ROLLING BACK TRANSPARENCY IN CHINA’S COURTS - Columbia Law Review

ROLLING BACK TRANSPARENCY IN CHINA’S COURTS - Columbia Law Review

Benjamin Liebman,* Rachel Stern,** Xiaohan Wu *** & Margaret Roberts ****

There has been a flood of scholarship on the importance of information to governance in recent years, focused on democratic and authoritarian countries alike. Scholars have recognized a shift in authoritarian regimes from rule by force and fear to increased use and manipulation of information as a way to build popular support and stay in power. 1 See Sergei Guriev & Daniel Treisman, Spin Dictators: The Changing Face of Tyranny in the 21st Century 3–30 (2022) (“[T]oday’s strongmen realize that in current conditions violence is not always necessary or even helpful. . . . In place of harsh repression, the new dictators manipulate information.”); see also Huirong Chen & Sheena Chestnut Greitens, Information Capacity and Social Order: The Local Politics of Information Integration in China, 35 Governance 497, 497–98 (2022) (discussing China’s use of information integration in its fragmented authoritarian form of governance).Direct censorship remains a tool of authoritarian control, but authoritarian rulers also turn to other strategies to crowd out critical voices, including information flooding, distraction, manipulation of public opinion online, and the creation of technical barriers to those seeking information. 2 See Margaret E. Roberts, Censored: Distraction and Diversion Inside China’s Great Firewall 105–11 (2018) [hereinafter Roberts, Censored] (discussing the various alternatives to direct censorship that China employs to influence public opinion); Gary King, Jennifer Pan & Margaret E. Roberts, How the Chinese Government Fabricates Social Media Posts for Strategic Distraction, Not Engaged Argument, 111 Am. Pol. Sci. Rev. 484, 496–97 (2017) (analyzing the impact of an “astroturfing program” of pro–Communist Party online commentators on shaping public opinion as an alternative to censorship).Authoritarian countries have also borrowed governance mechanisms from liberal systems, including greater use of transparency as a tool for addressing a range of challenges. 3 See Chen & Greitens, supra note 1, at 508–09 (explaining that leaders in a Chinese district addressed accountability challenges by increasing transparency); Zhuang Liu, T.J. Wong, Yang Yi & Tianyu Zhang, Authoritarian Transparency: China’s Missing Cases in Court Disclosure, 50 J. Compar. Econ. 221, 221–22 (2022) (discussing the use of transparency by authoritarian regimes); Tamir Moustafa, Law and Courts in Authoritarian Regimes, 10 Ann. Rev. L. & Soc. Sci. 281, 294 (2014) (describing authoritarian regimes’ increasing reliance on liberal democratic institutional forms).Borrowing runs both ways, with elected leaders in democratic as well as newly authoritarian states borrowing from authoritarian playbooks to cement their authority.4 Recent writing on liberal systems has likewise noted how new forms of information transmission as well as misinformation can destabilize existing frameworks for regulating information. See, e.g., Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547, 557–68 (2018).

Despite this burgeoning conversation about the centrality of information management to democratic and authoritarian governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. Scholarship on the spread of authoritarian law has largely focused on how authoritarian rulers subvert legal norms or use law and courts to maintain social stability, foster economic development, or boost their own legitimacy. 5 See Tom Ginsburg & Tamir Moustafa, Introduction: The Functions of Courts in Authoritarian Politics, in Rule by Law: The Politics of Courts in Authoritarian Regimes 1, 2, 4–11 (Tom Ginsburg & Tamir Moustafa eds., 2008) (exploring “the conditions under which authoritarian rulers delegate decisionmaking to judiciaries and the political consequences of that choice”); Moustafa, supra note 3, at 283–87 (examining the various “ways in which law and courts are deployed as instruments of governance in authoritarian states”); Taisu Zhang & Tom Ginsburg, China’s Turn Toward Law, 59 Va. J. Int’l L. 306, 375–89 (2019) (“[T]he empowerment of courts . . . has a straightforward connection with the Party leadership’s interest in sociopolitical control and economic development . . . .”).There has been less attention to how such states build narratives about their legal systems or the role of legal information in such systems. 6 There is, however, extensive scholarship on socialist legal systems that explores the importance of legal education in efforts to construct state authority and transform society. See generally Jennifer Altehenger, Legal Lessons: Popularizing Laws in the People’s Republic of China, 1949–1989 (2018) (discussing the role of legal education and legal propaganda in the early years of the People’s Republic of China).Rapid digitization of court information has brought renewed focus both to the lack of legibility in legal systems around the world and to the question of how courts produce and use public information. 7 One recent example is the work of David Freeman Engstrom and R.J. Vogt, who explore how rapid digitization may transform judicial governance in the United States. See David Freeman Engstrom & R.J. Vogt, The New Judicial Governance: Courts, Data, and the Future of Civil Justice, 72 DePaul L. Rev. 171, 176–80 (2023). In the literature on Western systems, and in particular the United States, the focus is often on whether digitization will facilitate more equitable access to the legal system or reinforce differences between the haves and the have-nots. See id. at 176. Digitization offers opportunities for legal systems to be more legible than in the past but also new challenges and possibilities for misuse. See id.Courts play essential roles in information management: Courts are sites where information about law is negotiated, and their decisions about whether and how to publicize case outcomes have the potential to shape public perceptions of the legal system, society, and the state more generally.

This lack of attention to legal information stems in part from two common beliefs: Liberal legal systems are inherently transparent, and authoritarian legal systems closely guard information. Sustained scholarship has detailed problems with transparency and legibility in the U.S. legal system. 8 Many commentators have noted that U.S. courts are far less transparent and accessible than they are often made out to be. See, e.g., T.S. Ellis III, Sealing, Judicial Transparency and Judicial Independence, 53 Vill. L. Rev. 939, 947 (2008); Hillel Y. Levin, Making the Law: Unpublication in the District Courts, 53 Vill. L. Rev. 973, 975–77 (2008); Robert A. Mead, “Unpublished” Opinions as the Bulk of the Iceberg: Publication Patterns in the Eighth and Tenth Circuits of the United States Courts of Appeals, 93 Law Libr. J. 589, 597 (2001); Judith Resnik, Courts: In and Out of Sight, Site, and Cite—The Norman Shachoy Lecture, 53 Vill. L. Rev. 771, 772–74 (2008). This literature focuses not on censorship but on trends such as the reduced use of trials and the rise of private dispute resolution and settlement, the use of unpublished cases, the sealing of cases, and the increased paper-only review of cases. Commentators on other systems have made similar observations. See, e.g., Jeffrey K. Staton, Judicial Power and Strategic Communication in Mexico 4 (2010) (noting the prevalence of selective transparency among Latin American supreme courts); David T. Johnson, Where the State Kills in Secret: Capital Punishment in Japan, 8 Punishment & Soc’y 251, 253–56 (2006) (arguing that secrecy regarding capital punishment in Japan derives from an effort to prevent scrutiny of the practice); Liz Fekete, Europe: ‘Speech Crime’ and Deportation, Race & Class, Jan. 2006, at 82, 82–83 (arguing that some European states use immigration proceedings to evade transparency in their legal systems).At the same time, authoritarian legal systems, most notably China, have begun to put vast quantities of legal information online, with more than 141 million court judgments posted online since China’s Supreme People’s Court (SPC) established the China Judgements Online (CJO) website in 2014.9 Zhongguo Caipan Wenshu Wang (中国裁判文书网) [China Judgements Online], http://wenshu.court.gov.cn [https://perma.cc/STY7-EYSW] [hereinafter CJO] (last visited Aug. 21, 2023). Vietnam and Russia are two examples of other authoritarian states that have also begun releasing large quantities of judicial decisions online. Vietnam started requiring courts to publish their decisions online in 2017, using a centralized website similar to CJO. Trang (Mae) Nguyen, In Search of Judicial Legitimacy: Criminal Sentencing in Vietnamese Courts, 32 Harv. Hum. Rts. J. 147, 176 (2019). Russian judicial decisions are also meant to be posted publicly on court websites in compliance with the country’s laws on information transparency. Lauren A. McCarthy, Douglas Rice & Aleks Lokhmutov, Four Months of “Discrediting the Military”: Repressive Law in Wartime Russia, 31 Demokratizatsiya 125, 133 (2023).

This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the CJO website. Our data suggest that the reasons court officials remove cases are often reactive and ad hoc. But, taken together, the decision(s) to remove hundreds of thousands of unconnected cases shape a narrative about the Chinese courts, Chinese society, and the Chinese Party-State.

Literature on authoritarian regimes has explored why such states embrace transparency. 10 See infra text accompanying notes 77–81.In this Essay, we ask different questions: What previously public information is removed, and why? Media accounts of the recent case removals in China frame case deletions largely as efforts to shield the Chinese legal system from international scrutiny. 11 See, e.g., Luo Jiajun & Thomas Kellogg, Verdicts From China’s Courts Used to Be Accessible Online. Now They’re Disappearing., ChinaFile: Viewpoint (Feb. 1, 2022), https://www.chinafile.com/reporting-opinion/viewpoint/verdicts-chinas-courts-used-be-accessible-online-now-theyre-disappearing [https://perma.cc/845T-DKJW] (suggesting that the Chinese government has removed cases that “present an unflattering view of Chinese society,” including cases that highlight official corruption or the government’s “use of the criminal justice system to crack down on its critics”).In contrast, we find that the deletion of cases likely results from a range of overlapping concerns. These include the international and domestic images of Chinese courts, institutional relationships within the Chinese Party-State, worries about revealing negative social phenomena, and concerns about copycat crimes. We identify a trend of “sensitivity contagion,” in which a small number of potentially sensitive cases leads to the removal of all cases involving certain categories of crimes, despite most cases being routine. These concerns reflect the multiple audiences for the public release of court data in China. Viewing disappeared cases also provides a window into fault lines in Chinese society, revealing areas of sensitivity largely overlooked in prior scholarship.

Our findings also provide insight into the interrelated mechanisms of censorship and transparency in an era in which data governance is increasingly central. We highlight how courts seek to curate a narrative that protects them from criticism and boosts their standing with the public and within the Party-State. Prior writing on authoritarian legal systems has generally assessed courts’ power in terms of their ability to decide cases on the law absent external influence or to rule against other state actors. 12 See, e.g., Peter H. Solomon Jr., Courts and Judges in Authoritarian Regimes, 60 World Pol. 122, 124–29 (2007) (book review) (grouping authoritarian courts into four categories based on their level of independence from other branches of government and ability to rule against the state).Examining how Chinese courts manage the removal of cases suggests that how courts curate and manage information disclosure may also be central to their legitimacy and influence.

The findings we present reflect the Chinese political–legal system. Yet the questions raised are likely to have wider application as legal systems worldwide confront how much information to make public, how long information should remain public, who should determine when information is removed from the public domain, and the effect of mass digitization of court information on court and litigant behavior. Chinese courts may be unusual in their emphasis on equating the total number of cases made public to the fairness of the legal system and for the reasons they remove cases from public view. But they are unlikely to be alone in determining that not all court information should remain public or in seeking to use legal information to shift how they are perceived.