What lessons can China learn from the US judiciary?

法官能为法治做什么(去问号)Although Supreme People’s Court president Zhou Qiang has said that judges must “conscientiously resist the infiltration of western wrong ideas,” the May 8 edition of the People’s Court Paper (and the Court’s Wechat feed, which goes out to over 100,000 subscribers) contains a pitch for the Chinese translation of Judges on Judging: Views From the Bench, by David O’Brien, Professor of Government at the University of Virginia.  For those who do not know the book, the publisher describes it  as offering: insights into the judicial philosophies and political views of those on the bench. Broad in scope, this one-of-a-kind book features off-the-bench writings and speeches in which Supreme Court justices, as well as lower federal and state court judges, discuss the judicial process, constitutional and statutory interpretation, judicial federalism, and the role of the judiciary. The translation team for the book was five Chinese judges, including one from the Court.

What are the takeaways?

  • The book is a collection of “greatest hits”–with essays by Cardozo, Posner, Brennan, Ginsburg, Souter, and many others;
  • It provides a diversity of perspectives and insights into the operation of the US judiciary, including from the state as well as federal judiciary, and from the lower courts, including case selection, internal meetings and opposing views;
  • The book shows judgment with feeling (感性判断);
  • It echoes China’s problems.  Some of the issues it discusses are being disputed in China’s judicial reforms.Are there enough or too few federal judges?  Is having a small number of judges and many cases a real problem? What is the importance of trials (court hearings)?  Are judges resolvers of disputes or makers of policy? For those (in China) accustomed to use the US as a model, remarks the chief translator, it is interesting that as the number of cases in the federal courts have risen, the number of trials/hearings has gone down, and that lower court judges spend most of their time with case management and pre-trial negotiations;
  • Finally, (according to the chief translator) although the book has no answers for China, it provides much food for thought. With rule of law talked about by all, for Chinese judges, to be able to make a contribution to the rule of law, they need to be able to decide independently ( 真正成为独立判断), take matters on, and have sufficient job security.
  • The chief translator dedicates the book to the late Judge Zou Bihua, who has become a model judge (but whom he knew personally).
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