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The Extent To Which The Humanistic Approach In Japanese Juvenile Training Schools Affects Recidivism, Natalie Bui

AUCTUS: The Journal of Undergraduate Research and Creative Scholarship

Japan’s juvenile justice system is regarded as one of the most unique and successful implementations of reformative justice. This approach has remained effective in maintaining Japan’s low rates of juvenile delinquency and recidivism, despite massive changes in Japanese society over the past decade. While Japan’s crime seems to be on an impressive decline, the United States continues to struggle with social control, juvenile delinquency, and, more recently, demands for justice reform from social movements like the Black Lives Matter Movement. The American juvenile justice system needs reform now more than ever and where better to get inspiration, than the industrialized …

Consumers' Perceptions Of Digital Privacy In The United States And Japan, Destiny Randle

Whittier Scholars Program

The purpose of my study is to explore the contours of contemporary consumer privacy protections derived from legislation, regulations and publicly available company policies as a way to get a better understanding of how consumer data is protected. A few examples ranging from company-based consumer protection in the United States to data breaches in Japan will be explored and examined. Finally, this paper includes a comparative survey of consumer perceptions and concerns related to personal data privacy in the U.S. and Japan. As a way to assess the degree to which digital privacy and personal data breaches have adversely influenced …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Articles

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …

Japan’S Transnational War Reparations Litigation: An Empirical Analysis, Timothy Webster

Faculty Scholarship

Negotiating war reparations is traditionally the province of the political branches, yet in recent decades, domestic courts have presided over hundreds of compensation lawsuits stemming from World War II. In the West, governments responded to these lawsuits with elaborate compensation mechanisms. In East Asia, by contrast, civil litigation continues apace. This Article analyzes eighty-three lawsuits filed in Japan, the epicenter of Asia’s World War II reparations movement. While many scholars criticize the passivity of Japanese courts on war-related issues, this Article detects a meaningful role for Japanese courts in the reparations process: awarding compensation, verifying facts, and allocating legal liability. …

Revolt Against The U.S. Hegemony: Judicial Divergence In Cyberspace, Dongsheng Zang

Articles

This Article contributes to our understanding of the current state of cyber law. The global perspective demonstrates an almost uniform response to the U.S. law in cyberspace from all of America's major trading partners. In the past, comparative studies tended to focus on a single jurisdiction-typically, the European Union-and compared it with the United States. This approach, informative as it was, significantly understated the gravity of the differences between that jurisdiction and the United States. Fundamentally, it was based on an American-centric outlook with primary interests in building convergence models. In cyberspace, however, this is simply not helpful. In recent …

Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr.

All Faculty Scholarship

This article summarizes key findings from the Japan Business Credit Project (JBCP), which involved more than 30 semi-structured interviews conducted in Japan from 2016 through 2018. It was inspired by important and previously unexplored questions concerning secured financing of movables (business equipment and inventory) and claims (receivables)—“asset-based lending” or “ABL.” Why is the use of ABL in Japan so limited? What are the principal obstacles and disincentives to the use of ABL in Japan? The interviews were primarily with staff of banks, but also included those of government officials and regulators, academics, and law practitioners. The article proposes reforms of …

Disaggregating Corporate Liability: Japanese Multinationals And World War Ii, Timothy Webster

Faculty Scholarship

The past two decades have witnessed unprecedented attention to corporate legal liability for human rights abuses. Yet the supporting jurisprudence is relatively thin. Scholars generally agree that corporations can incur legal liability for serious violations of international human rights law. But courts find any number of ways to avoid such a result. This Article finds qualified support for an emergent norm of corporate civil liability from recent litigation in Japan. Specifically, the transnational war reparations litigation of the past three decades has yielded a consistent jurisprudence of qualified liability. Courts detail the abuses committed by Japan's largest multinational corporations, and …

The Banking/Commercial Separation Doctrine In Comparative Perspective, Cristie Ford

All Faculty Publications

This report, prepared for the Department of Finance, Government of Canada, summarizes research undertaken across five jurisdictions – Australia, Japan, Singapore, the United Kingdom (UK), and the United States (US, federal level only) – with respect to a particular kind of boundary on the business of banking: the separation of banking business from commercial business. “Commercial” here means the provision of non-financial goods and services. This separation exists under what in the United States has long been referred to as the “banking/commercial separation doctrine”. The report considers the historical justifications for the doctrine in the context of the modern “business …

Techniques For Regulating Military Force, Monica Hakimi

Book Chapters

This chapter draws on the five chapters that follow—each of which describes the war powers in a single country—to identify and analyze some of the techniques for regulating this area of foreign affairs and then to reflect on the value of comparative research on it. Three basic techniques are: (1) to establish substantive standards on when the government may or may not use force, (2) to divide among different branches of government the authority to deploy the country’s armed forces, and (3) to subject such decisions to oversight or review. There is considerable variation, both across countries and over time …

Techniques For Regulating Military Force, Monica Hakimi

Faculty Scholarship

This chapter draws on the five chapters that follow—each of which describes the war powers in a single country — to identify and analyze some of the techniques for regulating this area of foreign affairs and then to reflect on the value of comparative research on it. Three basic techniques are: (1) to establish substantive standards on when the government may or may not use force, (2) to divide among different branches of government the authority to deploy the country’s armed forces, and (3) to subject such decisions to oversight or review. There is considerable variation, both across countries and …

Hostile Takeover Regimes In Asia: A Comparative Approach, Umakanth Varottil, Wai Yee Wan

Research Collection Yong Pung How School Of Law

The market for corporate control is animportant corporate governance mechanism for the discipline of corporatemanagers. However, the process and substance of the regulation of hostiletakeovers differs remarkably among various jurisdictions. Existing andinfluential scholarship has focused on the differences in regulation between UnitedStates (US) and the United Kingdom (UK), with the explanations being founded ininterest group politics. Influential as it is, the question is whether thetheory can be extended outside of the US and the UK, particularly to theirlegal transplants in Asia? In the last few decades, many of the Asianjurisdictions have drawn heavily from the US and the UK when …

Insolvency Law As Credit Enhancement And Enforcement Mechanism: A Closer Look At Global Modernization Of Secured Transactions Law, Charles W. Mooney Jr.

All Faculty Scholarship

This essay revisits earlier work on the relationship between insolvency law and secured credit, the role of secured transactions law reforms, and the benefits of secured credit. These complex relationships require a holistic approach toward reforms of secured transactions law and insolvency law. Merely enacting sensible secured transactions laws and insolvency laws may be insufficient to produce the intended benefits from either set of laws.

The essay is informed by an ongoing qualitative empirical study of business credit in Japan—the Japanese Business Credit Project. The JBCP involves interviews of representatives of Japanese financial institutions and governmental bodies and legal practitioners …

Law, Society, And Setsuo: Miyazawa’S Influence On Socio-Legal Studies, Eric A. Feldman

All Faculty Scholarship

What Setsuo has accomplished over these past 30 years is nothing short of remarkable. I can think of no other scholar within or outside of Japan who has had a greater impact on both the legal academic community and society more generally. Indeed, when Setsuo was still quite young he had already written a number of influential articles. But they turn out to represent only a fraction of his extraordinary output over the next years. In reflecting on Setsuo’s many achievements, I am particularly drawn to comment on three of them. First, his empirical and comparative law and society scholarship, …

Cultural Paradigms In Property Institutions, Taisu Zhang

Faculty Scholarship

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …

Governing Disasters: The Challenge Of Global Disaster Law And Policy, Eric A. Feldman, Chelsea Fish

All Faculty Scholarship

This chapter uses the analytical framework of transnational legal ordering (TLO) developed by Halliday and Shaffer and applies it to the area of law and disasters. In contrast to the increasingly transnational legal nature of social ordering highlighted by Halliday and Shaffer, it argues that the emergence of transnational regulatory networks and cross-border principles or policies in the area of disaster management has been uneven and incomplete. Although there are many factors that help to explain why the law/disasters area has resisted the trend toward “transnationalization,” two stand out. One is the relative dearth of national laws and policies governing …

On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.

Prosecutors And Bargaining In Weak Cases: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine …

Insular Minorities: International Law’S Challenge To Japan’S Ethnic Homogeneity, Timothy Webster

Faculty Publications

The Japanese state has long promoted a view of itself, and the country, as ethnically homogeneous. Borrowing on critical race theory as developed in the United States, this paper first traces the numerous laws and policies that Japan has implemented to privilege ethnically Japanese people, and prejudice ethnic others. Next, the paper examines the role of international human rights law in challenging various edifices of the ethno-state, including amendments to legislation, and individual lawsuits. I conclude that international law has played a meaningful role in diversifying the protective ambit of Japanese law, but cannot provide all of the solutions that …

Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

The Anti-Network: Private Global Governance, Legal Knowledge, And The Legitimacy Of The State, Annelise Riles

Cornell Law Faculty Publications

Global private law has become the source of both anxiety and euphoria. Inherent in this fascination is the assumption that global private law threatens the legitimacy of the state by taking over its functions through new techniques of governance. In this article, I build upon research in one arena of global private governance, the production of legal documentation for the global swap markets, to challenge the most prominent assumptions about private law beyond the state. I argue that rather than focusing on how global private law is or is not an artifact of state power, a body of private norms, …

East Asia Institutionalizes: China, Japan And The Vogue For Free Trade, Timothy Webster

Faculty Publications

In the past decade, East Asia has taken steps to increase regional integration. This paper examines the vogue for Free Trade Agreements (FTAs) currently raging in China and Japan. After mapping the regional links that knit East Asia together during the 1990s and 2000s, the focus then shifts to the specific trade agreements that China and Japan have signed. Both countries exhibit a particular FTA “style;” Japan has adopted a more orthodox and comprehensive approach to its treaties, while China has shown greater flexibility and gradualism when dealing with FTA partners. It is still unclear whether these efforts will lead …

Law, Culture, And Conflict: Dispute Resolution In Postwar Japan, Eric Feldman

All Faculty Scholarship

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, Kawashima’s observations about the infrequency of litigation in Japan, and his emphasis on the sociocultural context of conflict, continue to resonate. As a noted scholar of Japanese law has succinctly written, “Virtually every scholarly work [about Japanese law] in the last thirty-five years has been framed in some way or another by the conceptual …

Bilateral Regionalism: Paradoxes Of East Asian Integration, Timothy Webster

Faculty Publications

Like many other countries, China and Japan have recently signed a spate of Free Trade Agreements with countries in the Asia Pacific. This paper analyzes both countries’ styles of integration. While China favors multidisciplinary engagement (politics, security, economics), Japan is mainly interested in deepening economic integration with the countries in which it has already established transnational production lines. After analyzing individual FTAs signed by China and Japan, the paper ends by predicting that China’s multifaceted approach will promote greater integration in the Asia Pacific, and a more robust profile for China in regional affairs.

Legal Reform In Contemporary Japan, Eric Feldman

All Faculty Scholarship

In this chapter I offer a preliminary assessment of a quickly moving target—legal reform and its impact on rights in Japan. Although a broad consensus has emerged among interested parties that at least some degree of reform is desirable, there is significant disagreement about the goals of reform, and also about the likelihood that it will achieve certain objectives. Some commentators believe that the Japanese legal system is on the cusp of a “revolution” that will shore up long-neglected rights and create new entitlements. Others predict that the consequences of reform will be modest; and they despair that aggrieved individuals …

The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric Feldman

All Faculty Scholarship

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson's influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material …

Note, Sisyphus In A Coal Mine: Responses To Slave Labor In Japan And The United States, Timothy Webster

Faculty Publications

This Note argues that the recent wave of litigation brought by former Chinese slave laborers, while important in its own right, highlights the need for a more comprehensive solution. Although ideally the Japanese Diet will devise its own response to the problem of compensation, the experiences arising from the Holocaust litigation in the United States provide a meaningful yardstick for comparison. In the United States, a large-scale settlement scheme followed, and finalized, numerous lawsuits brought by former forced and slave laborers from World War II Europe. The American response, though based on different circumstances, led to a multibillion-dollar fund that …

Law, Norms, And Legal Change: Global And Local In China And Japan, Nicholas C. Howson, Mark D. West

Articles

The editors of the Michigan Journal of International Law have boldly brought together four articles and commentary that focus on different aspects of the same problem in China and Japan: the relationship between domestic legal change and foreign and/or "international" law and regulation, "soft" agreements, norms, or even cultural practices. The compilation is bold in part because scholarship on change in East Asian law and legal systems often suffers from one of two defects. First, it often focuses on purely domestic phenomena in only one system, ignoring the comparative connections. Second, scholars often attack the problem from an exclusively comparative …

The Tuna Court: Law And Norms In The World's Premier Fish Market, Eric Feldman

All Faculty Scholarship

Legal scholars have long emphasized the corrosive impact of conflict on long-term commercial and interpersonal relationships. To minimize the negative consequences of such conflict, members of close-knit groups who anticipate future interactions create ways of resolving their disputes with reference to internal group norms rather than relying on state-mandated legal rules. From farmers in California’s Shasta County to jewelers in midtown Manhattan and neighbors in Sanders County, the literature describes people who create norms of conflict management that are faster and less expensive than relying on formal law, and lessen the harm that conflict causes to their relationships. This article …

Are Your Click-Wrap Agreements Valid?—Internet Contracting In The Global Electronic Age: Comparative Perspectives For Taiwan, James Maxeiner

All Faculty Scholarship

Addresses the issue of standard terms in click-wrap and shrink-wrap licenses generally and in some detail how the laws of Taiwan, Germany, the European Union, the United States and Japan.

The Professional In Legal Education: Foreign Perspectives, James Maxeiner

All Faculty Scholarship

Japan is about to change its system of legal education. In April 2004 Japan will introduce law schools. Law schools are to occupy an intermediary place between the present undergraduate faculties of law and the national Legal Training and Research Institute. The law faculties are to continue to offer general undergraduate education in law, while the law schools in combination with the national Institute are to provide professional legal education. A principal goal of the change is to produce more lawyers. Law schools are charged with providing "practical education especially for fostering legal professionals." But just what is professional legal …