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Law Students Argue Ai Weiwei v. China in Imaginary 'Chinese Constitutional Court'

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Newsweek cover of Nov. 1, 2011, featuring Ai Weiwei's story


By Andrew Hart (’13)

The nation's first ever intercollegiate moot court competition on Chinese law was held in April 2013 at Minnesota's Supreme Court. The competition was the brainchild of Chang Wang (’06), an adjunct professor at the Law School and William Mitchell College of Law. The proceedings offered students from both schools a comparative perspective of China's legal system and a practical opportunity to predict legal actions and outcomes across cultures, and served as the final exam for Wang's Chinese law courses.

Case background
In April 2011, as he was about to board a plane at Beijing International Airport, prominent Chinese artist and activist Ai Weiwei was detained, held in state custody, and interrogated on his involvement in "inciting to subvert the state power." He was released in June 2011, partly due to international pressure.

Although it began as a criminal case based on suspicion of Ai's political activities, the case morphed into a charge of tax evasion, an administrative law case, when the Chinese government investigated Ai's company, Beijing Fake Design Cultural Development, charged him with tax evasion, and levied a fine of more than $2.4 million.

Ai and his lawyers, maintaining that the investigation was a government attempt to harass and detain a high-profile political activist, brought a lawsuit against the tax authority, alleging numerous legal shortcomings and procedural errors. After losses in the administrative hearing, the district court, and the appellate court, Ai had exhausted all avenues of appeal. The penalty stood.

Moot court proceedings
The moot court assignment imagined a "Chinese Constitutional Court" that could review the case under the Chinese Constitution. Minnesota Supreme Court Justice Paul Anderson (’68), who has lectured at the Supreme People's Court of China and top Chinese law schools in recent years, presided over the appeal.

Also serving as moot court justices were Professor Joan Howland, the Law School's Associate Dean for Information and Technology; Alexander Morawa of Switzerland's University of Lucerne School of Law; Professors Jay Erstling and Jim Hilbert (’96) of William Mitchell; Alan Miller, host of the public access television program "Access to Democracy"; Rick King, Tom Leighton, and Nathan Madson (’11) of legal information provider Thomson Reuters; and Professor Wang, who is also chief research and academic officer at and Thomson Reuters.

During the two-day moot court, 8 teams of 47 students from the Law School and William Mitchell authored legal briefs and presented oral arguments representing appellant Ai and respondent the Beijing Tax Bureau in four mock appeals. Students considered the case in terms of criminal law, administrative, and evidentiary procedure; validity of evidence gathering; appropriateness of Ai's detention given his limited role in the company; and implications of the International Covenant on Civil and Political Rights, to which China is a signatory.

The justices challenged the teams with incisive questions. King asked the students to clarify the definition of "public trial," as Ai's team insisted the administrative litigation was de facto closed door—a procedural violation. Morawa frequently reminded students that, arguing before a constitutional court, they needed to provide constitutional justification for their statutory arguments.

At the case's conclusion, judges offered students praise and constructive criticism. A top law school in Beijing and Morawa, on behalf of his law school in Lucerne, expressed strong interest in participating in next year's competition.

Recognition for Justice Anderson
Following the moot court competition, Thomson Reuters executives Rick King and Tom Leighton presented a gift to Justice Anderson in commemoration of his legal career. Justice Anderson, who has served on Minnesota Supreme Court since 1994, stepped down at the end of May 2013 after reaching the mandatory retirement age of 70. In recognition of his service, Thomson Reuters compiled a set of 9 bound volumes containing more than 600 opinions he authored during his tenure on the bench.