Speaker: Professor Benjamin L. Liebman, Columbia Law School

Abstract

This talk examines how Chinese courts, in particular trial courts, avoid making decisions in contentious cases and diffuse responsibility for decisions they do make. We argue that judicial avoidance is a key element of the institutional design of China’s courts. We use computational tools to examine four different types of judicial avoidance in administrative cases: hot potato rules, door slamming, kicking it upstairs, and safety in numbers. Although all four techniques are used to avoid cases that may result in unrest, particularly in land disputes, we also highlight differences among the strategies. We suggest that judges refer cases to adjudication committees to avoid pressure from local governments. In contrast, judges enlist large panels to avoid pressure from litigants, particularly in cases with large numbers of plaintiffs. We also show how courts adapt to new legal rules to devise new ways to avoid responsibility, by shifting the reason they give for rejecting case filings. Judicial avoidance continues to be a key element of judicial behavior even after reforms designed to make it easier to bring administrative cases to court.