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increasing numbers of lawyers fuel litigation in Japan
Mark Reutter, Business
& Law Editor
CHAMPAIGN, Ill. — It’s a cliché that has outlasted
its value – the picture of Japan as a culturally harmonious country
whose inhabitants value peace and consensus over the clash of lawsuits
The 1980s and 1990s saw a burst of litigation, which undercut the notion
once shared by many Western observers that Japan had pioneered a system
of “capitalism without lawyers” that gave the country an
economic edge over America.
“From 1986 to 2001, the Japanese civil litigation rate increased
by 29 percent,” write two University of Illinois scholars in a
forthcoming article in the Journal of Legal Studies. The question of
why Japanese citizens now litigate more has been the subject of much
theorizing by scholars, including the lament by some writers that Western-style
modernization has caused the surge in lawsuits.
Subjecting the question to empirical study, Tom Ginsburg, an Illinois
professor of law, and Glenn Hoetker,
an Illinois professor of business
administration, report that Japan’s turn to litigation can
best be attributed to an increase in the number of judges and lawyers
and the economic downturn that struck the country after 1990.
The researchers base their evidence on an analysis of lawsuits filed
in each of the country’s 47 prefectures between 1986 and 2001
and other data. Ginsburg and Hoetker also examined changes in the total
number of lawyers and judges in each prefecture following new laws that
encouraged greater use of the legal system for resolving civil disputes.
They conclude that institutional changes played a large part in the
increase in litigation. “Taken together, civil procedure reform
and the expansion of the bar and judiciary account for over 20,000 additional
cases per year, an almost 20 percent increase over the number of cases
that would otherwise have been predicted,” they wrote.
In addition, economic activity affected the number of lawsuits filed.
“During downturns in which the prefectural income has declined
since the previous year, litigation increases. This is consistent with
the literature that finds litigation is counter-cyclical, as bad times
mean more broken contracts and a willingness to break relationships.”
At the same time, the scholars found no evidence that residents in urban
prefectures were more willing to file lawsuits than their rural counterparts,
thereby disputing the “cultural and sociological theories”
that assume that urbanization and its proxy, modernization, automatically
increase litigation rates.
Their forthcoming paper is titled, “The Unreluctant Litigator?
An Empirical Analysis of Japan’s Turn to Litigation.”