Second-Best Justice: The Virtues of Japanese Private Law by J. Mark Ramseyer (review)

After getting past the irony of a tenured Harvard professor extolling the virtues of mediocrity and railing against employment security, one is forced to concede that J. Mark Ramseyer's latest book-length contribution to the scholarship on Japanese law is—as expected—articulate and insightful. It revisits the subject of why Japan has less civil litigation than the United States, and while some in the field of Japanese law might question the need to further pursue the seemingly interminable debate on this subject, Ramseyer presents some interesting new perspectives that are certainly worthy of consideration.

Rejecting arguments based on culture and systemic dysfunctionality, Ramseyer asserts that Japanese courts provide surprisingly good value for society and litigants by not pursuing individualized results in civil trials—the "second-best" justice referred to in the title. By processing certain types of cases all in the same way and using manual-driven approaches to disputes, even though they may involve highly subjective issues such as the monetary value of the plaintiff's damages or allocation of negligence, the courts are highly predictable. Predictability, in turn, provides litigants, their lawyers and, when involved, insurance companies adequate information to evaluate settlement offers. This also means that fewer cases end up in front of a judge.

By contrast, the American system supposedly seeks individualized justice where every plaintiff has—in theory at least—the opportunity to have the specific details of his or her case heard in court. In reality, this mess of a system benefits few other than greedy, exploitive lawyers that file absurd class action suits. As suggested by the title of chapter 2, "A Tort System that Works," Ramseyer basically views the Japanese civil justice system as "good" and the American one as "bad." The use of objective empirical data to support what are essentially highly subjective conclusions such as which system is "good" and who has "talent" permeates the book.

Ramseyer's views on the comparative virtues of the Japanese civil justice system are rooted in the economic theory and quantitative analysis that has become the hallmark of his research. Economic theory also informs the assertion that Japanese courts have "erred" in protections for tenants and employees, supposedly contributing to a reluctance by employers to hire, and by landlords to rent. Even when the courts are "wrong," however, they are at least predictably wrong. This allows for people to plan in a way that minimizes the likelihood of litigation for themselves personally, though at the expense of society in general. By contrast, the results of litigation in the American system, with its unpredictable juries and elected state court judges, cannot be anticipated and so more parties go to trial instead of settling.

As someone who has managed to be hired and has rented flats in Japan, I am more ambivalent as to whether the protections I enjoy reflect a flawed system. This difference in perspective may actually be oddly determinative of how practitioners of comparative law approach their subject. Whether a country's legal system is lived with and personally experienced day-to-day, or whether it just happens to other people in another place, may inform the mind-set of each side in the debate at a very basic level.

Comparisons across often artificial, taxonomical boundaries between different types of law and lawsuits can also change viewpoints. One is tempted to counter the supposed virtues of predictability in Japanese civil trials with the observation that such uniformity is similarly prevalent in the country's criminal justice system. Without a formal plea bargain system until 2016 (and even now only a very limited one), virtually every prosecution leads to conviction. This includes a significant number of defendants who freely confess in the hopes of obtaining lenient sentences. Even those who are acquitted face the prospect of the acquittal being overturned and their detentions being extended until their appeal is granted. Whether such a...