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Abstract:
This article addresses an ongoing dispute in the study of Japanese law, regarding the proper explanation for Japan's historically low litigation rates. Recent debate in this area has been dominated by the work of John Haley and Mark Ramseyer, who have presented strong evidence of the existence of substantial barriers to litigation in Japan.

The article argues that an examination of the similarly low use of arbitration by Japanese corporations strongly undermines Haley and Ramseyer's argument. Arbitration in Japan suffers from none of the institutional obstacles identifiable in court litigation, so Haley and Ramseyer's arguments cannot explain its unpopularity.

An alternative explanation for Japan's low litigation and arbitration rates is developed in the article, based on a theory of the relationship between society and the law draw from the work of the prominent Japanese legal theorist Takeyoshi Kawashima, and one of his primary influences, Eugen Ehrlich.

The paper concludes with a discussion of the recent changes in Japan's arbitration law, and the rules of the Japan Commercial Arbitration Association, arguing that these changes of themselves will be insufficient to stimulate arbitration in Japan, as the primary obstacles to arbitration were not institutional. However, if a clear distinction in both law and form is developed within Japan between international and domestic arbitration, arbitration can achieve an important place as a form of dispute resolution in Japan.

While the theory is developed in the context of a discussion of Japanese law, it is independent of unique Japanese cultural or historical facts. As a result, while it successfully explains Japan's low rates of both litigation and arbitration, it can also be used to gain an increased understanding of the relationship between society and the law in other countries. The article will, therefore, be of interest to specialists in Japanese law, practitioners of arbitration and litigation in Asia, and non-specialists interested in the nature of law and its role in society.

Japan, law, Kawashima, Ramseyer, Haley, litigation, litigiousness, law and society, Ehrlich, arbitration

Abstract:
The article argues that contemporary international arbitration is currently beset by a "legitimacy" problem, deriving from the procedures that have been adopted to adjust arbitration to the resolution of international disputes. Specifically, the article argues that contemporary international arbitral awards do not possess authority for the parties receiving them, and that this loss of authority is responsible for the increasing rate at which parties attempt to have awards vacated by courts. An analysis of the authority of legal decisions is undertaken, and it is argued that contemporary international awards possess none of the forms of authority available to them. This is then explained in terms of problems with the way arbitrators are selected in contemporary international arbitration, and the role arbitrators are expected to fulfill.

The article then concludes with two suggestions that it is argued can restore authority to arbitral awards: (1) the introduction of a "procedural mediator", whose role would be to design the proceedings of an arbitration to fit the parties and the dispute, and (2) the acceptance in international arbitration that arbitrators should act as advocates for the party that nominated them to the arbitral panel.

arbitration, authority, jurisprudence, dispute resolution

Abstract:
This book review argues that while Laudan's book is excellent from an epistemological perspective, it ultimately fails as a commentary on U.S. evidence law as he fails to appreciate the practical legal context in which evidence law operates.

Evidence, Epistemology, Laudan

Abstract:
Written prior to the WTO panel decision in the India/EC Generalized System of Preferences dispute, the article undertakes a detailed discussion of the history and development of the GSP. It then discusses the EC's GSP as it existed in 2003. Finally, it offers an analysis of how the WTO dispute in question could be analyzed with respect to the EC's then-existing labor preferences (which were themselves ultimately dropped from the WTO dispute).

labor, trade, rights, GSP, WTO

Abstract:
This article examines the parol evidence rule as it exists in Australian and U.S. law. Whereas Australian law still maintains a strict version of the rule, American states have generally moved to a weaker version of the rule, in which evidence of the true intentions of the parties is often admitted. Nonetheless, in both countries clear support can be found for both strong and weak versions of the rule. This article argues that the inability of either country to adopt a single general interpretation of the rule arises not from the rule itself, but from the factual situations to which it is applied. A strong rule is applicable in dealing with disputes arising from corporate interactions, and other situations in which the parties have contracted in a formalized, arms-length manner. However, a strong version of the rule is inappropriate in contracts arising from more intimate relationships. The article concludes that courts should recognize this distinction, and instead of adopting a single parol evidence rule, should formulate guidelines for the application of strong and weak rules.

parol evidence rule, textualism, contract, comparative law

Abstract:
This article discusses the European Union's representative body for regional subnational government, the Committee of the Regions. It argues that the Committee is currently handicapped by a structure designed to ensure national government control, and procedures that effectively exclude most representatives from any meaningful level of participation. It then concludes with specific recommendations for the restructuring of the Committee, that would enable it to become a truly regional representative body.

European Union, Committee of the Regions, subnational government, representation

Abstract:
This article examines Antonin Scalia's theory of constitutional interpretation, as laid out in his book A Matter of Interpretation. It argues that while Scalia's own account of his theory is at times inadequate, a coherent theory can be drawn from his writings. This theory emphasizes the role of institutions, rather than individuals, in the law. The resulting textualist approach to originalism is then defendend against criticisms made in the literature.

Scalia, jurisprudence, constitution, interpretation, textualism, originalism

Abstract:
While H.L.A. Hart is one of the classical figures in positivist legal thought his theory of law nonetheless moved starkly away from the traditional positivist model of law as the creation of a privileged class, aimed at directing the behavior of the general populace. Instead, Hart crafted a theory emphasizing law's status as a normative social system, related though distinguishable from other systems of social rules such as morality and etiquette. Nonetheless, after spending much of "The Concept of Law" emphasizing the social element of law, Hart ultimately settles on a theory of law that excludes ordinary citizens from any role in the development and interpretation of law.

This article argues that Hart's rejection of his own insight into the social nature of law arises from his views on legal language. An analysis of two rarely-cited early articles by Hart illustrates that Hart viewed the meaning of legal terms as inseparable from the practices of the legal profession, a position that excluded ordinary citizens from participation in the creation or interpretation of legal rules. The article demonstrates that Hart retained this view of legal language at the time he wrote "The Concept of Law," and argues that it is this view that explains his adoption of a theory of law centered upon the legal profession. It then concludes with a demonstration that Hart's professionalized conception of law can be rejected while still retaining his essential insights into the social nature of law.

Hart, jurisprudence, law, legal philosophy, concept of law, rule of recognition