Academic journal article Law & Society Review

The Mechanisms Behind Litigation's "Radiating Effects": Historical Grievances against Japan

Academic journal article Law & Society Review

The Mechanisms Behind Litigation's "Radiating Effects": Historical Grievances against Japan

Article excerpt

In the past three decades, Koreans have filed dozens of lawsuits in Japanese, Korean, and U.S. courts with various claims related to Japanese colonial rule over the Korean peninsula (19101945). Claimants have included Korean victims of forced labor in Japanese factories, sexual slavery for Japanese troops (the "comfort women"), the atomic bombings (hibakusha), leprosy facilities, military conscription, and relatives of such victims. Chinese, Taiwanese, and claimants of other nationalities have filed similar lawsuits. Despite more than a hundred rulings, including more than 25 from top courts, such litigation has yielded few judicial victories for the claimants. Lower court rulings in the plaintiffs' favor were often overturned on appeal. Courts ruled that the statute of limitations on the right to bring claims had expired, that the doctrines of political question and sovereign immunity rendered the case moot, or that postwar treaties absolved the Japanese government of liability and denied individuals the right to claim compensation. Nevertheless, the number of lawsuits grew, and claims diversified.

In one sense, these varied and largely separate lawsuits seem to affirm scholars' contention that litigation is a "hollow hope" for those seeking social change (Rosenberg 2008). Besides costing time and money, lawsuits can divert energy from other tactics and be difficult to win. The process of bringing legal claims frequently empowers lawyers over affected parties or divides social movements (Albiston 2011; McCann and Silverstein 1998; Scheingold 2004). It sometimes also sparks a backlash in rhetoric, actual policies, or policy implementation (Klarman 2004).

In another sense, these lawsuits, while largely unconnected, are part of the global trend toward historical justice. In the trend, individuals and NGOs are increasingly influencing disputes formerly settled between governments. Some scholars praise how long silences have been broken, transnational advocacy networks formed, and public memory and perceptions of justice transformed (e.g., Berger 2012 ; Keck and Sikkink 1998 ; Neumann and Thompson 2015). Others argue that lawsuits related to history complicate and constrain diplomacy (Slaughter and Bosco 2000) or that state apologies incite domestic counter-mobilization (Lind 2008). Diplomatic tensions between Japan and the Republic of Korea (ROK) in early 2019, following the Korean Supreme Court's rulings in former forced laborers' favor last fall, confirm such arguments.1

In a third sense, these lawsuits are a testament to the fact that litigation's indirect or "radiating effects" (I use the terms interchangeably) are often more significant than formal judicial outcomes (Galanter 1983). The classic work by McCann (1994) elaborated many radiating effects of the litigation process, and NeJaime (2011) recently examined how litigation loss specifically can be productive for movements. To date, however, the mechanisms behind litigation's indirect effects remain undertheorized. This article conducts a meta-study of possible mechanisms to fill the gap. Since definitions abound (Mahoney 2001: 577-81), I follow Falleti and Lynch (2009: 1145) in defining mechanisms as "relatively abstract [and portable] concepts or patterns of action that explain how a hypothesized cause creates a particular outcome in a given context." Analyzing mechanisms helps uncover ripple effects beyond the courtroom and how litigants might attain these effects. As such, they deserve more attention. Scholarship on movements for historical redress in East Asia usually mentions litigation only in passing or focuses on the legal merits of specific cases (e.g., Boling 1994; Totsuka 1999; Gao 2006; Levin 2008; Kim 2014; Chun and Kim 2014). But this article asks: What radiating effects have lawsuits against the Japanese government or Japanese firms had, and what mechanisms produce these effects?

This article highlights four types of indirect or radiating effects that benefited claimants and facilitated movements for historical justice even in the absence of court victories. …

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