The Culture of Legal Change: A Case Study of Tobacco Control in Twenty-First Century Japan

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson\u27s influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material incentives, it concentrates on a less easily measured factor - cultural incentives - and highlights its impact on the agents and outcomes of change. By identifying international norms as the inspiration for domestic legal change and local culture as a mediating influence that transforms international norms into domestic law, the Article seeks to contribute to the growing scholarly interest in the interaction of culture and law. It shows legal change to be a culturally contingent process dependant upon the interaction of the local and the global, rational actions and cultural dispositions

Law, Culture, and Conflict: Dispute Resolution in Postwar Japan

The 1963 publication of Takeyoshi Kawashima’s “Dispute Resolution in Contemporary Japan” has indelibly influenced the study of law and conflict in postwar Japan. A mere nineteen text pages of Arthur Taylor von Mehren’s seven hundred–page volume, Law in Japan: The Legal Order in a Changing Society, Kawashima’s observations about the infrequency of litigation in Japan, and his emphasis on the sociocultural context of conflict, continue to resonate. As a noted scholar of Japanese law has succinctly written, “Virtually every scholarly work [about Japanese law] in the last thirty-five years has been framed in some way or another by the conceptual construct Professor Kawashima offered.” This chapter first identifies the central claims of Kawashima’s article and evaluates their strengths and weaknesses. Next, it examines four types of scholarship on Japanese law that owe a significant debt to Kawashima: culturalist views of Japanese law, institutional analyses of the Japanese legal system, law and economics approaches to legal behavior in Japan, and case studies of Japanese law and society. In doing so, it further explores Kawashima’s most significant contributions as well as his oversights. The article concludes with a brief discussion of the recent movement to reform the legal system, which seems likely to bring about at least some of the changes to dispute resolution that Kawashima predicted. Both too much and too little have been read into Kawashima’s work. Its elegant simplicity hides a complex set of observations. At the same time, those observations can be clearly stated and evaluated

The Culture of Legal Change: A Case Study of Tobacco Control in Twenty-First Century Japan

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson\u27s influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material incentives, it concentrates on a less easily measured factor - cultural incentives - and highlights its impact on the agents and outcomes of change. By identifying international norms as the inspiration for domestic legal change and local culture as a mediating influence that transforms international norms into domestic law, the Article seeks to contribute to the growing scholarly interest in the interaction of culture and law. It shows legal change to be a culturally contingent process dependant upon the interaction of the local and the global, rational actions and cultural dispositions

Fukushima: Catastrophe, Compensation, and Justice in Japan

Well before the Fukushima disaster of March 11, 2011, governments in the developed world struggled with victim compensation in cases of environmental contamination, harms caused by pharmaceutical products, terrorist attacks, and more. All of those are important precedents to Fukushima, but none of them approach the breadth of harms resulting from the triple disaster of huge earthquake, massive tsunami, and nuclear meltdown now known in Japan as 3/11. With close to 20,000 people dead or missing, one million homes fully destroyed or seriously damaged, and 100,000 people displaced, getting those whose lives were affected by the events in Fukushima back on their feet is a daunting task. How should Japanese society, and the Japanese state, respond? How much compensation, if any, should be offered to the victims? What types of losses should be considered compensable? Which institutions are best equipped to evaluate and manage a system of redress

No Alternative: Resolving Disputes Japanese Style

This article critiques the simple black/white categorisation of mainstream versus alternative dispute resolution, and argues that what is needed is a cartography of dispute resolution institutions that maps the full range of approaches and traces their interaction. It sketches the first lines of such a map by describing two examples of conflict resolution in Japan. Neither can justly be called “alternative”, yet neither fits the mould of what might be called mainstream or classical dispute resolution. One, judicial settlement, focuses on process; the other, compensating victims of the Fukushima disaster, engages a specific event. Together, they help to illustrate why the term ADR is so unhelpful in our effort to classify and analyse conflict domestically and cross-culturally, and provide some insight into the rich array of methods that people use to settle their disputes

The Tuna Court: Law and Norms in the World\u27s Premier Fish Market

Legal scholars have long emphasized the corrosive impact of conflict on long-term commercial and interpersonal relationships. To minimize the negative consequences of such conflict, members of close-knit groups who anticipate future interactions create ways of resolving their disputes with reference to internal group norms rather than relying on state-mandated legal rules. From farmers in California’s Shasta County to jewelers in midtown Manhattan and neighbors in Sanders County, the literature describes people who create norms of conflict management that are faster and less expensive than relying on formal law, and lessen the harm that conflict causes to their relationships. This article tells a different story. It describes a tightly-organized group of commercial traders—tuna merchants in Tokyo—who are repeat players in a discrete marketplace where there are regular problems with the quality of auctioned goods. Rather than ignoring those problems or quietly resolving them with reference to informal market norms, Tokyo’s tuna merchants make use of a highly specialized court created by the state—the Tuna Court—that follows rules and procedures that are contained in a government ordinance. The supposed disadvantages of legal rules are nowhere apparent. The Tuna Court is fast and inexpensive, and the process of articulating and resolving claims serves to strengthen individual relations and the cohesion of the market community. A comparison of conflict over auctioned tuna in Japan and the US demonstrates that there is more disputing and more legal formality in the Japanese market, and credits a mix of economic and cultural factors for the difference. In short, by presenting an example of a highly specialized court that operates under state auspices, this article argues that formal law can outperform informal norms by satisfying the business needs of close-knit merchants while simultaneously contributing to the shared values that ensure the success of their future transactions

Legal Reform in Contemporary Japan

In this chapter I offer a preliminary assessment of a quickly moving target—legal reform and its impact on rights in Japan. Although a broad consensus has emerged among interested parties that at least some degree of reform is desirable, there is significant disagreement about the goals of reform, and also about the likelihood that it will achieve certain objectives. Some commentators believe that the Japanese legal system is on the cusp of a “revolution” that will shore up long-neglected rights and create new entitlements. Others predict that the consequences of reform will be modest; and they despair that aggrieved individuals will remain unable to obtain legal representation, while Japanese companies will be at a competitive disadvantage in the global marketplace. This essay charts a middle course. It notes that the source of many of Japan’s new legal institutions is the United States and Europe, but demurs from the view that the world’s legal systems are converging. Change is afoot in Japan, it argues, but its consequences are likely to be more muted, and have a different complexion, than many have suggested. Rather than producing a revolution in the law, current reforms will lead to an incremental shift, with the Japanese legal system remaining a distinctive blend of indigenous process and practices influenced by Western doctrines and dispositions