When Are There More Laws? When Do They Matter? Using Game Theory to Compare Laws, Power Distribution, and Legal Environments in the United States and China
Li, Ji, Pacific Rim Law & Policy Journal
Abstract: In several recent cases, the Supreme People's Court of China ruled that local police owe a positive duty to protect individual members of the general public. In strong contrast, the United States Supreme Court declared in two police nonfcasance 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 laws are drafted and interpreted in favor of citizens for the purpose of windowdressing. But if law does not matter at all, why are some proposed laws drafted numerous times before passing the legislature? A conceptual game theory model is able to resolve both the empirical puzzle and the theoretical one. In addition, this interactive model can be applied to explain a broad range of issues in law and politics. The theory is illustrated by the judicial politics of bankruptcy law in China, the making of bankruptcy law in Vietnam, the Chinese law on governmental liability, the American law on police nonfeasance, and changes in the governmental liability law in South Korea.
The goal of this paper is to explain the relationship between laws on the books and power politics from a comparative perspective. The seed for this research is an empirical puzzle that springs forth from a comparison of governmental liability law on police nonfeasance between China and the United States. The following two cases, both of which center on police inaction, trigger the theoretical question.
In the first case, the plaintiff is a young woman who wanted to break off her relationship with a man after learning he was already married. The man threatened violence and the woman sought police protection several times. Unfortunately, no assistance was provided. A thug hired by the man threw acid on her face, deforming her and blinding her in one eye. The court found no tort liability for the police's failure to provide specific protection to a member of the public from harm done by another member of the public and dismissed the case.1
In the second case, the plaintiff is a businesswoman who managed a gift shop. There was a motel across the street. Early one morning, disturbing noises woke two guests staying in the motel. They suspected a burglary at the gift shop, and informed the motel manager. After a cursory inspection, the motel manager was certain of a robbery at the gift shop. The manager called the local police department twice and reported the ongoing crime. No police officer was dispatched. After about twenty minutes, the thief left with his booty. Thereafter, the store manager filed a complaint with the police department but got no response. After the business owner filed a lawsuit, the court found the police department liable for failure to protect the property of a member of the public and awarded damages equal to half of the total loss borne by the plaintiff.2
One of these two cases was decided in a democracy with arguably the most sophisticated judicial system in the world, and the other in an authoritarian regime where a functional legal institution barely existed three decades ago. For the uninitiated, a reasonable assumption is that the second case was decided in a democratic setting with a better and more independent judiciary. The decision in the first case seems to substantially favor the unresponsive police department, therefore it must be from a country with little governmental accountability and weak courts. This intuition is wrong, however. The first case was decided in the United States,3 the second in China.4 The former is a liberal democracy, and the latter an authoritarian state with a weak judiciary.
In this article, I attempt to resolve this apparent contradiction. I contend that the power distribution of potential litigants, professional norms, and judicial independence determine how laws are applied and the costs associated with their application, which exerts significant impact on the way laws are drafted, legislated, and interpreted. I argue that this theory is more powerful than extant approaches in explaining the link between power politics and law-making.
This article proceeds as follows. section II surveys American and Chinese jurisprudence on official nonfeasance. Section III discusses extant theories and shows that they are insufficient to explain some empirical puzzles. Section IV provides the interactive theory, my game theory model and examines two scenarios when different payoffs are assigned. Section V presents empirical evidence from United States, China, Vietnam, and Korea that supports the interactive theory. Section VI concludes the article.
II. THE COUNTERINTUITIVE CONTRAST REFLECTS DIFFERENCES IN LAW
This section provides a survey of American and Chinese jurisprudence on official nonfeasance, showing that the cases described above accurately reflect the differences in law between these countries. These differences can only be adequately considered with knowledge of comparative police nonfeasance laws in the United States and China. To be more specific, what are the laws on governmental liability in police nonfeasance cases in the two countries? In the United States, the general rule is that a municipal corporation is not liable for injuries caused by police nonfeasance absent statutes prescribing exceptions to government immunity.5 Some courts have upheld claims against municipal corporations when a special relationship was established between the police and the plaintiff.6 A state court in New York specified the four elements of such special relationships:
(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.7
Only when these four elements exist may a plaintiff prevail in a suit against the municipal corporation for police nonfeasance. In cases related to emergency phone calls, if the caller is not the victim, the last two conditions are not satisfied. Therefore, it is almost certain that absent statutory provisions, state courts in the United States will find for the municipal corporation in a case like Yin Chenyan v. Police Department of Lushi County.
Federal courts hold a similar view. Under the Federal Tort Claims Act, the United States is found liable:
for injuries resulting from a failure to provide police protection, where the decision not to provide this protection (1) was made by an agent of the United States performing a "discretionary" function or duty within the scope of his employment under 28 U.S.C.A. § 2680(a), and (2) was the proximate cause of the injuries complained of.8
Because the burden of proof of foreseeability is on the plaintiff, prevailing in a public tort case on police inaction is a daunting task.
In general, the standard for governmental immunity has been set by the Supreme Court in DeShaney v. Winnebago County Department of Social Services,9 where an abused child sued the county government for failure to provide protection against his abuser.10 He claimed the Due Process Clause of the United States Constitution imposed on the State an affirmative duty to protect the petitioner." The Court held that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors,"12 though it suggested that state tort laws might impose a positive duty of police protection.13 DeShaney has been the controlling case since 1989. In 2004, the Supreme Court granted certiorari in a similar case arising from the Tenth Circuit.14 In Town of Castle Rock, Colo. v. Gonzales, the plaintiff had a restraining order issued by the local court against her husband.15 Although she presented it to the police and requested assistance enforcing it several times in the same day, the police failed to respond.16 The plaintiffs three children were murdered by her husband during this time.17 In the suit against the local government, the plaintiff's lawyer raised a procedural due process claim, in addition to the substantive due process claim that has been rejected by the Court in DeShaney. However, the Supreme Court, in a 7-2 opinion, held that due process clause did not entitle respondent a property interest in police enforcement of the restraining order against her husband, thus maintaining its overall position on the issue.18
China, unlike the United States, is a civil law country; precedents do not control as much as they do in a common law country. Nevertheless, the Supreme People's Court regularly publishes typical cases that function as clarifications of existing statutes. Since no specific statutes exist on governmental official nonfeasance liability, the Supreme People's Court created the doctrine from scratch by publishing a few cases that had broadly interpreted extant laws. The first one concerns a villager in Sichuan Province who sued the township police claiming that their failure to take action against his neighbor, who suffered from a serious mental disorder and repetitively harassed him, contributed to an injury incurred while trying to escape from the neighbor.19 The People's Supreme Court heard the case because there was not a clear doctrine providing any remedy for official nonfeasance such as police inaction. The Court opined that Public Security Bureaus had a positive duty to protect citizens and they should be held liable for the injury and damage due to their nonfeasance, if their action could have prevented the injury. This decision was promulgated as an official legal interpretation in 2001.20
Later the Court went even further by publishing Yin Chenyan v. Police Department of Lushi County, in which the county court found the local police department liable for property damage due to police inaction.21 As discussed above, there was no special relationship between the plaintiff and the police department.22 The person who made the emergency call was not the victim and the damage was inflicted by a third party actor. Given the facts of the case and extant statutes in China that were silent about government liability for police nonfeasance, it is surprising the Supreme People's Court's clearly signaled that local police, especially emergency call departments, owe a positive duty to protect the general public who resort to their assistance through emergency calls.
In sum, the comparison between the current laws in China and the United States indicates that, counter-intuitively, the law ostensibly provides better protection to Chinese citizens against government officials than their counterparts in America.
The development of China's administrative law regime in which the Supreme People's Court published these two decisions provides background critical to understanding the import of the decisions. The current Chinese Constitution provides that "citizens who have suffered losses through infringement of their civil rights by any state organ or functionary have the right to compensation in accordance with the law."23 Unlike in the United States, however, the Chinese Constitution is not directly enforceable "unless there are statutes that clearly mandate the courts to do so."24
No concrete administrative law existed until 1987, when the "drafting of an Administrative Litigation Law (ALL) commenced."25 The law was passed two years later and gave citizens a legal basis to sue government officials.26 This legal reform is significant given that China has had more than a thousand years of autocracy.
Administrative law legislation grew quickly in the 1990s. The Standing Committee of the People's Congress passed the State Compensation Law in 1994, which was followed by the Administrative Penalty Law, the Administrative Supervision Law, and the Administrative Reconsideration Law in 1996, 1997, and 1999 respectively.27 In 2003, the People's Congress passed the Administrative Licensing Law, which was regarded as a landmark law that facilitated the withdrawal of the state from the market.28 All these administrative laws stipulate reasonably well the power of the government and the remedies for the abuse of power by government officials.
Section I presents two cases of official nonfeasance with counterintuitive results. This section surveys American and Chinese jurisprudence on official nonfeasance in which the two cases are embedded, but this context alone fails to fully explain the counterintuitive outcomes, and the puzzle remains. The highest court in the United States, a liberal democracy, when faced with the balancing of various interests and constitutional doctrines, decided twice against citizen victims in government nonfeasance cases. In contrast, the highest court in China, a one-party regime, created legal rights against official nonfeasance from scratch. What explains the dramatic differences? Before presenting my theory, I review in Section III extant theoretical approaches to relevant empirical questions.
III. EXTANT THEORIES ARE INSUFFICIENT TO EXPLAIN THE EMPIRICAL PUZZLE
Many legal scholars and social scientists have spent time exploring legal reform in China, drawing two main conclusions. Some argue that the Chinese government acts sincerely in promoting the rule of law, while others take a dismissive view of the current legal reform in China.29 Neither theory adequately explains the actual outcomes of lawmaking and application within China.
Fully aware of the benefits of ruling the country according to the law, the Chinese Communist Party ("CCP") built an administrative law regime and allowed the People's Supreme Court to indicate its preference for broad interpretation of the laws. Although few predict that China will achieve the type of rule of law embedded in a liberal democracy, some see China as being "in transition from an instrumental rule-by-law legal system in which law is a tool to be used as the Party-state sees fit to a rule of law system where law does impose meaningful restraints on the Party, state and individual members of the ruling elite."30
Randall Peerenboom notes that plaintiffs have a much higher rate of success in administrative litigations in China than in Japan, Taiwan, or the United States.31 Although he admits that a conclusion cannot be drawn without further studying the merits of cases, he argues that "clearly the courts are not just a rubber stamp; they do have some authority."32 Peerenboom sees an evolution of the Chinese social and political system, in which an increasingly dynamic civil society demands a better legal institution. In response to this demand, the CCP supplies the laws, which the judiciary, motivated by both external and internal incentives, interprets and applies assiduously.33 This series of movements feeds back into the growth of the civil society, and the cultivation of a more active legal culture.
Besides the figures showing the increase of administrative cases and the high winning rates for citizens, however, Peerenboom provides insufficient evidence to convince readers that the administrative laws on the books are being enforced to any meaningful extent. In fact, there is solid evidence that new laws are not effective in restraining government officials.34 For instance, in the last few years, the letter and petition system, which is a formal but allegedly ineffective channel for individuals to protest against the abuses of government officials, has received a growing number of complaints.35 If administrative laws are better enforced, why would more citizens resort to the letter and petition system for protection and dispute resolution? Moreover, even if an authoritarian state ties its own hands for a short time in order to add credibility to its commitment to the rule of law, what in theory can prevent it from reneging, especially when its legitimacy is threatened?
In contrast to the evolutionists, some scholars take a dismissive view of the current legal reform in China. Hongying Wang argues that China is a society built on networks where the law does not matter. Even though the laws on the books look good, Chinese courts cannot apply them in many situations, mainly due to their institutional weakness.36
Woo provides a list of factors that restrain judicial power:
Judges are typically drawn from the area where they reside, and... the budget for each court is determined by the local government where the court sits. Local allocation of funds for judicial services ... has also rendered courts dependent on the whims of local ties and relationships.37
In addition, Alford doubts the real impact of the progress China has made in creating formal rules and institutions.8
Many scholars even question the validity of studying the rule of law in a non-democracy. Moustafa points out that "[t]he vast majority of political scientists and public law scholars assume that democracy is a prerequisite for the judicialization of politics."39 And because of this assumption, there has been "an almost total neglect of the study of judicial politics in authoritarian settings."40
In sum, according to the dismissive view, the reason China has ostensibly more binding administrative law than the United States is that laws do not matter in the former; they are simply a window dressing.
Although this argument has some merits, it over-simplifies the situation. If laws were just for show, one would expect to see today's China equipped with well-drafted laws of substantial sophistication in all areas. This argument cannot explain why the government spent years revising the drafts of certain laws, in order to get them through the legislature, e.g. the new bankruptcy law. Moreover, the argument cannot explain why in the last decade or so, the ruling party has started paying attention to the construction of an administrative regime.
In short, existing theories either give an oversimplified explanation that laws do not matter in China, or an ill-supported conclusion that the country is moving steadily towards the rule of law. I contend in this paper that an interdisciplinary approach focusing on power distribution will shed more light on the interplay between changes in legal codes and domestic politics. Although for a long time few scholars have put democracies and non-democracies together when it comes to the study of judicial politics, recent scholarship has moved toward interdisciplinary research and started to explore the relationship between the commitment to laws on the books and political structure. Garrett and others employ a game theory model to explain the strategic decision-making process of the European Court of Justice.41 They argue that if the Court anticipates strong resistance from member states, it will avoid rendering an adverse decision.42 Thus, the extant laws have been correlated with the perceived state interests and the institutional structure of the European Union.43 Based on extensive data analysis, Hathaway argues quite convincingly that a country's decision to sign a human rights treaty is determined to a great extent by the estimated costs of and probability of compliance.44 As a result, non-democracies that have weak internal legal enforcement systems may be more likely to sign a treaty than a democracy that enjoys the rule of law, even though the latter's record of human rights protection is much better than the former's.45 Although both Garrett and Hathaway focus on international judicial politics, and the unit of analysis in their studies is the individual state, their theories relate to the question this paper attempts to answer. That is, the way laws on the books are drafted, legislated, and interpreted is influenced by the probability that they will be applied and the associated costs, which is further determined by professional norms, judicial independence and authority, and the power distribution of potential litigants.
IV. AN INTERACTIVE THEORY PROVIDES A BETTER EXPLANATION OF JUDICIAL POLITICS
This section presents a game theoretic model that I believe better explains the empirical puzzle discussed in Section I and II. I create this simplified game structure to model the interaction among various actors in the drafting, interpretation, legislation and enforcement of laws. Different payoffs will be assigned when the game is applied to different legal environments. Before delving into the more technical discussion, I briefly describe the model in plain English.
The game illustrates my argument that legal environment and the power distribution of potential litigants implicated by a contemplated law determine how that law is drafted, interpreted, and legislated. For example, suppose a drafted law or a new legal interpretation comes to the legislature, and the legislators need to decide what to do about it. To simplify the argument, I assume that only those who will be affected by the legal change will react in the legislature. If the law is against one legislator's constituency, will he or she oppose the draft or interpretation? Since resistance tends to be costly, the legislator's decision depends on the costs of noncompliance, which is further related to the level of law enforcement.
In a strong rule of law environment, e.g. the United States, laws are expected to be enforced. So the calculation is easy. The constituency the drafted law or interpretation disfavors will oppose it to the extent that the cost of resistance is lower than the cost of noncompliance. But in a country with a weak judiciary, laws are enforced in only two situations: (1) when they extend the interests of the powerful; and (2) when the implicated constituencies are equally powerful.
Therefore, in a weak rule of law environment, a drafted law or legal interpretation favoring the politically weak constituency will go through the legislature because the politically powerful constituency will not oppose it, believing that the costs of noncompliance are low due to the ultimate lack of enforcement. That is why the highest court in China was able to create legal rights against official nonfeasance from scratch. Whereas, a contemplated law that implicates the interests of two equally powerful constituencies will not be enacted without a series of compromises. This explains why the drafted bankruptcy law in China took many years to be approved by the Congress, leaving a saga of trading of interests. I will present more empirical evidence for the theory in Section IV.
There are four players in this game. Player 1 ("P1") represents those who draft or interpret laws. They are normally composed of distinguished legal scholars or judges of the highest court. Player 2 ("P2") and Player 3 ("P3") are those whose behaviors will be governed by the drafted or interpreted law. I assume they take adversarial positions in a suit that falls under the jurisdiction of the law. Player 4 ("P4") refers to those responsible for the application of the law. They are normally composed of local judges.46
A. Stage 1
The way the law is drafted and interpreted is a variable. Pl is faced with a set of choices. He could select status quo. He could also choose to make the law more sophisticated. Once deciding to change the status quo, he then chooses between a sophisticated law favoring P2 and a sophisticated law favoring P3.
B. Stage 2
If P1 chooses to make the law more sophisticated, the game progresses to its second stage, where the law is gauged by those whose interests are potentially involved. P2 and P3 will fall under the jurisdiction of the law. Therefore, at stage two, each of the two players makes a choice between resisting the law and not resisting the law.47 The two players have their own political power. If the resistance trumps the efforts of P1, the law fails, and the game ends at status quo. Otherwise the law is promulgated and set for enforcement.
C. Stage 3
P2 and P3 are faced with the new law and the choice between compliance and noncompliance.
D. Stage 4
After P2 and P3 have acted, P4 makes a choice between enforcing the law and not enforcing the law.
Payoffs for the players vary. Everything else being equal, P1 wants to make the law more sophisticated. By doing so, P1 increases judicial authority and prestige. But if the draft or interpretation fails, P1 incurs costs, such as wasted time and human capital and damage to judicial power. In short, P1 makes his choice based on the perceived probability that the draft or interpretation will trigger resistance and the institutional power of the resisting player.
At stage two, P2 and P3 take a close look at the draft or interpretation and decide whether or not to resist it. There are costs associated with resistance at this stage, for example, the cost of gathering political support to stop the proposed legal change. Therefore, as strategic actors, P2 and P3 look ahead to later stages and estimate the subsequent costs they will incur when the law is enforced, which should be the probability of enforcement times the sum of the benefits and costs. If for one player the future costs are higher than the costs of resisting at stage two, he will resist at this stage, provided that his efforts will nullify the draft or interpretation. Otherwise, he will allow the draft or interpretation to be put into effect.
When the law is set for application, P2 and P3 make a choice between compliance and noncompliance. Since the change is assumed to be in favor of one of the two players, it is often the other player that makes the actual choice. For example, if the legislature in China passes a bankruptcy law that gives higher priority to secured credit instead of workers' compensation, secured creditors who are typically state-owned banks and other financial institutions, and workers' unions will decide whether or not to comply with the new law. Since the law favors the banks, it is the unions that make this calculation. They can choose not to comply by, among other things, seizing the assets of the debtor or blocking the resale of the collaterals. In the game, the decisions of P2 and P3 vary according to the sum of costs and benefits of compliance, and the expected level of enforcement. For instance, if the costs are high and the expected enforcement level is low, they are better off not complying.
At stage four, P4 chooses between enforcing the law and not enforcing it. The costs of enforcement depend on a variety of factors such as legal professionalism, litigants' relative institutional power, and judicial authority. Presumably, in a rule of law environment where the local courts are more powerful and independent, there are more incentives for legal enforcement. This is also true in a context where the litigants are of similar institutional power and the courts play a more neutral role.
Depending on the payoffs present, backward induction reveals several possible outcomes of the game. At the enforcement stage, P4's decision is based on the general institutional environment and the relative power distribution between P2 and P3.
As shown in Table 1, in a strong rule of law environment, the professional norms are strong; the judiciary is powerful and independent. P4 has an incentive to enforce the law, and it matters little how power is distributed between the litigants.
In a weak rule of law environment, however, P4's decision depends on the power distribution between the litigants. If P2 and P3 are both powerful actors, the court50 can have a say even if its institutional power is weak. In this horizontal power distribution, the court can function as a tiebreaker between P2 and P3. But if the power distribution between P2 and P3 is vertical, that is, one player is significantly more powerful than the other, then the court's decision turns on which party the law favors. If the law favors the more powerful, the court will not hesitate to enforce it. But if the law favors the less powerful, then the court is in a feeble position to enforce it.
At the compliance stage, P2 and P3 make a choice between compliance and noncompliance. Their decision at this stage turns on the outcome at the enforcement level. As we have seen, in a strong rule of law context, the law is to be enforced. So P2 and P3's decisions turn on the difference between the cost of compliance and the cost of noncompliance. In a weak rule of law context, we get a similar outcome if P2 and P3 enjoy relatively equal political power. If, however, P2 has more institutional power than P3, and if the law favors P3, then both P2 and P3 know that P4 will not enforce the law due to the substantial costs. With this expectation in mind, P2 will choose noncompliance. It is trivial that P3 will choose compliance, or at the least be indifferent between the two choices, since the law favors him.51
Going one step backward to the legislation stage, P2 and P3 make a choice between resisting and not resisting. Again, their decisions depend on the outcomes at the subsequent stages. In a strong rule of law context, the reasonable expectation is that the law will be enforced, and compliance probably is the better choice for P2 and P3. In that case, their decision at the legislation level turns on the probability of successfully blocking the draft or interpretation, and the cost of compliance. In other words, P2 or P3 will choose to resist if and only if:
(probability of successful blocking) * (cost of compliance) ≥ (cost of blocking)
The lower the cost of blocking, the higher the probability of successful blocking, and the higher the cost of compliance, the more likely the condition is satisfied, and the more likely P2 or P3 will choose to resist.
The same applies to the situation where there is weak rule of law, but horizontal power distribution between P2 and P3. If one of the players successfully blocks the draft or interpretation, then the model reverts to status quo. Since P2 and P3 take adversarial positions under the proposed law, there is no prisoners' dilemma problem for resisting the draft or an interpretation.52
In a weak rule of law context, if the law favoring the weaker player is not expected to be enforced against the more powerful one, the latter has no incentive to resist at the legislative stage.
Going back to the first stage, drafting and interpreting, Pl makes a choice among maintaining status quo, making a more sophisticated draft or interpretation favoring P1, or making a more sophisticated draft or interpretation favoring P2. Holding other factors constant, Pl wants to change the status quo and make a law that brings the judiciary more prestige and power. If the draft or interpretation is successfully blocked, however, Pl suffers the waste of time and resources. If the draft or interpretation goes through the legislative stage, P1 gets the credit for it.53 Therefore, P1's decision turns on the probability of P2 and P3's choosing to resist. If P1 expects the draft or interpretation to be successfully blocked by one player, then he is better off either choosing status quo, or making the law favoring this player, based on the context. Ultimately, P1's decision turns on the outcomes in all the subsequent stages and the payoffs determined by the context of the game.
Below are two game trees that illustrate the scenarios that will be discussed in the empirical evidence section.
2. Scenario II
(1) weak rule of law context & horizontal power distribution; or, strong rule of law context;
(2) (probability of successful blocking) * (cost of compliance) ≥ (cost of blocking) satisfied;
(3) Player 1 's preference: F2< >F3>S.Q.
plus the following conditions of payoffs:
d4>d5; d6>d7; d8>d9; d10>d11.
V. EMPIRICAL EVIDENCE SUPPORTS THE INTERACTIVE THEORY
This section presents five empirical comparisons of different laws, countries, and regimes that support the interactive theory discussed in the last section. First, while holding the subject of law constant, an analysis is made of how the variation in power distribution and legal authority affects the substance of the law. The reason that China seems to have more restrictive laws against police nonfeasance is that local officials did not expect the law restraining the government to be enforced. Second, the differences between the making of comprehensive bankruptcy and administrative laws in China support the contention that the written law is a variable of its expected enforcement, which is further determined by the power distribution between potential parties. Third, a comparison of the making of insolvency law in China and in Vietnam shows that unlike China, Vietnam established a set of comprehensive bankruptcy codes in a short time because the codes were less likely to be enforced in Vietnam. Fourth, the politics behind the police liability law in the United States illustrate how power distribution in a rule of law context determines the way the United States Supreme Court interprets the American Constitution. Last, the changes in the governmental liability law in South Korea after the country experienced political transformation show that the legal code may favor the more powerful when the rule of law is more consolidated.
A. The Supreme People's Court of China Favored Broad Interpretation of Governmental Liability Law
In this subsection, I discuss the preference of the Supreme People's Court of China for a broad interpretation of governmental liability law. I use this empirical case to show that, as my model predicts, the distribution of political power of potential litigants implicated by a legal change, plus the weak rule of law environment, explains why citizens in China are ostensibly better protected by the law against official nonfeasance than their American counterparts.
In this empirical case, Player 1 is the Supreme People's Court. Scholars generally agree that judges tend to maximize the institutional power of the judiciary when possible. As a group, judges share certain interests, which include promoting judicial independence, influence, and authority.54 Most scholars believe or assume that courts want to protect their legal autonomy from political bodies.55 This is true even in an authoritarian regime such as China, where judges of the Supreme People's Court make efforts to promote the rule of law, though the efforts are constrained.
The leaders of the Court have received legal education at prestigious law schools in China and abroad. The current president of the Court, Xiao Yang, graduated from one of the best law schools and was once head of the Ministry of Justice.56 During his term, the ministry initiated a nationwide legal-aid system in China. A 1998 report said that "lawyers engaging in legal aid work had handled 70,677 cases, and responded to more than 431,000 requests for legal information in 1997."57 Xiao and other officials held the view that establishing a legal aid system was a prerequisite to China developing a mature legal system. In 1999, the Supreme People's Court published the "Outline of Five-Year Reform" that aimed at promoting the power of judiciary by taking concrete measures such as "implementing public trials," "enhancing the independence of judicial panels," and "publishing court judgments."