Downloaded from Brill.Com10/02/2021 02:16:16PM Via Free Access

china law and society review 2 (2017) 154-176

brill.com/clsr

Disaggregating the Court: A Methodological Survey of Research on the Supreme People’s Court of China

Taisu Zhang Yale Law School [email protected]

Abstract

This article surveys recent academic literature on the Supreme People’s Court of Chi- na, sorting existing studies into three basic categories: those that study what the Court is allowed to do, those that study what it actually does, and those that study why it does those things. Moving from the first category to the second and third is, in many ways, a progression from a predominantly formalist method to more realist ones. The article argues that the field suffers from a lack of rigorous political economy modeling and that this affects not only the thoroughness of studies in the third category, but also those in the first and second categories. Remedying these problems will depend on whether future scholarship can successfully make use of the theoretical and empirical tools developed by political science and institutional economics. Most importantly, the field needs to develop a usable model of individual judge behavior, based on their material incentives, political aspirations, and ideological commitments, which can then provide the foundation for modeling of the Court as an institution. At the early stage, ethnography and bibliographical analysis may be more useful than quantitative analysis.

Keywords adjudication – Chinese judiciary – legal reform – political economy – Supreme People’s Court of China

* The author thanks Sue Trevaskes for comments and feedback and the Applied Legal Studies Institute of the Supreme People’s Court of China for hosting a workshop on a draft of this paper.

Disaggregating the Court 155

Introduction

The Supreme People’s Court of China (spc) is, despite its formal title, a hybrid adjudicative, administrative, and legislative institution (Finder 1993; Fu 2015; Liebman 2007; Peerenboom 2002). It is China’s highest court, with final review power over legal cases. At the same time, it is the central—but not the sole—administrator of the Chinese court system, overseeing the institutional structure, compensation models, and personnel of lower courts. Finally, it is a limited but nonetheless important player in national legislation, with powers that can only be described as legislative. Underlying all these functions is the basic reality that the spc, like any other court in China, is a substantially political entity that is both theoretically and practically subsumed within the Party- state system and ultimately subject to its monitoring and control. Perhaps because of its hybrid nature, academic research on the Court has varied significantly in focus, methodology, and conclusions: Scholars often zero in on the Court’s semipolitical nature, citing it as an example of how China has lacked the “rule of law,” however defined and evaluated (Cohen 1969; He 1997; Lubman 1999; Xu 2002).1 Adopting a top-down perspective that looks primarily at the Court’s somewhat vulnerable legal and political position within the Party-state, these studies can easily—and, to some extent, ac- curately—describe the Court as easily compromised by external political and ideological pressure. More recently, scholars have attempted to move beyond this sweepingly negative assessment, looking more carefully at the Court’s in- ternal institutions and functions (Hou 2007; Ip 2011; Peerenboom 2010). Even if the Court lacks the legal authority to conduct, for example, constitutional review, and is subject to nominal control by other Party organs, does that necessarily mean that it cannot effectively function as a court of highest appeal over nonconstitutional matters? Do the Party’s periodic episodes of ideological tightening substantially interfere with the Court’s legal and administrative functions and, if so, to what extent? As we get into the institutional weeds, “external political influence” often becomes less visible, whereas the legal and administrative agency of judges comes to the forefront. At the same time, a more details-oriented approach can lead to analytical confusion. The Court appears very different if we focus on its administrative rule-making function, vis-à-vis its adjudicative one, or its interpretative/legislative one. This article surveys some of this highly varied and often uneven literature, identifies gaps, and suggests ways to fill them, sorting existing studies into three basic categories: those that study what the Court is allowed to do, those

1 This literature has been criticized by Randall Peerenboom (2010) and Zhu Suli (2009).

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

156 Zhang that study what it actually does, and those that study why it does those things. Moving from the first category to the second and third is, in many ways, a progression from a predominantly formalist method to more realist ones. Each category involves its own set of debates—some empirical, others normative. In general, the article argues that the “field,” if we can call it that, suffers from a lack of rigorous political economy modeling and that this affects not only the thoroughness of studies in the third category but also those in the first and second categories. As discussed below, with few exceptions, the spc has been studied independently of serious attempts to understand the individual motivations of Party leaders, bureaucrats, and judges. Some attempts have been made to understand the “institutional” motivations of collective entities—the Politburo, the Central Political and Legal Affairs Commission, the Court, and so on—but, in the end, these attempts are fundamentally incomplete without a more individualist form of political-economic analysis. Correspondingly, the field currently lacks a persuasive behavioral account of not only the Court but also the external political entities with which it interacts. This presents serious methodological challenges, even for attempting to delineate something as straightforward as the limits of the Court’s authority. The article then identifies some potential paths forward. The social science literature, both qualitative and quantitative, on the political economy of Party leaders is extensive, but far fewer attempts have been made to understand the incentives of spc judges—at least partially because the Court is often over- looked as either irrelevant or pawn-like in the broader scheme of Chinese gov- ernance. Intuitively, modeling the behavioral patterns of spc judges presents unique challenges. Given the general intellectual trends in the Chinese legal academy, they are more likely to have internalized sociopolitical norms valo- rizing the rule of law and may display general ideological leanings that are dis- tinct from those in other branches of government (Chen 1999; Liu 2016). Any attempt to understand the political economy of spc decision-making should take these possibilities into account. The article is organized as follows: Section 1 surveys books and articles that take a top-down and relatively formalist approach. For the most part, these studies focus on the Court’s formal powers and limitations. Section 2 explores more micro-oriented studies on the Court’s day-to-day operations—how it uses its allocated authority, rather than defining that authority. Section 3 discusses the handful of studies that have attempted to analyze the Court’s behavioral tendencies and motivations. Section 4 then argues for a more individualist approach toward studying Court behavior and briefly outlines the contours of such an approach.

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 157

1 The Court’s Institutional Boundaries

For many scholars who study Chinese law, the central question surrounding the spc is some variation of “what is the Court allowed to do?” (Cohen 1969; Fu 2016, 2003; He 1997; Liebman 2007; Lubman 1999; Minzner 2011; Wang 2015; Xu 2002). It is a truism, of course, to state that the Court operates—and has always operated—under significant constraints, both institutional and political. The far more substantive question is “how much” and, by extension, “what kinds of powers are left to the Court in view of these constraints?” Every study on the spc must, at some level, grapple with these issues, as they are logical pre- requisites for virtually every other question one can ask about the Court. For example, a project on how the Court uses prior decisions as legal precedents must necessarily include an inquiry into whether the Court is subject to any external constraints in developing and employing precedents. Similarly, it is logically impossible to understand the spc’s institutional incentives regarding any specific issue without first knowing what kinds of constraints and pressures it faces. Apart from these analytical necessities, the issue of constraints has com- manded, and continues to command, so much scholarly attention largely because it plays a central role in the “rule of law” debates that have dominated the Chinese law world for much of the past three decades. The argument often runs as follows: For China to have true “rule of law”—even in the narrow sense that laws are consistent obeyed—it must have a truly independent and professional judiciary, preferably one with sufficient constitutional and administrative review powers that allow it to effectively check the power of other branches of government (Fu 2003; Ji 2002; Liebman 2007; Lubman 1999).2 Cor- respondingly, how independent and powerful the judiciary, and specifically the spc, is at any given time is often used as a barometer for how far China has progressed in its “long march,” as one scholar famously put it, “towards the rule of law.”3 Removing constraints on the Court’s authority was, for a time, virtually synonymous with constitutional progress. The enormous time and energy that scholars devoted to parsing the Qi Yuling case is probably the best example of this (Hand 2016; Kellogg 2009; Lin and Ginsburg 2015; Zhu 2010).

2 The force of this academic consensus can be observed, for example, in Building Constitution- alism in China (Balme and Dowdle 2009), which contains essays by many of the core figures in the field: with the exception of Zhu Suli, every author adheres to the consensus. 3 The phrase comes from Peerenboom (2002), although he is actually rather skeptical of this measure.

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

158 Zhang

Scholars both within and outside China have begun to question whether constitutional review conducted by the spc is indeed a necessary condition for the rule of law or even a desirable one (Hand 2011; Lin and Ginsburg 2015; Zhu 2009), but, for the most part, legal academics continue to advocate strongly for judicial reviews. Scholars have studied these shackles at two different levels: a relatively stable institutional—indeed constitutional—level and a rapidly evolving political level. The deals with formal legal definitions of the Court’s authority, as expressed in the Chinese constitution, statutory law, case decisions, and formal regulations. It has experienced some change over the years but only at a slow and hesitant pace.4 The basic observations made in earlier studies, such as those by Susan Finder (1993), Stanley Lubman (1999), and Randall Peeren- boom (2002), still largely hold true even today: The Court’s major realms of authority—adjudication, administration of the judiciary, and issuing legal interpretations—have remained unchanged since the 1980s. Furthermore, it is still subject to the oversight of the Political and Legal Affairs Commission and is, of course, under the leadership of the Chinese Communist Party. For a short time (2001–2008), the Qi case offered a weak but tantalizing possibility that the Court might gain some power of constitutional review, but when it was overturned in 2008, that possibility seemed to be shut down for the foresee- able future (Hand 2016; Lin and Ginsburg 2015; Zhu 2010). More recently, the Court, along with the other two branches of the law enforcement apparatus, gained the ability to issue “guiding cases,” which, as explained by senior judges on the Court, would function as the Chinese equivalent of American case law, thereby potentially giving the Court a new dimension of authority (Ahl 2014; Deng 2015; Gurgel and Yu 2012; Jia 2016; Limmer 2013). A wave of studies fol- lowed each and every one of these developments, and most of them came, eventually, to the conclusion that not much had changed institutionally and that the Court’s formal boundaries remained similar to those twenty or thirty years earlier. The guiding cases system may yet change this, but so far it has not substantially altered the status quo. The second level—political control and interference—is where the real action takes place. Institutionally, the Party leads and oversees the Court, but the much more interesting question is precisely how it prefers to lead and oversee, which is something that, for the past decade or two, has seemed to change dramatically every couple of years. Since 2008, when Xiao Yang stepped down

4 The relative lack of formal institutional change can be observed in the basic similarity of the descriptions given by Finder (1993), Fu (2015), Liebman (2007), and Peerenboom (2002), despite the passage of over two decades.

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 159 as Chief Justice, scholars have devoted great attention to gauging the political pressure that external entities place on the Court. Was the Court being forced to “turn against law,” as one scholar argued (Minzner 2011)? Was the Party leadership ordering it to emphasize mediation over adjudication and to incorporate populist elements into its decision-making process? Was the Party leadership uncomfortable with the apparently pro-rule of law and pro-judicial independence stance that the Court had adopted since the late 1990s, and was it attempting to crack down by parachuting Wang Shengjun, a career bureau- crat with no formal legal experience, into the position of Chief Justice? A few years later, as Xi Jinping rose to power and the reputedly reformist former Party secretary of Hunan, Zhou Qiang, became Chief Justice, the questioners began to sound somewhat more optimistic (Fu 2016; Gewirtz 2014; Minzner 2015; Schultz 2016; Zheng and Shan 2015). Would Zhou Qiang enjoy greater leeway to pursue judicial reforms? Has the Party’s approach to “rule of law,” “rule by law,” or even “constitutionalism” moved in a more positive direction with its leadership turnover? Political and ideological forces can exert enormous influence over the Court without triggering any change in its formal institutional capacities. Correspondingly, Court watchers must wade—and have indeed waded—into the realm of Party politics if they truly hope to understand the Court’s limitations. However, this kind of analysis has serious methodological difficulties, some of which the existing literature has yet to overcome. Gauging the Party leadership’s attitude toward legal reform in general, specifically toward the spc, is, at best, a highly inexact science. It necessarily relies on parsing and interpreting systemically vague and political jargon–laden speeches and on unearthing in- tent from beneath multiple layers of often intentionally confusing signals. The primary source materials, given the lack of formal legislation or regulation, are nonbinding statements issued within highly complicated and discreet political contexts. It is, in essence, an exercise in Pekingology—the Chinese equivalent of Kremlinology—and comes with all the usual difficulties of observing and understanding a secretive authoritarian state. High-quality Pekingology generally requires a sophisticated understanding or, even better, a somewhat falsifiable model—a completely falsifiable one is unrealistic, given the lack of transparency—of how Chinese central politics work, but thus far, such modeling has rarely been applied to the spc.5 Main- land scholars, whether legal scholars or political scientists, operate under severe and obvious political constraints when it comes to this kind of work, but foreign scholars face their own constraints. Interdisciplinary research has not

5 The major exception is Wang (2015).

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

160 Zhang been a prominent feature of Chinese legal studies until recently, so the image of the Party-state that has guided most studies on the spc has been too sim- plistic: The Party wishes to reap the benefits of a more professional judiciary and predictable law enforcement—lower transaction and information costs across the board for economic activity, stronger control over lower-level governments, higher levels of social trust, higher foreign investment, potentially less corruption, a boost to political legitimacy, and so on—but does not wish to pay the costs, especially if they involve a dilution of its own power (Cai and Zhu 2013; Fu 2015; Ginsburg and Moustafa 2008; Li 2016; Mei and Pearson 2014; Wang 2015). This may well be true, but it tells us too little and leaves out too much. At the most obvious level, the Party is not a unified entity but, rather, a collection of individuals—and, at the highest levels, a collection of individuals with enormously diverse incentives. Claims about personal incentives are much more concrete and empirically verifiable than general statements about the Party as a whole and therefore need to play a more central role in serious analysis. This introduces a range of factional politics, collective action problems, and communication issues that would otherwise remain invisible but are almost certainly part of the process in which political decisions regarding the spc are evaluated and issued. For example, it is possible that the recent “return” to judicial professionalization under Zhou Qiang might have had something to do with the political fall and criminal prosecution of Zhou Yongkang, the previ- ous head of the Political and Legal Affairs Commission, or with Xi’s general political interest in mounting the largest and most sustained anti-corruption campaign in recent Party history? Large turnover in personnel of this sort and the ensuing factional rebalancing should at least be considered by any serious model of political control over the spc, if not necessarily incorporated into it—simply because whether they are incorporated can significantly alter the model’s predictions. A model that gives some weight to factional politics will find a less sweeping, more guarded, and far fickler Party endorsement of judicial professionalization than one that does not. The lack of serious consider- ation of individual and factional Party politics in existing studies of the spc is, therefore, a serious defect. The recent inflow of scholars with training in political science can be expected, eventually, to fill that gap (Gallagher and Dong 2011; Stern 2014; Wang 2015). One way to circumvent some of the challenges associated with studying central-level party politics is to look, instead, at the full range of authority ac- tively exercised by the Court—that is, to turn one’s attention away from signals sent by the Party leadership and toward the Court’s actual functioning. This approach can be justified based on at least two possible theories, even if the

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 161 ultimate objective is to delineate the limits of the Court’s authority. The first theory is that the Court will always attempt to maximize its political clout by using as much authority as allowed, and therefore that we can measure the amount and nature of external political pressure by documenting any shrink- age or expansion in the Court’s activities. The second theory is that most of the Court’s core functions are, in fact, under the direct supervision and control of the Party leadership, and therefore studying the Court’s most important activities is tantamount to studying the directives and preferences of the Party (Minzner 2011; Zang 2010). Either of these theories assumes that understanding the Court’s institutional capacities and limitations requires a reasonably sophisticated model of either central party politics or the Court’s activities, behavioral patterns, and motivations. These activities form the focus of Section 2.

2 How the Court Actually Operates

As the above discussion already suggests, the papers that I group into the second category often share the same subject matter as those in the first category— for example, recent papers in both categories make significant mention of the new guiding cases system—but they approach that subject matter from a different perspective. The papers in the first category focus on the powers, new or old, granted to the spc, whereas those in the second category focus on how the Court actually exercises them. Occasionally, the latter are con- structed purely as descriptive projects with no further ambitions, but, more often, the descriptive analysis supplies the empirical foundation for some sort of broader agenda: For example, some papers in the second category attempt, as noted above, to measure the boundaries of the Court’s authority by map- ping its actual exercise of power—and therefore can double as papers in the first category (Minzner 2011; Zang 2010). Alternatively, some scholars have attempted to evaluate whether the Court can competently or equitably exercise its allocated authority (Hou 2005; Li 2009). Yet another group of papers focuses on unpacking the Court’s behavioral tendencies and incentives: why it acts the way it does. Due to its specific methodological challenges, this kind of project is perhaps best treated as a separate analytical category and is the subject of Section 3. Because of the common concern—one is tempted to say obsession—with measuring the boundaries of the Court’s authority, many, arguably most, papers in the second category focus on the more politically charged and contro- versial aspects of the Court’s operation. A highly visible subgroup of studies focuses, for example, on the general reform slogans the Court issues from time

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

162 Zhang to time, often in its annual reports and, more recently, in its five-year plans.6 The most prominent of them include the sifa weimin [justice for the people] slogans that accompanied the “populist” reforms of the Wang Shengjun era or the more pro-judicial professionalism and pro-reform slogans that his suc- cessor, Zhou Qiang, has cited in recent years. Underlying these studies is the belief—often made at socialist institutions—that the Court operates through sweeping campaigns, in which a central ideological directive guides specific changes. This compels external court watchers to pay particular attention to shifts in the Court’s rhetoric and ideological framing. Other studies focus more on specific institutional changes, rather than the general rhetoric, but nonetheless devote their attention to what most scholars would consider “reforms”: new powers such as the guiding cases system (Ahl 2014; Deng 2015; Gurgel and Yu 2012; Jia 2016; Limmer 2013), changes in the Court’s relationship with local governments, particularly through the new circuit court system (Hou 2015; Ip 2012; Long and Wang 2015), and new requirements for the hiring of judicial staff (Kinkel and Hurst 2015). As a result, more scholarly attention often appears to be devoted to what changes than to what remains stable. Since 2012, for example, more studies appear to have been devoted to the guiding cases system, the new circuit courts, and changes in the judicial hiring and compensation system than to all other facets of the Court’s operation combined. To some extent, this is natural— these are important and exciting changes, and scholars are justifiably inter- ested in expanding their realm of inquiry—but it also has created some uncomfortable gaps in the literature. For example, over the past decade, few, if any, studies have substantially updated our understanding of how the Court drafts and issues judicial interpretations, even though it is arguably the most important activity of the Court.7 Similarly, with only a few exceptions, recent scholarship has paid little attention to how the Court actually reviews lower- court decisions.8 This stands in stark contrast to the study of local courts, which tends to be much more technical and detail oriented, focus more on the specific mechanisms of adjudication and legal interpretation than anything else (Clarke 2003; He 2009; He and Su 2013; Howson 2010). Of course, the spc is more explicitly politicized than local courts, but it still functions as a judicial

6 Such studies focus, in particular, on the Xiao Yang–Wang Shengjun transition that led to the rhetorical rise of “legal populism.” See, for example, Liebman (2011) and Minzner (2011). 7 Occasionally, commentaries on specific judicial interpretations emerge—for example, Buf- ford (2017) and Chen and Li (2016)—but few, if any, new studies on the institutional mechanisms and structures through which these interpretations have appeared. 8 There are a few exceptions, for example, Trevaskes (2013).

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 163 institution—in fact, that is where it devotes the vast majority of its everyday resources. It is, therefore, a cause of some concern that recent scholarship has shown less inclination to dive into the details of these “normal” judicial functions. Despite these empirical imbalances, the existing literature has nonetheless achieved some consensus on several foundational issues. First, the Court en- joys a significant degree of autonomy and discretion in many of its everyday operations (Fu and Cullen 2011; Grimheden 2007; Ip 2011; Peerenboom 2002; Zhang 2012). In particular, few, if any, studies have unearthed evidence of systemic external interference in the Court’s adjudicative functions. In all likelihood, other branches of the Party-state, even the career bureaucrats in the Political and Legal Affairs Commission, simply lack the resources and expertise to interfere on a regular basis. The Court’s other primary functions, such as overseeing the judicial system and issuing legal interpretations, necessarily involve a substantial amount of interaction with other government organs, both national and provincial, but in this respect, too, scholars have portrayed the Court as a somewhat independent party that has significant, if limited, legislative and administrative agency. Here, too, its legal expertise conveys a certain amount of institutional leverage and advantage over other government entities. Even the Court’s main reform slogans—the most politicized and scrutinized aspect of its work—have arguably been “out of sync” with central Party directives on at least a few occasions. For example, it continued to push a somewhat toned-down but still substantial judicial professionalization agenda at the same time that it echoed the Party leadership’s promotion of populist dispute settlement (Ip 2011; Zhang 2012). In general, the Court has become a powerful and somewhat independent entity in Chinese law enforcement and shows signs of further growth. Second, as noted above, the Court has provided somewhat steady—if often muted—support of judicial professionalization and “the rule of law,” even during the Wang Shengjun era of “populist legality” (Fu and Cullen 2008; Grimheden 2007; Ip 2011; Peerenboom 2002; Zhang 2012). The overall level of professional training among spc judges has improved over the past two decades, as has the consistency of its adjudication. The push to detach courts from local politics has remained constant, as have the Court’s attempts to con- centrate adjudicative authority within the judiciary. These attempts coexisted somewhat uneasily with programs to promote mediation during the peak of the wave of “judicial populism,” but no attempts have been made to discon- tinue them. More recently, they have gained steam under Zhou Qiang, who has openly supported not only judicial professionalism but also a vaguely defined but nonetheless suggestive notion of “constitutionalism” (Fu 2016; Gewirtz

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

164 Zhang

2014; Ma 2014; Minzner 2015; Schultz 2016; Zheng and Shan 2015). Whatever emphasis on mediation and other forms of “judicial populism” existed under Wang Shengjun has largely been withdrawn. Third, as already suggested above, the Court is an enormously complex entity that does not easily lend itself to uniform ideological characterization (Zhang 2012). Slogans and initiatives that can appear contradictory—judicial professionalization and populism, for example—sometimes emerge simulta- neously, often without formal explanation. This suggests that, at the very least, the Court can be the target of competing sources of pressure and must sometimes balance divergent incentives. It is undoubtedly influenced—to some extent, controlled—by the political directives of the Party leadership, but it has shown both the desire and the capacity to pursue other, potentially competing, objectives. This is hardly the only source of tension in the Court’s regular operation, but it is likely the most important one. If nothing else, these basic conclusions constitute a fairly strong rejection of the old and somewhat common notion that the Court is merely a pawn of the Party leadership (Ip 2011; Zhang 2012). Quite the opposite—it possesses considerable institutional agency over a large, and growing, swathe of legal affairs and can sometimes resist (subtly, to be sure) the general rhetorical ex- hortations of the Party leadership. No external entity—not the Political and Legal Affairs Commission and not the more distant Politburo—is capable of monitoring and controlling the Court’s operations with any kind of regularity, nor does there seem to be much interest in doing so. When left to its own de- vices, the spc seems to prefer judicial professionalization over populism and court-centric, formal modes of dispute resolution over the alternatives. In other words, most of the time it acts like a conventional “highest court of the land,” even though it lacks the power of constitutional review. It should be studied as such and not merely as an entity of some moderate political intrigue. But this is only a shallow and preliminary conclusion that leads to a number of deeper and more interesting ones: Is the Court competent at what it does? Correspondingly, should its powers be expanded or further constrained? More fundamentally, why does it act the way it does? What incentives, pressures, and constraints influence its operation? In other words, what would an actual “behavioral theory of the Court”—one that has the ability to both explain past fact patterns and predict future ones—look like? Building a “behavioral theory of the Court” is not merely an academic attempt to understand it at a deeper level but also a necessary step if we are to make any normative claims about it, including its potential role in constitutional review or other forms of power balancing. Take, for example, the simple question of institutional competence: no logically reliable way of evaluating

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 165 the Court’s institutional competence exists on any specific issue without building at least some rudimentary model of its decision-making process. One could argue that a good evaluation only requires a measurement of results and con- sequences, instead of motives and incentives, but that is only true—if at all— of backward-looking evaluations, rather than forward-looking ones. Projecting past behavior into the future requires an assumption of behavioral stability, and, if we probe any deeper into that stability, we are confronted once again with all the basic questions about incentives, motives, institutional structure, and so on. The need to probe the Court’s motivations becomes even more acute if, as much of the field tries to do, one attempts to evaluate the desirability, to say nothing of the feasibility, of expanding the Court’s powers, especially into the realm of constitutional review (Fu 2003; Ji 2002; Liebman 2007; Lubman 1999). Here, we cannot make any projections based on an evaluation of past performance, only offer informed speculation based on a systemic understanding of how and why the Court acts. Whether it can be trusted with new forms of authority depends fundamentally on what we think it will do with them—whether, for example, it will engage in rent-seeking behavior or outright abuse—and therefore requires at least some theory on how the Court makes decisions. Finally, a “behavioral theory of the Court” is often necessary even when the goals are purely empirical. Describing “what the Court has done” may be straightforward but any attempt to sort or organize the Court’s activities into more useful analytical categories necessarily requires an idea of what it seeks to accomplish through those activities. In other words, any attempt at abstraction—any attempt to identify an agenda, as opposed to individual actions—requires some sense of the Court’s incentives and objectives. Unfortunately, the existing literature in this area is particularly thin. Many, probably most, studies implicitly assume a certain mode of operation but do not identify it explicitly, much less attempt to justify it. Many papers seem to believe, for example, that the Court is more or less a puppet of the Party leadership but largely fail to flesh out the contours or ramifications of that belief. Even the handful of studies that attempt to tackle the behavioral issues head- on, including my own contribution to the field, could generally benefit from more rigorous modeling. This is the subject of Section 3.

3 Behavioral Theories of the Court

As noted above, a traditional—and common—view of the Court is that it is predominantly a loyal foot soldier of the Party leadership. If one peers more

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

166 Zhang deeply into this view, it has at least two possible variations. First, the Court might simply be so ideologically aligned with the Party that it does not wish to behave otherwise. Second, it may or may not have divergent incentives but, given the extremely tight control the Party leadership exercises over the Court, they simply do not matter. Whereas the Court often claims allegiance to the former,9 most scholars who take the “foot soldier” view veer toward the latter (Minzner 2011; Zang 2010). More recent scholarship has, by and large, rejected this view, in favor of portraying the Court as somewhat independent and capable of promoting— within limits, of course—its own agenda. But this leads to a natural follow-up question: “what is that agenda?” Most scholars who have addressed this issue, myself included, have generally seen the Court as a largely rational utility max- imizer, an entity that seeks to maximize its own power and authority, both in absolute terms and vis-à-vis other government entities, particularly other law enforcement institutions (Ip 2011; Zhang 2012). In other words, it behaves like any other Chinese state or party organ. Thus, the Court has a long-term interest in promoting the rule of law and judicial professionalization, because those objectives increase the importance of legal expertise within the operations of the state apparatus and therefore enhance the Court’s power and prestige. But precisely because the Court’s support for these objectives is based on pragmatic calculations, in the short to medium term, it can be easily overridden or at least counterbalanced, by competing considerations: pressure from the Party leadership, budgetary difficulties, social hostility, and so on. It is therefore un- surprising that, during periods of high political pressure or financial difficulty, the Court dampens its promotion of judicial professionalism programs, in favor of advocating mediation or stressing its loyalty to the Party. After the pressure subsides—as it did after the Wang Shengjun–Zhou Qiang transition—the Court’s pro-professionalism and pro–rule of law tendencies once again come to the forefront. For the most part, the portrayal of the Court as a pragmatic power seeker is consistent with its recent performance. Nonetheless, this account has a number of gaps—and so does my own previ- ous scholarship. First, in its current state, it can be frustratingly vague. “Power” and “prestige” are immensely malleable terms. When we argue that the Court seeks them, what, precisely, do we mean? In other words, it is extremely difficult to narrow down the concepts of “power” and “prestige”—when they are

9 The most infamous example is probably the “Three Supremes” slogan issued in Wang (2008). This concept had actually made its debut in late 2007 speeches by Hu Jintao, then general secretary of the Chinese Communist Party, but it was Wang’s vigorous advocacy that alerted the Chinese legal world to its potential ramifications for judicial reform.

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 167 applied to the spc as a unified institution—to the point that they can generate falsifiable hypotheses. They conceivably allow us to justify anything the Court does as “in its own long-term interests,” so long as we are willing consider their conceptual boundaries malleable. For the most part, scholars argue that the Court seeks to broaden its institutional authority—for example, to gain the ability to issue guiding cases or perhaps to conduct constitutional review— and to safeguard it from external interference (Fu 2003; Ip 2011; Ji 2002; Lieb- man 2007; Lubman 1999; Zhang 2012). But they are not necessarily always in its interests: gaining more authority may also open the Court to a wider range of sociopolitical pressures and complaints, and independence sometimes comes at the cost of losing access to certain political resources. Therefore, some deeper and perhaps more abstract notion of “power” or “status” is at work that allows the Court to balance these considerations. The problem is that, unlike personal wealth or personal ranking within a group of peers, it is very difficult to give any precise definition to what “power” or “status” means to an entire institution—which, after all, does not have a physical “mind of its own,” no matter how much scholars emphasize its political agency. What, then, is the solution? Substituting “power” in favor of equally vague concepts such as “utility” does nothing to resolve the problem. Should we consider the Court a committed ideological agent of “the rule of law” or another ideological position? It has wavered too often, and too dramatically, from any coherent ideological baseline for that theory to work easily (Zhang 2012). But, more importantly, what does it even mean for “the Court” to be an ideological agent? In the end, the fundamental problem is that, by treating “the Court” as a unified entity, scholars are stuck with the extraordinarily difficult task of creating a unified “utility function” for something that, in all likelihood, defies such simplification. After all, the Court is a collection of individual judges, who each have their own incentives and goals. It is led by a smaller but nonetheless diverse collection of justices—among whom the Chief Justice is the most senior but, by no means, dominant figure—whose interests may or may not be aligned with one another or with their subordinates. Institutional infrastructure in place to generate a degree of unity among these individuals, but this unity is as least as likely to be the balanced equilibrium of individual interests as it is the product of institutionalized group think. In the face of these problems, the best solution is probably to deconstruct the Court into its individual components and model from there—but without losing sight of its institutional architecture. At least one attempt has been made to do some of this. The Peking Univer- sity professor Hou Meng (2007) outlines some of the personal incentives—for

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

168 Zhang example, further promotion—that spc justices face and briefly discusses how they can affect their decision-making. While highly laudable and important, Hou’s attempts nonetheless fall well short of producing a usable model of judicial or Court behavior. Aside from a somewhat speculative discussion of how “downward mobility”—spc justices leaving Beijing to head a provincial court—can affect the Court’s control of lower courts, Hou does not explicitly link these incentives to any testable claim about judicial policymaking or adjudication. Nonetheless, the direction of his study is undoubtedly correct: To truly understand how the Court functions, we must place it within the context of the general bureaucratic infrastructure of the Chinese state and understand how the Court’s activities and statements can affect the individual fortunes of its decision-makers. That will allow us to reverse the analysis and examine how those effects create behavioral incentives for the Court’s leadership. The most important factor is, in all likelihood, the prospect of further promotion or transfer within the Party-state: spc justices do not have tenure and, as Hou points out, sometimes do not consider promotion to that post the ultimate career objective. In a few cases, they have sought further promotion to other, arguably more powerful, branches of the state or Party apparatus. Even those for whom the position of spc justice is the pinnacle of their career often find themselves in need of a landing spot after leaving the Court, usually for age-related reasons. Only 8 of the 36 justices surveyed in Hou’s (2007) study retired directly after leaving—the rest went on to positions in the National People’s Congress or the National People’s Political Consultative Conference. In other words, most spc justices have at least some incentive to look out for their own political prospects while serving on the Court, and some—probably among the most ambitious, energetic, and influential—have very large incentives. This is something that differentiates spc judges, not merely the justices, from lower-court judges: whereas the career options for lower-court judges are largely confined to the judicial system, the spc justices often have exit opportunities beyond it. This intuitively must have had an impact on their decision- making as judges and administrators. The problem is that, as discussed in Section 4, it is only one influencing factor among, potentially, many. The real challenge is how to balance and combine these factors into something resem- bling a coherent model. If the field truly hopes to understand how and why the Court acts as it does, it will eventually need to turn in this direction, and the earlier the better. None of this is to suggest that judges are in any way non-ideological or that ideological behavior is fundamentally inconsistent with utilitarian modeling. Quite the opposite, the construction of individual utility functions not only can but often must incorporate ideological factors. At the most basic level, a judge’s

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 169 perception of self-interest is something that often has fairly deep ideological imprints. Even if we assume that the judge simply wishes to maximize personal status and power, how he actually does that will be heavily influenced by his understanding of, at the very least, the political and ideological commitments of his superiors. Moreover, what constitutes status and power are ideologically inflected questions. Nevertheless, it is highly unlikely that all, or even most, judges care only about personal promotion and power. Instead, insofar as they have true normative commitments, scholars must try to work those into their understanding of judicial behavior. This is especially true when we are talk- ing about spc judges, who work in an environment that is innately ideologically charged. The argument here is simply that we cannot revert to crude and oversimplified notions of Court ideology but, rather, should try to think about ideology and its interaction with material self-interest in a more nuanced and detailed fashion—one that allows the rigorous incorporation of ideology into models of individual behavior.

4 Toward a Behavioral Model

The first step in creating a behavioral model of spc judges is to compile a list of the factors that potentially influence their legal and administrative thinking. At the most foundational level, judges of all ranks are rewarded for display- ing legal expertise and can suffer serious reputational and institutional con- sequences if they make legal mistakes. But this basic incentive to apply and interpret the law in a professional manner is easily obstructed and occasionally overridden by other incentives. This includes the need to avoid reprimand and sanction by the Party leadership, the desire for greater sociopolitical prestige and status, the need to secure high-quality exit opportunities, the desire for financial comfort, and, more recently, the need to avoid the sweeping anti- corruption measures implemented under the Xi Jinping administration. The lack of judicial tenure and institutional independence in the Chinese court system tends to multiply and complicate the material considerations that its members must juggle, and spc judges and justices are no exception. Even a cursory glance shows that these incentives are often at odds with one another. spc justices gain in power and prestige when the Court’s authority expands relative to other branches of government and when the judiciary becomes more independent, but rapid movement in these directions can easily arouse suspicion and hostility from the Party leadership, as it did during the lead-up to Wang Shengjun’s appointment. Similarly, the calculus on what, exactly, generates good exit opportunities is murky. On the one hand, former

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

170 Zhang justices and judges will likely be of higher value to other government entities if the Court possesses a high level of independence and sociopolitical prestige. On the other hand, they also run the risk of burning bridges if they aggres- sively attempt to detach the Court from external political influence. Financial incentives, too, are generally at odds with the danger of falling under graft investigations—yet for many judges, even justices, particularly those from lower-income backgrounds, the lure of financial security is enormously powerful. How a judge balances these contradictory urges is a personal decision, indeed a highly idiosyncratic one. Adding to the complexity are the numerous ideological factors that can come into play: spc judges are, as noted above, hardly non-ideological crea- tures, and many of them may be genuinely committed to certain worldviews, whether it is some version of socialism, liberalism, or nationalism, the belief in the rule of law, or some notion of proper dispute resolution derived from historical tradition.10 One could argue that the Court’s leaders, having risen through the ranks of the judiciary, are generally hardened and jaded bureaucrats who would almost never consciously allow ideological commitments to override pragmatic interests. Even if that is true, ideology can still exert enormous influence over their decision-making: As research in cognitive science has long argued, ideological leanings can shape—often subconsciously—perceptions of material self-interest (Bilz and Nadler 2009; Kahan 1997, 2000; Lessig 1995; Thaler and Sunstein 2008). For example, a liberal-leaning judge may very well overestimate the career benefits that a more independent judiciary can bestow upon its members, whereas a more conservative judge might underestimate them. In other words, ideological leanings are not merely an external factor that either supports or contradicts one’s perceived material interests but are, instead, an integral ingredient in the formation of those interests. Some studies have also suggested that group mechanisms, particularly hierarchical ones, can reinforce ideological bias by attaching reputational benefits to certain kinds of popular biases and therefore nudging individuals further towards entrenching those biases (Kahan 1997, 2000). Judicial bureaucracies are no less subject to these mechanisms than any other kind of hierarchical group. Is it even possible to assemble a model—or models—of judicial behavior that can fairly account for all these tangled and often mutually contradictory factors? Fortunately, the task is made somewhat easier by the Court’s bureaucratic nature. The same group mechanisms that can strengthen ideological biases are also capable of creating ideological and behavioral homogeneity

10 For an in-depth survey of these various ideological strands, see Seppänen (2016).

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 171

(Bendor and Swistak 2001; Ellickson 2001). The Court, like most bureaucratic bodies, imposes great homogeneity on its members, especially through its personnel decisions: promotion is based at least partly on one’s personal and ideological compatibility with superiors, which ensures a large amount of behavioral continuity both across time and within chains of patronage. This substantially narrows the range of behavioral possibilities that scholars must consider and justifies approaching the Court from a top-down perspective. One of the most obvious steps that scholars can take—but have yet to attempt—is to produce an in-depth biographical study of one or more justices: their personal journey through the judicial system, their speeches, published opinions, academic publications, and, if available, private writings as well as the impressions they left on colleagues and superiors. spc justices are usually secretive and cautious, but the nature of their work demands that they leave a substantial paper trail. A serious qualitative study of these paper trails would provide a firm foundation for potential analytic abstraction and further modeling. Such a study would not be unlike an academic biography, although it would ideally be more mindful of the relevant theoretical and institutional literature than most biographies tend to be. For now, at least, the most rewarding angles for studying the spc will likely be qualitative, rather than quantitative. Far more than lower courts, the spc is secretive, and available public data is scarce enough to render most forms of quantitative analysis infeasible. More importantly, modeling requires at least some assumptions on the interactive patterns between the factors list- ed above: Otherwise, one would not know what factors to control for, which to use as independent variables and which to disintegrate into functions of other variables. In many cases, these assumptions must be made prior to empirical testing, but they cannot be made without some in-depth understanding of how spc judges and justices think. Therefore, given that very little work has been done on these issues, qualitative analysis should probably precede quantification. All in all, research on the spc now stands at a somewhat less developed level than research on local courts. The field has yet to develop a sophisticated understanding of individual incentives, whether of spc judges or of the political actors with whom they with on a daily basis. This has prevented scholars from developing truly systemic and falsifiable theories of the Court’s operation and behavior or even of its institutional powers and limitations. To address these issues, this chapter proposes a “reset” of sorts: a “descent” of our research methodology from the aggregate institutional level to a combination of institutional analysis and individual-level biography and modeling. This would bring the field more in line with conventional “best practices” in the social sciences

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

172 Zhang and with the kind of methodology that cutting-edge studies regularly apply to Western, particularly American, courts (Epstein et al. 2003). Of course, obvious political, social, and perhaps cultural differences exist between Chinese and American courts, but that is not a reason to reject individual-level analysis. Quite the opposite: it bolsters the argument that, in a world in which most models of judicial behavior are Western in origin, research on the spc should start at the micro-level, where fewer assumptions are necessary. These proposals should not be taken as an exhaustive set of prescriptions. Different solutions are needed for other problems that currently plague the field—most notably, the lack of easy empirical access to spc activity. That said, placing greater emphasis on the construction of behavioral models has the potential to hone the field’s empirical focus in useful ways. For example, doing so might benefit from the short-term prioritizing of micro-level ethnography over general information collection on high-level policymaking and adjudication: the former is more likely to yield greater dividends for behavioral analysis, at least when such analysis is yet scarce and unsystematic, than the latter. Ulti- mately, the goal here is to propose an analytical, rather than substantive, para- digm for a field that currently tends to generate large amounts of substantive arguments without a matching level of theoretical rigor.

References

Ahl, Björn. 2014. Retaining judicial professionalism: The new guiding cases mechanism of the Supreme People’s Court. China Quarterly, no. 217:121–39. Balme, Stephanie, and Michael Dowdle, ed. 2009. Building Constitutionalism in China. New York: Palgrave Macmillan. Bendor, Jonathan, and Piotr Swistak. 2001. The evolution of norms. American Journal of Sociology 106, no. 6:1493–1546. Bilz, Kenworthey, and Janice Nadler. 2009. Law, psychology and morality. In Moral Cog- nition and Decision Making: The Psychology of Learning and Motivation, ed. Daniel M. Bartels, Christopher W. Bauman, Linda J. Skitka, and Douglas L. Medin, 101–31. San Diego: Elsevier Academic Press. Bufford, Samuel. 2017. Supreme People’s Court interpretations of China’s bankruptcy law: Translations and commentary. American Bankruptcy Law Journal 91, no. 1:1–54. Cai, Yongshun, and Lin Zhu. 2013. Disciplining local officials in China: The case of conflict management. China Journal 70:98–119. Chen, Albert H.Y. 1999. Toward a legal enlightenment: Discussions in contemporary China on the rule of law. ucla Pacific Basin Law Journal 17, nos. 2–3:125–65.

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 173

Chen, Benjamin Minhao, and Zhiyu Li. 2016. Interpretation of the Supreme People’s Court on several issues concerning the application of administrative litigation law of the People’s Republic of China. Pacific Rim Law and Policy Journal 25, no. 1:133–50. Clarke, Donald. 2003. Empirical research into the Chinese judicial system. In Beyond Common Knowledge: Empirical Approaches to the Rule of Law, ed. Erik G. Jensen and Thomas C. Heller, 164–92. Redwood City, ca: Stanford University Press. Cohen, Jerome Alan. 1969. The Chinese Communist Party and “judicial independence”: 1949–1959. Harvard Law Review 82, no. 5:967–1006. Deng, Jinting. 2015. The guiding case system in mainland China. Frontiers of Law in China 10, no. 3:1–26. Ellickson, Robert C. 2001. The market for social norms. American Law and Economics Review 3, no. 1:1–49. Epstein, Lee, Jack Knight, and Andrew D. Martin. 2003. The political (science) context of judging. St. Louis University Law Journal 47:783–817. Finder, Susan. 1993. The Supreme People’s Court of the People’s Republic of China. Journal of Chinese Law 7, no. 2:145–224. Fu, Hualing. 2003. Putting China’s judiciary into perspective: Is it independent, competent and fair? In Beyond Common Knowledge: Empirical Approaches to the Rule of Law, ed. Erik G. Jensen and Thomas C. Heller, 193–219. Redwood City, ca: Stanford University Press. Fu, Hualing. 2016. Building judicial integrity in China. Hastings International and Com- parative Law Review 39, no. 1:167–81. Fu, Hualing, and Richard Cullen. 2011. From mediatory to adjudicatory justice: The limits of civil justice reform in China. In Chinese Justice: Civil Dispute Resolution in China, ed. Margaret Y.K. Woo and Mary E. Gallagher, 25–57. Cambridge, uk: Cam- bridge University Press. Fu, Yulin. 2015. Functions of the Supreme People’s Court in transition. Peking University Law Journal 3, no. 2:299–322. Gallagher, Mary E., and Baohua Dong. 2011. Legislating harmony: Labor law reform in contemporary China. In From Iron-Rice Bowl to Informalization: Markets, State and Workers in a Changing China, ed. Sarosh Kuruvilla, Ching Kwan Lee, and Mary E Gallagher, 36–60. London: ilr Press. Gewirtz, Paul. 2014. What China means by “rule of law.” New York Times, October 19, http://www.nytimes.com/2014/10/20/opinion/what-china-means-by-rule-of-law .html?_r=0/. Accessed June 2017. Ginsburg, Tom, and Tamir Moustafa. 2008. Rule by Law: The Politics of Courts in Authori- tarian Regimes. Cambridge, uk: Cambridge University Press. Grimheden, Jonas. 2007. The reform path of the Chinese judiciary. Fordham Interna- tional Law Journal 30, no. 4:1000–1013.

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

174 Zhang

Gurgel, Seth, and Ping Yu. 2012. Stare decisis in China? The newly enacted guiding case system. In Reading the Legal Case: Cross-Currents between Law and the Humanities, ed. Marco Wan, 142–58. New York: Routledge. Hand, Keith J. 2011. Resolving constitutional disputes in contemporary China. Univer- sity of Pennsylvania East Asia Law Review 7, no. 1:51–159. Hand, Keith J. 2016. An assessment of socialist constitutional supervision models and prospects for a constitutional supervision committee in China: The Constitution as commander? In China’s Socialist Rule of Law: Reforms under Xi Jinping, ed. John Garrick and Yan Chang Bennett, 30–44. New York: Routledge. He, Weifang. 1997. Zhongguo sifa guanlizhidu de liangge wenti [Two problems in Chi- na’s system of judicial administration]. Social Sciences in China 1997, no. 6:117–19. [in Chinese]. He, Xin. 2009. Enforcing commercial judgments in the Pearl River Delta of China. American Journal of Comparative Law 57, no. 2:419–55. He, Xin, and Yang Su. 2013. Do the “haves” come out ahead in Shanghai courts? Journal of Empirical Legal Studies 10, no. 1:120–45. Hou, Meng. 2005. Jingji tizhi bianqian zhong de zuigao renmin fayuan [The Supreme People’s Court of China in the process of structural economic change]. Zhongguo zhengfa daxue xuebao [Journal of the Chinese University of Political Science and Law] 23, no. 2:66–87. [in Chinese]. Hou, Meng. 2007. Zuigao renmin fayuan yanjiu: Yi sifa de yingxiangli qieru [A study of the Supreme People’s Court of China: From the angle of judicial influence]. Beijing: Falü chubanshe. [in Chinese]. Hou, Meng. 2015. Zuigao renmin fayuan xunhuiting: He qu he cong [The circuit courts of the Supreme People’s Court of China: Origins and future development]. Beida falü pinglun [Peking University Law Review] 2015, no. 1:65–90. [in Chinese]. Howson, Nicholas C. 2010. Corporate law in the Shanghai People’s Courts, 1992–2008: Judicial autonomy in a contemporary authoritarian state. East Asia Law Review 5, no. 2:303–442. Ip, Eric C. 2011. The Supreme People’s Court and the political economy of judicial empowerment in contemporary China. Columbia Journal of Asian Law 24, no. 2:367–436. Ip, Eric C. 2012. Judicial review in China: A positive political economy analysis. Review of Law and Economics 8, no. 2:331–66. Ji, Weidong. 2002. Hexianxing shencha he sifa quan de qianghua [Constitutional review and the strengthening of judicial power]. Social Sciences in China 2002, no. 2:4–17. [in Chinese]. Jia, Mark. 2016. Chinese common law? Guiding cases and judicial reform. Harvard Law Review 129, no. 8:2213–34. Kahan, Dan M. 1997. Social influence, social meaning, and deterrence. Virginia Law Review 83, no. 3:349–95.

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access

Disaggregating the Court 175

Kahan, Dan M. 2000. Gentle nudges vs. hard shoves: Solving the sticky norms problem. University of Chicago Law Review 67:607–45. Kellogg, Thomas E. 2009. Constitutionalism with Chinese characteristics? Constitu- tional development and civil litigation in China. International Journal of Constitu- tional Law 7, no. 2:215–46. Kinkel, Jonathan J., and William J. Hurst. 2015. The judicial cadre evaluation system in China: From quantification to intra-state legibility. China Quarterly, no. 224:933–54. Lessig, Lawrence. 1995. The regulation of social meaning. University of Chicago Law Review 62:943–1047. Li, Ling. 2016. The Chinese Communist Party and people’s courts: Judicial dependence in China. American Journal of Comparative Law 64, no. 1:37–74. Li, Shichun. 2009. Anli zhidao zhidu de ling yi tiao silu—Sifa nengdong zhuyi zai Zhongguo de youxian shiyong [An alternative path for the guiding cases system— The limited applicability of judicial activism to China]. Faxue [Legal Studies] 2009, no. 6:59–71. [in Chinese]. Liebman, Benjamin L. 2007. China’s courts: Restricted reform. China Quarterly, no. 191:619–38. Liebman, Benjamin. 2011. A return to populist legality? Historical legacies and legal Reform. In Mao’s Invisible Hand, ed. Sebastian Heilmann and Elizabeth J. Perry, 269–313. Cambridge, ma: Harvard University Asia Center Press. Limmer, Jocelyn E.H. 2013. China’s new “common law”: Using China’s guiding cases to understand how to do business in the People’s Republic of China. Willamette Jour- nal of International Law and Dispute Resolution 21, no. 2:96–133. Lin, Yan, and Tom Ginsburg. 2015. Constitutional interpretation in lawmaking: China’s invisible constitutional enforcement mechanism. American Journal of Comparative Law 63, no. 2:467–92. Liu, Zhuang. 2016. Formalities and utilitarian decision: An experimental investigation of Chinese judges. http://ssrn.com/abstract=2807656/. Accessed July 2017. Long, Xiaoning, and Jun Wang. 2015. Judicial local protectionism in China: An empirical study of ip cases. International Review of Law and Economics 42:48–59. Lubman, Stanley. 1999. Bird in a Cage: Legal Reform in China after Mao. Redwood City, ca: Stanford University Press. Ma, Xueling. 2014. Zhou Qiang: Yao an xianfa de yaoqiu, zunzhong he baozhang ren- quan [Zhou Qiang: We must respect and protect human rights as demanded by the constitution]. Sina News (December 4), http://news.sina.com.cn/c/2014-12-04/ 201231246951.shtml. [in Chinese]. Mei, Cigi, and Margaret M. Pearson. 2014. Killing a chicken to scare the monkeys? De- terrence failure and local defiance in China. China Journal 72:75–97. Minzner, Carl F. 2011. China’s turn against law. American Journal of Comparative Law 59:935–84. Minzner, Carl F. 2015. Legal reform in the Xi Jinping era. Asia Policy 20, no. 1:4–9.

china law and society review 2 (2017) 154-176 Downloaded from Brill.com10/02/2021 02:16:16PM via free access

176 Zhang

Peerenboom, Randall. 2002. China’s Long March toward Rule of Law. Cambridge, uk: Cambridge University Press. Peerenboom, Randall. 2010. Judicial independence in China: Common myths and un- founded assumptions. In Judicial Independence in China: Lessons for Global Rule of Law Promotion, ed. Randall Peerenboom, 69–94. Cambridge, uk: Cambridge Uni- versity Press. Schultz, Caitlin E. 2016. Placing power in the cage of law: Judicial independence in China. Capital University Law Review 44:393–427. Seppänen, Samuli. 2016. Ideological Conflict and the Rule of Law in Contemporary China: Useful Paradoxes. Cambridge, uk: Cambridge University Press. Stern, Rachel E. 2014. The political logic of China’s new environmental courts. China Journal 72:53–74. Thaler, Richard H., and Cass R. Sunstein. 2008. Nudge: Improving Decisions About Health, Wealth, and Happiness. New Haven: Yale University Press. Trevaskes, Susan. 2013. China’s death penalty, the Supreme People’s Court, the sus- pended death sentence and the politics of penal reform. British Journal of Criminol- ogy 53, no. 3:482–99. Wang, Shengjun. 2008. Gaoju qizhi yu shi jujin nuli kaichuang renmin fayuan gongzuo xin jumian [Raise high the flag and vigorously establish a new situation in the work of people’s courts]. Zhongguo fayuan wang [China Courts Net], August 7, http:// www.chinacourt.org/public/detail.php?id=316078/. [in Chinese]. Wang, Yuhua. 2015. Tying the Autocrat’s Hands: The Rise of the Rule of Law in China. Cambridge, uk: Cambridge University Press. Xu Aiguo. 2002. Weifazhi er douzheng—Xi Suli de Fazhi ji bentuziyuan [The Struggle for the Rule of Law: An Analysis of Suli’s The Rule of Law and Native Resources]. Peking University Law Anthology 1, no. 1:274–85. [in Chinese]. Zang Dongsheng. 2010. Rise of political populism and the trouble with the legal profes- sion in China. Harvard China Review 6, no. 1:79–99. Zhang, Taisu. 2012. The pragmatic court: Reinterpreting the Supreme People’s Court of China. Columbia Journal of Asian Law 25, no. 1:1–61. Zheng, Yongnian, and Wei Shan. 2015. Understanding Xi Jinping’s “rule of law” campaign. East Asian Policy 7, no. 2:5–19. Zhu, Guobin. 2010. Constitutional review in China: An unaccomplished project or a mirage? Suffolk University Law Review 43, no. 3:625–53. Zhu, Suli. 2009. The Party and the courts. In Judicial Independence in China: Lessons for Global Rule of Law Promotion, ed. Randall Peerenboom, 52–68. Cambridge, uk: Cambridge University Press.

china law and societyDownloaded review from 2Brill.com10/02/2021 (2017) 154-176 02:16:16PM via free access