JAPANESE LAW IN GENERAL

SELECTED / ONLINE REFERENCES

 
 




Baum, Harald & Nottage, Luke R., Japanese Business Law in Western Languages: An Annotated Selective Bibliography

(1998, Fred B Rothman); 2nd ed. 2013, with Joel Rheuben & Markus Thier, from Hein / New York at https://www.wshein.com/catalog/?auth=Nottage: see Rheuben & Nottage ‘Japanese Business Law Online’ extract below]


Tom Ginsburg, Luke Nottage & Hiroo Sono (eds),

The Multiple Worlds of Japanese Law:

Disjunctions and Conjunctions

(2001, University of Victoria):

http://www.capi.uvic.ca/publications/multiple-worlds-japanese-law-disjunctions-and-conjunctions




CCH Business Law in Japan, Volume 1

(2008, CCH Singapore/Tokyo, ISBN 978-4-915845-08-6): www.cch-japan.jp/product/08BLJ.htm

(containing my co-authored chapters on Product Liability and on Contract Law; adapted from my edited CCH Japan Business Law Guide two-volume looseleaf)





Tanase, Takao (trans & ed by Nottage, Luke R. / Wolff, Leon T.), Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity

(January 2010, Edward Elgar): http://www.e-elgar.co.uk/Bookentry_Main.lasso?id=13711


“Takao Tanase seamlessly combines sociolegal and philosophical analysis as he explores the tensions between individual legal rights and communitarian values in settings ranging from post-divorce visitation rights to tort liability, lawyer-client relationships, and rising litigation rates. Contrasting Japan with the individualistic thrust of American law, Tanase stresses the importance of building legal processes that encourage stronger social and communal bonds. Students of law and society on all continents will find rich food for thought in this intellectually bold and intriguing volume.”

– Robert A. Kagan, University of California, Berkeley, US


Contents: Part I: Introduction 1. Introduction — Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity

Part II: A Critique of American Liberalism 2. Invoking Law as Narrative: Lawyers’ Ethics and the Discourse of Law in the United States 3. The Moral Foundations of Tort Liability 4. Post-Divorce Child Visitations and Parental Rights: Insights from Comparative Legal Cultures

Part III: A Normative Theory of Community and the Law 5. Rights and Community 6. Communitarianism and Constitutional Interpretation

Part IV: A Re-Evaluation of Japanese Modernity 7. Japanese Modernity Revisited: A Critique of the Theory and Practice of Kawashima’s Sociology of Law 8. Litigation in Japan and the Modernization Thesis


Nottage, Luke R., Translating Tanase: Challenging Paradigms of Japanese Law and Society

(May 27, 2006). Victoria University of Wellington Law Review, Vol.39, No. 4, pp. 755-778, 2009; Sydney Law School Research Paper No. 07/17. Available at SSRN: http://ssrn.com/abstract=921932


This paper, originally presented at a conference at UC Berkeley honouring the work of leading legal sociologist Takao Tanase, shows how a recently translated selection of his influential works contributes to debates about the best paradigm to explain Japanese law, as well as about the relationship between law and society more generally.


The culturalist paradigm prevalent until the 1970s argued that the Japanese don't like law, due to engrained Confucian traditions emphasizing harmony and hierarchy. Institutional barriers theory countered that the Japanese can't like law due to impediments discouraging engagement with the legal system. The elite management paradigm argued that conservative politicians, regulators and big business interests promoted this situation, especially after World War II, to manage the pace and direction of social change in Japan. In other words, the Japanese are made not to like law. By contrast, the economic rationalist paradigm stressed that often the Japanese do like law, with at least some comparatively clear-cut legal rules casting a clear shadow over out-of-court dispute settlement and deal-making.


Over the last decade the strengths and weaknesses of these various theories have been explored, and tested particularly in the context of a raft of socio-legal transformations underway in Japan. More studies are adopting a hybrid paradigm, applying more diverse methodologies to show how sometimes the Japanese like law, but sometimes they don't. Tanase's work contributes to this new trend by re-emphasising a neo-culturalist or communitarian impulse in (post-)modern Japanese law, and legal systems more generally. His conclusions and evidence are rooted in a hermeneutical understanding of our world, challenging epistemology that sharply distinguishes facts from norms, and thereby extreme liberal models of law and society. In his studies selected for translation, this approach is applied to fields as diverse as legal ethics, family law, tort law, civil litigation, and constitutional interpretation. Tanase's work is particularly refreshing and timely given the pace and breadth of law reform underway in Japan, but it also holds broader lessons both for jurists in other complex industrialized democracies, and for those engaged in Japanese Studies more generally.


Nottage, Luke R. and Green, Stephen, Who Defends Japan?: Government Lawyers and Judicial System Reform in Japan

(December 5, 2011). Asian-Pacific Law & Policy Journal, Vol. 13, No. 1, 2011; also in: WHO GOVERNS JAPAN? POPULAR PARTICIPATION IN THE JAPANESE LEGAL PROCESS, Leon Wolff, Luke Nottage, Kent Anderson, eds., Edward Elgar: United Kingdom, 2013; Sydney Law School Research Paper No. 11/96. Available at SSRN: http://ssrn.com/abstract=1968331


Major reforms have occurred following the 2001 recommendations of Japan’s Justice System Reform Council. This paper describes a novel test of the impact of the judicial system reforms: analyzing continuity versus change in how the Japanese government defends especially claims under public law. It also marks the first study in English describing how the Japanese government manages litigation matters, and particularly the work of government lawyers (shomu kenji) in the Ministry of Justice (MoJ).


We found that there has not been any large aggregate increase in administrative law cases, nor indeed in other litigation involving the government. However, there has been increased litigation in certain areas. There also seems to be more variance in outcomes, hence the risk of significant losses. Second, following recent reforms to civil and court procedures, the pace at which cases proceed through trial has accelerated somewhat. Third, the government has lost some major cases and faces further large-scale claims.


There has not been any significant change from the system of organizing litigation services centred on shomu kenji. Specialized litigation involving competition law or patent law is conducted solely by the relevant government agency. Litigation involving local governments is largely left to them, and they mostly outsource this work to bengoshi (private lawyers). The Minister of Justice also has the power to designate shitei dairinin (non-lawyers) from other ministries in administrative law suits.


Key characteristics of the organization of litigations services within the MoJ remain intact. The shomu kenji mostly are kenji (criminal prosecutors), and some judges on short-term secondments. The number of jimukan (administrative staff), non-lawyers but who usually have some legal training, has risen to help process cases faster. It is rare for the MoJ to outsource work to bengoshi. Instead, the MoJ has begun to hire some bengoshi on short-term contracts. In addition, there have been only limited changes in the ways in which the Japanese government organizes litigation services involving (only or mainly) officials other than shomu kenji, as in competition law, patent disputes, and tax disputes.


Thus, organizational and social structures are only adjusting slowly and in subtle ways. Yet longer-term pressure may mount, as citizens call for further access to justice and state accountability. Our article concludes by outlining some possible lessons from a broader comparative perspective.


Rheuben, Joel and Nottage, Luke R., Cyberspace Revisited: Japanese Business Law Online Today

(October 10, 2012). Australian Journal of Asian Law, Vol. 13, No. 1, 2012. Available at SSRN: http://ssrn.com/abstract=2159563


The very first issue of this journal, published nearly 15 years ago, carried an article titled ‘Japanese Business Law in Cyberspace: Preliminary Usage Patterns for the ‘Japanese Law Links’ Webpage’ (Nottage, 1998). The development of the Internet as a research tool during this time, as well as the steady increase in writing about Japanese law worldwide, has been far more significant. Nearly a decade and a half later, it is now both easier and harder to offer a guide to online resources on Japanese law in Western languages. The aim of this article is therefore to provide an overview of the most useful of these numerous online resources.



Nottage, Luke R., New Legislative Agendas, Legal Professionals and Dispute Resolution in Australia and Japan: 2009-2010

(August 10, 2010). Ritsumeikan University Law Review, Vol. 28, forthcoming, 2011; Sydney Law School Research Paper No. 09/71. Available at SSRN: http://ssrn.com/abstract=1656650


This paper is the third in a series of edited and updated selections of my postings to the ‘East Asia Forum’ blog (indicated with a double asterisk in the Table of Contents below) and my partly-overlapping ‘Japanese Law and the Asia-Pacific’ blog. They mainly cover developments from mid-2009 through to mid-2010, with a focus on law and policy in Australia and Japan in a wider regional and sometimes global context.


Half of the postings introduce some new policy and legislative agendas proclaimed by the then Prime Ministers of Australia (Kevin Rudd, in late July 2009) and Japan (Yukio Hatoyama, through the Democratic Party of Japan [DPJ] which he led to a remarkable general election victory in late August 2009). Both had resigned by mid-2010, indicating some of the difficulties involved in implementing ambitious reforms in both countries. All the more so, perhaps, if innovative measures are to be added to both countries’ Free Trade Agreements (FTAs) in order to foster more sustainable socio-economic development in the aftermath of the Global Financial Crisis (GFC). The remaining postings end by introducing Australia’s regime for international (and domestic) commercial arbitration enacted in mid-2010, centred on a United Nations Model Law – like Japan’s Arbitration Act of 2003. However it sets these enactments in broader context by focusing on legal professionals – lawyers, judges and specialists in Alternative Dispute Resolution (ADR) – as well as aspects of the legal education systems in both countries. Those systems will need to gel better as well for both Australia and Japan to achieve the ‘cultural reform’ needed to generate sustainable critical mass in commercial (and investor-state) arbitration activity.


Nottage, Luke R., Law, Public Policy and Economics in Japan and Australia: Reviewing Bilateral Relations and Commercial Regulation in 2009

(August 9, 2009). Ritsumeikan University Law Review, Vol. 27, pp. 1-57, 2010; Sydney Law School Research Paper No. 09/71. Available at SSRN: http://ssrn.com/abstract=1446523


The paper is based on my contributions to the East Asia Forum blog (and my partially overlapping "Japanese Law and the Asia Pacific" blog) drawing mainly on developments from the end of 2008 through to mid-2009. Many topics are important not only within Australia and Japan, but also potentially for bilateral relations (for example, as novel dimensions to the FTA or 'Economic Partnership Agreement' already under negotiation between these two countries). Several topics (for example, the state of economics as a discipline after the GFC, neo-communitarian perspectives on comparative law and society, the legacy of the post-War Occupation of Japan) also address more broadly how we should (re)conceptualise law, economics and public policy particularly in the Asia-Pacific context.

As in my survey of developments over 2008, readers can read through these topics sequentially, as I tried to link them to previous postings and therefore create a 'chain novel' narrative effect. But readers may prefer to jump around the topics in their own order of interest, especially as some postings were uploaded initially in response to particular developments (such as announcements for major consumer law and then arbitration law reforms in Australia).


Nottage, Luke R., Economics, Politics, Public Policy and Law in Japan, Australasia and the Pacific: Corporate Governance, Financial Crisis, and Consumer Product Safety in 2008

(November 3, 2008). Sydney Law School Research Paper No. 08/134; Sydney Law School Research Paper No. 08/134. Available at SSRN: http://ssrn.com/abstract=1295064


This is an updated collection of my own postings on the new East Asia Forum blog. Created primarily by political economists from the Australian National University in mid-2008, the blog is attracting a wide readership and regular contributions from experts interested in or based throughout the rapidly evolving Asia-Pacific region. My starting point involves taking seriously Australian Prime Minister Kevin Rudd's call, just before his visit to Japan around the same time, for a new East Asian Community.

Thematically, my postings focus mainly on FDI and corporate governance, financial markets and consumer credit regulation, product safety regulation, and different countries' media coverage of these and other issues in the region. Geographically, postings mainly examine developments affecting Japan. But this is done often expressly in connection with Australia, as well as other countries in the Asia-Pacific region (including China, India, New Zealand, and the United States), with links also to developments in the European Union (EU).

Chronologically, postings were originally from July-October 2008, a particularly tumultuous period, but the events often connect to longer-term developments. They can be read one after the other, and the original order has been preserved. I tried to sequence each posting to link back especially to the previous one, as well as other postings by myself or other contributors to the blog, while addressing hot topics of the times. The hope, very loosely inspired by how Ronald Dworkin views judge-made law emerging like a 'chain novel', is that readers can begin to see my own (and perhaps others') underlying empirical and normative views on some important 'gradual transformations' in Japan and beyond.


Nottage, Luke R., Build Postgraduate Law Schools in Kyoto, and Will They Come - Sooner and Later?

Australian Journal of Asian Law; Sydney Law School Research Paper No. 07/29. Available at SSRN: http://ssrn.com/abstract=986529


This paper critically assesses many issues that have arisen or become more visible since new postgraduate 'law schools' got underway in April 2004 in Japan, focusing on those in Kyoto - a major centre of learning. It re-emphasises serious design flaws in the original reform proposal but notes some more promising tendencies subsequently. It argues that the new system remains unstable and inherently problematic for teachers, students, and the broader community. The paper concludes by proposing more thoroughgoing reforms, driven more by educators and a broader array of stakeholders. An Epilogue reinforces these observations with a preliminary analysis of the results of the first new National Bar Examination open to students from Law Schools throughout Japan, announced in late 2006.


Nottage, Luke R., Legal Education in Asia: Globalization, Change and Contexts – In Review

(January 31, 2011). Journal of Japanese Law, No. 30, pp. 255-264, 2010; Sydney Law School Research Paper No. 11/05. Available at SSRN: http://ssrn.com/abstract=1752646


This is a review essay of a recent 16-chapter monograph on legal education in Asia, commemorating the teaching, research and formidable networking capacity of the late Professor Malcolm Smith – a leader in developing Asian and Japanese Law studies in Australia, Canada and world-wide. It focuses on legal education in the developed economies selected for the book. It pays particular attention to Japan (with major postgraduate “Law School” reforms inaugurated from 2004), but also compares South Korea and Taiwan (sharing much modern legal history with Japan, but taking quite different paths in legal education reforms recently), as well as Singapore and Hong Kong (where commercial and vocational imperatives may be growing even more strongly). The essay also extends the model proposed in the chapter by Anderson and Ryan – linking approaches to legal education to the question of who constitutes the primary “gatekeeper” to the legal profession (lawyers themselves, the state, universities, or the market) – to bring Australian developments into broader comparative perspective too.