1 Galanter, Marc, “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Soc'y Rev. 112 (1974).CrossRefGoogle Scholar

2 According to Percy Luney, a board member of the Environmental Defense Fund, many environmental groups in the United States now prefer negotiations over litigation. The National Environmental Policy Act allows such organizations to participate in regulatory procedures.Google Scholar

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4 See Frank Upham, Law and Social Change in Post-War Japan (Cambridge, Mass.: Harvard University Press, 1987) (“Upham, Law in Post-War Japan”); for a complete chronology of Japan's history of pollution problems and related social actions, see Nobuko Iijima, ed., Pollution Japan: Historical Chronology (Tokyo; Asahi Evening News, 1979).Google Scholar

5 Takeyoshi Kawashima, “Dispute Resolution in Contemporary Japan,” in A. T. von Mehren, ed., Law in Japan: The Legal Order of a Changing Society (Cambridge, Mass.; Harvard University Press, 1963) (“Kawashima, ‘Dispute Resolution’”).Google Scholar

6 Wagatsuma, Hiroshi & Rosett, Arthur, “The Implications of Apology: Law and Culture in Japan and the United States,” 20 Law & Soc'y Rev. 461 (1986).CrossRefGoogle Scholar

7 V. Lee Hamilton & Joseph Sanders, Everyday Justice: Responsibility and the Individual in Japan and the United States (New Haven, Conn.: Yale University Press, 1992) (“Hamilton & Sanders, Everyday Justice”). In their book, Hamilton and Sanders go well beyond the references earlier in linking cultural factors to those of social structure. Still, their analysis tends to treat the attitude differences they find as an important causal factor in retarding the development of legal institutions in Japan.Google Scholar

8 Margaret McKean, Environmental Protest and Citizen Politics in Japan (Berkeley: University of California Press, 1981); Upham, Law in Post-War Japan; Miyazawa, Setsuo, “Social Movements and Contemporary Rights in Japan: Relative Success Factors in the Field of Environmental Law,” 22 Kobe U. L. Rev. 63 (1988); Haley, John O., “The Myth of the Reluctant Litigant,” 4 J. Japanese Stud. 359 (1978).Google Scholar

9 Tanase, Takao, “The Management of Disputes: Automobile Accident Compensation in Japan,” 24 Law & Soc'y Rev. 651 (1990); Ramseyer, J. Mark & Nakazato, Minoru, “The Rational Litigant: Settlement Amounts and Verdict Rates in Japan,” 18 J. Legal Stud. 263 (1989).CrossRefGoogle Scholar

10 For a more detailed description of the legal issues involved in this case, see the appendix.Google Scholar

11 See Upham, Law in Post-War Japan, and McKean, Environmental Protest and Citizen Politics in Japan. Google Scholar

12 Many victims literally cannot walk a couple of blocks to shop at their neighborhood stores. The exertion leaves them breathless. Hence, many depend on the social service network of the victims' association to allow them to continue living at home.Google Scholar

13 Sulfur dioxide pollution has been significantly reduced throughout Japan, though not eliminated entirely. Kojoshi victim leaders and their lawyers confess in private that they know sulfur dioxide is no longer such a problem, but they continue to press the issue for two reasons: first, to keep up pressure on the government to care well for those who have already fallen prey to sulfur dioxide; and, second, to strengthen their hand in dealing with the more significant contemporary pollution threat from nitrogen dioxide emissions from automobiles. Automobile pollution has risen sharply in most urban areas and constitutes a special threat in Kojoshi because of the 16-lane expressway built through the heart of the area.Google Scholar

14 This figure has been revised upward every time we have conducted interviews for this project.Google Scholar

15 Hamilton & Sanders, Everyday Justice 215 (cited in note 7), argue that social systems lacking in legal resources may be “fragile” because they lack the means to absorb conflict through means other than reliance on norms of harmony. Hence, they say, when conflict does break out in a “harmonious” culture, it is likely to be difficult to contain, to be unnecessarily protracted, and to involve unpredictable battles.Google Scholar

16 Id. at 214.Google Scholar

17 Id. at 215.Google Scholar

18 Like most decisions in these cases, the judgment cannot be easily categorized as a “victory” or a “defeat” for either side. The amount of the settlement is enough to make individual participants feel that such cases are worth the effort, but there is also disappointment about the failure to achieve some of the larger goals. The more highly committed movement participants scan such decisions not for their immediate payoff but for their potential for opportunity or threat in pending or future lawsuits in other jurisdictions.Google Scholar

19 All litigants will eventually have to pay something. The issue here was only about which litigants had enough income to warrant demanding up-front payment rather than payment deducted from the amount they may “win” at the end of the case. Plaintiff's are charged a percentage based on the difference between their claim and the final judgment. Thus, if they “win” 70% of their original claim, they must pay 30% of the litigation fee. If they “win” only 20% of the claim, they pay 80% of the fee.Google Scholar

20 In 1992, professional organizations and the government agreed to increase this number from 500 to 700.Google Scholar

21 Our interpretation notwithstanding, our discovery that plaintiff leaders and lawyers consider delay advantageous may simply reflect the fact that only three years had passed since filing of the litigation when we completed data collection in 1992. Delay could become seriously disadvantageous if several more years pass before some kind of conclusion, a point we intend to monitor in future research.Google Scholar

22 See, e.g., Sarat, Austin & Felstiner, William L. F., “Law and Strategy in the Divorce Lawyer's Office,” 20 Law & Soc'y Rev. 93 (1986); Macaulay, Stewart, “Lawyers and Consumer Protection Law,” 14 Law & Soc'y Rev. 161 (1979); Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences (or Women and Children in America (New York: Free Press, 1985); O'Barr, William M. & Conley, John M., “Lay Expectations of the Civil Justice System,” 22 Law & Soc'y Rev. 137 (1988).CrossRefGoogle Scholar

23 Wilhelm Aubert, “Law as a Way of Resolving Conflicts: The Case of the Small Industrialized Society” in Laura Nader, ed., Law in Culture and Society (Chicago: Aldine, 1969). Here Aubert proposed distinguishing between conflicts of interest and conflicts of value. Dispute transformation literature has presented this dichotomy as a dimension along which lawyers try to move conflicts from the more intractable value side toward the resolvable side of interests. As the following discussion demonstrates, actions in the Kojoshi case do not neatly support either the distinction between conflicts of interest and of value or the view of lawyers as agents deemphasizing values.Google Scholar

24 A litigants' group leader and a lawyer assured him (to his surprise) during the interview that all victims, whether members of the larger association or not, had been welcome to join the litigants' group as a litigant. His previous nonmembership in the umbrella victims' group is simply an indication of his specific motives for involvement in the lawsuit.Google Scholar

25 Lawyers and movement leaders estimate that during the first three years of litigation about 10% of the plaintiffs had become “inactive.” These are victims who have unofficially dropped out of the case, although their names remain on the roles as plaintiffs. Lawyers explain this phenomenon as a response to “pressure” put on plaintiffs by family members and/or employers. Family members, for example, may find their search for a job or a spouse being blocked because of their relative's involvement in litigation.Google Scholar

26 Kawashima, “Dispute Resolution” (cited in note 5).Google Scholar

27 T. S. Lebra, “Nonconfrontational Strategies for Management of Interpersonal Conflicts,”in E. S. Krauss, T. P. Rohlen, & P. G. Steinhoff, eds., Conflict in Japan 41–60 (Honolulu: University of Hawaii Press, 1984) (“Lebra, ‘Nonconfrontational Strategies’”); Hamilton & Sanders, Everyday Justice (cited in note 7).Google Scholar

28 Lebra, “Nonconfrontational Strategies,” at 56.Google Scholar

29 Hamilton & Sanders, Everyday Justice 214.Google Scholar