Carter G. Bishop, Professor of Law

Forgotten Trust:  A Check-the-Box Achilles’ Heel

Abstract: The 1997 “check-the-box” Regulations replaced the 1960 Kintner corporate resemblance tests, substituting simplicity and certainty for complexity and uncertainty regarding the federal tax classification of unincorporated business entities.  The check-the-box Regulations have attracted some criticism.  One broad modern critique argues that the regulations fail in several important respects to reach their full promise.  While this Article is also critical of the check-the-box Regulations, the approach is different and indeed is based on an issue barely mentioned in the broader modern critique: “it does seem appropriate not to subject the latter type of entity [ordinary trust] to a regime designed to tax businesses.”  Because of this conclusion, the issue was not further explored and the critics failed to seriously consider the reasonable alternatives and consequences of other approaches.  While the broad modern critique is well reasoned in other aspects, this Article directly investigates whether an Achilles’ heel of check-the-box Regulations was its failure to address the ancient but vitally important distinction between business trusts and ordinary trusts.

About the Author: Carter G. Bishop is a Professor of Law at Suffolk University Law School and Visiting Professor of Law (2009-2010) at The Catholic University Columbus School of Law, Washington, DC.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.

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Ian D. Prior, Esq. & Lisa Skehill, Esq.

Beware the Federal Government Bearing Gifts: How the American Recovery and Reinvestment Act of 2009 Could Become a Whistleblowing Trojan Horse

Abstract: According to legend, it was Odysseus of Ithaca who devised the plan to end the ten-year Trojan War by presenting to the Trojans a gift in the form of a giant wooden horse.  The Greeks left the horse at the gates of Troy and apparently sailed away in an act of surrender.  The Trojans accepted the gift and brought the horse through the gates and into the city.  Unbeknownst to the Trojans, a Greek strike force was hidden in the horse.  Late that evening, as the Trojans slept, the concealed Greeks slipped out of the horse and opened the gates to the returning Greek army, who torched Troy and ended the devastating war.  The lesson, of course, is to be wary of seemingly generous gifts left at your doorstep because, like the Trojan Horse, those gifts may contain the seeds of the recipient’s destruction.

The lesson of the Trojan Horse is nowhere more apparent than in the American Recovery and Reinvestment Act of 2009 (the ARRA or the Act), the federal government’s $789 billion economic stimulus plan; an apparent “gift” that could have Trojan Horse-like ramifications for its recipients.  The reason for this is the ARRA’s whistle-blower protection provision.  The provision is designed to prevent state and local governments, as well as their contractors (collectively referred to as “covered employers”), from retaliating against employees who disclose gross mismanagement related to stimulus funds; misuse of stimulus funds; substantial and specific dangers to the public related to the implementation of stimulus funds; abuse of authority related to the implementation of stimulus funds; or use of stimulus funds to violate a law, rule or regulation.  The ARRA’s whistle-blower protection places a very low burden of proof on the employee-plaintiff, a high burden of rebuttal on the employer-defendant, and does not impose a statute of limitations on the claims of employees.  Perhaps most critically, the provision does not require that an employee internally report any perceived wrongdoing.  Simply put, given the already alarming trends concerning retaliation claims, the ARRA threatens state and local governments with a flood of bad press and potential litigation relating to the use of ARRA funds.  ARRA litigation also creates a paradox because state and local governments will be forced to use already scarce resources to defend litigation engendered by an act designed to assist those governments in the height of financial distress.

About the Authors: Ian D. Prior is Assistant Corporation Counsel at City of Boston Law Department. Lisa Skehill is also Assistant Corporation Counsel at City of Boston Law Department.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.

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Miguel Schor, Professor of Law

Foreword:  Symposium on Constitutional Review in China

Abtract: Professor Larry Catá Backer organized a superb symposium on Constitutional Review in the People’s Republic of China for the Suffolk University Law Review.  The topic is clearly an important one not just in China, but throughout the world, which witnessed a flowering of constitutionalism in the latter part of the twentieth century.  Although constitutionalism in the United States remains curiously and stubbornly different from the norm around the globe, the ideas born in the forge of the American Revolution have clearly played a role in shaping constitutionalism around the world.

The title of the symposium—“Constitutional Review in China”—provides the key to understanding the participants’ contributions.  Although constitutional judicial review has become the norm throughout the world’s democracies, the spread of judicial review has been accompanied by institutional variation.  The idea of Marbury v. Madison, but not the form it took in the United States, has become the norm—for good or ill—throughout the world’s democracies.  The articles and the title of this symposium make it abundantly clear that whatever form constitutionalism might take in China, it will look different from the form it has taken in the United States and in other polities around the globe.

About the Author: Miguel Schor is a Professor of Law at Suffolk University Law School.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.

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Larry Catá Backer, Professor of Law

A Constitutional Court for China Within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP

Abstract: There are great shifts in constitutional thinking taking place today in China among elite Chinese constitutional scholars.  Among this group of influential constitutional law scholars, Hu Jintao’s concept of scientific development (科学发展观) has taken a concrete turn in the advancement of theories of Chinese constitutionalism under its current normative framework. One of the more highly debated issues within Chinese constitutional law circles is constitutional review.  The debate centers on the viability of transposing some version of the current parliamentary model of constitutional review into the Chinese constitutional system.  Western models of constitutional review seem to insist on the necessity of an independent judiciary with a constitutionally sanctioned supervisory role over administrative and political organs as a condition precedent to constitutional legitimacy.  The Chinese constitutional system is criticized for its lack of such a robust system of judicial review.  As one commentator recently noted:

As for judicial review powers, Amended Article 5 of the 1982 Constitution reads, “the People’s Republic of China governs the country according to law and makes it a socialist country ruled by law,” and Article 127 provides that the Supreme People’s Court is the highest judicial organ.  However, constitutionalism in action and text reduced a potential for a rule of law rubric to a non-rule of law rubric, reduced a potential for legal accountability to political accountability.  This left China’s judicial system without a positive discursive machinery for judicial review: neither constitutional review or constitutional court, nor decentralized (or diffused) or centralized (or concentrated) constitutional review.

For Western observers of Chinese constitutionalism, the conclusion to be drawn is that there is no proper form of constitutional (or judicial) review.  The remedy for such a deficiency—and thus for notions of constitutional illegitimacy within the Chinese systems—might be found by implementing any one of a number of possible changes that would produce an appropriate institutional mechanism for the exercise of review authority.  That authority would be exercised by some organ of state power that is either housed within the judicial power or otherwise in a properly constituted body within the organs of state power yet separate from the legislative organs of the National People’s Congress.

About the Author: Larry Catá Backer is the W. Richard and Mary Eshelman Faculty Scholar & Professor of Law; Professor, School of InternationalAffairs, Pennsylvania State University.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.

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Li Li, Ph.D. candidate

Nulla Poena Sine Lege in China: Rigidity or Flexibility?

Abstract: Nulla poena sine lege is a fundamental principle of criminal law.  Its application is closely related to a basic understanding of criminal justice and separation of powers.  The 1997 Chinese Criminal Law adopts a modified version of this principle.  This modified version includes a negative and a positive dimension, and appears to be more rigid on the surface than the classic conception of the doctrine.  However, in view of China’s penal statutes, the rigidity of the Chinese nulla poena doctrine has been offset by broad sentence ranges, vague criteria for offense classes, unconstrained sentence mitigation and multi-functional sentencing circumstances.

About the Author: Li Li is a Ph.D. candidate at University of Hong Kong.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.

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Guobin Zhu, Ph.D. in Law

Constitutional Review in China: An Unaccomplished Project or a Mirage?

Abstract: A general perception exists that constitutional review is not a part of modern Chinese jurisprudence.  That view is mistaken.  The aim of this essay is to show that, while substantial constitutional change has not yet been established, it is arguable that a unique Chinese brand of constitutionalism has taken root and is evolving.

This essay will first trace how this system of constitutional review has been set up and evaluate its efficiency.  Second, the essay will explore the development of constitutional review by courts in China by examining the Qi Yuling case and relevant judicial interpretations.  Finally, the essay will discuss the theoretical development of the establishment of constitutional review in China, as well as comment on the major ideas and suggestions related to it.

About the Author: Guobin Zhu is an Associate Professor of Law at the School of Law of City University of Hong Kong.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.

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Zhiwei Tong, Professor of Law

A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case

Abstract: On July 24, 2001, the Supreme People’s Court of China (SPC or the Supreme Court) promulgated a new judicial interpretation.  This interpretation, commonly referred to as the “Reply to Qi Yuling’s Case” took effect on August 13, 2001. On December 18, 2008, however, the Supreme Court annulled twenty-seven judicial interpretations at once, including the Reply to Qi Yuling’s Case.  The reason given for the annulment of the Reply was that it was “no longer applicable.” From its birth to its demise, the Reply survived seven years, four months, and five days in China’s legal system.

Although it was never actually applied to a single case after Qi Yuling’s Case, there were disputes regarding the Reply in the Chinese legal circle, which attracted almost all of the foreign scholars studying Chinese law. From the very beginning, the author has been one of the major participants in this long-lasting discussion and the last resolution fully adopted my point of view. For many years, the author insisted that the Reply to Qi Yuling’s Case was unnecessary and suspiciously unconstitutional.

The article addresses the following questions, which the author believes may be difficult for foreign scholars to understand, and which may even be misunderstood by many Chinese legal professionals.  First, what is the Reply to Qi Yuling’s Case?  Second, what is the problem in China’s legal practice revealed by the disputes around the Reply?  And third, what does the Reply mean and what does its annulment indicate?

About the Author: Zhiwei Tong is a Professor of Constitutional Law of East China University of Law and Politics, and Vice Chairman of the Constitution Branch of China Law Society.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.

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Manuél E. Delmestro, Assistant Professor

The Communist Party and the Law:  An Outline of Formal and Less Formal Linkages between the Ruling Party and Other Legal Institutions in the People’s Republic of China

Abstract: The Communist Party of China (CPC or the Party) is the absolute power center in Chinese politics.  Deng Xiaoping made the Four Cardinal Principles paramount in Chinese politics: upholding the socialist path; the people’s democratic dictatorship; the leadership of the CPC; and the Marxism-Leninism-Mao Zedong Thought.  Thus the Party stands aloof, assumes general oversight and coordinates all sides of the executive agencies, the National People’s Congress (NPC), the Chinese People’s Political Consultative Conference (CPPCC), and other mass organizations.  If the latter is the flesh, and the armed forces the bones, of the Chinese political body, the Party is undoubtedly its brain, main nerves and tendons.  The Party leads and controls all other political (and not only political) organizations and institutions in the People’s Republic of China (PRC), allowing observers to use the once perhaps more fashionable term, “Party-State,” to capture China’s political reality.

The Party has relinquished ideology as the sole or main source of legitimacy, and for almost three decades has been enjoying support through the “performance oriented” means of what appears to be a “benevolent one party rule.”  The Chinese political system could thus also be seen as one of “good governance with Chinese characteristics.”  The regime delivers steady economic performance and is consistent in terms of “consumer-satisfaction”; the people, in return, refrain from getting too angry about its peculiarities.

This article does not directly address the rule of law in China or the eternal debate on its development and developmental patterns, but rather it addresses some peculiar aspects of it.  The first part shall provide a brief account of how the Chinese Constitution and main statutory norms of public law formally “treat” the CPC.  The second part outlines how the Party practically exerts its influence and authority over the Chinese political system, i.e., the actual functioning of the Party-State machine in the PRC.

About the Author: Manuél E. Delmestro is an Assistant Professor at Taiwan National University, Taipei.

Download: This is an advance copy of an article that will appear in an upcoming issue of the Suffolk University Law Review. Click here to read the article.