Does Judicial Independence Matter? a Study of the Determinants of Administrative Litigation in an Authoritarian Regime

Lawsuits against the government form a part of the regular functioning of legal systems in democratic countries, and responding to such lawsuits constitutes an unavoidable part of governance. However, in the context of authoritarian regimes, administrative litigation has been viewed as a distinctively valuable institution for promoting the rule of law and individual rights. Moreover, the judiciary is portrayed as the keystone to this institution and to the rule of law in general: the more powerful and competent is the judiciary, the more it is able to “constrain government” through judicial review. Through empirical and comparative analyses of over two decades of administrative litigation in China against one of the state’s essential branches, tax collection, I challenge the utility of this normative conception of administrative litigation. Using conceptual tools that apply across legal systems and regulatory areas, I show that while litigant behavior as well as the regulatory environment offer useful explanations of litigation patterns such as case volume and the plaintiff win rate, the relevance of judicial  Associate Professor, Allard School of Law, University of British Columbia. Author email: [email protected]. I am grateful to Eric Hou and Xiang Fangfang for excellent research assistance and to Zhiyuan Wang for assistance with statistical analysis. I have benefited from comments by Cheng Jie, Jiang Hao, Liu Yue, Pitman Potter, Wang Yaxin, Wei Guoqing, and audiences at the Sydney Chapter of the Australian Branch of the International Fiscal Association, Northwestern University Law School, the Canadian Law and Economics Association Annual Meeting in 2014, and the 2016 Annual Comparative Law Work-in-Progress Workshop at the University of Illinois Law School on earlier drafts. All errors remain my own. 1 Cui: Does Judicial Independence Matter? A Study of the Determinants of Published by Penn Law: Legal Scholarship Repository, 2017 942 U. Pa. J. Int’l L. [Vol. 38:3 quality is barely discernible. This highlights the intuitive idea that judicial review can operate only when a private party brings suit, and whether and when they will do so cannot be taken for granted. In countries with weak legal systems, the rule of law may fail in certain basic ways that even a competent and well-subsidized judiciary cannot remedy.