Digital Commons Network^™

Margins Of Empire: The Sakhalin Koreans’ Long Saga Home, Timothy Webster

Faculty Scholarship

Migration carries with it many risks, from perilous journeys along risky corridors to hostile environments in one's adopted country. But what happens when migrants cannot return home? This Article examines the difficulties endured by Sakhalin Koreans, a group of ethnic Koreans who emigrated to Sakhalin Island during the Japanese colonial period and found themselves stranded in a foreign country (the Soviet Union) for the next half century. After recounting the migration of Koreans to Sakhalin, and analyzing lawsuits filed in Japan to repatriate them, it analyzes the infirmities of the international human rights system and the challenges of repatriating a …

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. …

The Minds Behind The Movement: The Role Of Academics In East Asia’S War Reparations Litigation, Timothy Webster

Faculty Scholarship

East Asia's war compensation litigation simultaneously unites diverse regional actors (lawyers, survivors, activists) and fray international relations (as recent verdicts from South Korea attest). However, one view of the merits of these lawsuits is that they have reconfigured transnational activism in East Asia, exhumed forgotten and suppressed histories of Japanese aggression, and on occasion compensated victims of World War II. This Article highlights the role of Chinese, Japanese, Korean, Taiwanese activists, lawyers and scholars in researching, filing, litigating and appealing over 80 lawsuits between 1972 and the present.

South Korea Shatters The Paradigm: Corporate Liability, Historical Accountability, And The Second World War, Timothy Webster

Faculty Scholarship

South Korea is currently revising its interpretation of Japanese colonialism, and the fallout from World War II more generally. In 2018, the Supreme Court of South Korea issued two opinions that staked new ground in this process of legal revision. First, by holding Japanese multinational enterprises legally liable for events that took place in the early 20th century, the verdicts fissure a wall of corporate impunity that courts in Japan, the United States and many Western jurisdictions have erected over the past three decades. Second, by situating the decisions within Korea’s own colonial past, the judgments advance a post-colonial jurisprudence …

Monthly Suicide Rates During The Covid-19 Pandemic: Evidence From Japan, Gerardo Ruiz Sánchez

Faculty Scholarship

This paper uses 2018–2020 prefecture–month–year, gender–month–year, and age group–month–year level data on suicide rates in Japan to document how suicide rates are evolving during the COVID-19 pandemic. I use a monthly event study design to study changes in suicide rates surrounding Japan's COVID-19 state of emergency and to trace out monthly changes in suicide rates during the first 11 months of 2020 relative to 2018–2019. I find that monthly suicide rates during the pandemic started increasing meaningfully in June–July 2020. I find that women experienced greater increases in suicide rates than men, relative to their 2018–2019 average suicide rate, and …

The Long Tail Of World War Ii: Jus Post Bellum In Contemporary East Asia, Timothy Webster

Faculty Scholarship

The shadow of World War II still looms over East Asia. Unlike the West, issues of state accountability, corporate liability, and individual reparation roil the victims, governments, and civil society organizations. It stills form a critical, often controversial, backdrop for international relations among China, Japan, Korea, and other Asian nations. This chapter fills an important gap by focusing on jus post bellum outside of the West. The chapter examines the results, motivations, and achievements of civil litigation, namely approximately one hundred World War II reparations lawsuits filed in Japan. In so doing, it answers three related questions. Why does World …

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 …

Presidential Use Of Force In East Asia: American Constitutional Law And The U.S.-Japan Alliance, Matthew C. Waxman

Faculty Scholarship

The U.S. Constitution’s allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president’s use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president’s powers are also constrained by interagency processes within the executive branch, and alliance relations …

Constitutional Reform In Japan, Nobuhisa Ishizuka

Faculty Scholarship

Over seventy years ago it would have seemed inconceivable in the aftermath of a calamitous war that a complete reorientation of Japan into a pacifist society, modeled on Western principles of individual rights and democracy, would succeed in upending a deeply entrenched political order with roots dating back centuries.

The post-war Japanese constitution lies at the heart of this transformation. Drafted, negotiated and promulgated a mere fourteen months after Japan's formal surrender, it has remained a model of stability amidst transformational changes in the domestic and international political landscape. In the seventy-plus years since its adoption, it has not been …

Constitutional Reform In Japan: Prospects, Process, And Implications, Nobuhisa Ishizuka

Faculty Scholarship

Japan's constitution has remained unchanged for over 70 years since its adoption. With Prime Minister Shinzo Abe's re-election as the leader of the ruling Liberal Democratic Party of Japan (LDP) in 2018, the issue of constitutional revision has gained renewed attention. On March 13, 2019 the Center for Japanese Legal Studies at Columbia Law School co-hosted, with the Council on Foreign Relations, a full-day conference on "Constitutional Reform in Japan: Prospect, Process, and Implications." Three panels of distinguished experts examined the domestic political landscape in Japan, provided comparative legal perspectives, and considered the political, strategic, and social implications of proposed …

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 …

Introduction And Geographic Availability Of New Antibiotics Approved Between 1999 And 2014, Cecilia Kållberg, Christine Årdal, Hege Salvesen Blix, Eili Klein, Elena Martinez, Morten Lindbæk, Kevin Outterson, John-Arne Røttingen, Ramanan Laxminarayan

Faculty Scholarship

Despite the urgent need for new, effective antibiotics, few antibiotics of value have entered the market during the past decades. Therefore, incentives have been developed to stimulate antibiotic R&D. For these incentives to be effective, geographic availability for recently approved antibiotics needs to be better understood. In this study, we analyze geographic availability and market introduction of antibiotics approved between 1999 and 2014.

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 …

A Story Of Three Bank-Regulatory Legal Systems: Contract, Financial Management Regulation, And Fiduciary Law, Tamar Frankel

Faculty Scholarship

How should banks be regulated to avoid their failure? Banks must control the risks they take with depositors' money. If depositors lose their trust in their banks, and demand their money, the banks will fail. This article describes three legal bank regulatory systems: Contract with depositors (U.S.); a mix of contract and trust law, but going towards trust (Japan), and a full trust-fiduciary law regulating banks (Israel). The article concludes that bank regulation, which limits the banks' risks and conflicts of interest, helps create trustworthy banks that serve their country best.

Taxation And Incentives In The Business Enterprise, David Gamage, Shruti Rana

Faculty Scholarship

This book chapter discusses the tax perspective on business enterprise law with a comparative focus on the U.S. and Japan.

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.

A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth

Faculty Scholarship

Significant change has been forecast for the Japanese Consumption Tax. Revenue needs are pressing, and the Consumption Tax appears to be underutilized. Should the rate be doubled from 5% to 10%, or more? If so, will rate increases necessitate further structural changes – recasting this annual credit-subtraction levy into a European style credit-invoice VAT? These options have not proven to be politically palatable, but they are directions that have been under active consideration.

On October 1, 2013 the Japanese Cabinet Office announced that the Consumption Tax would rise from 5% to 8% effective April 1, 2014. The rate will increase …

Successes, Failures, And Remaining Issues Of The Justice System Reform In Japan: An Introduction To The Symposium Issue, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

How Does Culture Count In Legal Change?: A Review With A Proposal From A Social Movement Perspective, Setsuo Miyazawa

Faculty Scholarship

We have in this volume four articles on legal change in China and Japan written by four distinguished authors. These articles vary with regard to subject state, specificity of issues, and breadth of analytical scope. They commonly discuss one factor, however: culture. The purpose of this Comment is to examine the way each article uses culture in its explanations of legal change. The Comment concludes with a brief suggestion, from a social movement perspective, on employing culture as an explanatory tool in a non-essentialist way.

Will Penal Populism In Japan Decline?: A Discussion, Setsuo Miyazawa

Faculty Scholarship

I intend to play the role of discussant at a session where five papers have been presented and to draw implications from the perspective I presented in Miyazawa (2007a ). I revise my thesis about penal populism in Japan slightly using the concept of "leadership from the front "presented by Johnson .However, I still conclude that penal populism in Japan is not likely to decline in the near future.

Educating And Training Of Lawyers In Japan: A Critical Analysis, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

The Politics Of Judicial Reform In Japan: The Rule Of Law At Last?, Setsuo Miyazawa

Faculty Scholarship

The purpose of this paper is to discuss the most recent changes in Japan's political environment that could radically alter its judicial system and legal profession in the near future. Reform of the judicial system and legal profession has now been placed on the national agenda, and the cast of players involved has spread from the traditional groups of legal professionals (judges, prosecutors, and attorneys) to the major actors of the larger political process, namely the Liberal Democratic Party (Jiya Minshu T6) ("LDP"), the ruling conservative party, and the Federation of Economic Organizations (Keidanren), one of the most influential organizations …

Legal Education And The Reproduction Of The Elite In Japan, Setsuo Miyazawa

Faculty Scholarship

No abstract provided.

Protection Of Famous Trademarks In Japan And The United States, Kenneth L. Port

Faculty Scholarship

The concepts of trademark jurisprudence in Japan and the United States differ drastically. This difference is apparent in many aspects of trademark protection in both countries and is most evident in the treatment of famous marks. Although Japan and the United States share elements of trademark law that cause some observers to claim that Japan is legally the fifty-first State, the conceptual differences at the foundation of trademark law in each country are so significant that such a claim seems inaccurate and misleading.

For The Liberal Transformation Of Japanese Legal Culture: A Review Of The Recent Scholarship And Practice, Setsuo Miyazawa

Faculty Scholarship

In this paper, I wish to discuss two problems. Firstly, I wish to discuss what transformation of the Japanese legal culture is desirable. Secondly, I wish to discuss how such transformation could be brought about. These questions require me to review both the scholarship and the practice. Stewart Macaulay wrote (Macaulay, 1992) that when Joel Handler went to Philadelphia in 1992 to give his presidential address at an annual meeting of the Law and Society Association and criticize postmodernist scholars for their disabling impacts on transformative politics (Handler, 1992), he rattled the cage. Handler actually rattled the cage strongly enough …

As A Matter Of Factions: The Budgetary Implications Of Shifting Factional Control In Japan’S Ldp, Mathew D. Mccubbins, Michael F. Thies

Faculty Scholarship

For 38 years, the Liberal Democratic Party (LDP) maintained single-party control over the Japanese government. This lack of partisan turnover in government has frustrated attempts to explain Japanese government policy changes using political variables. In this paper, we look for intraparty changes that may have led to changes in Japanese budgetary policy. Using a simple model of agenda-setting, we hypothesize that changes in which intraparty factions “control” the LDP affect the party’s decisions over spending priorities systematically. This runs contrary to the received wisdom in the voluminous literature on LDP factions, which asserts that factions, whatever their raison d’être, do …

The Empire Of Death: How Culture And Economics Affect Informed Consent In The U.S., The U.K., And Japan, George J. Annas, Frances H. Miller

Faculty Scholarship

Historically, most Americans have treated health care as a private commodity whose price, and therefore availability, is primarily determined by market forces. In such a context, the law not unsurprisingly places a high premium on information disclosure by physicians. Personal autonomy-an individual's power to choose among medical options-enjoys its most zealous protection under U.S. jurisprudence.⁷ The dominant U.S. version of informed consent is grounded on principles of patient/consumer autonomy, and seems to enhance market choice. But a strong theme of collectivism now runs through some discussions of U.S. health policy.⁸ President Clinton was elected at least in part …

Longterm Strategies In Japanese Environmental Litigation, Setsuo Miyazawa

Faculty Scholarship

Japan's reputation for unusually strong emphasis on the avoidance of public conflict and therefore for de-emphasis of legal institutions suggests an arid, hostile environment for litigators, especially those who lack substantial resources. In a study of a quasi-class action lawsuit by Japanese air pollution victims, we find that litigation can be developed as a tool in the pursuit of a social movement's wider objectives despite the paucity of resources within the Japanese legal system. Our research documents the many ways in which the delays, obstacles, and costs that characterize the litigation environment in Japan have been either neutralized or turned …

The Japanese International Law 'Revolution': International Human Rights Law And Its Impact In Japan, Kenneth L. Port

Faculty Scholarship

Some observers have argued that because of a lack of enforcement powers, international law has relatively little impact on the conduct of nations and, in fact, may not be "law" at all. Others have inquired whether legal norms which underlie international human rights law have any influence on the domestic law of signatory nations. This article argues that international law can profoundly influence the development of the domestic laws of nations regardless of the lack of coercive enforcement powers. This point becomes clear through a consideration of Japan's experience in adopting and internalizing international law norms.

Taking Kawashima Seriously: A Review Of Japanese Research On Japanese Legal Consciousness And Disputing Behavior, Setsuo Miyazawa

Faculty Scholarship

This paper discusses Japanese research on legal consciousness (ho-ishiki) and civil disputing. The author presents a recent explication of Takeyoshi Kawashima's concept of legal consciousness as a cultural factor and also proposes to explore the possibility of treating it as an individual, attitudinal factor. He also reviews large-scale surveys of aggregate-level culture and studies on individual-level disputing behavior. The need and possibility of a longitudinal study of individual disputing behavior that uses individual-level attitudes and regional culture as explanatory variables is suggested.