Cover

pdf iconDownload PDF
 

Title Page

pdf iconDownload PDF
 

Copyright

pdf iconDownload PDF
 

Contents

pdf iconDownload PDF

pp. vii-x

read more

Preface and Acknowledgments

pdf iconDownload PDF

pp. xi-xvii

In September 1961, a historic conference took place at Harvard Law School. Twelve of Japan’s leading legal authorities presented papers discussing fundamental issues in their respective fields of expertise. Over the course of the conference, they explored those and many other issues ...

read more

Introduction and Overview: Japanese Law at a Turning Point

pdf iconDownload PDF

pp. xix-xxxix

Japanese law is in the midst of a period of major change. It truly does stand at a turning point. From 1961, when the first Law in Japan conference was held, through the 1980s, the situation in most of the major fields of Japanese law might best be summed up by the term gradualism. That term is often associated with ...

read more

Part I: The Legal System and the Law’s Processes

pdf iconDownload PDF

pp. 3-6

This volume begins with the chapter “New Knowledge Concerning Japan’s Legal System before 1868, Acquired from Japanese Sources by Western Writers since 1963,” in which Carl Steenstrup tackles head-on the question of what possible relevance the study of legal history might have to practicing lawyers today. ...

read more

1 New Knowledge Concerning Japan’s Legal System before 1868, Acquired from Japanese Sources by Western Writers since 1963

pdf iconDownload PDF

pp. 7-33

The practice of law consists of predicting future decisions by judges. As counsel, this skill allows one to advise clients properly, and on the bench, this skill allows a judge to see his or her decisions confirmed by judges of courts of appeal. In contrast, the history of law is the knowledge of legal rules that are ...

read more

2 Criminal Trials in the Early Meiji Era—with Particular Reference to the Ukagai / Shirei System

pdf iconDownload PDF

pp. 34-49

Precisely when, following the Meiji Restoration, did criminal trials in Japan come to be conducted on a national scale, broadly throughout the entire country? In seeking to answer that question, an observation by Yutaka Tezuka1 is of great significance. As he noted, the abolition of the han and establishment of prefectures ...

read more

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

pdf iconDownload PDF

pp. 50-79

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,1 ...

read more

4 The Development of an Adversary Systemin Japanese Civil Procedure

pdf iconDownload PDF

pp. 80-98

When the late Judge Kohji Tanabe wrote his much-acclaimed article, “The Processes of Litigation: An Experiment with the Adversary System,” which was published in 1963 in the original volume of Law in Japan: The Legal Order in a Changing Society, Japanese civil procedure was still in the course of recovery ...

read more

5 The Japanese Judiciary: Maintaining Integrity, Autonomy, and the Public Trust

pdf iconDownload PDF

pp. 99-135

Japanese judges are among the most honest, politically independent, and professionally competent in the world today. Organized as an autonomous national bureaucracy, the judiciary comprises a small, largely self-regulating cadre of elite legal professionals who enjoy with reason an extraordinarily high level of public trust. ...

read more

6 The Rise of the Large Japanese Business Law Firm and Its Prospects for the Future

pdf iconDownload PDF

pp. 136-152

That was of course in stark contrast with the situation in the United States at the time, where the demand for the services of such firms and the supply of professionals to staff them had been strong for a long time. The primary components of a so-called Wall Street big firm practice, then and now, include corporate ...

read more

7 The Legislative Dynamic: Evidence from the Deregulation of Financial Services in Japan

pdf iconDownload PDF

pp. 153-189

A decade into the worst recession since the war, Japanese firms in the late 1990s seemed doomed to more of the same. Most everyone blamed the banks. A decade since asset prices fell, banks still held debt for which their collateral gave scant recourse. To many observers, nothing less than a general financial ...

read more

8 Legal Education

pdf iconDownload PDF

pp. 190-232

In his chapter “Education of the Legal Profession in Japan” in the 1963 volume, Judge Hakaru Abe comprehensively and critically outlined the Japanese legal education system and discussed some of the major issues for reform.1 Deplorably, for the subsequent four decades very little changed for the better, ...

read more

Part II: The Individual, The State, and the Law

pdf iconDownload PDF

pp. 233-236

In the first of the nine chapters in part II, “Ongoing Changes in the Infrastructure of a Constitutional System: From ‘Bureaucracy’ to Democracy,” Kazuyuki Takahashi explores the very foundations of Japan’s constitutional system. Based on an examination of the reforms of the political system, the administrative ...

read more

9 Ongoing Changes in the Infrastructure of a Constitutional System: From “Bureaucracy” to Democracy

pdf iconDownload PDF

pp. 237-256

The Constitution of Japan remains unchanged since its enactment in 1946; and we celebrated its fiftieth anniversary just a few years ago. Recent years, however, have witnessed unprecedentedly rapid changes in the environment in which the Constitution functions. Some efforts to adjust to those changes have taken place ...

read more

10 The Constitution of Japan: “Pacifism” and Mass Media Freedom

pdf iconDownload PDF

pp. 257-275

For over fifty years, commitments to international peace, human rights, and popular sovereignty have been central to Japan’s constitutionalism. Article 9’s rejection of war and force to settle international disputes continues in effect. Over time, social, economic, and political rights of the individual have enjoyed ...

read more

11 Development of the Concepts of Transparency and Accountability in Japanese Administrative Law

pdf iconDownload PDF

pp. 276-303

More than forty years have passed since the historic conference on Japanese law was held at Harvard Law School in 1961. It is easy to recognize remarkable progress in some areas of Japanese administrative law, such as administrative procedure and freedom of information, during those forty years. ...

read more

12 The Politics of Transparency in Japanese Administrative Law

pdf iconDownload PDF

pp. 304-311

The 1990s will likely be seen as a major turning point in Japanese administrative law. During the decade, Japan adopted three major legal reforms that substantially impact the Japanese administrative system: the Administrative Procedure Act (APA), the Information Disclosure Act (IDA), and the Cabinet resolution ...

read more

13 The Development of Criminal Law in Japan since 1961

pdf iconDownload PDF

pp. 312-333

Japan is a nation of 380,000 square kilometers, with a population of 126 million. The criminal law endeavors to keep the society safer, cleaner, and more efficient. It touches many aspects of people’s lives deeply. My task here is to describe the development of criminal law in Japan from 1961 until the present and, hopefully, ...

read more

14 Globalization and Japanese Criminal Law

pdf iconDownload PDF

pp. 334-342

More than four decades after the conference that led to the publication of Law in Japan: The Legal Order in a Changing Society, it is certainly a most opportune time to examine the recent evolution of Japanese criminal law and also to speculate about the future. I am deeply honored to have the opportunity, ...

read more

15 Criminal Justice in Japan

pdf iconDownload PDF

pp. 343-383

In some respects, criminal justice in Japan has served the nation well for the past forty years. There are several notable achievements. At the front end of the system, police clearance rates were (until recently) higher than in other industrialized democracies, and once a suspect has been identified, ...

read more

16 Litigation, Administrative Relief, and Political Settlement for Pollution Victim Compensation: Minamata Mercury Poisoning after Fifty Years

pdf iconDownload PDF

pp. 384-403

The process of industrializing modern Japan since the Meiji Restoration (1868) involves a long history of environmental disruptions and disputes.1 After World War II, Japan’s national goals became economic recovery and rebuilding of the basic industries, which had been totally destroyed by the war; those goals were ...

read more

17 Medical Error, Deception, Self-Critical Analysis,and Law’s Impact: A Comparative Examination

pdf iconDownload PDF

pp. 404-432

The problem of medical error has become a focus of major public concern in both Japan and the United States, as it has around the world.1 Proposals for legislative and institutional reform of liability and health care delivery systems to address the patient safety issue have emanated not merely from affected interest groups ...

read more

Part III: The Law and the Economy

pdf iconDownload PDF

pp. 433-436

In the first chapter in this part, “Reexamining Legal Transplants: The Director’s Fiduciary Duty in Japanese Corporate Law,” Hideki Kanda and Curtis J. Milhaupt introduce the intriguing saga of Article 254-3 of the Commercial Code, which sets forth the fiduciary duty of corporate directors. Introduced in 1950 as a ...

read more

18 Reexamining Legal Transplants: The Director’s Fiduciary Duty in Japanese Corporate Law

pdf iconDownload PDF

pp. 437-453

The transplantation of legal rules from one country to another is commonly observed around the world. Legal transplants1 can range from the wholesale adoption of entire systems of law to the copying of a single rule. Japanese law, particularly the legal rules governing economic organization, is a prime example ...

read more

19 Japan’s “Era of Contract”

pdf iconDownload PDF

pp. 454-482

The classic work Law in Japan: The Legal Order in a Changing Society, edited by Arthur Taylor von Mehren, treats Japanese contract as a fairly uncontroversial field of positive law.1 In that volume, Professor Takeyoshi Kawashima’s chapter on dispute resolution was destined to become widely read outside Japan, ...

read more

20 From Security to Mobility? Changing Aspects of Japanese Dismissal Law

pdf iconDownload PDF

pp. 483-520

One of the most significant features of Japanese labor law lies in regulation of dismissals. With no specific statutory mandate, courts have established restrictions on the employer’s right to dismiss workers.1 This case law is consistent with the long-term employment—sometimes referred to as “ lifetime employment” ...

read more

21 Concentrated Power: The Paradox of Antitrust in Japan

pdf iconDownload PDF

pp. 521-554

In his essay about the Antimonopoly Law in the 1963 edition of Law in Japan, Yoshio Kanazawa observed that enforcement of Japan’s Antimonopoly Act1 “is anemic today” and, although the act could be resuscitated, “there is, of course, no immediate prospect of this happening.”2 Kanazawa pointed to the “negative attitude ...

read more

22 The Changing Roles of the Patent Officeand the Courts after Fujitsu / TI

pdf iconDownload PDF

pp. 555-563

Like many other areas of the Japanese legal system, intellectual property (IP) law has been undergoing major changes over the past decade.1 These changes are a result of a strong U.S. influence on Japanese patent law and have led to the adoption of pro-patent policy.2 A prime example of these trends ...

read more

23 The Reform of the Japanese Tax System in the Latter Half of the Twentieth Century and into the Twenty-first Century

pdf iconDownload PDF

pp. 564-582

The purpose of this chapter is to trace the development and reform of the Japanese tax system in the latter half of the twentieth century and to examine some important problems facing that system in the twenty-first century. In doing so, this chapter will address four major themes. First, it will reaffirm the ...

read more

24 Some Observations on the Japanese Tax System at the Beginning of the Twenty-first Century

pdf iconDownload PDF

pp. 583-588

Professor Hiroshi Kaneko has written a detailed and fascinating chapter discussing the evolution of the Japanese tax system in the latter half of the twentieth century.1 In his chapter, he identifies eight issues that will confront Japan with respect to its tax system as it moves into the twenty-first century.2 ...

read more

25 Insolvency Law for a New Century: Japan’s Revised Framework for Economic Failures

pdf iconDownload PDF

pp. 589-622

Insolvency was not covered in the original volume of Law in Japan: The Legal Order in a Changing Society. According to that book’s index, the only reference to debtor-creditor law was a single notation that the Bankruptcy Act was adopted in 1922.1 Perhaps this is not surprising given the focus of the original project ...

read more

Appendix A: Dan Fenno Henderson: A Tribute

pdf iconDownload PDF

pp. 623-630

This volume is dedicated to the memory of Professor Dan Fenno Henderson, who passed away on March 14, 2001, at the age of seventy-nine. Henderson was a giant in the Japanese law field. His life profoundly affected all of us in the field of Japanese law today and played a vital role in shaping the field as we know it. ...

Appendix B: Selected Writings of Dan Fenno Henderson

pdf iconDownload PDF

pp. 631-638

read more

Contributors

pdf iconDownload PDF

pp. 639-642

Kent Anderson is Professor, The Australian National University, with a joint appointment in the ANU College of Law and the ANU College of Asian-Pacific Studies, and is Head of the Japan Centre in the Faculty of Asian Studies and Codirector, Australian Network for Japanese Law (ANJeL). ...

Index

pdf iconDownload PDF

pp. 643-667