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

By Li, Ji | Washington International Law Journal, March 2007 | Go to article overview

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, Washington International Law Journal


I. INTRODUCTION

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. …

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