Syllabus
LAW338D.001
Japanese Law:
Business Law in Japan
2015-2016
Winter Term
Monday, 9:30 -12:30
Room 113
Shigenori Matsui
Professor of Law, University of British Columbia, Faculty of Law
Phone 604-822-5592
1822 East Mall, Vancouver, BC V6T 1Z1 rm. #354
Seminar 3 CREDITS
Basic Purpose of the Course
This course is designed to introduce the Japanese Business Law. Even though Japan is the third largest economy in the world and Japanese companies are doing business all over the world, there are many unique characteristics in business practices and business law in Japan. The course will provide the students with the opportunity to learn about the basic framework of business law and its peculiar characteristics.
Topics to be covered include historical development of law, legal process, judicial system, lawyers, legal education, relationship between law and society, and major issues in business law, including constitutional foundation, constitutional protection of economic freedoms, property, contract, tort, product liability, basic framework of corporation law, corporate governance, derivative actions, merger and acquisition, anti-trust regulation, security regulation, administrative regulation on business activities, and business crimes and punishment.
There are no pre-requisite courses for taking this course. But the students are encouraged to bring their own knowledge of their business law and engage in comparative analysis of Japanese Law.
Evaluation
Class participation 30%
I would like to reward some points to those students who actively participated in the classroom discussion.
Final paper 70%
Each participant is supposed to write a paper, roughly 15 pages, double spaced, on one of the topics in Japanese business law. The deadline for submission is Tuesday, April 26, 2016. The students can pick up any of the topics covered during the course or any other topics that might be relevant to the business law in Japan. I will be happy to talk to you regarding the choice of topic and possible relevant information on the subject.
Textbook
KENNETH L. PORT, GERALD PAUL MCALINN & SALIL MEHRA, COMPARATIVE LAW: LAW AND THE LEGAL PROCESS IN JAPAN (3rd edition Carolina Academic Press 2015)(PMM)
or you can also read indicated pages of the underlined articles instead of the textbook. All these articles are available in the library or on-line.
Other useful materials
HIROSHI ODA, JAPANESE LAW (3rd edition, Oxford: Oxford University Press 2009)
CURTIS J. MILHAUPT, J. MARK RAMSEYER, MARK D. WEST, THE JAPANESE LEGAL SYSTEM (New York, Foundation Press 2006)
SHIGENORI MATSUI, THE CONSTITUTION OF JAPAN: A CONTEXTUAL ANALYSIS (Oxford: Hart Publishing 2010)
Shigenori Matsui, Business Law in Japan, in Pitman B. Potter & LjiljanaBuikovic, eds, A Guide to Business Law in Asia (Lexis-Nexis 2008), at 143-202
Course Outline
Participants are requested to read the relevant pages of the textbook or indicated pages of the underlined articles beforehand and come to the class. The other materials listed here are only for students who would like to have much deeper knowledge in the topic.
Active participation in the class discussion is strongly encouraged.
The following books will be cited as indicated:
JAPANESE CONSTITUTIONAL LAW 123-149 (Percy R. Luney, Jr. & Kazuyuki Takahashi eds. Tokyo: University of Tokyo Press 1993) JAPANESE CONSTITUTIONAL LAW
LAW IN JAPAN: A TURNING POINT (Daniel H. Foote ed. Seattle: Washington University Press 2007) TURING POINT
1 LEGAL PROCESS AND JUDICIAL PROCESS
Class 1 January 04
01 Introduction: Why Business Law in Japan Matters? PMM1-26
*I will explain the basic purpose of the course and give brief outline of the course. We will then learn why the business law in Japan matters to Canadian students.
01-1 Arthur T. von Mehren, The Rise of Transnational Legal Practice and the Task of Comparative Law, 75 Tul. L. Rev. 1215 (2001)
01-2 Kenneth L. Port, The Case for Teaching Japanese Law at American Law School, 43 DePaul L. Rev. 643 (1994)
01-3 Daniel H. Foote, The Roles of Comparative Law: Inaugural Lecture for the Dan Fenno Henderson Professorship in East Asian Legal Studies, 73 Wash. L. Rev. 25 (1998)
Class 2 January 11
02 History of Law in JapanPMM 27—51
* We will briefly examine the historical development of law in Japan, specially paying attention to development of business law.
02-1 Carl Steenstrup, New Knowledge Concerning Japan’s Legal System before 1868, Acquired from Japanese Sources by Western Writers since 1963, in TURNING POINT at 7
02-2 KenzoTakayanagi, A Century of Innovation: The Development of Japanese Law -- 1868-1961, in LAW IN JAPAN: THE LEGAL ORDER IN A CHANGING SOCIETY 6-12,15-23, 27-33 (von Mehren ed. Harvard University Press 1963)
02-3 Nobuhiko Kasumi, Criminal Trials in the Early Meiji Era—With Particular Reference to the Ugaki/Shirei System, in TURNING POINT at 34
02-4 Alfred C. Oppler, The Reform of Japan’s Legal and Judicial System under the Occupation, in Legal Reform of Japan during the Allied Occupation 1 (Washington Law Review Special Reprint 1977)
02-5 David A. Funk, Traditional Japanese Jurisprudence: Justifying Loyalty and Law, 17 U.L. Rev. 171 (1990)
02-6 Hiroshi Oda, The History of Modern Japanese Law in Japanese Law,
03 Judicial System PMM 51-64
* We will examine the basic judicial system in Japan.
03-1 Supreme Court of Japan, Overview of the Judicial System in Japan,
03-2 Percy Luney, The Judiciary: Its Organization and Status in the Parliamentary System, in JAPANESE CONSTITUTIONAL LAW at 123-149, also available on 53 Law & Contemp. Probs. 135 (Winter 1990),
03-3 Ichiro Kitamura, The Judiciary in Contemporary Society: Japan, 25 Case Western Reserve Journal of International Law 263 (1993)
Class 3 January 18
04 Judges PMM 247-71
* We will see who the judges are and what the general attitude of judges in adjudicating legal disputes is. We will pay special attention to the role played by the judges in Japan.
04-1 Takaaki Hattori, The Role of the Supreme Court of Japan, in the Field of Judicial Administration, 60 Washington Law Review 69-86 (1984)
04-2 Setsuo Miyazawa, Administrative Control of Japanese Judges, in LAW AND TECHNOLOGY IN THE PACIFIC COMMUNITY 263-81 (Philip S.C. Lewis ed., Boulder: Westview Press 1994)
04-3 J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN’S POLITICAL MARKETPLACE (Harvard University Press 1993)
04-4 J. Mark Ramseyer, The Puzzling (In)dependence of Courts: A Comparative Approach, 23 J. Legal Stud. 721 (1994)
04-5 John O. Haley, Judicial Independence in Japan Revisited, 25 Law in Japan 1 (1995)
04-6 John O. Haley, The Japanese Judiciary: Maintaining Integrity, Autonomy, and the Public Trust, in TURNING POINT at 99
04-5 Frank Upham, Review Essay: Political Lackeys or Faithful Public Servants? Two Views of the Japanese Judiciary, 30 Law & Soc. Inquiry 421 (2005)
05 Lawyers and Prosecutors PMM 113-44
*We will examine why Japan can manage the society with such a small number of lawyers. The special attention is also paid to the role of foreign lawyers in Japan.
05-1 Masanobu Kato, The Role of Law and Lawyers in Japan and the United States, 1987 BUY Law Review 627-97
05-2 John Haley, The New Regulatory Regime for Foreign Lawyers in Japan: An Escape from Freedom, 5 UCLA Pacific Basin Law Journal 1-15 (1986)
05-3 John O. Haley, Redefining the Scope of Practice under Japan’s New Regime for Regulating Foreign Lawyers, 21 Law in Japan 18 (1988)
05-4 Sabrina Shizue McKenna, Japanese Judicial Reform: Proposal for Judicial Reform in Japan: An Overview, 2 Asian-Pacific L. & Pol'y J. 121 (2001)
Class 4 January 25
06 Legal Education PMM 144-63
* We will examine the traditional legal education system in Japan and how it was reformed in 2004 by the introduction of law school system.
06-1 Edward Chen, The National Law Examination of Japan, 39 J. Legal Education 1-25 (1989)
06-2 Setsuo Miyazawa with Hiroshi Otsuka, Legal Education in Japan: Legal Education and the Reproduction of the Elite in Japan, 1 Asian-Pacific L. & Pol'y J. 2 (2000)
06-3 Dan Rosen, Reform in Japanese Legal Education: Schooling Lawyers, 2 Asian-Pacific L. & Pol'y J. 66 (2001)
06-4 George Shumann, Beyond Litigation: Legal Education Reform in Japan and What Japan’s New Lawyers Will Do, 13 U. Miami Int'l & Comp. L. Rev. 475 (2006)
06-5 KaheiRokumoto, Legal Education, in TURNING POINT 190
06-6 Shigenori Matsui, Turbulence Ahead: The Future of Law Schools in Japan, 62 Journal of Legal Education 3 (2012)
07 Judicial Process PMM 329-78
* We will examine the basic process of civil litigation. Especially, we will learn what kind of role the civil litigation plays in the Japanese society.
07-1 The Supreme Court of Japan, Outline of Civil Litigation in Japan,
07-2 Harold See, The Judiciary and Dispute Resolution in Japan; A Survey, 10 Fla. St. U.L. Rev. 339 (1982)
07-3 Carl Goodman, Japan's New Civil Procedure Code: Has it Fostered a Rule of Law Dispute Resolution Mechanism?, 29 Brooklyn J. Int'l L. 511 (2004)
07-4 Yasuhei Taniguchi, The Development of an Adversary System in Japanese Civil Procedure, in TURNING POINT at 80
Class 5 February 1
08 Alternative Dispute Resolution PMM 379-413
* We will learn the important role of alternative dispute resolution in the Japanese society.
08-1 Lynn Berat, The Role of Conciliation in the Japanese Legal System, 8 The American University Journal of International Law and Policy 133 (1992)
08-2 Max Bolstad, Learning from Japan: The Case for Increased Use of Apology in Mediation, 48 Clev. St. L. Rev. 545 (2000)
08-2 Mitchell Stephens, I'm Sorry: Exploring the Reasons Behind the Differing Roles of Apology in American and Japanese Civil Cases, 14 Widener Law Review 185 (2008)
08-3 Tammy Bryant, Family Models, Family Dispute Resolution and Family Law in Japan, 14 UCLA Pacific Basin Law Journal 1 (1995)
09 Law and Society PMM 77-113
* We will examine what kind of role the law plays in Japan. Special focus is paid on the relationship between law and the society.
09-1 Takeyoshi Kawashima, Dispute Resolution in Contemporary Japan, in LAW IN JAPAN 41, 43-48 (von Mehren ed. Harvard University Press 1963)
09-2 Takeyoshi, Kawashima, The Legal Consciousness of Contract in Japan, 7 Law in Japan 1 (1974)(Translated by Charles R. Stevens)
09-3 Setsuo Miyazawa, Taking Kawashima Seriously: A Review of Japanese Research on Japanese Legal Consciousness and Disputing Behavior, 21 Law & Society Review 219-41 (1987)
09-4 John Haley, The Myth of Reluctant Litigant, 4 J. of Japanese Studies 359-390 (1978)
09-5 John Haley, Sheathing the Sword of Justice in Japan: An Essay on Law without Sanctions, 8 J. of Japanese Studies 265-281 (1982)
09-6 Mark Ramseyer & Minoru Nakazato, The Reluctant Litigant: Settlement Amounts and Verdicts Rates in Japan, 18 J. of Legal Studies 263-290 (1989)
09-7 Danile H. Foote, Resolution of Traffic Accident Disputes and Judicial Activism in Japan, 25 Law in Japan 19 (1995)
09-8 Carl F. Goodman, The Somewhat Less Reluctant Litigant: Japan's Changing View Towards Civil Litigation, 32 Law & Pol'y Int'l Bus. 769 (2001)
09-9 Tom Ginsburg and Glenn Hoetker, The Unreluctant Litigant? An Empirical Analysis of Japan's Turn to Litigation, 35 J. Legal Stud. 31 (2006)
09-10 Eric Feldman, Law, Culture, and Conflict: Disputes Resolution in Postwar Japan, in TURNING POINT at 50
Masayuki Yoshida, The Reluctant Japanese Litigant: A “New” Assessment, Electronic Journal of Contemporary Japanese Studies (2003)
Mark Ramseyer & Eric Radmusen, Comparative Litigation Rate, Harvard Law School Discussion Paper No. 681 (2010)
February 8 Family Day--University closes
February 15-19 Reading Week Break
2 BUSINESS LAW IN JAPAN
Class 6 February 22
10 Constitutional Foundation: Structure of the Government PMM 66-76, 165-92
* We will learn the basic structure of government and how legislation is drafted and enacted through the legislature. We also see the pacifism clause in the Constitution and its relevance to business law.
10-1 Kazuyuki Takahashi, Contemporary Democracy in a Parliamentary System, in JAPANESE CONSTITUTIONAL LAW at 87-107, 53 Law & Contemp. Prob. 105 (1990)
10-2 Mutsuo Nakamura & TerukiTsunemoto, The Legislative Process: Outline and Actors, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY 195-219 (Yoichi Higuchi ed. Tokyo: University of Tokyo Press 2001)
10-3 MichioMuramatssu and Ellis S. Krauss, Bureaucrats and Politicians in Policymaking: The Case of Japan, 78 American Political Science Review 126 (1984)
10-4 Kazuyuki Takahashi, Ongoing Changes in the Infrastructure of a Constitutional System: From Bureaucracy to Democracy, in TURNING POINT, at 237
11 Constitutional Protection of Economic Rights PMM 283-94,
* We will learn to what extent economic freedom is protected under the Japanese Constitution. Even though economic freedom is broadly protected in Japan, the courts are reluctant to review the constitutionality of economic regulation. We will talk why the Japanese judiciary has developed such a conservative jurisprudence and the possibility of revitalizing the power of judicial review.
11-1 Mutsuo Nakamura, Freedom of Economic Activities and the Right to Property, in JAPANESE CONSTITUTIONAL LAW at 255-67, 53 Law & Contemp. Prob. 1 (Spring 1990).
11-2 Shigenori Matsui, Lochner v. New York in Japan: Protecting Economic Liberties in a Country Governed by Bureaucrats, in LAW AND TECHNOLOGY IN THE PACIFIC COMMUNITY 199 (Philip S.C. Lewis ed. Boulder, Westview Press 1994)
Class 7 February 29
12 Property and Contract PMM 64-66, 415-62
* We will examine the basic rules of civil law. The special attention is paid to the law of contract. We will see come of the characteristics of contract in Japan.
12-1 Hiroshi Wagatsuma & Arthur Rosett, Cultural Attitudes towards Contract Law: Japan and United States Compared, 2 UCLA Pacific Basin L J 76-97 (1983)
12-2 Zentaro Kitagawa, Use and Non-use of Contracts in Japanese Business relations: A Comparative Analysis, in JAPAN: ECONOMIC SUCCESS AND LEGAL SYSTEM 145-165 (Herald Bau ed. Berlin: Walter de Gruyter 1997)
12-3 Michael K. Young, Masanobu Kato, Akira Fujimoto, Essay: Japanese Attitudes towards Contracts: An Empirical Wrinkle in the Debate, 34 Geo. Wash. Int'l L. Rev. 789 (2003)
12-4 Takashi Uchida & Veronica Taylor, Japan’s “Era of Contract,” in TURNING POINT, at 454
13 Tort PMM 705-35
* We will see the basic framework of tort law in Japan. Special attention is paid to medical malpractice suit and environment litigation. We will learn how the Japanese courts came to hold companies and hospital liable for their conducts.
13-1 Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 Law & Society Rev 461-198 (1986)
13-2 Takao Tanase, The Management of Disputes; Automobile Accident Compensation in Japan, 24 Law & Society Review 651-691 (1990)
13-3 Koichiro Fujikura, Litigation, Administrative Relief, and Political Settlement for Pollution Victim Compensation: Minamata Mercury Poisoning after Fifty years, in TURNING POINT, at 384
13-4 Robert B. Leflar, Medical Error, Deception, Self-Critical Analysis, and Law’s Impact: A Comparative Examination, in TURNING POINt at 404
Class 8 March 7
14 Protection of Consumers: Product Liability Law and Consumer Protection Law
* We will examine the development of products liability rule in Japan. Even though there is the Products Liability Act, that imposes liability on producers, there is not much products liability litigation in Japan. We will see the reasons why.
14-1 Susan H. Easton, Note: The Path for Japan?: An Examination of Product Liability Laws in the United States, the United Kingdom, and Japan, 23 B.C. Int'l & Comp. L. Rev. 311 (2000)
14-2 Jason F. Cohen, Note: The Japanese Product Liability Law: Sending a Pro-consumer Tsunami through Japan’s Corporate and Judicial Worlds, 21 Fordham Int'l L.J. 108 (1997)
14-3 Nancy L. Young, Comment: Japan's New Products Liability Law: Increased Protection for Consumers, 18 Loy. L.A. Int'l & Comp. L.J. 893 (1996)
14-4 Anita Bernstein & Paul Fanning, "Weightier than a Mountain": Duty, Hierarchy, and the Consumer in Japan, 29 Vand. J. Transnat'l L. 45 (1996)
14-5 Andrew Marcuse, Comment: Why Japan’s New Products Liability Law Isn’t, 5 Pac. Rim L. & Pol'y 365 (1996)
14-6 9 Wendy A. Green, Comment: Japan's New Product Liability Law: Making Strides or Business as Usual?, 9 Transnat'l Law. 543 (1996)
14-7 Luke Nottage, The Present and Future of Product Liability Dispute Resolution in Japan, 27 Wm. Mitchell L. Rev. 215 (2000)
14-8 Mark A. Behrens & Daniel H. Raddock, Japan's New Product Liability Law: The Citadel of Strict Liability Falls, but Access to Recovery is Limited by Formidable Barriers, 16 U. Pa. J. Int'l Bus. L. 669 (1995-1996)
15 Labour Relations: Labor Law PMM 463-513
* We will examine the labor contract and labor law in Japan. We will see that most of the Japanese companies are not willing to fire employees and there are elaborate employment protection laws. Yet, in reality, the Japanese workers are forced to work overtime without adequate compensation and some of the workers die for overwork.
15-1 Daniel H. Foote, Judicial Creation of Norms in Japanese Labor Law: Activism in Service of –Stability?, 43 UCLA L. Rev. 635 (1996)
15-2 RyuichiYamakawa, Labor Law Reform in Japan: A Response to Recent Socio-Economic Changes, 49 Am. J. Comp. L. 627 (2001)
15-3 Kaiulani Eileen SumiKidani, Comment: Japanese Corporate Warriors in Pursuit of a Legal Remedy: The Story of Karoshi, or "Death From Overwork" in Japan, 21 Hawaii L. Rev. 169 (1999)
15-4 RyuichYamakawa, From Security to Mobility?: Changing Aspects of Japanese Dismissal Law, in TURNING POINT at 483
15-5 Ronald J. Gilson & Mark J. Roe, Lifetime Employment: Labor Peace and the Evolution of Japanese Corporate Governance, 99 Colum. L. Rev. 508 (1999)
15-6 Robbi Louise Miller, The Quiet Revolution: Japanese Women Working Around the Law, 26 Harv. Women’s l. J. 163 (2003)
Class 9 March 14
16 Corporation Law: Establishing Corporations
* We will learn the basic framework of corporation law. First, we will learn the basic process of establishing corporations.
16-1 Ronald J. Gilson, Reflections in a Distant Mirror: Japanese Corporate Governance through American Eyes, 1998 Colum. Bus. L. Rev. 203
16-2 ZenichiShishido, Japanese Corporate Governance: The Hidden Problems of Corporate Law and Their Solutions, 25 Det. J. Corp. L. 189 (2000)
16-3 ZenichiShishido, Reform in Japanese Corporate Law and Corporate Governance: Current Changes in Historical Perspective, 49 Am. J. Comp. L. 653 (2001)
16-4 Mark West, Information, Institutions, and Extortion in Japan and the United States: making Sense of Sokaiya Racketeers, 93 Nw. U. L. Rev. 767 (1999)
16-5 Yoshiro Miwa & Mark Ramseyer, The Myth of the Main Bank and Corporate Governance, 27 Law & Soc. Inquiry 401 (2002)
16-6 Curtis J. Milhaupt, On the (Fleeting) Existence of the Main Bank System and other Japanese economic Institutions, 27 Law & Soc. Inquiry 425 (2002)
16-7 Dan Puchniak, Reverse Main Bank Rescue in the Lost Decade: Proof that Unique Institutional Incentives Drive Japanese Corporate Governance, 16 Pac. Rom. L .Pol’y J. 13 (2007)
17 Corporate Governance
* We will learn some of the peculiar characteristics of corporate governance in Japan.
17-1 Curtis J. Milhaupt, Creative Norm Destruction: The Evolution of Nonlegal Rules in Japanese Corporate Governance, 149 U. Pa. L. Rev. 2083 (2001)
17-2 Curtis J. Milhaupt, A Relational Theory of Japanese Corporate Governance: Contract, Culture, and Rule of Law, 37 Harv. Int'l L.J. 3 (1996)*
17-3 Ronald J. Gilson & Curtis J. Milhaupt, Choice as Regulatory Reform: The Case of Japanese Corporate Governance, 53 Am. J. Comp. L. 343 (2005)
17-4 Hideki Kanda & Curtis J. Milhaupt, Reexamining Legal Transplants: The Director’s Fiduciary Duty in Japanese Corporate Law, in Turning Point at 437
17-5 Dan W. Puchniak, The 2002 Reform of the Management of Large Corporations in Japan: A Race to Somewhere?, 5 Aust. J. Asian L. 42 (2003)