Carl F. Minzner

Bio: Carl F. Minzner is an academic researcher from Fordham University. The author has contributed to research in topics: China & Politics. The author has an hindex of 16, co-authored 25 publications receiving 959 citations. Previous affiliations of Carl F. Minzner include University of Pennsylvania.

China’s Turn Against Law

Abstract: Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities are also turning away from the law. They are relying on political, rather than legal, levers in their effort to remake the Chinese judiciary. This Article analyzes the official Chinese turn against law. These Chinese developments are not entirely unique. American courts have also experienced a broad shift in dispute resolution patterns over the last century. Litigation has fallen out of favor. Court trials have dropped in number. Alternative dispute resolution mechanisms have increased in number. Observing such long-term patterns, Marc Galanter concluded that the United States experienced a broad “turn against law” over the 20th century. China’s shift also parallels those in other developing countries. In recent decades, nations such as India, Indonesia, and the Philippines have resuscitated or formalized traditional mediative institutions. This is part of a global reconsideration of legal norms and institutions imported or transplanted from the West.Despite these similarities with global trends, this Article argues that Chinese leaders’ shift against law is a distinct domestic political reaction to building pressures in the Chinese system. It is a top-down authoritarian response motivated by social stability concerns. This Article also analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership’s concern with maintaining social stability in the short term may be leading them to take steps that are having severe long-term effects of undermining Chinese legal institutions and destabilizing China.Last, this Article argues for rethinking the trajectory of Chinese legal studies. Scholars need to shift away from focusing on formal Chinese law and legal institutions in order to understand how the Chinese legal system actually operates and the direction it is heading.

The Rise of the Chinese Security State

Abstract: Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance” operations have become a top priority for local Chinese authorities. We argue that this trend goes back to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social unrest. We show that the origin of these changes lies in a policy response to the developments of 1989–1991, namely the Tiananmen democracy movement and the collapse of communist political systems in Eastern Europe. Over the past twenty years, these practices have developed into an extensive stability maintenance apparatus, whereby local governance is increasingly oriented around the need to respond to social unrest, whether through concession or repression. Chinese authorities now appear to be rethinking these developments, but the direction of reform remains unclear.

China's Turn Against Law

Abstract: Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities are also turning away from the law. They are relying on political, rather than legal, levers in their effort to remake the Chinese judiciary. This Article analyzes the official Chinese turn against law. These Chinese developments are not entirely unique. American courts have also experienced a broad shift in dispute resolution patterns over the last century. Litigation has fallen out of favor. Court trials have dropped in number. Alternative dispute resolution mechanisms have increased in number. Observing such long-term patterns, Marc Galanter concluded that the United States experienced a broad “turn against law” over the 20th century. China’s shift also parallels those in other developing countries. In recent decades, nations such as India, Indonesia, and the Philippines have resuscitated or formalized traditional mediative institutions. This is part of a global reconsideration of legal norms and institutions imported or transplanted from the West.Despite these similarities with global trends, this Article argues that Chinese leaders’ shift against law is a distinct domestic political reaction to building pressures in the Chinese system. It is a top-down authoritarian response motivated by social stability concerns. This Article also analyzes the risks facing China as a result of the shift against law. It argues that the Chinese leadership’s concern with maintaining social stability in the short term may be leading them to take steps that are having severe long-term effects of undermining Chinese legal institutions and destabilizing China.Last, this Article argues for rethinking the trajectory of Chinese legal studies. Scholars need to shift away from focusing on formal Chinese law and legal institutions in order to understand how the Chinese legal system actually operates and the direction it is heading.

Xinfang: An Alternative to Formal Chinese Legal Institutions

Abstract: Formal legal institutions are almost entirely absent from the lives of most Chinese citizens. A range of petitioning institutions and practices operate as a dysfunctional proxy for formal legal channels. Deeply rooted in imperial Chinese history, these practices and institutions have survived into the present in the form of citizen petitioning efforts directed at numerous “letters and visits” (xinfang) bureaus distributed throughout Chinese government organs, including the courts.This Article examines the historical origins and regulatory basis for the modern xinfang system. It outlines the characteristic tactics of Chinese petitioners who seek to use the system to resolve their grievances. The Article also examines the overlap between xinfang institutions and formal legal ones, and analyzes statistics suggesting that the use of the former far exceeds the latter.The Article argues that the xinfang system serves as a multi-purpose governance tool for Chinese leaders, with resolution of individual grievances but one of several objectives. Xinfang interests overlap with, but also contradict, those of formal legal institutions. Further, Chinese xinfang regulations and institutions create a unique incentive system to which the behavior of Chinese petitioners is an adaptive response. This interplay not only poses serious challenges to the development of the rule of law in China, but may also be fueling a dangerously escalating cycle of social destabilization.

Riots and Cover-Ups: Counterproductive Control of Local Agents in China

Abstract: Chinese cadre responsibility systems are a core element of Chinese law and governance. These top-down personnel systems set concrete target goals linked to official salaries and career advancement. Judges and courts face annual targets for permissible numbers of mediated, reversed, and closed cases; Communist Party secretaries and government bureaus face similar targets for allowable numbers of protests, traffic accidents, and mine disasters. For many local Chinese officials, these targets have a much more direct impact on their behavior than do formal legal and regulatory norms. This Article argues that Chinese authorities are dependent on responsibility systems, particularly their use of strict, vicarious, and collective liability principles, as an institutional tool to address pervasive principal-agent problems they face in governing a large authoritarian bureaucracy. But excessive reliance on these methods to control local officials ironically fuels governance problems that Chinese central leaders seek to address. Central Chinese authorities do not want township officials colluding to falsify tax records or engaging in ill-conceived development projects that waste central funds. Nor do they want rural residents burning down government buildings or staging mass petitions to Beijing to protest the actions of local officials. But these are direct results of cadre evaluation systems that Chinese authorities use to govern their local agents. Continued reliance on responsibility systems as a tool of governance raises significant conflicts with the legal reforms that Chinese authorities have pursued since 1978. And recent developments suggest that central Chinese authorities may be backing away from their efforts to govern China, and their local agents, through law and legal institutions. At least some leaders appear to favor an alternative strategy - strengthening the role of responsibility systems as a tool for monitoring their local agents. This is a fundamental conflict over the core question of how to govern China. How it is resolved will have lasting implications for China’s domestic evolution and stability.

Current index to legal periodicals

Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

Circular Economy Policies in China and Europe

Abstract: The idea of a circular economy (CE) has become prominent in both European and Chinese policy making. Chinese and European perspectives on a CE share a common conceptual basis and exhibit many similar concerns in seeking to enhance resource efficiency. Yet they also differ, and this article explores differences in the focus of CE policy in China and Europe. We present evidence on the differing understandings of the CE concept in Chinese and European policy discourse, drawing on qualitative and quantitative analysis of policy documents, media articles, and academic publications. We show that the Chinese perspective on the CE is broad, incorporating pollution and other issues alongside waste and resource concerns, and it is framed as a response to the environmental challenges created by rapid growth and industrialization. In contrast, Europe's conception of the CE has a narrower environmental scope, focusing more narrowly on waste and resources and opportunities for business. We then examine similarities and differences in the focus of policy activity in the two regions and in the indicators used to measure progress. We show differences in the treatment of issues of scale and place and different priorities across value chains (from design to manufacture, consumption, and waste management). We suggest some reasons for the divergent policy articulation of the CE concept and suggest lessons that each region can learn from the other.

The Power of Instability: Unraveling the Microfoundations of Bargained Authoritarianism in China

Abstract: This article develops an interactive and relational conception of infrastructural state power for studying the capacity of authoritarian regimes to absorb popular protests. Based on an ethnography of the grassroots state in moments of unrest in China, the authors identify three microfoundations of Chinese authoritarianism: protest bargaining, legal-bureaucratic absorption, and patron-clientelism. Adopting, respectively, the logics of market exchange, rule-bound games, and interpersonal bonds, these mechanisms have the effect of depoliticizing social unrest and constitute a lived experience of authoritarian domination as a non-zero-sum situation, totalizing and transparent yet permissive of room for maneuvering and bargaining. This heuristic framework calls for bringing the subjective experience of subordination back into the theorizing of state domination.

The People vs. Pollution: understanding citizen action against pollution in China

Abstract: Chinese pollution victims have increasingly started to resort to political and legal action to protect their interests. This paper analyzes such activism by studying how citizens identify the necessity to initiate action against pollution and by investigating the obstacles they meet when attempting to take action. The paper highlights the importance of state and intermediary institutions to aid citizens in understanding the seriousness of pollution and overcoming the obstacles they face. It shows, however, that often such aid is not available, and that state institutions when aligned with industrial interests restrict rather than support citizen action. When this occurs, citizen activism becomes an isolated affair, resulting in adversarial relations with state and industry, sometimes escalating to violence and repression of activists. The paper concludes that isolated activism forces a new look at concepts such as ‘embeddedness’ and ‘rightful resistance’ to capture citizen activism and contentious politic...