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Courts Without Separation of Powers: The Case of Judicial Suggestions in China

By Minhao Benjamin Chen & Zhiyu Li

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Like courts everywhere else, socialist courts are tasked with settling disputes. Their decisions are backed by the force of law. But unlike courts everywhere else, socialist courts are also required to support official ideology and policies. They are subject to legislative supervision and party leadership in the performance of their duties. The repudiation of the notion of separation of powers and the instrumental conception of law are conventionally taken to be defining—and defective—aspects of socialist legality.

But the political accountability of socialist courts could also be empowering. Because socialist courts answer, in theory, to the party and the people, they have the warrant and duty to contribute to the orderly administration of society. Constitutional scripture does not prohibit socialist courts from venturing beyond the confines of adjudication to address issues not presented for resolution.

We study how courts in the world’s largest socialist regime intervene in policy domains ranging from public health to education to crime by making judicial suggestions. These suggestions identify issues that go beyond the legal questions raised by a case and may be directed to private actors like business enterprises and public entities like governmental agencies. Though not binding on their recipients, judicial suggestions are often acknowledged, sometimes adopted, and have occasionally even precipitated legal reform.

Our exploration of judicial suggestions in the People’s Republic of China illuminates a function that is available to socialist courts because of their political subordination to the party-state. More broadly, the approach exemplified here steps outside the rule of law and judicial independence paradigms to examine how constitutional doctrine shapes the boundaries of institutions, thereby contributing to a more complete understanding of socialist courts and the roles that courts might usefully take on in a world without separation of powers.[hr gap=”1″]

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Reconceptualizing the Party-Appointed Arbitrator and the Meaning of Impartiality

Catherine A. Rogers

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Despite the popularity of the age-old practice, several prominent arbitrators and industry leaders have proposed eliminating party appointed arbitrators. These critics contend that party appointment injects bias into a tribunal that is supposed to be impartial.

Various empirical studies seem to confirm the uncomfortable contradiction between the rhetoric of impartiality and the purportedly biased conduct of party-appointed arbitrators. Most of these empirical claims, however, are deeply flawed both in their substance and methodology. More fundamentally, these claims ignore Legal Realism’s insight that decisionmaker “bias” (or reliance on extra-legal factors) is an inevitable consequence of law’s inherent indeterminacy.

If some forms of bias are inevitable, it does not make sense to ask whether bias exists. Instead, more nuanced questions must be asked: Which forms of bias are legitimate? Who decides which forms of bias are legitimate? And how do we police the boundary between legitimate and illegitimate forms of bias?

This Article answers these questions with respect to party-appointed arbitrators.

Rejecting both critiques and defenses, this Article makes an affirmative case for party-appointed arbitrators. This Article reconceptualizes party-appointed arbitrators as an essential structural check against various forms of cognitive bias that necessarily exist among all arbitrators on all arbitral tribunals. Arbitrators’ cognitive biases cannot be eliminated, even by eliminating party-appointed arbitrators. They can, however, be bounded and counter-balanced by reconceiving party-appointed arbitrators as a type of Devil’s Advocate that guards against the cognitive biases that distort tribunal decision making.

In this reconceptualized role, party-appointed arbitrators serve three important functions: 1) They provide a check against individual- and group-based cognitive biases; 2) They also ensure representativeness on the tribunal; and 3) they provide a structural counterweight to the opposing party-appointed arbitrator. This reconceptualized role, in turn, delimits a range of specific impartiality obligations that are both more conceptually coherent and more consistent with actual practice and expectations

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Expert Governance of Online Speech

By Brenda Dvoskin

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In a world of fundamental disagreements about how social media companies should govern speech, it is striking that nearly everyone agrees that online speech governance should be based on human rights. The human rights project for content moderation proposes that social media platforms align their own internal speech policies with international human rights law. It seeks, I argue, a system of expert governance: one in which a corporate technocracy applies a set of exogenous principles imagined as objective and global. Ultimately, this governance model shifts power to experts under the illusion of empowering the people.

To support these claims, this Article unveils the intellectual work that scholars, U.N. bodies, and the Facebook Oversight Board are doing to portray international human rights law as an objective synthesis of the global public interest. The Article analyzes how they have recreated several dimensions of international law. A salient example is their new reading of the U.N. Guiding Principles on Business and Human Rights. According to a recent interpretation, companies are expected to align their content policies with international law. But this interpretation widely diverges from the text and the original meaning of the instrument. The Article also examines other tools the project uses such as creating boundaries between local facts and normative work and framing normative questions as technical challenges. Overall, the Article provides a deep dive into the toolkit that scholars, advocates, and the Facebook Oversight Board have developed to date to pursue a system of expert governance of online speech.

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