When Are There More Laws? When Do They Matter?

Ji Li, Yale University

Abstract

In several recent cases, the Supreme Court in China ruled that local police owes a positive duty to protect individual members of the general public. In strong contrast, the U.S. Supreme Court declared in two police nonfeasance cases that such duty did not exist under the Federal Constitution. This is counterintuitive, because one would expect that in a liberal democracy where the judiciary is independent and powerful, judges would impose higher standard on local law enforcement officers. One possible explanation is that law does not matter in a developing country such as China, so they are drafted and interpreted in favor of citizens for window-dressing purpose. But if law does not matter at all, why in some areas a proposed law will be drafted numerous times, yet it cannot go through the legislature? I find that a simple game theory model is able to resolve both the empirical puzzle and the theoretical one. In addition, it can be applied to explain a broad range of issues in law and politics. To illustrate my theory, I discuss the judicial politics of bankruptcy law in China, the making of bankruptcy law in Vietnam, the Chinese law on governmental liability, the U.S. law on police nonfeasance, and changes in the governmental liability law in South Korea.