The People’s Republic of China is embarking on an ambitious program to revolutionize its judicial institutions through information technology. Millions of cases have been published online as part of a move towards greater transparency.... more
The People’s Republic of China is embarking on an ambitious program to revolutionize its judicial institutions through information technology. Millions of cases have been published online as part of a move towards greater transparency. Courts are piloting artificial intelligence systems that promise to streamline adjudicatory processes and expand access to justice. Although other jurisdictions have employed statistical and computational methods to improve judicial decision-making, few have sought to exploit technology to the same degree. A way of understanding this exceptionalism is to view the integration of technology into law as a microcosm of China’s ambitions to emerge as a global artificial intelligence powerhouse and thereby establish itself in the first rank of nations.
Seen from a different perspective, however, the technologization of the legal system responds to certain oppositions in Chinese justice. First, courts today are straining under the burden of their caseloads. The contemporary turn towards legality has swelled the number of lawsuits while the professionalization of the judicial corps also culled its ranks. Artificial intelligence enhances the speed and consistency of adjudication while online disclosure cultivates public trust in the courts. Second, adherence to legal rules and forms restored normality to a society upended by revolutionary struggle but its inflexibility also foments dissatisfaction and disrupts relationships. The ensuing governmental imperative for judges to mediate disputes has resulted in coerced settlements and delayed verdicts. Machine predictions of case outcomes, supplied by courts, guide parties to bargain in the shadow of the law, thereby preserving the voluntariness of peace and the sanctity of justice. Third, while the party-state encourages citizens to know the law and use it as their weapon, civil society and activist lawyers may rally behind a legal cause to challenge the ideological hegemony of the party-state. By helping citizens learn the law and claim their rights, databases and applications foster legal consciousness while disintermediating lawyers.
Technological initiatives for administering justice simply, swiftly, and singly have thus blossomed in China because they relieve some of the tensions in its legal system. An original survey of roughly a thousand netizens and interviews of over a hundred legal aid seekers suggest that internet and artificial intelligence technologies have the potential to realize and refine a Chinese brand of authoritarian legality. But there is also a larger insight here that transcends jurisdictional boundaries and legal cultures. Obverse to the democratization of law is the marginalization of the legal profession. The advent of technology thus surfaces a tension between two dimensions of legality. The first dimension sees law as the disciplining of human conduct through rules. The second dimension, on the other hand, conceives of law as a dynamic force that, by responding to reason, has the potential to reshape the normative status quo. To the extent that lawyers are integral to the vitality of the legal order, innovations that displace them may also undermine one conception of the rule of law.
Seen from a different perspective, however, the technologization of the legal system responds to certain oppositions in Chinese justice. First, courts today are straining under the burden of their caseloads. The contemporary turn towards legality has swelled the number of lawsuits while the professionalization of the judicial corps also culled its ranks. Artificial intelligence enhances the speed and consistency of adjudication while online disclosure cultivates public trust in the courts. Second, adherence to legal rules and forms restored normality to a society upended by revolutionary struggle but its inflexibility also foments dissatisfaction and disrupts relationships. The ensuing governmental imperative for judges to mediate disputes has resulted in coerced settlements and delayed verdicts. Machine predictions of case outcomes, supplied by courts, guide parties to bargain in the shadow of the law, thereby preserving the voluntariness of peace and the sanctity of justice. Third, while the party-state encourages citizens to know the law and use it as their weapon, civil society and activist lawyers may rally behind a legal cause to challenge the ideological hegemony of the party-state. By helping citizens learn the law and claim their rights, databases and applications foster legal consciousness while disintermediating lawyers.
Technological initiatives for administering justice simply, swiftly, and singly have thus blossomed in China because they relieve some of the tensions in its legal system. An original survey of roughly a thousand netizens and interviews of over a hundred legal aid seekers suggest that internet and artificial intelligence technologies have the potential to realize and refine a Chinese brand of authoritarian legality. But there is also a larger insight here that transcends jurisdictional boundaries and legal cultures. Obverse to the democratization of law is the marginalization of the legal profession. The advent of technology thus surfaces a tension between two dimensions of legality. The first dimension sees law as the disciplining of human conduct through rules. The second dimension, on the other hand, conceives of law as a dynamic force that, by responding to reason, has the potential to reshape the normative status quo. To the extent that lawyers are integral to the vitality of the legal order, innovations that displace them may also undermine one conception of the rule of law.
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When did ideology become the major fault line of the California Supreme Court? To answer this question, we use a two-parameter item response theory (“IRT”) model to identify voting patterns in non-unanimous decisions by California Supreme... more
When did ideology become the major fault line of the California Supreme Court? To answer this question, we use a two-parameter item response theory (“IRT”) model to identify voting patterns in non-unanimous decisions by California Supreme Court justices from 1910 to 2011. The model shows that voting on the court became polarized on recognizably partisan lines beginning in the mid-1900s. Justices usually did not vote in a pattern that matched their political reputations and party affiliation during the first half of the century. This began to change in the 1950s. After 1959 the dominant voting pattern is partisan and closely aligns with each justice’s political reputation. Our findings after 1959 largely confirm the conventional wisdom that voting on the modern court is on political lines. But our findings call into question the usual characterization of the Lucas court (1987–1996) as a moderately conservative court. Our model shows that the conservatives dominated the Lucas court to the same degree the liberals dominated the Traynor court (1964–1970).
More broadly, this Article confirms that an important development occurred in American law at the turn of the half-century. A previous study used the same model to identify voting patterns on the New York Court of Appeals from 1900 to 1941 and to investigate whether those voting patterns were best explained by the justices’ political reputations. That study found consistently patterned voting for most of the forty years. But the dominant dimension of disagreement on the court for much of the period was not political in the usual sense of that term. Our finding that the dominant voting pattern on the California Supreme Court was non-political in the first half of the 1900s parallels the New York study’s findings for the period before 1941. Carrying the voting pattern analysis forward in time, this Article finds that in the mid-1900s the dominant voting pattern became aligned with the justices’ political reputations due to a change in the voting pattern in criminal law and tort cases that dominated the court’s docket. Together, these two studies provide empirical evidence that judicial decisionmaking changed in the United States in the mid-1900s as judges divided into ideological camps on a broad swath of issues.
More broadly, this Article confirms that an important development occurred in American law at the turn of the half-century. A previous study used the same model to identify voting patterns on the New York Court of Appeals from 1900 to 1941 and to investigate whether those voting patterns were best explained by the justices’ political reputations. That study found consistently patterned voting for most of the forty years. But the dominant dimension of disagreement on the court for much of the period was not political in the usual sense of that term. Our finding that the dominant voting pattern on the California Supreme Court was non-political in the first half of the 1900s parallels the New York study’s findings for the period before 1941. Carrying the voting pattern analysis forward in time, this Article finds that in the mid-1900s the dominant voting pattern became aligned with the justices’ political reputations due to a change in the voting pattern in criminal law and tort cases that dominated the court’s docket. Together, these two studies provide empirical evidence that judicial decisionmaking changed in the United States in the mid-1900s as judges divided into ideological camps on a broad swath of issues.
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China's judiciary is becoming increasingly professionalized, and its courts are enjoying a degree of autonomy they have not enjoyed since the Revolution. By promulgating abstract interpretations of the code and through the selective... more
China's judiciary is becoming increasingly professionalized, and its courts are enjoying a degree of autonomy they have not enjoyed since the Revolution. By promulgating abstract interpretations of the code and through the selective publication of cases, Chinese judicial institutions today function as policymaking bodies on both national and local scales. But are they able to legitimize social policy? This question has received little attention from legal scholars, but its answer is important for our understanding of the judicial role in the governance of modern China. We field a survey experiment that seeks to measure the persuasiveness of courts vis-à-vis administrative and non-regulatory actors. We find that courts are sometimes able to induce support for the policies they endorse. We also find, however, that this ability is not unique to courts and is at least equaled by administrative bodies. Our results have profound implications for the future of judicialization in China. They illuminate the potential of litigation as a tool for fostering social change. But they also explain why the regime does not rely on judicial institutions to convince the public of the rightness of government policy: other governmental entities are as persuasive as courts, if not more so. More broadly, the empirical findings presented here suggest that while the Chinese party-state might find it advantageous to operate through law, it does not necessarily have to govern through courts.
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Trade-offs between a sacred value-like human life-against a secular one-like money-are described as taboo. People are supposed to be offended by such trade-offs and to punish those who contemplate it. Yet, the last decades have witnessed... more
Trade-offs between a sacred value-like human life-against a secular one-like money-are described as taboo. People are supposed to be offended by such trade-offs and to punish those who contemplate it. Yet, the last decades have witnessed the rise of the cost-benefit state. Most of the major rules promulgated today undergo a regulatory impact analysis and agencies monetize risks as grave as those to human life and values as abstract as human dignity. Prominent academics and lawmakers advocate attention to costs and benefits as an element of rational regulation. The cost-benefit revolution is a technocratic coup, however, if citizens see regulatory trade-offs as a symbolic denial of the values they hold dear. This Article presents three experiments evaluating responses to a cost-benefit justification for regulatory policy. Across a range of conditions, the studies uncovered no evidence of diffuse hostility towards a consequentialist approach to saving lives. The last of these studies found, however, that telling subjects that they were expected to vindicate the sanctity of life resulted in them doing so. This third experiment demonstrates the malleability of norms and expectation surrounding regulatory trade-offs. Taken together, the data suggest that people do not normally perceive regulatory trade-offs as symbolic affronts that call for an expressive defense of the value of life. While these results do not imply the normative desirability of the cost-benefit paradigm, they suggest the absence of any broad opposition to consequentialism in public life. These findings have implications for the democratic legitimacy of the administrative state and its institutional design. They also bear on the relationship between tort and regulation as mechanisms for risk control. Insofar as tort judgments are expressive and regulatory decisions not, regulation that preempts the common law of torts might help temper the tangible costs of symbolism.
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Michigan v. EPA and a rash of administrative law decisions from the D.C. Circuit have resuscitated a longstanding debate over the role of cost-benefit analysis in a regulatory democracy. The debate in its present form contrasts... more
Michigan v. EPA and a rash of administrative law decisions from the D.C. Circuit have resuscitated a longstanding debate over the role of cost-benefit analysis in a regulatory democracy. The debate in its present form contrasts quantitative (or formal) approaches to qualitative (or informal) ones. However, the distinction between quantitative analysis and qualitative balancing is distracting, and even misleading, because monetization and aggregation, rather than quantification, is at the heart of cost-benefit analysis.
This Article elucidates three interpretations of monetization and aggregation, and hence, cost-benefit analysis. Welfarist cost-benefit analysis serves as an indicator of a rule's impact on overall well-being. Replicative cost-benefit analysis, on the other hand, strives to identify and reproduce the outcomes that would have prevailed under a particular set of arrangements, a frictionless market being the most salient example. Finally, rationalizing cost-benefit analysis seeks to demonstrate that there is a set of numbers, satisfying certain structural and substantive conditions, that makes the rule at issue the best one.
These interpretations of cost-benefit analysis are not necessarily exclusive. But they represent differing approaches for understanding monetization and aggregation. Adopting them as part of the vocabulary for debating cost-benefit analysis facilitates critical examination of the practice and its justifications. While the academic dispute over the normative desirability of a cost-benefit standard remains unsettled, existing doctrine suggests that judges reviewing administrative action for arbitrariness may only impose on agencies cost-benefit analysis that is rationalizing.
This Article elucidates three interpretations of monetization and aggregation, and hence, cost-benefit analysis. Welfarist cost-benefit analysis serves as an indicator of a rule's impact on overall well-being. Replicative cost-benefit analysis, on the other hand, strives to identify and reproduce the outcomes that would have prevailed under a particular set of arrangements, a frictionless market being the most salient example. Finally, rationalizing cost-benefit analysis seeks to demonstrate that there is a set of numbers, satisfying certain structural and substantive conditions, that makes the rule at issue the best one.
These interpretations of cost-benefit analysis are not necessarily exclusive. But they represent differing approaches for understanding monetization and aggregation. Adopting them as part of the vocabulary for debating cost-benefit analysis facilitates critical examination of the practice and its justifications. While the academic dispute over the normative desirability of a cost-benefit standard remains unsettled, existing doctrine suggests that judges reviewing administrative action for arbitrariness may only impose on agencies cost-benefit analysis that is rationalizing.
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The evolution from industrial to technological economies has made creativity a complement, not a substitute, for productivity. Thus, creative activity is not only intrinsically valuable as a form of self-expression, but also... more
The evolution from industrial to technological economies has made creativity a complement, not a substitute, for productivity. Thus, creative activity is not only intrinsically valuable as a form of self-expression, but also instrumentally valuable as a tool for enhancing our standard of living. This change requires a reformulation of economic freedom. The new economic freedom is defined by the rights that stimulate creativity and innovation in the economy. It therefore embraces some of the positive freedoms emphasized by the political left, such as health, education, and basic security, and some of the negative rights emphasized by the political right, such as property, contract, and enterprise. Both sides of the left-right spectrum should embrace economic freedom as the freedom to create and innovate, while disagreeing about the legal forms it might take.
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The principal-agent model of administrative law sees bureaucrats as imperfectly supervised agents of their political principals and courts as a tool used by the latter to monitor and check the former. This paper compares how the class of... more
The principal-agent model of administrative law sees bureaucrats as imperfectly supervised agents of their political principals and courts as a tool used by the latter to monitor and check the former. This paper compares how the class of plaintiffs authorized to bring suit against governmental bodies has been defined in three countries where one should expect to find significant barriers to administrative litigation – the People’s Republic of China, Japan, and Singapore. Although these three Asian countries have traditionally been one-party dominated states, we do observe substantial differences in how legislatures and courts have addressed the issue of standing over time. It is possible to explain these variations by appealing to three factors. First, the local governments are, in some countries, sub-entities or agents of the national government. Thus, administrative law might be used to regulate the acts of local governments in addition to agencies, leading to broader notions of standing. Second, the level of political competition could influence the doctrine of standing by incentivizing political incumbents to secure alternative avenues for challenging the policies of their successors. Third, the legal process is not the only mechanism available for monitoring the behavior of agents. For example, the Administrative Management Agency, xinfang, and Meet the People Sessions offer channels for non-judicial resolution of administrative disputes in Japan, China and Singapore respectively. Yet courts and other monitoring mechanisms are not perfect substitutes; the different quality and quantity of the information collected, the creation of legal rules binding future decisions, and transaction costs of overriding judicial outcomes distinguish between them. This last factor is, in general, not easily resolved in one direction or another. The larger conclusion drawn is that the political economy of delegation and supervision, while insightful, may not always give an elegant structure to comparative studies in administrative law.
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This is a translation of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the "Administrative Litigation Law of the People's Republic of China," adopted on April 20 2015 and effective May 1... more
This is a translation of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the "Administrative Litigation Law of the People's Republic of China," adopted on April 20 2015 and effective May 1 2015.