I Wish All China Could be California Girls

Interesting post up at the iLook China blog, aptly titled, Belching About China.

The post is a complaint piece on a Huffington Post article, China Labor — the Pure Shame of It, written by Leo Hindrey, Jr., a self-proclaimed “pro-worker advocate”.

iLook China takes issue with Hindrey for “castigating China from a Western cultural point-of-view” and for presuming China needs and wants American help and would necessarily benefit from it. iLook is bothered by Hindrey’s eagerness to see the “American labor movement smartly and creatively provide all the help to China’s workers that it can responsibly offer” to help Chinese workers earn more money along with better benefits.” iLook then briefly highlights previous “Western meddling” in China:

Due to Western meddling in China during the 19th century, there were two Opium Wars forcing British, French and American opium into the country along with Christian missionaries, which led to the Taiping Rebellion started by a Christian convert ending in 20 to 100 million killed. Then there was the Boxer Rebellion, a peasant uprising caused by meddling Christian missionaries, greedy Western businessmen and pompous politicians.

iLook ends its post with this very sensible suggestion: “let the Chinese fix China and leave the American labor movement out of it.”

I agree with iLook’s overall premise, but I am not so sure Hindrey’s article is the right one on which to go off, because it is neither simplistic nor jingoistic, as can be evidenced by the following paragraph from it:

This is an incredibly fragile moment in Chinese labor history with implications not just for Chinese workers but for America as well.

China could be on the cusp of a new movement that markedly improves the lives of its workers, or the world could see this movement wither through a lack of organizing expertise or because of government crackdown. While we need to be realistic about our own ability to impact any outcomes in China — and very sensitive to the fact that even our indirect involvement could result in the opposite of our intended outcome — I am eager to see the American labor movement smartly and creatively provide all the help to China’s workers that it can responsibly offer. And I look forward to their positive results.

Many years ago, I wrote a somewhat similar piece regarding an article telling China how it needed to mimic America’s legal system. My post was entitled, One Night In China And The World’s Your Oyster [link no longer exists], and in it where I went after an American personal injury lawyer who had written an article, condescendingly (and falsely) entitled, China needs a few good lawyers. Highlights from my article follow:

The article starts out approvingly referring to a recent article written by another Seattle lawyer, Chi-Dooh Li, the underlying thesis of which seemed to be that we Americans will never be able to trust China because it is not a Christian nation. Marler takes a more secular (and only slightly less ridiculous) approach, asserting Chinese products cannot be trusted until China has a body of civil law.

China has a comprehensive body of civil law that includes very clear standards for negligence actions, including product liability suits. There are certainly those who argue the damage awards in such actions should be higher and judicial corruption lower, but those issues are separate and apart from whether there is a system at all. There were nearly one million civil lawsuits filed in China last year and that number is on the rise and my firm typically has one or two such lawsuits pending in China at any given time. China has a civil law system.

Marler then wrongly claims the Chinese government responded to its food safety problems by “executing its top food-safety official” when that execution was actually for having taken around $1 million in bribes. Marler then explains his reason for being in China was “to suggest some less drastic solutions.”

Marler then tells us of the wise teachings he gave China and of the way the natives imbibed of his great wisdom:

Killing regulators will not make food any safer, I told the mostly Chinese audience. Tougher laws and inspections may help, but not by themselves. If consumers are injured by a product, the consequences must fall on those who made it. And, for that, Americans rely on a body of civil law.

The Chinese were clearly puzzled by this. They understand the power of government, and the concept of criminal law. But they do not understand how one person can stand up to a rich corporation and say: “You made my child sick, and you are going to have to make it right.”

Seeing their puzzlement, Marler then “explained how our civil laws work:”

A Chinese company manufactures a product, or a component part of anything from dog food to automobiles or toy parts, and sends if off to Wal-Mart. The product proves to be tainted or faulty. A consumer is injured, and files suit against Wal-Mart, demanding compensation. A court awards damages, and Wal-Mart looks to the Chinese manufacturer, and demands accountability. Their message: China can make things cheaper, but they have to be safe. Lawsuits may make products more expensive, and both American and Chinese firms risk losing business.

Marler continued spewing forth his pearls of wisdom to a clearly enthralled audience:

So, I told the Chinese, the issue is not social justice or morality. The issue is something they can understand much more easily — the bottom line. I could see heads nodding across the room. Ohhhhh, so it is ultimately about making the sale or not making the sale! This they understood.

Marler’s brief sojourn in China has imbued him with an almost supernatural knowledge of Chinese law and culture such that he can state that “it is difficult to imagine China developing a body of civil law. It does not seem to mix well with an authoritarian society. Their impulse remains: ‘Kill the regulator.’ I am not going to say no Chinese lawyer thinks this way, but not a single Chinese lawyer I know does. Not one.”

The good news though, according to Marler, is that the Chinese can learn and “when it comes to exports, China is learning that its manufacturers are indirectly accountable to our system of civil justice. Once they understand that, they will have to play by the rules. Not because they are moral or immoral. But because they are motivated by the same raw, rational impulse as our corporations. They want to make money. And they will make more if they are not harassed by a bunch of lawyers representing sick kids.”

If the U.S. product liability system is so great (and I actually think it is), how does Marler explain why American manufacturers and importers have allowed so much unsafe product into the United States when they know lawyers like Marler lie in wait to sue them within an inch of their lives? And how are Chinese companies even “indirectly accountable to our systems of civil justice” when Chinese courts do not enforce U.S. judgments?

China Hearsay [link no longer exists], written by an attorney who has spent nearly ten years practicing law in China also takes strong issue with Marler’s noblesse oblige:

I completely agree with the conclusion that an effective, muscular product liability/tort system in the PRC would ultimately lead to better QC. However, I gotta say that the whole China-has-no-legal-system argument is really getting old and making me cranky.

Granted, this is not a China guy, so I can’t really criticize too much. However, the following line bugs me:

“Perhaps all China needs is a few good lawyers, and a body of civil law.”

This is a good one too:

“If consumers are injured by a product, the consequences must fall on those who made it. And, for that, Americans rely on a body of civil law. The Chinese were clearly puzzled by this.”

China Hearsay begs for a stop to this sort of thing and chastises Marler for getting the facts wrong:

Can we stop with this kind of thing? I usually hear it in an IP context when clueless commentators state that China has no IP laws. Now we have the strange notion that China’s civil law somehow doesn’t cover product liability? Perhaps the author was just trying to say that the legal practice in this area needs to be more developed – agreed. But these kinds of blanket statements, which are also quite condescending, do not help. China does have product liability laws, people who suffer damages from products can and do sue manufacturers, and courts often find in their favor.

Now, damage awards may be too low, the lack of a system of discovery means that information/evidence is hard to come by, and certainly the writer of this article would not be happy with a legal system that does not include juries. But let’s get the basic facts right, huh?

In a subsequent post, China Hearsay explained as follows:

[W]hen someone who obviously doesn’t know something puts himself forward as some sort of expert – that’s pretty damn annoying. Throw in a few statements that have racist overtones and, well, you can see where even the most mild-mannered folks out there will snap.

I don’t expect some tort lawyer in Seattle to be an expert on Chinese law. However, would it hurt him to talk to at least one expert before spouting off on unfamiliar topics?

I actually do understand how people can be so happy and proud of what their own country has accomplished and wanting to help other countries accomplish the same thing, but this far too often gets taken too far (and it is not just Americans who do this, though it does seem to be pretty much just us who believe things like how sending more troops to a place like Afghanistan will eventually make it a stable democracy). This “helping” view seems to go awry, however, when people start giving advice to other countries without having done anything to determine the following:

  • Is your country’s system truly better than the country whose system you are criticizing?
  • Is your country’s system truly better than other countries around the world?  Why tell another country it needs to mimic your country’s system if some other country is really the gold standard?
  • Most importantly, will the system you are advocating for that other country actually work there? How do you know this?

I am NOT calling for the end of criticism. Not at all. I am simply asking that real thought go into it first.

What do you think?

Read More

China Business