Washington International Law Journal


Ji Li


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 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 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.

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