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Judging

Mark D. West

in Lovesick Japan: Sex * Marriage * Romance * Law

This chapter illustrates what it means to be a member of the Japanese judiciary using a fictional character known as Judge Tanaka. Tanaka, an invention of the author, is based on a combination of ... More

This chapter illustrates what it means to be a member of the Japanese judiciary using a fictional character known as Judge Tanaka. Tanaka, an invention of the author, is based on a combination of facts from the literature and countless interactions over the last two decades with Japanese judges, lawyers, and prosecutors. It details Tanaka's education, family life, and career path. It then considers how a judge's training and career path might affect both the way he writes opinions and the way in which he views the world. It identifies the institutional influences and pressures that judges are subjected to. The analysis reveals that Japanese judges sometimes can be oblivious to the assumptions that underlie their prose.Less

Private Sex

Mark D. West

in Lovesick Japan: Sex * Marriage * Romance * Law

This chapter considers the assumptions of the Japanese judiciary regarding consensual sex, assumptions the Japanese judiciary reveal as they carefully investigate very personal, private matters. It ... More

This chapter considers the assumptions of the Japanese judiciary regarding consensual sex, assumptions the Japanese judiciary reveal as they carefully investigate very personal, private matters. It first examines what courts label as “common sense” notions of appropriate sexual practices, which often are conservative and almost always involve a substitution of the parties' view of appropriateness with that of the court. It then turns to the kinds of people who are appropriate sexual partners. In some cases, judges find certain partners to be wholly inappropriate; in other cases, judges protect fragile females, but they make surprising concessions to would-be suitors if those men display the requisite emotions. Finally, the chapter looks at normal, assumed birth control practices, focusing on the widespread use of abortion. In these cases, judges do not moralize; they seem completely oblivious to the underlying ideas their stories reveal. In all of these cases, judges conduct thorough investigations of sexual practices, emotions, and relationships, and they often seem less than thrilled with their findings.Less

Divorce

Mark D. West

in Lovesick Japan: Sex * Marriage * Romance * Law

This chapter examines judicial views concerning divorce in Japan. In immediate postwar Japan, less than one out of ten marriages ended in divorce. But in the 2000s, four out of ten Japanese marriages ... More

This chapter examines judicial views concerning divorce in Japan. In immediate postwar Japan, less than one out of ten marriages ended in divorce. But in the 2000s, four out of ten Japanese marriages end in divorce, a figure neither unusually high nor unusually low among developed countries. Many judges, however, seem to long for the days when couples stayed together—despite a clear absence of the emotional connection that judges use to define marriage in other contexts. The chapter shows that courts have significant power to shape marriage and divorce. The system they have created is characterized largely by rules that require less-than-happy marriages to continue over the objections of a spouse who wants to leave. Two specific aspects of judicial divorce regularly trump spousal desires: statutory “grave reason” grounds for divorce and court-created rules against at-fault divorce. In both cases, love occasionally arises, but it is largely irrelevant.Less

Coupling

Mark D. West

in Lovesick Japan: Sex * Marriage * Romance * Law

This chapter first examines how partnerships are made in Japan. The methods for choosing companions are often awkward and dangerous, and, at least in the vision set forth by courts, many people ... More

This chapter first examines how partnerships are made in Japan. The methods for choosing companions are often awkward and dangerous, and, at least in the vision set forth by courts, many people making those choices seem to disregard love, intimacy, and emotional compatibility in favor of more calculated matching criteria. The discussion then turns to marriages. While loveless marriages happen everywhere, in Japanese court opinions, loveless marriage often is an expectation—not sad, and certainly not a tragedy. Japanese judges sometimes hold up love as an ideal in some mythical perfect state of marital bliss, but they do not view it as a necessary component of actual marriages. Given the conception of love as an uncontrollable, disturbing, and confusing emotion, the separation of love and marriage seems perversely necessary and imminently practical, for marriage seems unlikely to survive long-term turmoil.Less

Commodified Sex

Mark D. West

in Lovesick Japan: Sex * Marriage * Romance * Law

This chapter explores three areas in which Japanese courts rule and comment on commodified sex. The first two are commercial: prostitution and other kinds of sex-for-money transactions, and ... More

This chapter explores three areas in which Japanese courts rule and comment on commodified sex. The first two are commercial: prostitution and other kinds of sex-for-money transactions, and pornography. In these two areas, in contrast with the conservatism of private sex, a wide variety of sexual services are clearly legal. Courts generally enforce the law strictly, but their commentary is inconsistent: although they never approve of commercial sex, sometimes they are unexpectedly silent, sometimes they are critical, and sometimes they are ambiguous. The chapter then examines a middle ground between commercial and private, a set of cases in which courts find monetary value in private sex that, while not founded explicitly on love, has a similar emotional or “real” component. In all three areas, courts tacitly allow or actively enforce the commodification of sex and the emotions that may accompany it.Less

Introduction

Mark D. West

in Lovesick Japan: Sex * Marriage * Romance * Law

This introductory chapter provides an overview of the book's main themes. This book explores a particular vision of love, sex, and marriage in Japan based on 2,700 publicly available court opinions. ... More

This introductory chapter provides an overview of the book's main themes. This book explores a particular vision of love, sex, and marriage in Japan based on 2,700 publicly available court opinions. The opinions are from diverse areas such as family law, criminal law, torts, contracts, immigration, and trusts and estates. Taken as a whole, these opinions describe a Lovesick Japan. The term “lovesick” here is used to describe a society in which a complex set of chronic and evolving problems is revealed in the ways people conceptualize and discuss love and the related components of sex and marriage. In the court opinions, lovesickness most often appears as a presupposed absence of physical and emotional intimacy, affection, and interconnectedness in personal relationships, an absence that stands in stark contrast with courts' clear recognition of the value and significance of other emotions. The book shows that the influence of law in Japan is pervasive in a very important arena: Japanese judges, who have significant discretion, play a surprisingly direct role as arbiters of emotions in intimate relationships.Less

Drinker’s Paradise?

Mark D. West

in Drunk Japan: Law and Alcohol in Japanese Society

This chapter offers an overview of the book and introduces the book’s methodology through a 1956 case of attempted murder in which the defendant was found not guilty because he was intoxicated. The ... More

This chapter offers an overview of the book and introduces the book’s methodology through a 1956 case of attempted murder in which the defendant was found not guilty because he was intoxicated. The court’s opinion begins with many specific facts that help readers understand the characters and the outcome of the case and ends by editorializing about the dangers of Japan’s emergence as a “drinker’s paradise.” Using this opinion as an example, the chapter sets forth the goals of the book: to use law to create a rich description of the role of alcohol in Japan and to use the alcohol-related cases to challenge traditional depictions of the Japanese legal system as one that provides systematic and routinized justice. It closes with a brief description of Japanese judges and their role in the judicial system.Less

Conclusion

Mark D. West

in Lovesick Japan: Sex * Marriage * Romance * Law

This concluding chapter summarizes key findings about Japanese judges' views about love, sex, and marriage, highlighting the lack of separation of love from law. It argues that judicial opinions are ... More

This concluding chapter summarizes key findings about Japanese judges' views about love, sex, and marriage, highlighting the lack of separation of love from law. It argues that judicial opinions are part of a complicated legal system where courts reach far more deeply into hearts and psyches than statutes require. Courts view the marital relationship not simply as a contract between two people but as a family bond the dissolution of which can be affected by statements of adult children. Courts have much to say about sex, voicing opinions as to which activities are normal and which are decidedly not. And love, which seems unlikely to have legal importance, is often an explicit or implicit factor in decision making.Less

Administrative Disputes: Taxpayers against the Government

in Measuring Judicial Independence: The Political Economy of Judging in Japan

Consistently, the Japanese government wins in court. Crucially, it does not win by manipulating the career judiciary to produce biased courts. Japanese judges do not enjoy better careers if they ... More

Consistently, the Japanese government wins in court. Crucially, it does not win by manipulating the career judiciary to produce biased courts. Japanese judges do not enjoy better careers if they favor the government in mundane cases. Instead, it most likely wins because as a rational repeat player it disproportionately selects for litigation those cases that will shift precedent in an advantageous direction. In mundane administrative litigation involving disputes between the government and taxpayers, the system favors accurate judges rather than biased judges. Those judges who find their opinions reversed on appeal do incur a penalty. Those judges who occasionally favor taxpayers incur none.Less

Introduction: 1968

in Measuring Judicial Independence: The Political Economy of Judging in Japan

This book asks whether Japanese judges face career incentives with a political bias. The radical left has been wrong about many things, but they were right about the courts. Japanese judges do need ... More

This book asks whether Japanese judges face career incentives with a political bias. The radical left has been wrong about many things, but they were right about the courts. Japanese judges do need to worry about the views of the politicians in the Cabinet. They do not face skewed incentives in most litigation, for most litigation carried no political import, and it is not the capitalists but the politicians who could hurt judicial careers. Capitalists, in fact, are no doubt happier with a level playing field for their contract disputes and corporate litigation anyway, and have in the past let their politician friends know this. In politically charged disputes, however, judges who flouted the majority party paid with their careers.Less

Conclusion: One for the Road

Mark D. West

in Drunk Japan: Law and Alcohol in Japanese Society

The conclusion begins with a final case, in which an intoxicated salaryman is run over by a train, as an example of the degree to which cases have both common themes and individual-specific ... More

The conclusion begins with a final case, in which an intoxicated salaryman is run over by a train, as an example of the degree to which cases have both common themes and individual-specific characteristics. In this case the deceased’s heirs sue the railway company for wrongful death, and the railway company countersues for damages incurred in cleaning up the tracks. The court finds no liability for the railway and orders the deceased’s heirs to pay a portion—but not all—of the costs of cleanup. Along the way the court provides such detail that the deceased emerges as a recognizable individual who drank in familiarly patterned ways. The book concludes by analyzing its key findings, focusing on the rich description of alcohol in Japanese society created by courts and their ability to bring individuals to life in their narratives.Less