Looking Through the Wrong End of the Telescope: The Japanese Judicial Response to Steel Partners, Murakami, and Horie


When the Bulldog Sauce case landedat the doorstep of the Japanese
Supreme Court in July 2007, one suspects that the Court greeted it with all the enthusiasm of a homeowner who opens the front door to collect the morning paper, only to findwaiting a basket full oforphaned kittens.

Unusually for a Japanese Supreme Court case, the Bulldog Sauce case
attracted intense public scrutiny as an emblem of the struggle between a controversial new breed of corporate raider and the Japanese corporate establishment. But beyond that, in ways too subtle for headline news, the two lower courts arrlved at the same destination through two entirely different paths ofjudicial reasoning, eachof which presented its own set of awkward problems. The issues and the posture of the case were such that the Supreme Court could not easily resolve the split between the lower courts simply by endorsing one line of reasoning andrejecting theother.

How the Supreme Court resolved the Bulldog Sauce case, and the Japanese judicial response to the new breed of raider generally, reveals a great deal about the way the courts, and the Supreme Court in particular, think and function within the larger political and policy-making process. The inconsistent tangle of doctrines thrown up by the lower courts in the Bulldog Saucecase was the culminatlon of over two years of judicial efforts to accommodate defensive techniques against the new breed of corporate raider. The Japanese courts absorbed the consensus that somethinghad to be done about the raiders and actively cooperated, judicially revising existing law and doctrine so as to overcome obstacles standing inthe way of defensive techniques―in particular, poison pill-like stratagems. In doing so, however, they jumped straightto the premise that “something had to be done to tinkering wlth speciflc statutory provislons that stood in the way, without pausing to factor in the real-worid commercial context of different varleties of defensive techniques or the larger policies served by the legal obstacles they sought to overcome.

Examing legal problems through the wrong end of the telescope is not
a phenomenon conined to the Japanese judiciary. It is endemic to Japanese legal education itself, which, unlike American legal education,
focuses onmastering discrete statutes andrules in isolation and as given, rather than thinking about whether the rules make sense.

(The remainder of this fascinating and lengthyarticlecan be downloaded by BDTI registered users in the Japanese Law – Academic folder in the Data Library, in two parts (Part 1 and Part 2)).

Uploaded at the instruction of Stephen Givens.

The Board Director Training Institute (BDTI) is a "public interest" nonprofit in Japan dedicated to training about directorship, corporate governance, and related management techniques. It is certified by the Japanese government to conduct these activities as a regulated nonprofit. Read a summary about BDTI here, and see a menu of its services for both corporations and investors here.

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