Comparative and Foreign Law Commons^™

Comparative Law In Perspective, Dan Fenno Henderson

Washington International Law Journal

The use and study of comparative law has grown in scope and in importance—and no more so than in the area of commercial exchange between the United States and Japan. Comparative law is being applied more practically in the Courts; it is an agent of change and of harmonization between different peoples and economies. However, the respective concepts of law and its role in society, as well as the role of language in understanding the law, continue to make the use and study of comparative law a challenge. A real sensitivity to the cultural, structural and conceptual differences in the …

Philippine Foreign Investment Efforts: The Foreign Investments Act And The Local Governments Code, John F. Pierce

Washington International Law Journal

The Philippine Government's efforts to attract foreign direct investments have been ineffectual, especially when compared with the efforts of its Southeast Asian neighbors. Foreign investment incentive legislation has been relatively ineffectual in attracting the investment the Philippines sought due to the ambiguous and arbitrary execution of its investment laws and policies. The Philippine Judiciary's unsettled attitude toward foreign investment further enhanced the overall impression that the Philippines was not a safe or stable investment host country. The Philippines' most recent legislative attempt to lure foreign investment is the Foreign Investments Act of 1991. The Foreign Investments Act goes much further …

From Japan's Death Row To Freedom, Daniel H. Foote

Washington International Law Journal

In 1975, the Japanese Supreme Court relaxed the standards governing the grant of retrials in criminal cases. Since then four death row inmates have obtained new trials and ultimate vindication through acquittals. The facts of the four cases are compelling: all involved highly publicized murders, rather harsh investigations leading to confessions that the defendants subsequently disavowed, and seemingly routine convictions followed by decades-long struggles by the convicted men to forestall their executions and secure retrials. Each of the men spent over 25 years on death row before the final determination that he had been unjustly convicted. In this article, Professor …

Contract Societies: Japan And The United States Contrasted, Shinichirō Michida, Veronica L. Taylor

Washington International Law Journal

This translation of an original Japanese language work by Michida Shinichirō contrasts the differences between the understanding of contractual obligations in the United States and in Japan. The translation cites specific differences between each country's statutes and case law, as well as distinct cultural factors that are important when considering respective understandings of contract in these societies. Translator's Introductory Note: This translation is intended to give readers an introduction to Japanese contract law theory and its operation in that society. Professor Shinichirō Michida was writing for a general audience in Japan, not simply for those with legal training. One of …

Establishing A Stock Corporation In Japan After The 1990 Revision Of The Commercial Code, Bruce W. Maclennan

Washington International Law Journal

The most recent revision of the laws governing the incorporation of a kabushiki kaisha—stock corporation—in Japan brought an increased capitalization requirement, made it possible for one person to perform the incorporation, and removed the necessity of having a court-appointed inspector examine certain transactions undertaken in the process of incorporation. Additionally, FECL and Anti-Monopoly Law reporting requirements for inward direct investments have recently been liberalized. These and other revisions designed to increase creditor protection and streamline the process have changed incorporation procedures considerably. This comment examines these statutory changes and describes in detail the process of incorporating a subsidiary of …

Japan’S ‘Foreign Workers’ Policy: A View From The United States, Daniel H. Foote

Articles

No abstract provided.

"The Door That Never Opens"?: Capital Punishment And Post-Conviction Review Of Death Sentences In The United States And Japan, Daniel H. Foote

Articles

The capital punishment system and current standards for collateral review of capital sentences appear quite similar in the United States and Japan. On a deeper level, though, the systems are moving in very different directions. Given. the extensive literature on capital punishment and capital habeas in the United States, this article focuses chiefly on Japan, examining the process by which the standards governing postconviction review have been relaxed and the impact of that change. Japan's Supreme Court bears the image of being a highly conservative, passive institution resistant to dramatic .change of any sort. Yet this examination reveals that, in …

Book Review: Policing Japan, Daniel H. Foote

Book Reviews

Professor Setsuo Miyazawa's Policing in Japan: A Study on Making Crime represents a very valuable addition to the growing body of English-language works on the Japanese police. This is the first such observational study of the police by a Japanese scholar and the only study to examine the behavior of Japanese detectives. Miyazawa, a professor at Kobe University and one of the leading legal sociologists in Japan, has buttressed his own observations with an extensive, and revealing, questionnaire survey of police attitudes.

Applying U.S. Law To Halt Deforestation In Southeastern Myanmar: A Survey Of Potential Strategies, Douglas J. Kelso

Washington International Law Journal

As the twentieth century draws to a close, the threat posed by environmental degradation grows increasingly apparent. Climatic change, ozone depletion, hazardous wastes, and numerous other ecological concerns gain growing prominence in national and international policy debates. Environmental degradation causes the loss of valuable atmospheric, hydrological, geological, and biological resources. In terms of resource depletion, the rapid destruction of tropical rain forests poses one of the greatest ecological threats to our planet today. This paper proposes that proper application of United States law might discourage tropical deforestation abroad, using the nation of Myanmar (formerly Burma) as an example.

Japanese Foreign Aid: Suggested Legislation To Guide Administrative Distribution Of Foreign Aid, Darin R. Greenen

Washington International Law Journal

This Comment analyzes the need for guiding legislation in the Japanese foreign aid program. First, the Comment describes the Japanese aid program and its shortcomings. It then suggests guiding legislation and analyzes the improvements such legislation will effectuate.

The Impact Of Taiwan's Political Reform On Its Mainland China Policy: Pragmatic Economic Relations And Conflicting Political Ideology, Lawrence B. Weiner

Washington International Law Journal

For nearly forty years, the Republic of China on Taiwan (ROC), acting under the Kuo Min Tang (KMT), or Nationalist Party, and the People's Republic of China (PRC), acting under the Chinese Communist Party (CCP), have ruled separate provinces across the Taiwan Straits, each claiming legitimate rule over China. During that entire time, neither side rescinded its threat to use military force, and the mainland regularly shelled islands controlled by the ROC. Recent events, however, have significantly altered relations between the two Chinas. In 1987, immediately after the ROC government repealed martial law, Taiwan residents were allowed to visit the …

The Benevolent Paternalism Of Japanese Criminal Justice, Daniel H. Foote

Articles

Models for a criminal-justice system based on an ethos of rehabilitation and reintegration-such as Llewellyn's "parental" and Griffiths' "family" models-have been regarded as idealistic but unworkable in the real world, except perhaps in totalitarian or primitive societies. Professor Foote, however, has found in Japan just such a model, which he labels "benevolent paternalism." The Japanese criminal-justice system is benevolent in that its goal is to achieve reformation and reintegration into society through lenient sanctions tailored to the offender's particular circumstances. The system is paternalism in that it allows substantial discretion to the state in both gathering and using information about …

Recent Developments - Cinematic Sex And Censorship In Indian Film, Anita Ramasastry

Articles

This Recent Development examines the increasing presence of cinematic rape in general-audience Indian films and discusses the potential cultural origins of the cinematic portrait of Indian women as chaste subordinates to men and as frequent subjects of violence. To account for this trend, this Recent Development outlines the legal guidelines governing Indian film censorship, and in particular the guidelines regulating sexuality. From this vantage point, the use of various suggestive cinematic techniques, including the regular portrayal of rape, may be seen as attempts by directors to circumvent government censure of kissing and other intimate relations on-screen. Finally, this Recent Development …

Confessions And The Right To Silence In Japan, Daniel H. Foote

Articles

In several highly-publicized recent cases in Japan, individuals convicted of murder and sentenced to death were acquitted in retrials obtained after decades on death row. These so-called "death penalty retrial cases'" generated great controversy and considerable reflection about the criminal justice system in Japan. A central, substantive issue presented by these cases relates to the procurement and use of confessions; each of these cases-and several other major recent Japanese cases in which defendants have been acquitted following bitterly contested trials-turned on the validity of repudiated confessions.

Consequently, much recent commentary has focussed on conf essions and related issues. Not surprisingly, …

Nōryoku Shōgai Wo Motsu Amerikajin Ni Kansuru Hōritsu (Ada) To Amerikahō Ni Okeru Sabetsu No Gainen [The Americans With Disabilities Act And Concepts Of Discrimination In U.S. Law], Daniel H. Foote

Articles

Paradoxical as it may seem, Title I of the Americans with Disabilities Act (hereinafter, "ADA"), which deals with employment of the disabled, at one and_ the same time represents only a gradual advance over existing law and a pathbreaking new statute with far-reaching implications. On the one hand, the ADA merely builds on the foundations laid in the Rehabilitation Act of 1973, with the key provisions of the ADA closely parallelling approaches taken in the Rehabilitation Act and regulations implementing it. On the other hand, the ADA vastly expands the coverage of the Rehabilitation Act, thereby establishing that integration of …

The Substantial Identity Rule Under The Japanese Novelty Standard, Toshiko Takenaka

Articles

This article compares the novelty standard under Japanese patent law with the novelty standard under American patent law. This article first explains the structure of the novelty and inventive step provisions under Japanese patent law and examines the interpretation and basic legal theories of these provisions. The inventive step standard developed out of the novelty standard. Thus, to understand the inventive step standard, it is necessary to understand the novelty standard.

Next, this article discusses the unique features of the Japanese novelty standard. The strict novelty requirements of the patent laws of the United States and European countries are contrasted …

Dictionary Developments: Book Review, Daniel H. Foote

Book Reviews

English-Japanese: The Dictionary of Anglo-American Law, published by the University of Tokyo Press, represents a tremendous achievement. Its publication in 1991 culminated a'seven-year effort in which more than fifty leading Japanese scholars actively participated. These included specialists in a wide range of fields, not just professors of Anglo-American law. The effort was overseen-and a heavy share of the work borne by-a seven-member Editorial Committee, which held more than 150 meetings in the process of preparing the dictionary. Based on accounts I have received from many of the professors who participated in the project, however, it is clear that the …

Diagnosis Of The Current Code Of Criminal Procedure, Daniel H. Foote

Articles

Approximately 35 years have passed since the current Code of Criminal Procedure went into effect, and today the manner in which that Code is interpreted and applied appears nearly stable. In truth, for most of the provisions and systems under the current Code about which there had been many questions of interpretation and application (e.g., interpretation of the provisions concerning hearsay evidence, discovery, exclusion of illegally-obtained evidence, and abuse of the authority to prosecute), some sort of conclusion (ichid no ketsuron) has been reached. In that sense, matters have "stabilized." However, in my view much more deep-seated problems remain unresolved. …

Summary Of Tokugawa Criminal Justice, Daniel H. Foote

Articles

The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …

Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad

Washington Law Review

This Comment analyzes current Philippine land reform efforts, focusing on the constitutional definition of just compensation. First, the Comment discusses past Philippine land reform efforts. Second, the Comment analyzes legal arguments relating to a fair market value interpretation of just compensation. The Comment concludes that just compensation does not need to be interpreted as fair market value. In fact, such an interpretation may effectively abort any land reform effort in the Philippines, and perpetuate the structure of land ownership which the constitution seeks to remedy. Finally, this Comment proposes an alternative interpretation for land reform valuation that meets the just …

Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad

Washington Law Review

This Comment analyzes current Philippine land reform efforts, focusing on the constitutional definition of just compensation. First, the Comment discusses past Philippine land reform efforts. Second, the Comment analyzes legal arguments relating to a fair market value interpretation of just compensation. The Comment concludes that just compensation does not need to be interpreted as fair market value. In fact, such an interpretation may effectively abort any land reform effort in the Philippines, and perpetuate the structure of land ownership which the constitution seeks to remedy. Finally, this Comment proposes an alternative interpretation for land reform valuation that meets the just …

Dispute Resolution In China, Robert F. Utter

Washington Law Review

It gives me great pleasure to submit this essay as part of a tribute to Professor Luvern Rieke. I first met him in his initial year of teaching contracts at the University of Washington, when I was a beginning law student. We later worked together in a variety of contexts including ecumenical religious projects; matters concerning domestic relations subjects when I served on the King County Superior Court bench; and on the Judicial Council, where I served as a member of the Washington State Supreme Court. To each role he brought a unique combination of personal qualities: he was thoughtful, …

On The Limits Of "Grand Theory" In Comparative Law, William P. Alford

Washington Law Review

I am pleased that the American Association for the Comparative Study of Law has decided to focus upon the legal systems of East Asia this year, and flattered that Professor Dan Henderson, who has organized today's program, has asked me to speak about the question of "comparability" with respect to China. In so doing, Professor Henderson is clearly heeding Deng Xiaoping's message to turn to youth-albeit in this case, callow youth. Since he has been kind enough to do so, I hope that you will be equally kind in not blaming him for my remarks. This talk is dedicated to …

Prosecutorial Discretion In Japan: A Response, Daniel H. Foote

Articles

Marsha Goodman's Prosecutorial Discretion in Japan, with its thoroughly researched description of the manner in which that discretion is exercised-including several new case studies-is an important addition to English-language literature on the Japanese legal system and raises numerous interesting issues regarding the Japanese criminal justice system.

Goodman focuses much of her attention on the lengthy battle over the abuse of prosecutorial discretion doctrine in Japan. This discussion provides a fine example of a classic pattern of legal debate in Japan. As in this case, defense counsel familiar with an issue frequently initiate movements for change in criminal procedure standards …

The Drafting Process For Cabinet Bills, Daniel H. Foote

Articles

I have undertaken this article in hope that it may be of some help in promoting public understanding of the actual manner of review by the Cabinet Legislation Bureau-one step in the drafting process for legislation introduced by the Cabinet-and of the diligent efforts of the r��presentatives of the various ministries with whom we regularly come into contact. It goes without saying that the views and explanations contained herein, along with any inadequacies or inaccuracies in this account, are solely the responsibility of this author.

Some Thoughts On Legal Education In Japan, Daniel H. Foote

Articles

This piece is based upon a talk given at the Harvard Law Association of Japan meeting on December 4, 1985, by Daniel H. Foote.

Published in Japanese - English original draft provided.

Patriation Of The Canadian Constitution: Comparative Federalism In A New Context, William C. Hodge

Washington Law Review

The Canadian constitution, also known as the British North America Act, 1867, has been "patriated." Of that bundle of sticks that, fastened together, constitute sovereign autonomy, a significant few continued to rest with the British Parliament until 1982—a condition the Canadians found humiliating and the British embarrassing. With the passage of the Canada Act by the Parliament of the United Kingdom on March 29, 1982, and with royal approval, the Canadians became masters of their own house, having gained complete internal powers of constitutional amendment. But an equally important constitutional event was the process of patriation itself inasmuch as it …

The Role Of The Supreme Court Of Japan In The Field Of Judicial Administration, Takaaki Hattori

Washington Law Review

This article focuses on the Japanese Supreme Court's exercise of its power of judicial administration. The article places special emphasis on the management of the judiciary and on rulemaking, both quite novel to the Japanese court.

Antitrust Sanctions And Remedies: A Comparative Study Of German And Japanese Law, John O. Haley

Washington Law Review

The legal systems of the Federal Republic and Japan have much in common. The basic institutions and concepts of German civil, criminal, and administrative law provided the principal models for Japan's legal reforms during the late nineteenth and early twentieth centuries. Contemporary legislation and doctrinal changes in the Federal Republic also continue to influence Japanese legal developments. Despite the American origins of Japanese antitrust legislation, which was drafted by Americans and imposed during the Occupation on a less than enthusiastic Japanese government, the influence of German law and practice on Japanese antitrust law, at least since 1953, has been profound. …

Japan's Commission On The Constitution: The Final Report, Translated And Edited By John M. Maki (1980), Frank K. Upham

Washington Law Review

The Final Report, which has been well translated and intelligently edited by John M. Maki, demonstrates to an almost excruciating extent this concern for fairness and balance. The first three parts of the Report chronicle the creation, structure, procedure, and central issues of the Commission's work. In doing so, they catalog issues and positions and explain the mechanics of the Commission, but do little else. For those interested in the substantive views espoused, Part Four, The Opinions of the Commissioners, will hold the most interest.