Judicial Discourse and Employment Justness: Post-War Path Dependence in Japanese and U.S. Labor Law

This study broadens our sight on the role of administrative and judicial construal or construction in the postwar path dependent divergence of Japanese and U.S. employment relations. After noting contemporary variance on important parameters: executive compensation, income inequalities, and labor unit efficiencies, we identify the shared grounding in labor legislation passed within a decade or so during the 1930s – 1940s. We focus on the exceptional “at will” employment doctrine of the U.S., noting its origins in poor academic research and continued precedent support through “judge made” case law. Next, recalling its basis in the work of John R. Commons, our study introduces the role of Suehiro jurisprudence in postwar Japanese law, with its featured discourse of justness in the workplace evidenced in Japan’s Supreme Court decisions and administrative guidance. Japanese postwar jurisprudence lacks preoccupations with “originalism” to U.S. founders’ intent, or precedent obligations to “at will” employer prerogative. Notwithstanding, Japanese knowledge of U.S. case law and the role of precedent enabled a corrective focus on employment in justness and management participation. The persistent U.S. failure to recognize a continuing employment relationship is contrasted by the distinctive Japan path divergence, inviting remediation regardless of judicial ideology, originalist or progressive. We recognize in the work of Charles Lund Black, a U.S. constitutional law scholar, a parallel legal methodology that can effectively remediate “at will” precedent through due process (Fifth and 14th Amendments) and the unenumerated rights implied by the Ninth Amendment of the U.S: Constitution.