The Costs of the Consensual Myth: Antitrust Enforcement and Institutional Barriers to Litigation in Japan

Abstract

Even in the West, lawyers have never been loved.As Mozart blamed an attorney for plotting to prevent Figaro from marrying Susanna, so Orson Welles may have blamed the venerable Mr. Thatcher for separating Charlie Kane from his Rosebud; indeed, Shakespeare would have executed the entire profession.' Notwithstanding their alleged venality, lawyers in the West have done well for themselves.But in Japan, we are told, they have sunk to their proper station in life.Japan has become in the American imagination a place where lawyers are few, litigation is rare, and the bureaucracy governs by developing a national consensus.'What the Japanese save on legal fees, they use to develop computers, video games, and Walkmans.There are indeed few lawyers and lawsuits in Japan.This dearth has been a mixed blessing, however, for the scarcity of litigation has led to a substantial under-enforcement of the law.In antitrust, inadequate enforcement has resulted in price-fixing cartels and production restraints.This shortage of lawyers and litigation does not, as commentators have often suggested, result solely from a "nonlitigious" ethos.There may indeed be such an ethos, but it is an ethos buttressed by an array of institutional barriers to litigation that would discourage all but the most persistent plaintiffs in any society.This Article approaches antitrust law as a case study in the role of litigation in Japan.It begins by summarizing the role of private litigation in deterring illegal behavior and describing the relation between cultural attitudes toward litigation and institutional barriers to the use of the