China’s Network Justice*

Abstract

INTRODUCTION China's Internet revolution has set off a furious debate in the West. Optimists from Thomas Friedman to Bill Cknton have predicted the crumbling of the Chinese Party-state (Party-state), whke pessimists suggest even greater state control. But a far less discussed and researched subject is the effect of China's Internet revolution on its domestic institutions. This Article, the product of extensive interviews across China, asks a new and different question. What has China's Internet revolution meant for its legal system? What does cheaper, if not free, speech mean for Chinese judges? The broader goal of this Article is to better understand the relationship between how a legal system functions and how judges communicate, both with each other and with other parties, including the media, the public, and political actors. Information transmission is an important but poorly understood part of any legal system. A precedent system, amia briefs, and the rules on ex parte contacts all serve to regulate how parties in a system communicate and what kind of information counts. Media and political pressure cannot help but affect a legal system. In the words of Ethan Katsh, is an organism whose lifeblood is information and media of communication are the veins and arteries.1 The People's Republic of China stands as a useful case to study the effects of changing means of communications on a legal system. Over the last fifteen years the Chinese legal system has undergone important transformations in the costs and means of disseminating information-the consequence both of new technologies and of the simultaneous commercialization of the Chinese media. This has led to changes in both the information available to judges and the attention paid to the judiciary's decisions. Such changes have come precisely as the Chinese courts are undergoing dramatic reforms, the stated aim of which is to make courts more competent, fair, and authoritative actors in the Chinese political system. While necessarily an exercise in extrapolation, can take several predictions from Western communications theory as to the likely impact of changing communications technology for Chinese courts. First, the optimistic side of American communications theory suggests that greater exposure to information and ease of communications will usually be good for a political system, including its legal system. While primarily writing about the United States, writers like Yochai Benkler, Eugene Volokh, and Glenn Reynolds have argued that cheaper mass communications technology will improve government and lead to healthier political systems.2 As Benkler writes, we are [now] witnessing a fundamental change in how individuals can interact with their democracy and experience their role as citizens.3 Our study of the Chinese judiciary4 reveals some evidence to support the optimistic theory-exciting examples of Internet pressure that have uncovered injustice and forced courts and Chinese Communist Party (Party) officials to take action. But overall, find a mixed picture that includes both optimistic, headline-grabbing stories and decidedly ambiguous developments. Second, a different line of American scholars, writing in the 1990s, argued generally that the effects of electronic publishing and communications would be as profound for legal systems as the invention of printing itself. Broad change 1 M. Ethan Katsh, The Electronic Media and the Transformation of Law 3-16 (Oxford 1989). 2 See generally Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale 2006), available online at (visited Apr 21, 2007); Glenn Reynolds, An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths (Nelson Current 2006); see also Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L J 1805 (1995). …