Saturday, April 16, 2011
I had the great good fortune of having my colleague Ken Port, Director of William Mitchell's Intellectual Property Institute and Japanese law scholar-extraordinaire, visit my Comparative Property Rights seminar this week. Besides some very interesting historical information regarding Japan's adoption and adaptation of the German civil law system in the 19th century, we focused on some unique features of Japanese property law that may make recovery and rebuilding in Japan more difficult than it would be otherwise.
One impediment arises from the Japanese version of concurrent estates. Japanese law recognizes one version of co-ownership of property, which is without precise parallel to any of the estates recognized in the Anglo-American common law. Each co-tenant has the right to use the property in proportion to her share, but no co-tenant can alter the property without the permission of the other co-tenants. Moreover, there is no right of survivorship among co-tenants; the deceased tenant's share passes by will or through intestacy.
The problem with this form of co-ownership in post-tsunami Japan should be immediately apparent. Co-owned property cannot be altered without the agreement of all of the co-tenants. Therefore, rebuilding cannot take place until the co-tenants reach agreement. In the tsunami stricken regions, even if the property itself can be identified without boundary markers and in a land physically altered by the tsunami, locating all co-tenants is likely to be extremely difficult if not impossible. Many co-tenants are, unfortunately, likely dead; their interests must be distributed through will (often destroyed with the home) or through intestacy. Locating heirs may be difficult if not impossible, since many heirs may also be dead, and their heirs must be located. After that nearly impossible task has been completed, all of the interest holders must reach agreement on whether, and how, to rebuild or attempt to sell.
In the United States, governments faced with insurmountable coordination problems and transaction costs might cut through them by exercising the power of eminent domain. Although Article 29 of the Japanese Constitution authorizes the government to take private property in return for just compensation, the ability of the government to exercise that power is severely limited compared to the United States, both legally and normatively. It is limited legally because civil courts in Japan lack the contempt power, so they lack a means of enforcing their rulings. Therefore, unlike in the United States, in Japan courts cannot send armed agents of the state to enforce an eviction order.
More importantly, normatively, there is deep opposition to the exercise of the eminent domain power in Japan -- much deeper than in the U.S. Consider, for example, what happened when the Japanese government tried to build Narita, the main airport serving Tokyo, by using eminent domain to expel inhabitants of a small village. The plan met with widespread, and sometimes violent opposition, not only from those displaced but from those the airport was intended to serve. I quote from Ken's book to describe the level of opposition :
The airport was supposed to open on March 30, 1978. . . . Hurling Molotov cocktails and driving a flaming vehicle through the perimeter of the airport, [protesters] briefly occupied the completed control tower. They proceeded to destroy most of the air traffic control equipment and delayed the opening of the airport for two months. . . . . Until the early 1990's, Narita Airport appeared to be under armed siege. The entire airport was surrounded by unclimbable fences, lookout towers and armed police in full riot gear.
During the decades of protests, 3 policemen and several protestors were killed.
In other words, the exercise of the eminent domain power in Japan is legal, but often socially unacceptable. Therefore, to rebuild after the tsunami, Japan may have to undergo something much more difficult and more fundamental than just changes in law; it may have to undergo a change in norms as well.
Mark A. Edwards
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