Author: Harold Godsoe

I am an adjunct professor at American University in Washington, D.C., and a trade lawyer in New York. I hold a Canadian J.D., an American LL.M. in international trade law, and I have lived in Japan periodically since 2005. Please send comments and critiques to hgodsoe@gmail.com.

The Bright Legal Market of 2015

Andy had been keeping up with the poor state of the U.S. legal market a few years ago, and it seems like a good idea to continue his efforts. The recent positive U.S. job report for January 2016 had some minor bad news for the legal profession: a loss of 1,400 lawyers, or 0.12% from December.

But the sour news was completely offset by the 95 percent of law students who spent last summer clerking at a law firm and received an offer to work full-time at the firm after graduation. Read about it here, but the takeaway is that the effect of the ’08 recession was over last year, partially because the law school bubble has finished it’s big pop:

The 95 percent offer rate was up from 93 percent in 2014, and a marked increase from the low of 69 percent in 2009.

Leipold noted that with first-year law school enrollment having fallen by more than 15,000 nationwide over the past five years, law firms are seeing more competition for the top candidates simply because schools are producing fewer graduates.

So long as the January’s (… and February’s) stock market, oil plunge, emerging market trifecta doesn’t spin the United States into another recession in 2016 … it might be time to again start thinking of an American J.D. as a safe investment in the future. But don’t tell your friends.

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The Law of Japanese Subway Pushers

What are the legal consequences of this?

A reader in Quora has published an absolutely amazing answer to the question “What is it like to work as a “pusher” in Tokyo’s subway system?” If you have, or if you have not, been a part of the human toothpaste tube that is the Tokyo train system, read about it here.

For my purposes, it’s a brilliant contrast between Japanese and common law legal cultures. Imagine police officers in three countries are sent into the subways to check for criminal behavior, and they see the events in the video above.

That’s an assault in Canada.

A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly …

Under Canada’s Criminal Code, the hypothetical police officer just watched an assault. No question. That’s not how Canadians treat people! Of course, a Canadian judge would be free to interpret how the Code applied to these circumstances.

That’s an assault in the United States.

New York Penal Law §120.00 A person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person;  or 2. He recklessly causes physical injury to another person …

New Yorkers are tough, and apparently don’t mind getting harmlessly pushed. But if the police officer asked around to find some injuries and evidence of injurious intent or recklessness on the part of Japan Railways (JR) toward the passengers, there’d be a crime. JR policy seems to be to solve every platform overflow problem by crushing people, so … that seems intentional. The Quora author reports that, “every ride, you hear about a couple people fainting from the heat/ lack of oxygen.” So there’s your injuries. (Assault in the 3rd degree is the least serious assault in N.Y. – just a misdemeanor.) As in Canada, an American judge would be free to interpret how the Penal Law applied in these circumstances.

In Japan?

Penal Code of Japan Article 204. A person who causes another to suffer injury shall be punished by imprisonment with work for not more than 15 years or a fine of not more than 500,000 yen.
Penal Code of Japan Article 208.  When a person assaults another without injuring the other person, the person shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 300,000 yen, misdemeanor imprisonment without work or a petty fine.

In Japan, there’s just no specific definition of “assault” in the Penal Code, just penalties for whenever “assault” might happen. Is crushing passengers on a train an assault? Maybe? How is a police officer to know? Who’s to say? The law in Japan is “ambiguous and elastic … changed, shaped and sometimes distorted by policemen…”

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I AM the law.

Tokyo police are far from corrupt in the sense that kind of ambiguous legal interpretation might suggest in other nations. But if Tokyo police don’t, as a rule, get in the way of train workers doing their job, the Penal Code of Japan isn’t the reason. The police are guided by different, non-semantic legal principles. They’re guided by giri, the particular Japanese ‘collective sense of decency.’ Here’s a short burst from Meryll Dean‘s fascinating book, The Japanese Legal System:

The essence of [the place of law in society] is caught by Takeyoshi Kawashima who likened law in Japan to an heirloom samurai sword: there to be treasured but not used.[19]

However, the presence of law as an object of interest, even reverence, rather than an instrument actively to be used, implies the existence of some other rules for the management of society and settlement of disputes. In broad terms these are the rules of giri. 

[19] Cited by Haley ‘Sheathing the Sword of Justice in Japan: An Essay on Law Without Sanctions’ (1982) Journal of Japanese Studies 265, n 15 and from which he takes inspiration for the title of that article.

In Japan the meaning of words used in legal principles or in statutes is taken for granted by Japanese people as being necessarily ambiguous and elastic. Here, the people would not be surprised to discover that the meaning of law sometimes is changed, shaped and sometimes distorted by policemen, prosecutors, lawyers and by judges during the legal process. It is inevitable, of course, in every society that lawyers and judges have to change the meaning of law in order to adjust the existing law to a new set of circumstances after the original legal norms have appeared. In European or Anglo-American societies, however, the scope and manner in which lawyers or judges can change or adapt the meaning of the law to a particular situation or set of circumstances is limited. However, in Japan it seems to me that the limit itself is not as clearly established.

Kawashima, T,’ Japanese Way of Legal Thinking’ (1979) 7 International Journal of Law Libraries 127-31

More from Dean’s book to come.

 

Freeter Professionals in Japan? Part 1

Japan Industry News (JIN) published an interesting breakdown of the legal categories of workers in Japan, leading in with statistics indicating that the incoming Japanese workforce is still mostly interested in lifetime employment within one company.

According to MHLW statistics from 2013, over half of youngsters desire to work for only one company throughout their career. Merely 28 percent would like to work for multiple companies. … Japan’s Cabinet Office shows that the percentage of young people who think that “one should change jobs if not satisfied with current employment” and “one should change jobs to utilize one’s talent” stands at only 28 percent in Japan as compared to 72 percent in England.

Setting aside fully entrepreneurial options, there are effectively two castes of employee in Japan: Lifetime and temporary.

Lifetime work

Collectively, permanent full staff (“Seishain”) and certain quasi-permanent fixed-term (1—3 year) contracts (“Keiyakushain”) are both safely on the life-time track. For both these categories, JIN reports that: “terminating employees against their will is difficult and … costly.”

For gaijin, who generally see nothing wrong with flexible employment, it’s hard to understand the uncritical and necessary loyalty at the core of permanent Japanese work. Especially when the rigors and stressesunproductive environments, and sexism (and sexism, and sexism) of Japanese companies are open secrets. Fear and Trembling (the film) illuminates our preconceptions and experiences.

Anecdotally, among my first experiences in Japan was an afternoon in the company of a man who’d been let go from his position at a Japanese firm. A gaijin, he had embraced the work life and company loyalty of his co-workers, only to discover that it was never expected of him in the first place; and it wasn’t going to be reciprocated. A few weeks after his solitary downsizing, none of his former co-workers would return his calls.

Temporary work

The temporary category includes explicitly temporary Seishain, and dispatched workers (“Hakenshain” or “Temp Staff”) with contracts that must not be renewed for more than 3 years. If you are a Hakenshain coming up on the 3-year anniversary of your first hiring, you have reason to be anxious about your next contract period.

Disenfranchised freeters (フリーター or “furita“) who string together seasonal and part time, low-skill work fall into the temporary category. Post Bubble Culture blog describes freeters in a way the rhymes with Uber driver:

The freeter lifestyle allows for more flexibility and increased mobility in youth, so it is typically seen to be made up of those individuals who have rejected their expected social role as full time salary workers in favor of the freedom to pursue other personal interests.

The other side of freeters, like uber drivers, is the often precariousness and poor work conditions, with little chance of a stable future or social insurance in the event of misfortune. But, like in many countries, freeter-like employment patterns may have migrated upstream into entrepreneurial roles.

Attitudes toward flexible employment in Japan are changing in line with economic stresses, and greater desire for and reality of women in the workforce. From JIN:

Statistics of the Ministry of Health, Labour and Welfare (MHLW) show that while the share of limited-term employees was only 15 percent in 1984, it increased to 37 percent by 2014 …

New slang terms are the bellwethers of social attitudes in Japan, and I particularly like kensetsu komachi, for young women breaking down the door to Japan’s seasonal construction sector. The sharing, Uber-economy is quietly knocking at Tokyo’s door, despite byzantine and determined regulatory resistance. But, honestly, social change is glacial: facts such as “women made up 16 per cent of new entrepreneurs last year’ are still compatible with exaltations of “a renaissance in Japan for women.”

If an employee can’t leave permanent employment for long before becoming forever temporary, starting out as a freeter may seem like a reasonable option, if higher-skilled options are open. For foreigners, who face unpredictable circumstances in attempting to forge loyalty in a Japanese firm anyway, can there be such a thing as a highly-skilled professional freeter? Puro-furita

Immigration considerations for non-traditional employment are obviously primary for many foreigners in Japan, but that’s a topic for another post.

I’m delighted to explore the flexible legal employment space in Japan. And so, this post is just a beginning. Send your thoughts on the question, and I’ll be back in time with more reports from the ground.