Academic journal article Law and Policy in International Business

The Somewhat Less Reluctant Litigant: Japan's Changing View towards Civil Litigation

Academic journal article Law and Policy in International Business

The Somewhat Less Reluctant Litigant: Japan's Changing View towards Civil Litigation

Article excerpt

Ever since Professor Haley's insightful article The Myth of the Reluctant Litigant, (1) students of Japanese law have suggested various reasons for the marked difference in litigation rates between the United States and Japan. (2) Some maintain that the Japanese are reluctant litigants for cultural and social reasons, (3) while others contend that there are structural reasons that compel the Japanese to avoid litigation when possible. (4) Still others suggest that because the ultimate result of Japanese litigation is more predictable than in the United States, the Japanese are simply rational litigants, or non-litigants as the case may be. (5) Of course, these are not necessarily conflicting theories, (6) and it is this author's view that facts support, in some measure, each of these views. Nonetheless, much has changed since the late 1970s, and the time is ripe to re-examine whether the modern Japanese are becoming less reluctant litigants.

I. VIEWING JAPANESE LITIGATION PATTERNS THROUGH THE IMPERFECT LENS OF U.S. SOCIETY

In order to consider whether the Japanese, or any other people, are composed of "reluctant" or "willing" litigants, one must first determine what the norm is from which degrees of reluctance or willingness should be measured. For the American writer the norm would appear to be that of his or her own society. But even for an American, is the United States the appropriate norm from which to view the behavior of people in other societies? There is anecdotal evidence (both inside and outside U.S. borders) questioning whether there is something "wrong" with American society that has made Americans overly litigious. (7) Whether Americans are overly litigious or not litigious enough, however, an analysis should be made to determine whether the United States is an appropriate model by which to measure the behavior of others. It is suggested that it is not and thus the typical discussion of Japanese reluctance to litigate may require reconsideration. (8)

In order to determine if a society is overly litigious, it is necessary to first explore the purpose of its litigation system. In the United States, the criminal justice litigation system is designed both to rehabilitate and punish those who are guilty of committing antisocial activities that rise to a level that causes society to define the conduct as criminal. (9) For this reason, the United States has adopted mandatory sentencing for certain crimes, has enacted laws requiring certain convicted persons to serve their entire sentences without parole, and has even endorsed the ultimate penalty--capital punishment. To assure (to the extent possible) that only the guilty are punished for their antisocial conduct, the United States has adopted a series of procedural protections that make it more difficult for the prosecutor to convict those suspected of crime. (10) Moreover, to guarantee that the prosecutor does not seek shortcuts around these procedural protections, the United States has constitutionalized prophylactic devices such as the exclusionary rule, (11) and civil damage actions against public servants who cross the line when seeking a conviction. (12) To assure that the government cannot abuse the system to warehouse and punish those who disagree with the government, the United States has adopted a citizen-based determining system to judge guilt or innocence--the jury. (13)

In the civil law arena, the United States has also adopted a system to carry out certain policy objectives. While perhaps less universally recognized by the populace than the policy objectives behind the criminal law system, the policy choices that the United States has made as a society have determined the character and substance of its civil procedure system. Thus, in the United States there are several functions that the civil litigation system is designed to further that other societies may decide should be handled differently. To the extent that a society determines to handle these matters differently, its civil trial system will reflect that difference and its litigation rates may differ. …

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