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Murphy's Law
by Valerie Sartor
2008-06-04 09:13:44
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With her fair skin, rosy cheeks and silky, straw colored hair Ann Murphy embodies a true Irish rose. But don’t be fooled by her delicate beauty: behind those baby blues is a sharp wit that has been honed by decades of hard intellectual work. This female lawyer started her 23-year legal career in a job that strikes terror into most American’s hearts: the IRS. But for the last eight years Mrs. Murphy has taught Tax, Evidence and Wills and Trusts at Gonzaga University in Spokane, Washington. Last year she was awarded a prestigious Fulbright Lecturer Scholarship and came to Beijing with her husband and two young boys.

“It’s been an amazing experience, different from anything I’ve done before,” she said, “I particularly wanted to come to Beijing because I wanted to share a China adventure with my family. Fulbrights are great that way; they encourage people with a spouse and children to bring their spouse and children.” Since her arrival last year Mrs. Murphy has been teaching at two universities: the Central University of Finance and Economics and the Chinese University of Political Science and Law. She also flies around China and gives guest lectures to other universities because there is such a great demand in China for Guest Law Professors.

Murphy’s specialty is tax law but she loves teaching all aspects of the law. “Teaching methods and Chinese law are both vastly different than the US system,” Murphy said. “When I teach international tax law I must usually lecture because my students rarely ask questions or start up a dialogue but in the US it’s hard to keep the students quiet. And when I teach evidence – we’re looking over the Phil Spector trial right now as our example because it’s full of murder and intrigue – I gave my Chinese students the evidence, the 4 pertinent rules of evidence and assigned them to play roles; prosecutor, defendant, etc. But on the next class we set to have our mock trial no one would participate. I think the students here are reluctant to speak in class. Yet in the US many times I have been unable to convince my students to stop talking.” She added that it was one thing to study the law and another thing to apply the law, with both being necessary learning tools.

In China a law degree is an undergraduate degree whereas in the US one must finish a four-year undergraduate degree before applying to law school, which lasts three years and an optional additional year if one pursues an LL.M degree – a master’s degree in a particular area of law, such as tax. “In my opinion, in the U.S. students do not begin working really hard until they attend college. In China, it seems that they work very, very hard before college, then seem to relax a bit more in college,” Murphy explained, “American university students work harder than high school kids and law school in the US is really quite hard.”

The bar examination to be a lawyer is also different. The most current bar pass rate in China is 20%. In the United States, bar examinations are different in each state. The overall pass rate is 70% - with each state pass rate different – from 40% to 90%. Also, in the U.S. a student takes the bar exam after law school. Here in China, a student may take the bar exam at any time after he or she has completed his or her undergraduate “Here Chinese students take the Bar Exam while they’re in law school, we do it after graduating,” she added.

Another significant difference is age. “Chinese students are much younger, thus they have less employment and life experiences. In the USA anyone who receives a high enough score on the Law School Aptitude Test (LSAT) may attend law school, regardless of his or her age. It’s pretty common now for middle-aged people to go to law school. Many of them have families; many have life experiences that help them really understand certain areas of the law they’re studying. For example, I had a retired police officer in a course back in the US. When we were covering the “excited utterance” clause he understood the significance exactly because, as a former officer, he was instructed to add in police reports at accident scenes that the ‘person was in a state of excitement and/or highly upset’ in order to allow this bit of evidence to go through and not be considered as heresay. In my class he learned the legalities of the phrase: the law says one cannot bring in a statement from the outside – heresay – as evidence unless a hearsay exception applies. One of these exceptions is the “excited utterance” – the speaker is highly excited or agitated because while in this state right at the time of the event the law says a person is not contemplating a lie or mistruth.”

Ms. Murphy added that her students do not seem to have as much optimism toward future employment as American law students. “In the US at least 50% of the law school graduates get good jobs by the date of their graduation and nearly everyone can find work after acquiring this degree. It’s quite useful for banking, business and in small firms; you don’t have to just be a lawyer because the degree implies you have acquired excellent proficiency in critical thinking. Modern law students must do much more than memorize large chunks of information, they learn to analyze and to think ‘like a lawyer’.” China’s vast population makes job competition fiercer than in other countries. The increasing numbers of university graduates puts pressure on the government, which must create 24 million new jobs every year.

Like everything else in China laws are changing and evolving quickly. “The Chinese have a civil based system: all their laws are written down,” Murphy explained, “It’s all in code, and much of it was imported from Germany and Russia right after Mao took power. Financial and tax laws started getting revised after the reform and opening in the late seventies. The People’s Congress wrote these newer laws; they’re good but of course are not comprehensive enough because all of the possibilities are not evident. The Ministries refine the statutes with what are called “implementation regulations.” For example, the Ministry of Finance (through the State Administration of Taxation) has implementation regulations that clarify the new tax laws that accommodate changes generated from the economic progress China is experiencing.”

According to Murphy the US system is quite different. First, laws are written according to 50 state systems and according to one federal system: essentially 51 separate systems. “But in the US a case can be tried in a certain district in a certain state. If necessary the case can climb higher and be tried by the Supreme Court system,” Murphy explained. “This means that the US is a conglomeration of separate entities, each with their own legal system, plus Indian Territory, with everyone united by the Supreme Court. Also, the U.S. legal system is based on common law – which we acquired from England. Judges essentially make law through their opinions. In contrast, China’s laws are uniform, but many times the results vary, depending on the province where the case is tried.”

Judges work differently as well. “In China judges are poorly paid and often not as respected as US judges,” Murphy said. “Their training isn’t as advanced as in the US and they don’t write law. There are always gaps in the written law, consequently cases exist of Courts, with sometimes the Supreme Court adding laws and that new case law can be highly significant.” Murphy cited case law enacted by judges, specifically the right to privacy rulings that uphold the right of women to seek out abortions. “There is no right to privacy in the United States constitution, but the U.S. Supreme Court found that there is a right – it simply has never been written down,” she clarified. “Because China’s legal system is still evolving the country doesn’t have the volume of case law that rests in the UK and US system,” she added but guessed that this would happen over time now that China has opened to the West.

China’s reforms are creating the need for new laws, with foreign businesses affecting more than the Chinese economy. “Foreign companies are generating legal change in China,” Murphy said, “Foreign corporations want the assurance that if something is wrong, say, employee theft is occurring, then they can have recourse to the law to seek redress. Tax laws and anti-trust laws are now maturing. This is a natural process but it’s happening a lot faster in China than in other places around the world. In the US, for example, from 1963-1974 people debated on how to create uniform laws regarding evidence. This 11 year process is expected to take only a few years here in China.”

“You know it’s very interesting to be a lawyer here in China,” Murphy said, “I go to conferences and here people talk about resolving disputes by taking all the parties out to a big banquet. Everyone has a good time and then comes to an amicable resolution. Some Chinese have argued that they don’t need all these hundreds of laws - and consequent lawsuits - in part of my heart I agree with them. The US has become lawsuit crazy at times. Yet these laws protect citizens, they’ve established safety standards, medical morality and a myriad of ways to keep the US population safe. China has no uniformity in the laws as they currently exist and even lacks statutes that address specific issues; big gaps exist. Yet Chinese laws change much quicker than laws in the USA, I’d guess, 25% faster than the US legal system. Unlike the US, public input is minimal regarding the law; you don’t have different political parties squabbling over legalities. People here are working hard to get everything set up as best they can.”

Murphy said she’s enjoyed her stay in China; she extended her teaching schedule an extra semester. “Having the opportunity to travel around China, both to lecture and to play tourist with my family, has taught me a great deal. I hope I’ve given as much as I’ve gotten,” she said with a grin.

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