Week 1
- Moustafa, “Law and Courts in Authoritarian Regimes,” 2014
- Solomon, “Law and Courts in Authoritarian States,” 2015
the essence of authoritarianism in its various forms (including competitive authoritarianism and so-called hybrid regimes) lies in the concentration of political power in the hands of an autocrat or an oligarch.
defining characteristic of “rule of law” (ROL) vs. with “rule by law,” i.e. the exercise of political control through law
Solomon: the law as an institutionalized constraint on the power of rulers/political authority as well as an instrument/tool of rule
key functions of law in authoritarian political contexts
Moustafa: (a) exercise state power vis-a-vis opposition, (sidelining political opponents (b) advance administrative discipline within state institutions, (principal-agent or center-local control (c) maintain cohesion among various factions within the ruling coalition, (d) facilitate market transitions, (e) contain majoritarian institutions through authoritarian enclaves, (f) delegate controversial reforms, and (g) bolster regime legitimacy (i.e., law as ideology)
Solomon: (a) an instrument of rule (b) the cultivation of legitimacy for the regime (c) the promotion of administrative accountability (d) the promotion of trade and foreign investment
four models of courts in authoritarian political contexts/variation in the relationship between courts and political leaders (Solomon):
1 the disempowered court that is in the ruler’s control (minimally deals with private matters and hardly anything else)—rule by a political party and/or with a discrete ideology
2 the fragmented court that is independent and protected but powerless—personal dictatorship
3 the contested court whose relative independence and politically meaningful jurisdiction can allow rulings against regime interests—older, stable regimes where there is some (liberalizing) group pushing for reform
4 the formally independent and empowered court that is nevertheless aligned with regime interests—21st and up-to-date (informal bureaucratic rules thro performance evaluation systems and hard targets
China - a blend of a fragmented legal system and one governed by informal practices
Week 2
- Minzner, “Legal Reform in the Xi Jinping Era,” 2015
- Liebman, “Legal Reform: China’s Law Stability Paradox,” 2014
- Qianfan Zhang, “Judicial Reform in China,” China’s Socialist Rule of Law Reforms Under Xi Jinping, 2016
- Ya-Wen Lei, “The Chinese State’s Turn to Law and Rights,” Chapter 3, The Contentious Public Sphere, 2017
the four parts of Zhang’s “judicial syndrome”: 不专业、不独立、地方保护盛行、腐败猖獗 (pg. 18).
Liebman: Courts in recent years have welcomed greater oversight by people’s congresses, have increased roles for laypeople in hearing cases, and have emphasized public opinion in court decisions - also efforts to put opinions online and to make courts more accessible to litigants in rural areas.
“five years of retrogression” (bottom of p.26 从09年到13年) = “turn against law” under Wang Shengjun/王胜俊 in Minzner.
highlights of the fourth five-year plan (2014-18): 司法独立、法官负责、公开，上海作为试点
Manifestations of China’s “turn against law” according to Minzner: 从职业化转向大众化、从审判转向调解、法律无情叙事、强调以法庭维稳、打压维权律师、倡导党高于法、命地方官员压住地方纠纷
Liebman: China’s “law-stability paradox” – Having devoted impressive resources to constructing a legal system in the 1980s and 1990s, the Chinese party state retreated from using the system in the face of new social problems in the 2000s. (context: late 90s punctuated by widespread protest and petitioning上访 ”black jail“; early 2000s policy emphasis on 建设和谐社会; coincided with the turn against law toward populist legality)
“emphasis on compensation and negotiated outcomes in criminal cases” (Liebman, 99)
Liebman: the “three supremes” (p.101) - the supremacy of the party’s business, the supremacy of popular interests, and the supremacy of the constitution and law
Week 3
Ya-Wen Lei, chapter 6 “An Emerging Online Public” and chapter 7 “The Chinese State Strikes Back” in The Contentious Public Sphere, 2017
Annotations to be scraped from the book.
Week 4
Neil Diamant, Useful Bullshit: Constitutions in Chinese Politics and Society, 2022, Selections from “Introduction,” Chapters 2 “The draft constitution in China’s business community” and 6 “Constitutional Afterlives”
Annotations to be scraped from the book.
Week 5
Neil Diamant, Useful Bullshit: Constitutions in Chinese Politics and Society, 2022, Chapters 3 “Popular constitutionalism” and 4 “Reading about rights and obligations”
Annotations to be scraped from the book.
Week 6
- Ethan Michelson, Decoupling: Gender Injustice in China’s Divorce Courts, 2022, Selection
- Jonathan Kinkel, chapter 4 “High-End Demand for Legal Services and Local Pressure to Professionalize the Judiciary,” and chapter 5 “Expansions in Competitive Promotion and the Implications for Judicial Autonomy” in Growth and Survival: An Ecological Analysis of Court Reform in Urban China, 2022
key metrics used to evaluate judges’ performance? (Michelson 4-5): satisfying the demands of judicial responsibility systems, clearing dockets (moving caseloads), not causing incidents of social unrest, mediation rate vs. trial, appeal rate…
According to Kinkle, judges make attractive lawyers to law firms because they have the same law school training + civil service examination/professional qualification and experience in litigation/handling a variety of legal disputes + local social connections + “inside knowledge” of government and legal system operations
A “High End” market serves company and global clients, and a “Battleground” market (competing for client) in which legal services provided to individuals comprise a substantial part of the legal services market (from S. Liu, 2011a).
typical career progression in US: from bar to bench
Biden abolished the evaluation system that prioritized volume and efficiency
Week 7
- Li, Kocken, and van Rooij, “Understanding China’s Court Mediation Surge: Insights from a Local Court,” Law & Social Inquiry, Vol. 43, No. 1, 2018, pp.58-81
- Ethan Michelson, “‘Many Cases, Few Judges’ and the Vanishing Three-Judge Trial,” Chapter 5, Decoupling: Gender Injustice in China’s Divorce Courts, 2022
indications of the “mediation surge” presented by the authors at the beginning of their article: since 2004, in both actual numbers and in percentage.
the Case Quality Assessment System incentivizing mediation: a number-oriented system with 31 indicators — 11 measures for the fairness of the trial, 10 measures for the efficiency of the trial procedure, and 10 measures for the outcome of the trial
2011 调撤率 (the number of cases concluded through mediation in a certain period of time) became a key index in court evaluation work
strategies of creative compliance:
- send clerks to file cases resolved by the labor arbitration committee, ensuring settlement quality without stepping in the dispute resolution process, and filter non-trouble-making but mediation-number-boosting cases
- judicially confirm already settled cases (mostly collective disputes!)—theses out-of-court mediation practices ended with the SPR’s restriction on the definition of mediation (2011 revision of CQAS)
- assign judge’s assistants and hire people’s mediators (confirming People’s Mediation Agreement by filing within the court for a Civil Mediation Agreement) to mediate at the case-filing division
- trial judges meditating collective disputes
Lower courts claim higher mediation rates without substantively doing much more mediation in the adjudicative process, simply by redefining the meaning of mediation the mediation surge represents mediation work done outside the court, by lower court judges and judicial clerks and in collaboration with labor bureaus and people’s mediators
According to Michelson, informal and formal responses court responses to judges’ difficult working conditions include:
- informal 1 faking collegial panels (1 in charge 2 others as mere accompaniments 陪而不审), 2 deputizing assistant judges (as solo judges in simplified procedure cases and as head judges leading two lay assessors, two assistant judges, or one of each on collegial panels in ordinary procedure cases, and therefore conserved judicial resources)
- formal (SPC) 1 promoting solo judging by expanding the scope of the simplified civil procedure (underway since the SPC’s 1999–2003 first five-year outline for court reform) 2 increasing lay assessor participation
The vanishing three-judge panel was the confluence of informal coping strategies from below and formal policy signals from above to close cases and clear their dockets.
Courts exploited vague rules (2012 Civil Procedure Law, pg.166) on the application of the simplified civil procedure. Judges have sometimes taken procedural shortcuts (167) and most “have regarded the choice of which civil procedure to apply as their prerogative” (169). “the process of designating cases as simple or complex (简繁分流) has been widely characterized as arbitrary and subjective” (166).
Courts creatively interpreted and stretched rules on deputizing assistant judges to act as full-fledged judges? “Although they lacked the status of fully qualified judges, they were nonetheless assigned to cases as if they were associate judges by courts taking advantage of a provision in the Organic Law of People’s Courts” (161). The supportive role they play and the permission to have them temporarily serve as full-fledged judges in a substitute function were used by courts to expand the ranks of frontline judges.
”the rise of the simplified procedure, increased lay assessor participation, and a shrinking corps of judges, taken together, drove the story of the vanishing three-judge collegial panel” (175)
The recent judge quota reform approached the problem of “many cases, few judges” “not as a shortage of judges but rather as too many poorly qualified judges working inefficiently” (171).
Week 8
Midterm Exam
Week 9
- Ethan Michelson, “Fight or Flight: Consequences of the Judicial Clampdown on Divorce,” Chapter 9, Decoupling: Gender Injustice in China’s Divorce Courts, 2022
- Enshen Li, “Haste Makes Waste: Why China’s New Plea Leniency System is Doomed to Fail,” Asian Journal of Comparative Law, Vol. 17, No. 1, 2022, pp.76-105
“tremendous variation” of criminal sentencing in criminal domestic violence cases (Michelson 358)
“battered woman syndrome” not recognized in Chinese law.
The concept of justifiable self-defense is recognized in Chinese law (bottom of pg.354).
”courts extend leniency (as the court in this case characterized Wang’s life sentence) not on the basis of justifiable self-defense, but rather according to the defendant’s cooperative attitude, confession, admission of guilt, risk to society, and payment of compensation to the victim’s family” (359).
”Courts affirmed justifiable self-defense in criminal domestic violence cases only sparingly. To the best of my knowledge, they have never invoked – much less affirmed – battered woman syndrome” (360).
”As we know, judges lose points on their performance evaluations for making decisions that harm social stability. Under pressure to maintain social stability, judges do consider public sentiment when ruling on criminal cases” (364).
“In a table, columns show the causes and rows show the outcomes” (problem of statistical interpretation in Li’s article).
Week 10
Spring Break
Week 11
- Rachel E. Stern, Benjamin K. Liebman, Margaret E. Roberts, and Alice Z. Wang, “Automating Fairness? Artificial Intelligence in the Chinese Courts,” Columbia Journal of Transnational Law, Vol. 59, 2021, pp.514-553
- Sida Liu and Terence Halliday, “Survival Strategies and Political Values,” Chapter 4, Criminal Defense in China, 2015
2014 to make court decisions publicly available (522)
2017 to video record all trials and to live stream public hearings (523)
2018 to make public annual court work report (524)
Zhou Qiang’s initiative of creating “smart courts” to improve the courts’ ability to monitor society and defuse social conflict, to improve oversight of judges and reduce malfeasance, and to move toward a world in which judges rely on algorithms to boost efficiency and consistency.
two key constituencies inside the judiciary—provincial court leaders (convenience to supervise the daily activities of courts and judges) and frontline judges (lighter workload and decreased responsibility for decision-making)—see how different applications of technology could make their jobs easier and lives better.
Scholarly analysis of existent data must “investigate missing data before assuming that even a gigantic corpus of legal documents is complete.”
The primary goal of Project 206 (launched on Feb 6 2017, collaboration between the Shanghai courts and iFlyTek) is “to standardize and streamline evidence collection, to improve consistency in the treatment of similar cases, and to strengthen oversight of judges to reduce erroneously-decided cases” (541).
“Political Embeddedness” (Michelson): “lawyers’ formal or informal ties to the state through their career histories and social networks”
Week 12
- Ethan Michelson, “In Search of Activist Lawyers in China: A Time Machine Back to the Heyday of Political Activism in the Chinese Legal Profession,” Wisconsin International Law Journal, Vol. 37, No. 2, 2020, pp.350-414
- Ling LI and TENG Biao, “An Anatomy of Trump’s Appeal to Chinese Liberals: A Conversation with Teng Biao,” Made in China, Vol. 6, No. 1, pp.42-51
- Eva Pils, “China’s Human Rights Lawyers: Rifts and Schisms in an Era of Global Human Rights Backlash,” Made in China, Vol. 6, No. 1, pp.108-13
1% of all ACLA users contributed to one fifth of the entire conversation by May 2005, which is overwhelmingly apolitical.
Week 13
- Sida Liu and Terence Halliday, “The Trial of Li Zhuang,” Chapter 6, Criminal Defense in China, 2015
- Stern and Hassid, “Amplifying Silence: Uncertainty and Control Parables in Contemporary China,” Comparative Political Studies 45, No. 10, 2012, pp.1230-54
cf. Ji Tianqin’s news article on lawyer mobilization for the Li ZHuang case
Control parables: “stories about transgression that counsel caution and restrict political possibilities” (1240) or “a type of didactic story that invent or recapitulate an understanding of why certain types of action are dangerous or even impossible.”
defining characteristics - speculative
key function - encourage risk taking or counsel retreat, help people navigate the gray zone between tolerated and forbidden.
Creators: often grassroots explanations but “ambiguous new regulations spawn control parables too” (1242)
Reasons for being rarely online? ”One reason that online control parables are rare, for example, is that the Chinese government closely scrutinizes the Internet and few are willing to discuss crackdowns in a space notorious for surveillance” (1244)
Week 14
- Qian Liu, “‘Kill the Chicken to Scare the Monkey’: Heavy Penalties, Excessive COVID-19 Control, Mechanisms, and Legal Consciousness in China” Law & Policy, 2023, early view
- Bin Liang, “Legality of Reprimand and Contest of Public Trust Amid the Pandemic: The Case of the Inadvertent Whistleblower Li Wenliang,” in Chinese Legality Ideology, Law, and Institutions, edited by Shiping Hua, Routledge, 2023
Laws cited in Liu:
- 关于依法惩治妨害新型冠状病毒感染肺炎疫情防控违法犯罪的意见 (Opinions on punishing criminal and illegal activities that hinder the prevention and control of COVID-19) (2020)
- Amendment (XI) to the Criminal Law of the People’s Republic of China (2020).
article 25 of Administrative Penalty Laws is the closest but still does not apply to Li Wenliang’s case (problem of intention and punishment)
“hierarchical trust”
Week 15
- Anne S.Y. Cheung and Yongxi Chen, “From Datafication to Data State: Making Sense of China’s Social Credit System and Its Implications,” Law & Social Inquiry, Vol. 47, No. 4, pp. 1137-71
- Darren Byler, “Surveillance, Data Police, and Digital Enclosure in Xinjiang’s ‘Safe Cities,’” Chapter 14 in Xinjiang Year Zero, edited by Darren Byler, Ivan Franceschini, and Nicholas Loubere, ANU Press, 2022
the data state: a governance model enabling the state to comprehensively monitor, evaluate, and control its subjects through datafication and data-driven techniques, thereby severely restricting their autonomy.
two peculiar features:
- comprehensive access to, and evaluation of, citizens’ lives,
- the dominance of the data self over the bio-self
brief history: social credit system first introduced as a financial credit system in the early 2000s; In 2014, the central government released the Planning Outline 2014–2020 for the Construction of a Social Credit System (Planning Outline); national authorities have since issued numerous related policy documents rather than enacting laws; As of the end of 2020, regulations governing the SCS had been enacted by the legislatures of only nine provincial-level regions and were pending in another seven.
3 prominent functions:
- the provision and regulation of financial credit rating;
- market regulation and social governance;
- the promotion of state-endorsed values.
2 core mechanisms:
- combined punishments and incentives carried out by the state and
- a unitary, state-run data infrastructure
inherent defect: undermining the protection of fundamental rights and contradicting government efforts to uphold the rule of law →distorted concept of credit and decontextualized evaluation+state interventions that result in semi-automation of combined punishments and ingrained disproportionality(1151-56)
Byler’s chapter is a condensed version of In the Camp.
“full-throated settler colonialism” from Byler’s Terror Capitalism: “At the founding of the People’s Republic of China in 1949, the population of Han-identified inhabitants of the region was around 6 percent, with Uyghurs comprising roughly 80 percent of the population. Today Uyghurs make up less than 50 percent of the total population and Han more than 40 percent” and “the Xinjiang Production and Construction Corps (Ch: bingtuan), were pulled into the borderlands through a combination of economic incentives and ideological persuasion. Initially, the primary goal of this project was not to assimilate Muslim populations but rather to transform Kazakh pastureland into irrigated farming colonies, redistribute the population of former soldiers, and secure the territorial integrity of the nation” (xiv preface).
Week 16
Stephan Ortmann, “Legality and the Hong Kong Protests,” in Chinese Legality Ideology, Law, and Institutions, edited by Shiping Hua, Routledge, 2023
Protests mentioned in Ortmann:
- protest again Article 23
- school curriculum protest
- lawyer protests
- pro-democracy occupy central protesters defended themselves with umbrellas
- protests directed against the extradition bill