Societies (ACLS), the National Academy of Sciences (NAS), and the Social Science Research Council (SSRC)—was established in 1966 to promote contacts between individual American scholars and private scholarly groups and their counterparts in China. The beginnings of this thriving relationship were not necessarily always promising. The Committee on Scholarly Communication with the People’s Republic of China provided an early administrative mechanism to promote academic and scientific exchanges between the United States and China. Committed to the elimination of all barriers to open intellectual discourse between the two countries, the CSCC early on confronted both the rigidities of a centrally controlled educational and research bureaucracy and the considerable suspicions of communist exchange officials. One illustration of this was the reaction in the early years of the exchange relationship by the Chinese Academy of Sciences (later host of CSCC’s Beijing Office) to a request from Dr. Fred Burkhardt, President of the ACLS, for PRC representation at an international conference on Taoism. In reply to the invitation, an Academy official noted: Dear Mr. Burkhardt: We the Chinese people are very dubious about your purpose and intention . . . . At present the People’s Republic of China has only Mao Tse-tung thought. All other sects are big poisonous weeds . . . . The aggressive ambitions and schemes of the United States can never be concealed before the devil-finding mirror of Mao Tse-tung thought. Here we solemnly warn you that if you dare to play any schemes and tricks, we will certainly smash your dog head . . . . [signed] Red Guard Team in Academy of Science, Peking[.]4 Notwithstanding this inauspicious early contact, a few years later the trickle of delegation visits began, soon to become a steady stream of exchange of visitors and then a deluge after 1978. At that time, the Academy of Science spun off the Chinese Academy of Social Sciences, which has since maintained among its thirty-five institutes an Institute of Law. As Jerry has noted, he and other academics were sometimes invited to China during the 1970s, often as advisor-tour guides for academic delegations of great interest to their Chinese hosts, usually in the natural sciences. Nevertheless, these visits provided important insights into the situation on the mainland of China before the doors were more widely opened following the end of the Cultural Revolution (1966–1976) and the ascent of Deng Xiaoping. With that, a much more robust program of exchanges became possible, including the contacts with Chinese lawyers (just emerging from almost two decades of obloquy beginning in the anti-rightist movement of 1957) that Jerry described elsewhere in this issue. My task here is to describe the groundwork that Jerry was laying before the period 1979–1981 when he was working inside the PRC. No account of Jerry’s life and works would be complete without a catalog of the courses he created and taught, the books and monographs he authored or sponsored, the number of scholars whose careers he helped to launch, and the many students he trained both in the United States and China over his long career. The focus of what follows is limited to the period before 1979 and mostly concentrates on what he accomplished at Harvard Law School. To borrow the famous Chinese aphorism, this account will be like “viewing flowers from horseback,” since limitations of time and space (along with a very likely deficient memory) make it impossible to encompass everything. Beginning with Jerry’s masterful book, The Criminal Process in the People’s Republic of China, 1949–1963: An Introduction, he produced landmark works in describing what did exist in Maoist China before the Cultural Revolution as an embryonic legal order with Chinese communist characteristics. In order to obtain information for his study, he spent part of the early 1960s in Hong Kong, interviewing mainland refugees to recount their experiences, while at the same time gleaning (and translating) available material about Chinese criminal law. With keen inductive insight, he tried to create a picture of the larger system. This volume was followed by two edited volumes that resulted from conferences Jerry had organized—Contemporary Chinese Law: Research Problems and Perspectives (1970) and China’s Practice of International Law: Some Case Studies (1972). These, along with several earlier law review articles—Chinese Mediation on the Eve of Modernization,5 and The Criminal Process in the People’s Republic of China: An Introduction6—established Jerry in the forefront of the pioneers of studying Chinese law in the United States.7 Jerry was equally energetic in promoting the work and careers of others during this period. A series, Harvard Studies in East Asian Law, inaugurated with a landmark work by China scholar Derk Bodde and law professor Clarence Morris,8 carried forward with works not only by, or edited by, Jerry but by a wide range of scholars and students of the law of China and other East Asian countries. These included important works on Japan, Korea, and Vietnam, some original contributions and others reprints of works that first appeared in law reviews and journals. Among his students during this era were a large number of aspiring lawyers and legal academics, who went on to distinguished careers at leading U.S. and international law firms as well as university law faculties in the United States, Europe, Asia, and Australia. He also helped to promote the careers of other academics who had started out or moved into the study of Asian law, bringing them to Harvard as visiting researchers and scholars and housing them in a congenial office and conference space on the fourth floor of Harvard Law School’s Pound Hall, which even contained a small working research library. Whatever their interests—contemporary law, legal history, comparative study—Jerry welcomed them all and provided an opportunity for scholarly discourse and, very importantly, a series of lectures and talks by interesting visitors who flocked to Harvard’s East Asian Legal Studies center, drawn by Jerry’s personal and scholarly magnetism. Those of us who were there during that period retain fond memories of learning and friendship in that special ambience. Most importantly, Jerry brought his academic gravitas to the emerging field of Asian law in the West. It is difficult to stress just how important this was to its future development and the directions subsequent scholars have taken. In many ways, he was the legal academic counterpart of his Harvard colleague, John King Fairbank (who had urged the Harvard Law Faculty to lure Jerry away from Berkeley). Each has had a dual legacy of personal scholarly impact on the study of East Asia as well as developing the field by nurturing young talent and encouraging fellow scholars to delve into fields of study that make numerous demands on linguistic, cultural, and disciplinary skills to widen our understanding of China. When Jerry left Harvard to teach and eventually to practice law in the PRC, he seemed to have taken to heart the advice from Confucius in the Analects: “學而時習之, 不亦說乎” (“Is it not a pleasure, having learned something, to try it out at due intervals?”).9 He went on to a second distinguished career as a partner at Paul, Weiss, building a practice in Beijing and Hong Kong for that firm, which endures today, staffed by (among others) younger attorneys Jerry trained. His academic ambitions undiminished, he later returned to the United States and established and built another leading program at New York University, now ensconced in the U.S.–Asia Law Institute.10 Still looking for additional channels for his energy, Jerry has also served as C.V. Starr Senior Fellow and Director for Asia Studies at the Council on Foreign Relations, where he is still an adjunct senior fellow today,11 all while remaining of counsel at Paul, Weiss. It is a life well lived and much admired by those of us who have benefited from his consideration. Footnotes 1. Jan Carol Berris, The Evolution of Sino-American Relations: A View from the National Committee, inEducational Exchanges: Essays on the Sino-American Experience 80 (J.K. Kallgren & D.F. Simon eds., 1986). See also Warren I. Cohen, While China Faced East: Chinese-American Cultural Relations, 1949–71, inEducational Exchanges: Essays on the Sino-American Experience, supra, at 44. 2. Barry Goldwater v. James Earl Carter, President of the United States, 444 U.S. 996 (1979). 3. Our History, Nat’l Comm. U.S.–China Rel., https://www.ncuscr.org/about/our-history (last visited Nov. 19, 2017). 4. The author discovered this material while serving as Executive Director of the CSCC from 1993 to 1995. 5. 54 Cal. L. Rev. 1201 (1966). 6. 79 Harv. L. Rev. 469, 476 (1966). 7. Around the same time, Stanley Lubman had already followed a similar path, as did one of Jerry’s first students, Victor Hao Li. Lubman taught at Berkeley, and Li took up a position at Stanford. Their work also established some early landmarks in legal scholarship: S. Lubman, Mao and Mediation: Politics and Dispute Resolution in Communist China, 55 Cal. L. Rev. 1284 (1967); Victor H. Li, Law Without Lawyers (1977). 8. Derk Bodde & Clarence Morris, Law in Imperial China: Exemplified by 190 Ch’ing Dynasty Cases (Translated from the Hsing-an hui-lan), with Historical, Social, and Juridical Commentaries (1970). 9. The Analects: Sayings of Confucius (D.C. Lau trans., Penguin Classics 1979). 10. U.S.–Asia Law Inst., https://usali.org/ (last visited Nov. 19, 2017). 11. Profile: Jerome A. Cohen, Council on Foreign Rel., https://www.cfr.org/experts/jerome-cohen (last visited Nov. 19, 2017). © The Author(s) [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Pioneering the Study of Chinese Law in the West

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Abstract

As one of the many students who have benefited, directly and indirectly, from the unconventional choice that Jerome A. Cohen (“Jerry” as we all know him) made to undertake the study of Chinese law in the 1960s, I have long been aware of the great debt that we owe to Jerry for his adventurous spirit and infectious enthusiasm. He was uniquely able to both inspire and energize his students while at the same time building an academic enterprise—and later a thriving international legal practice—at two great American law schools (Harvard and New York Universities) and a major international law firm (Paul, Weiss, Rifkind, Wharton & Garrison). Looking back at what has been accomplished in this field, it is truly astonishing what his intellectual ambition and focus on international understanding have achieved. All the more remarkable, given the international situation at the inception of Jerry’s extraordinary career, was the foresight of Jerry and his original sponsor, the Rockefeller Foundation, to imagine the future importance of the People’s Republic of China (PRC) and its legal system. Remembering the antipathy of the Western world following the creation of the People’s Republic China in 1949 (thenceforth known as “Red China”) and the circumstances of the Cold War, the very idea of the PRC having a legal system—much less one worthy of academic attention—was almost laughable. Even the Union of Soviet Socialist Republics (USSR), the antagonist of the United States and the West during that era, was considered a better bet; indeed, at Harvard and Columbia Law Schools, the academics Harold Berman and John Hazard had been studying the USSR’s legal order. Japan also emerged, following its defeat in World War II, as having a legal order worth the legal academy’s attention. First, at the University of Washington, and later at a few other U.S. law schools, scholars such as Dan Fenno Henderson began documenting both the legal history and postwar legal development of Japan. The PRC at this time seemed like another planet, and its legal order would be unlikely to merit serious study. Jerry writes that his study of the Chinese legal system, beginning with the Chinese language, commenced in August 1960. The timing might have proven auspicious. A new generation was about to contest the U.S. presidency, represented by Richard Nixon and John F. Kennedy. While Nixon was seen as a staunch anticommunist and unlikely to make overtures to Red China, he had visited the USSR as Vice President and even confronted the country’s leader, Nikita Khrushchev, about the merits of capitalism and communism in the famous “Kitchen Debates.” Kennedy was seen as a young visionary who might blaze new paths and bring fresh analysis to long-lasting international impasses. Of course, Kennedy won the presidency; however, Cuba, rather than China, became his administration’s focus. Before and after Kennedy’s assassination, tension in Southeast Asia leading to the Vietnam War made any rapprochement with the PRC increasingly unlikely. During this time, Jerry was living and studying in Hong Kong, interviewing refugees to learn what could be gleaned about the legal system of the PRC from them, many of whom had been involved—actively or passively—with what passed for justice in the PRC at that time. In the mid-1960s, two groundbreaking conferences on U.S.–China policy were held in 1964 and 1965. A one-day “Institute on China Today” conference held at the University of California, Berkeley, in 1964, and a “National Conference on the United States and China” in Washington, D.C., in 1965 helped lift an unofficial ban on public debate about China policy and gave a common platform to leaders from many sectors to reshape the U.S. approach toward China.1 At the time, U.S. presidents wanted to move closer to normalization of relations with China but faced resistance in Congress. This was hardly surprising, in the light of the Cold War and anticommunist sentiment in the United States. For example, even after normalization of relations with the PRC in 1979 by President Jimmy Carter, Senator Barry Goldwater brought suit2 against President Carter for abrogating the Sino-American Mutual Defense Treaty that had obligated the United States to come to Taiwan’s defense; its termination was a precondition for the normalization of U.S.–PRC relations. In the mid-1960s this eventuality was quite unthinkable. The first steps toward normalization followed in two conferences, which occurred in 1964 and 1965, part of what we would now term “civil society.” Two organizations emerged from these events. One was the National Committee on U.S.–China Relations, a nonprofit educational organization that encourages understanding of China and the United States between citizens of both countries. The National Committee became known early on in U.S.–PRC relations for its organization and sponsorship of the famous “ping pong” diplomacy, initiating people-to-people contacts between the two countries.3 The other, the Committee on Scholarly Communication with the People’s Republic of China (later known by the acronym CSCC)—jointly sponsored by the American Council of Learned Societies (ACLS), the National Academy of Sciences (NAS), and the Social Science Research Council (SSRC)—was established in 1966 to promote contacts between individual American scholars and private scholarly groups and their counterparts in China. The beginnings of this thriving relationship were not necessarily always promising. The Committee on Scholarly Communication with the People’s Republic of China provided an early administrative mechanism to promote academic and scientific exchanges between the United States and China. Committed to the elimination of all barriers to open intellectual discourse between the two countries, the CSCC early on confronted both the rigidities of a centrally controlled educational and research bureaucracy and the considerable suspicions of communist exchange officials. One illustration of this was the reaction in the early years of the exchange relationship by the Chinese Academy of Sciences (later host of CSCC’s Beijing Office) to a request from Dr. Fred Burkhardt, President of the ACLS, for PRC representation at an international conference on Taoism. In reply to the invitation, an Academy official noted: Dear Mr. Burkhardt: We the Chinese people are very dubious about your purpose and intention . . . . At present the People’s Republic of China has only Mao Tse-tung thought. All other sects are big poisonous weeds . . . . The aggressive ambitions and schemes of the United States can never be concealed before the devil-finding mirror of Mao Tse-tung thought. Here we solemnly warn you that if you dare to play any schemes and tricks, we will certainly smash your dog head . . . . [signed] Red Guard Team in Academy of Science, Peking[.]4 Notwithstanding this inauspicious early contact, a few years later the trickle of delegation visits began, soon to become a steady stream of exchange of visitors and then a deluge after 1978. At that time, the Academy of Science spun off the Chinese Academy of Social Sciences, which has since maintained among its thirty-five institutes an Institute of Law. As Jerry has noted, he and other academics were sometimes invited to China during the 1970s, often as advisor-tour guides for academic delegations of great interest to their Chinese hosts, usually in the natural sciences. Nevertheless, these visits provided important insights into the situation on the mainland of China before the doors were more widely opened following the end of the Cultural Revolution (1966–1976) and the ascent of Deng Xiaoping. With that, a much more robust program of exchanges became possible, including the contacts with Chinese lawyers (just emerging from almost two decades of obloquy beginning in the anti-rightist movement of 1957) that Jerry described elsewhere in this issue. My task here is to describe the groundwork that Jerry was laying before the period 1979–1981 when he was working inside the PRC. No account of Jerry’s life and works would be complete without a catalog of the courses he created and taught, the books and monographs he authored or sponsored, the number of scholars whose careers he helped to launch, and the many students he trained both in the United States and China over his long career. The focus of what follows is limited to the period before 1979 and mostly concentrates on what he accomplished at Harvard Law School. To borrow the famous Chinese aphorism, this account will be like “viewing flowers from horseback,” since limitations of time and space (along with a very likely deficient memory) make it impossible to encompass everything. Beginning with Jerry’s masterful book, The Criminal Process in the People’s Republic of China, 1949–1963: An Introduction, he produced landmark works in describing what did exist in Maoist China before the Cultural Revolution as an embryonic legal order with Chinese communist characteristics. In order to obtain information for his study, he spent part of the early 1960s in Hong Kong, interviewing mainland refugees to recount their experiences, while at the same time gleaning (and translating) available material about Chinese criminal law. With keen inductive insight, he tried to create a picture of the larger system. This volume was followed by two edited volumes that resulted from conferences Jerry had organized—Contemporary Chinese Law: Research Problems and Perspectives (1970) and China’s Practice of International Law: Some Case Studies (1972). These, along with several earlier law review articles—Chinese Mediation on the Eve of Modernization,5 and The Criminal Process in the People’s Republic of China: An Introduction6—established Jerry in the forefront of the pioneers of studying Chinese law in the United States.7 Jerry was equally energetic in promoting the work and careers of others during this period. A series, Harvard Studies in East Asian Law, inaugurated with a landmark work by China scholar Derk Bodde and law professor Clarence Morris,8 carried forward with works not only by, or edited by, Jerry but by a wide range of scholars and students of the law of China and other East Asian countries. These included important works on Japan, Korea, and Vietnam, some original contributions and others reprints of works that first appeared in law reviews and journals. Among his students during this era were a large number of aspiring lawyers and legal academics, who went on to distinguished careers at leading U.S. and international law firms as well as university law faculties in the United States, Europe, Asia, and Australia. He also helped to promote the careers of other academics who had started out or moved into the study of Asian law, bringing them to Harvard as visiting researchers and scholars and housing them in a congenial office and conference space on the fourth floor of Harvard Law School’s Pound Hall, which even contained a small working research library. Whatever their interests—contemporary law, legal history, comparative study—Jerry welcomed them all and provided an opportunity for scholarly discourse and, very importantly, a series of lectures and talks by interesting visitors who flocked to Harvard’s East Asian Legal Studies center, drawn by Jerry’s personal and scholarly magnetism. Those of us who were there during that period retain fond memories of learning and friendship in that special ambience. Most importantly, Jerry brought his academic gravitas to the emerging field of Asian law in the West. It is difficult to stress just how important this was to its future development and the directions subsequent scholars have taken. In many ways, he was the legal academic counterpart of his Harvard colleague, John King Fairbank (who had urged the Harvard Law Faculty to lure Jerry away from Berkeley). Each has had a dual legacy of personal scholarly impact on the study of East Asia as well as developing the field by nurturing young talent and encouraging fellow scholars to delve into fields of study that make numerous demands on linguistic, cultural, and disciplinary skills to widen our understanding of China. When Jerry left Harvard to teach and eventually to practice law in the PRC, he seemed to have taken to heart the advice from Confucius in the Analects: “學而時習之, 不亦說乎” (“Is it not a pleasure, having learned something, to try it out at due intervals?”).9 He went on to a second distinguished career as a partner at Paul, Weiss, building a practice in Beijing and Hong Kong for that firm, which endures today, staffed by (among others) younger attorneys Jerry trained. His academic ambitions undiminished, he later returned to the United States and established and built another leading program at New York University, now ensconced in the U.S.–Asia Law Institute.10 Still looking for additional channels for his energy, Jerry has also served as C.V. Starr Senior Fellow and Director for Asia Studies at the Council on Foreign Relations, where he is still an adjunct senior fellow today,11 all while remaining of counsel at Paul, Weiss. It is a life well lived and much admired by those of us who have benefited from his consideration. Footnotes 1. Jan Carol Berris, The Evolution of Sino-American Relations: A View from the National Committee, inEducational Exchanges: Essays on the Sino-American Experience 80 (J.K. Kallgren & D.F. Simon eds., 1986). See also Warren I. Cohen, While China Faced East: Chinese-American Cultural Relations, 1949–71, inEducational Exchanges: Essays on the Sino-American Experience, supra, at 44. 2. Barry Goldwater v. James Earl Carter, President of the United States, 444 U.S. 996 (1979). 3. Our History, Nat’l Comm. U.S.–China Rel., https://www.ncuscr.org/about/our-history (last visited Nov. 19, 2017). 4. The author discovered this material while serving as Executive Director of the CSCC from 1993 to 1995. 5. 54 Cal. L. Rev. 1201 (1966). 6. 79 Harv. L. Rev. 469, 476 (1966). 7. Around the same time, Stanley Lubman had already followed a similar path, as did one of Jerry’s first students, Victor Hao Li. Lubman taught at Berkeley, and Li took up a position at Stanford. Their work also established some early landmarks in legal scholarship: S. Lubman, Mao and Mediation: Politics and Dispute Resolution in Communist China, 55 Cal. L. Rev. 1284 (1967); Victor H. Li, Law Without Lawyers (1977). 8. Derk Bodde & Clarence Morris, Law in Imperial China: Exemplified by 190 Ch’ing Dynasty Cases (Translated from the Hsing-an hui-lan), with Historical, Social, and Juridical Commentaries (1970). 9. The Analects: Sayings of Confucius (D.C. Lau trans., Penguin Classics 1979). 10. U.S.–Asia Law Inst., https://usali.org/ (last visited Nov. 19, 2017). 11. Profile: Jerome A. Cohen, Council on Foreign Rel., https://www.cfr.org/experts/jerome-cohen (last visited Nov. 19, 2017). © The Author(s) [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

Journal

American Journal of Comparative LawOxford University Press

Published: Dec 1, 2017

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