REVIEWS
“Ramseyer—often unorthodox, rebellious, paradigm-subverting—has occasionally found himself cast as the enfant terrible of Japanese law, economics, and politics. With this marvelous book, Second-Best Justice, he again takes aim at conventional wisdom with a brilliant, measured, and highly contextualized takedown of the common belief that low litigation rates in Japan indicate that the Japanese legal system is fundamentally flawed. Ramseyer offers an alternative, ingeniously nuanced explanation for why Japanese don’t sue: The system aims for good, not perfection. Ramseyer’s argument is so compelling that it’s difficult to imagine his ideas won’t form the next conventional wisdom. With a cavalcade of evidence that powerfully challenges dominant counterarguments, Second-Best Justice is essential reading that is sure to spark controversy, as well as change minds.”
— Mark D. West, University of Michigan Law School
“This well-written book offers a wealth of fascinating information about Japan’s health care and legal systems. Ramseyer provides very concise and fascinating accounts of the labor practice and policy, landlord tenant law, consumer finance law, and more, which are set in historical context and both amusing and informative.”
— Lewis A. Kornhauser, New York University School of Law
“In predictably insightful and lucid fashion, Ramseyer shows how the Japanese legal system ‘makes do’ with relatively simple, predictable rules to resolve a variety of common disputes. The result, it turns out, is a legal system that functions just fine—perhaps much better than one aspiring to perfect, individualized justice. Second-Best Justice is an astute commentary on the Japanese legal system, and by implication, the US system to which it is often compared.”
— Curtis J. Milhaupt, Columbia Law School
“Replete with facts, figures, and statistical analyses, Second-Best Justice is a richly detailed examination of Japan’s ‘second-best’ system for handling personal injury cases—a system that, Ramseyer argues, puts the United States to shame.”
— Daniel H. Foote, University of Washington and University of Tokyo
"Ramseyer argues that the relatively low rate of lawsuits in Japan results not from distrust of a dysfunctional system but from trust in a system that works—that sorts and resolves disputes in such an overwhelmingly predictable pattern that opposing parties rarely find it worthwhile to push their dispute to trial. Using evidence from tort claims across many domains, he describes a court system designed not to find perfect justice, but to “make do”—to adopt strategies that are mostly right and that thereby resolve disputes quickly and economically."
— Law & Social Inquiry
"Readers of this publication can expect to learn new ideas on Japanese Law, written by a prominent professor. Using reliable and detailed statistical analysis, Ramseyer astutely presents counter arguments to dispel popular arguments about Japanese tort law. Despite difficulties with using the justice statistics (Shiho Tokei) published by the Supreme Court and a database of cases, the author splendidly overcomes these challenges."
— Social Science Japan Journal
"J. Mark Ramseyer’s latest book-length contribution to the scholarship on Japanese law is—as expected—articulate and insightful. It revisits the subject of why Japan has less civil litigation than the United States, and while some in the field of Japanese law might question the need to further pursue the seemingly interminable debate on this subject, Ramseyer presents some interesting new perspectives that are certainly worthy of consideration."
— Monumenta Nipponica
TABLE OF CONTENTS
Acknowledgments
Chapter 1. Doing Well by Making Do - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0001
[second-best, litigation, settlement, Japan, predictability, attorneys, culture]
Economists call it the “theory of the second best.” If something (the cost of the courts, for example, or the inability of real-world judges to reconstruct the past) prevents us from obtaining exactly what we want on one dimension, sometimes we do better not to try to come as close as we can to that ideal. Sometimes we do better to scale back our hopes on other dimensions too. Japanese courts do not pretend to offer the level of particularized inquiry that we expect in American courts. Instead, they offer simple, standardized, bureaucratized dispute resolution services. They do not offer what scholars would think the ideal outcome. But they do offer outcomes suited to the average disputant—and most disputants are about average. Because averages are predictable, disputants settle out of court by reference to that expected outcome and pocket the amounts they would otherwise pay their attorneys. (pages 1 - 9)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 2. A Tort System That Works: Traffic Accidents - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0002
[litigation, predictability, accidents, automobiles, value of life, comparative negligence, insurance]
Japanese rarely litigate their disputes over traffic accidents. Instead, they overwhelmingly handle them out-of-court. Americans settle most traffic disputes too, of course, but they still litigate a much larger fraction than Japanese do. Yet Japanese do assert their claims. On any serious automobile accident caused by the other party, victims (or their heirs) assert their claims. They also recover. In virtually every such serious accident, they collect damages close to the amounts a court would award. Japanese victims and their heirs settle out of court because Japanese courts provide such predictable outcomes. They shun the unpredictable jury. They provide their judges simple, standardized formulae for calculating personal injury. They supply routinized rules for determining comparative negligence. The result is a system that facilitates settlement for a simple reason: both disputants will anticipate the same outcome. The approach is profoundly bureaucratic and distinctly second-best, of course: the judge ignores much of the individual variation. But it is an approach that saves the parties attorneys fees. (pages 10 - 34)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 3. A System with Few Claims: Products Liability - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0003
[product liability, fraud, litigation, insurance]
Americans file 30,000 product liability suits a year; Japanese file perhaps 100-300. The difference does not lie in legal doctrine: on the substantive law of products liability, the US and Japan are quite close. Neither does the reason lie in any “faults” or “defects” in the Japanese legal system. Instead, Japanese file few products liability claims because they buy mostly safe products. Americans do too, of course, but US procedure encourage meritless demands. Litigation rates are not lower in Japan because the law prevents victims from recovering their damages; Japanese law does not deter valid claims. Instead, rates are higher in the US because the law facilitates efforts by claimants to collect amounts to which they are not legally entitled—because the legal system lets non-victims manipulate the courts to extort payoffs from defendants who did little if anything wrong. Fundamentally, this contrast stems from the same phenomenon identified in Chapter 2: the American system aspires to particularized recovery, and the openness it offers to individualized claims also allows fraud. Japanese courts aim for just “good enough.” That much they provide, and the very simplicity also enables them to block the fraud that plagues the American system (pages 35 - 70)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 4. Few Claims, but for a Different Reason: Medical Malpractice (I) - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0004
[national health insurance, physicians, cosmetic surgery, mortality, strokes, heart attacks, bypass surgery, angioplasty]
Japanese medical malpractice law governs an industry that in many ways differs—radically—from the American health care industry. Before turning to that malpractice law in Chapter 5, consider the industry itself. It is an industry covered by a national health insurance. To extend that coverage, the government provides a subsidy that raises the demand for medical services. In the face of the increased demand, it then suppresses costs by suppressing prices. 4 illustrates two effects of this national insurance. First, the most talented doctors disproportionately shift into “superfluous” sectors not covered by the national insurance, and there invest heavily in their expertise. Second, both physicians and hospitals lack substantial experience in the complex procedures that lie at the heart of modern medicine. The result is a substantial increase in mortality from strokes and heart attacks. (pages 71 - 124)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 5. Medical Malpractice (II) - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0005
[national health insurance, malpractice, high-risk patients, negligence]
Japanese file few medical malpractice claims because the national health insurance system suppresses costs by limiting the amounts it pays doctors—and caps the prices it pays for technologically sophisticated services at particularly low levels. In the process, it alters the mix of procedures that doctors provide: more of the primitive medical care commanding the relatively higher prices, and less of the technologically complex services commanding the relatively lower prices. Yet observably bad outcomes do not as often occur when physicians see fundamentally healthy patients, work in small settings, and do relatively little of consequence. Neither do such doctors often commit legally defined malpractice. Instead, bad outcomes and provable malpractice occur when physicians see high-risk patients, work with a team of medical specialists, and undertake complex and technically sophisticated procedures. The Japanese insurance, in other words, cuts malpractice claims by cutting the provision of services that generate the most observable bad outcomes and provable negligence. (pages 125 - 163)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 6. Wrong but Predictably Wrong: Labor, Landlord- Tenant, and Consumer Finance - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0006
[labor, strike, real estate, eviction, personal finance, usury]
Japanese judges offer a routinized service. Rather than aim for the unattainable first-best particular, they supply the manageable second-best routine. Yet Japanese judges do not always choose wisely. Yet even when they choose foolishly, they choose in a predictable fashion: they choose foolishly in ways that the parties to a dispute can usually anticipate. When Japanese judges make these errant choices, they often err in a particular way. The initial judges apparently try to help what they think is the “weaker” party, and do so with a focus on the problem ex post; the succeeding judges follow them because “follow” is what Japanese judges do. The chapter gives three examples. First, in labor law, judges stop firms from dismissing workers during recessions; in the process, they raise the odds that firms will avoid hiring new employees. Second, in landlord-tenant disputes, judges stop landlords from evicting tenants; in the process, they raise the odds that owners will avoid renting empty units. Third, in consumer finance, judges ban firms from lending to high-risk borrowers at market rates; in the process, they increase the odds that lenders will shun poorer applicants. (pages 164 - 205)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 7. A Second-Best Court - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0007
[judicial independence, courts, bureaucracy, judges]
Caught in a major tort dispute, Japanese often find it easier than Americans to predict what a judge would say. Once they agree what he would likely do, they have little reason actually to ask him. Instead, they can settle their disputes in the shadow of what they expect he would say. To be sure, everyone is different, and every accident distinctive. Acknowledging that specificity, a judge could focus on the particular. Yet particularized inquiries entail big risks. The particularlized approach may be first-best, but it is also inherently infeasible. Even aiming for it can make the judicial outcome harder for everyone involved to predict. The Japanese court system generates and maintains this predictability by corralling its judges within a tightly organized bureaucracy that focuses relentlessly on the second-best. The court hires its judges while still young. It monitors them relentlessly. It evaluates them regularly. It rewards those who work hard, and punishes those who shirk. A judge can do well for himself if he decides cases quickly by established second-best principles. He will do poorly if he does anything else. (pages 206 - 238)
This chapter is available at:
https://academic.oup.com/chica...
Chapter 8. Conclusion - J. Mark Ramseyer
DOI: 10.7208/chicago/9780226282046.003.0008
[second-best, litigation, Japan, predictability, attorneys, culture]
Japanese file few suits. They file few suits because they so readily settle their claims out of court. That they can settle reflects the predictability of the litigated outcome, and that predictability reflects the limited aims to which Japanese courts aspire. Japanese courts do not pretend to offer the level of particularized inquiry that Americans purport to demand of their courts. Instead, they offer simple, standardized, bureaucratized dispute resolution services. They do not offer what scholars would think the ideal outcome. But they do offer outcomes suited to the average disputant—and most disputants are about average. Because averages are predictable, disputants settle out of court by reference to that expected outcome and pocket the amounts they would otherwise pay their attorneys. (pages 239 - 242)
This chapter is available at:
https://academic.oup.com/chica...
Notes
References
Index
