Comparative institutional analysis of product safety systems in the United States and Japan: Alternative approaches to create incentives for product safety

Cornell International Law Journal

Volumn 29, Issue 1, 1996, Pages 79-142

  Sarumida, Hiroshi ^a,b  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

^b KYOTO UNIVERSITY   (Japan)

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EID: 0345171131     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (407)

1. See generally LAURENCE P. FELDMAN, CONSUMER PROTECTION: PROBLEMS AND PROSPECTS (1976).
2. Gregory G. Scott, Product Liability Laws in the European Community in 1992, 18 WM. MITCHELL L. REV. 357, 371 (1992).
3. After years of considerable discussion, the Japanese parliament enacted die Product Liability Law which enables Japanese courts to apply strict liability-based tort law to product liability cases. PL Hō ga seiritsu [The Product Liability Law Has Been Enacted], MAINICHI SHINBUN, June 23, 1994, at 1. This law has been in effect since July 1995.
4. Asbestos was commonly used as a fire retardant in building construction. Since discovering diat die fiber was a carcinogen, however, the United States has experienced an increase in suits brought by asbestos victims. Experts predict that by the end of the century as many as 200,000 American deaths will be caused by asbestos-related diseases. That number is expected to reach 265,000 by the year 2015.
5. Stephen Labaton, Judges' Panel, Seeing Court Crisis, Combines 26,000 Asbestos Cases, N.Y. TIMES, July 30, 1991, at A1.
6. Silicon breast implants have been found to cause a variety of immune system disorders, including connective tissue diseases and autoimmune diseases such as systemic lupus and rheumatoid arthritis. Of the nearly two million women who have had silicon breast implants, thousands have sued implant makers.
7. Gina Kolata, Fund Proposed for Settling Suits Over Breast Implants, N.Y. TIMES, Sept. 10, 1993, at A16.
8. Lead-based paint, typically used as a house paint before it was known to be poisonous, still remains on buildings, and young children often ingest peeling strips of paint. Ingesting the paint (or, sometimes, even absorbing the dust) can cause a range of health difficulties, from reading disabilities to serious brain damage. According to a senior Environmental Protection Agency (EPA) scientist, one in nine children under the age of six has enough lead in his or her blood to place him or her at risk.
9. Steven Waldman, Lead and Your Kids, NEWSWEEK, July 15, 1991, at 42, 43. Another study shows children with high lead levels are six times more likely to have reading disabilities.
10. Id.
11. All-terrain vehicles (ATVs) have caused 1,037 deaths since 1982. John Hood, A Marketplace For Safety?, CONSUMERS' RES. MAG., Feb. 1990, at 14.
12. From 1987 to 1989, an estimated annual average of 8,000 residential fires, 180 deaths and 1,040 injuries resulted from children under the age of five playing with lighters. Most of these fires were caused by disposable cigarette lighters. Memorandum on the Cigarette Lighter Project from Linda E. Smith, EPHA, through Dr. Robert D. Verhalen, Associate Executive Director, Directorate for Epidemiology and Robert E. Frye, Director, EPHA, to Barbara J. Jacobson, Manager, at 3 (Feb. 6,1992) (unpublished memorandum, on file with author).
13. See Prentis v. Yale Manufacturing Co., 365 N.W. 2d 176, 181-182 (Mich. 1984);
14. Personson v. Construction Equipment Co., 191 N.W. 2d 465, 466 (Mich. 1971).
15. See Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436 (Cal. 1944) (Traynor, J., concurring). In his concurring opinion, Justice Traynor introduced the concept of strict liability in torts. He reasoned that imposing "absolute liability" on defective product manufacturers could most effectively reduce defective product-caused hazards because manufacturers are more likely to anticipate and prevent product hazards than consumers.
16. Id. at 440.
17. This reasoning assumes that the threat of "strict" liability can effectively stimulate a manufacturer's incentive to eliminate a defective product and that, as a result, the number of product-related accidents will decrease. This has been one of the most important legal theories of American courts in product in product liability cases.
18. Product Liability, J. COM., Apr. 21,1992. at 8A. Since 1974, the number of product liability suits filed in federal courts has increased by 1231%. Some opponents of tort form argue that these figures are misleading.
19. See Michael J. Saks, Do We Really Know Anything about the Behavior of the Tort Litigation System and Why Not?, 140 U. PA. L. REV. 1147, 1155, 1162-1166 (1992) (discussing that federal cases constitute only 2% of the nation's litigation, and the number of change in filings relative to the number of disabling injuries presents a completely different picture from the percentage of change in filings from a fixed starting point).
20. Professor Marc Galanter notes that a large portion of federal product liability litigation consists of asbestos cases, and the number of non-asbestos cases is decreasing.
21. Marc Galanter, Product Liability Litigation-Myths and Facts, prepared for presentation to the Fourth Annual Product Liability Conference in Madison, WI (Nov. 5-6, 1992).
22. See also Marc Galanter, Beyond the Litigation Panic, in NEW DIRECTIONS IN LIABILITY LAW (Walter Olson ed., 1988)
23. Marc Galanter, The Day After The Litigation Explosion, 46 MD. L. REV. 3 (1986).
24. According to the Court Statistics Project by the National Center of State Courts, the total number of non-automobile tort cases brought in the courts of seven states in 1990 (Arizona, California, Connecticut, Hawaii, Maryland, Michigan, and Texas) was 99, 144.
25. Galanter, Myths and Facts, supra note 11, at 8. This figure alone far exceeds the number of product liability cases that have been decided in Japan since World War II.
26. See infra note 19 and accompanying text.
27. Product Liability Reform Act: Hearings on S. 1400 Before the Subcomm. on Consumers of the Comm. on Commerce, Science, and Transportation United States Senate, 101st Cong., 2d Sess. 39, 40-42 (Feb. 22, 1990) (statement of Wendell L. Willkie, II, General Counsel, Dep't of Comm.).
28. Mary H. Cooper, Liability Crisis: Is It Over?, EDITORIAL RES. REP. 326, 330 (June 1988).
29. Neil A. Lewis, Senate, 61-37, Approves Narrow Punitive Damages Curb, N.Y. TIMES, May 11, 1995, at B10.
30. On May 10, 1995, following approval of a similar bill by the House of Representatives, the U.S. Senate passed a bill adopting a measure restricting the amount of punitive damages juries may award in product liability lawsuits.
31. Id.
32. See Tracy E. Benson, Product Liability: Deep Waters to Debate, INDUSTRY WK., Aug. 6, 1990, at 46, 51, 54.
33. See infra notes 77-78 and accompanying text.
34. See infra note 74-75 and accompanying text.
35. Yasuda Research Institute summarized 141 product liability cases litigated in Japan between 1949-1989. YASUDA SOGO KENKYOSHO [YASUDA RESEARCH INSTITUTE], SEIZOBUTSU SEKININ [PRODUCT LIABILITY] 403-466 (2d ed. 1991).
36. This survey was conducted by the author for 107 American manufacturers participating in five product safety conferences held in Madison, Wisconsin, between November 1992 and October 1993. I will refer to this survey as "the PSP survey," distinguishing it from other surveys conducted by the author.
37. See Appendix I.
38. AIU INSURANCE COMPANY, PL CHOSA HOKOKUSHO [THE REPORT OF COMPANIES' PRODUCT LIABILITY POLICIES] (1991).
39. Table I indicates the priorities of Japanese and U.S. manufacturer concerns. No comparison of actual percentages is made due to differences in the basic methodologies and the number of responding manufacturers in the two surveys.
40. See Kokumin Seikatsu Shingikai Shōhisha Seisaku Bukai [Consumer Policy Division, Social Policy Council], Sōgōteki na Shōhisha Higai Bōshi, Kyūsai no Arikata ni tsuite, Kokumin Seikatsu Shingikai Shōhisha Seisaku Bukai Chukan Hōkoku [Towards a Comprehensive Preventive and Remedial System for Consumer Accidents, The Interim Report by the Consumer Policy Division in the Social Policy Council], 991 JURIST 46, 48-49 (1991).
41. Takumi Anzai, Fires Prompt Call for Product Liability Law; Manufacturers Urged to Improve Safety Record, THE NIKKEI WKLY., Aug. 15, 1992, at 9.
42. MITI came to agree to the legislation "if the new law could harmonize consumer protection with economic activities."
43. Dokomade Toeruka Kigyō Sekinin [How Much Can We Seek Corporate Liability?], MAINICHI SHINBUN, NOV. 17, 1993.
44. Seizōbutsu Sekinin Hō: Sakidkurini Takamaru Kanshin [Product Liability Law: People Are More Concerned about the Postponed Legislation], YOMIURJ SHINBUN, Oct. 20, 1992, at 17.
45. For a detailed analysis of these three institutional U.S. tort reform mechanisms, see Neil K. Komesar, Injuries and Institutions: Tort Reform, Tort Theory, and Beyond, 65 N.Y.U. L. REV. 23 (1990).
46. Yoko Inoue, Consumers Press for More Protection, THE JAPAN ECON. J., Oct. 22, 1990, at 3.
47. Because Japanese products in the American market are subject to American liability law, this argument may be disingenuous. However, in recent trade negotiations between Japan and the United States, such as the Structural Impediment Initiative (SII), both governments pointed to each other's domestic market structural problems.
48. Id.
49. In addition, some American manufacturers criticize the different policies of Japanese companies, especially their different pricing policies, in the American market as compared to those in the Japanese market. Japanese companies as well as the government are apprehensive regarding factors which contribute to different policies in the two markets. These conflicts are mostly associated with trade issues. For example, in 1992, the American automobile industry filed dumping charges against Japanese-made mini-vans because their price in United States was "indeed" lower.
50. Doron P. Levin, G.M. May Not Join in Move Against Japan, N.Y. TIMES, Feb. 8, 1993, at D2.
51. Komesar, supra note 26.
52. Professor Komesar's comparative institutional analysis focuses on the different impact per capita of a given injury on four important groups concerned with the prevention of accidents: actual victims, actual injurers, potential victims, and potential injurers.
53. Id. at 32-33.
54. Komesar, supra note 26, at 28 (emphasis added).
55. Professor Komesar describes the role of actual victims in the tort system as follows: In the torts system, actual victims control the prosecution of legal actions. They decide on the target of prosecution, investigate and prepare their actions, and present them to the liability determiner. They hire experts, most importantly lawyers, to help .... In the torts system, the behavior of victims and their lawyer-partners takes center stage. The system depends on these actors to bring and prosecute cases, and if they do not act, the system will not function.
56. Komesar, supra note 26, at 27.
57. Although the most significant litigation-related losses for manufacturers would be liability damages, the expected losses from litigation also include other costs, including those associated with time, reductions in sales due to adverse publicity, and the possibility of extended liability in future cases.
58. The impact of enforcement is determined by the frequency of the prosecution and the amount of the penalties.
59. See infra Part III.A.4.
60. Unlike the tort system, actual victims do not usually participate in the prosecution. Komesar, supra note 26, at 29.
61. Because of their complexity, administrative regulations may be difficult to understand. However, the standards are usually more concrete than those found in court rulings.
62. Komesar, supra note 26, at 31.
63. These two factors have been of key concern in the American tort system. Judge Learned Hand defined the legal standard of negligence as follows: "[I]f the probability of injury be called P; the injury, L; and the burden, B; liability depends on whether B is less than L multiplied by P: i.e., whether B < PL." United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947.) Contemporary American courts are still concerned about these factors in applying strict liability, especially in design defect cases.
64. See, e.g.. Bowman v. General Motors Corp., 427 F. Supp. 234 (ED. Pa. 1977).
65. Courts examine whether the benefits of a certain product design outweigh the risks of the design (the risk/utility approach).
66. See, e.g., Baker v. Lull Eng'g Co., Inc., 573 P.2d 443, 454 (Cal. 1976).
67. In reaching a decision, courts consider the gravity of the danger posed by the product design and the likelihood of the danger as well as other factors, such as feasibility of the alternate designs, the financial cost of an improved design and the adverse consequences of the alternate design.
68. Id.
69. A product safety manager of Graco Inc., used a similar kind of chart to explain what kinds of potential hazards manufacturers should warn against. Bruce Mcintosh, Address at the Role of Warnings and Instructions Program in Madison, WI (Mar. 18-19, 1993) (unpublished chart, on file with author).
70. This article refers to types of product risk as "Type I risk," "Type II risk," "Type III risk," or "Type IV risk," and injury caused by types of product risk as "Type I injury," "Type II injury," "Type III injury," or "Type IV injury."
71. This article attempts to differentiate types of product-related injuries by limiting the scope of actual and potential victims to users and product-related persons rather than all consumers. In Professor Komesar's analysis, the scope of potential victims in product related accidents includes all consumers. Komesar, supra note 26, at 32-33. Therefore, the per capita impact of potential victims (consumers) is low relative to that of potential injurers. His analysis of a given injury's per capita impact on four important groups: actual victims, actual injurers, potential victims, and potential injurers, is as follows: [Assuming the total impact on society of a given injury is $100 million per year,] low per capita impact for actual victims means that there are a large number of actual victims (e.g., 10 million) each of whom suffers a small loss ($10 each), while high per capita impact per actual injurer means that there are a few injurers (e.g., 10) each of whom equally produces the injury ($10 million each). ⋯ Potential impact can be described by the probability that the injury occurs and the extent of the resulting injury. Imagine, for example, that each member of a population of 10 million potential victims faces a probability of .0001 (1/10,000) of an injury which will impose a loss of $100,000. In this situation, we would expect 1,000 actual injuries with each victim suffering a loss of $100,000. But the expected loss per potential victim is $10 (.0001 × $100,000). Low per capita impact among potential injurers has the same characteristics-large societal injury spread among many injurers. High per capita impact among potential injurers involves a smaller number of potential injurers exposed to a large number of events.
72. Id.
73. According to this theory, product-related accident cases have a high per capita impact on both actual victims and injurers.
74. Id.
75. However, the per capita impact on potential victims (consumers) is low. Id. In contrast, the per capita impact on the relatively small number of (but large-scale) potential injurers (manufacturers) is high.
76. Id.
77. Because of this, signals created in the tort system strongly encourage manufacturers to expend the resources necessary to understand signal contents and change their behavior to promote product safety as necessary.
78. Id.
79. Dalkon Shield, which is an intrauterine contraceptive device (IUD), has caused serious pelvic infections in thousands of users.
80. Cooper, supra note 14, at 335.
81. See infra note 59 and accompanying text. If likelihood of injuries is high among the users of certain products, such injuries are considered "Type I injuries."
82. Every year, 600 million cigarette lighters are sold in the United States. Regulation of Products Subject to Other Costs under the Consumer Product Safety Act, 57 Fed. Reg. 36, 929 (to be codified at 16 C.F.R. § 1145) [hereinafter Lighter Regulation]. Assuming that lighter-related fires started by children were caused by lighters sold in the year when the fires occurred, only 0.008% of all lighters sold every year could be traceable to such fires.
83. The risk of fatal automobile accidents is not a Type I risk but a Type II risk. Although traffic accidents cause a significant number of deaths every year in the United States and Japan, the number of deaths per 1,000 cars is 0.236 in the United States and 0.241 in Japan. UNYU-SHO JIDOSHA KOTSU-KYOKU [DIVISION OF AUTOMOBILE AFFAIRS: MINISTRY OF TRAFFIC AFFAIRS], JIDOSHA NO ANZEN KAKUHO NO TAMENO KONGO NO GIJUTSUTEKI HOSAKU NI TSUITE-UNYU GIJUTSU SHINGIKAI TO SHIN-[PERSFECTIVE OF TECHNOLOGY AND POLICY FOR PROMOTION OF CAR SAFETY] (1992). These figures indicate much lower fatality risk than that of DES.
84. See infra note 42.
85. Recently, the New York Court of Appeals denied a cause of action on behalf of a "third generation" victim of DES. Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 570 N.E.2d 198 (N.Y. 1991).
86. DES causes cancer in one in every thousand "DES daughters," and as many as 90% of DES daughters have adenosis, an abnormality of the vagina.
87. Michael Kinsley, Fate and Lawsuits, NEW REPUBLIC, June 14, 1980, at 20.
88. According to Lawrence Fitzpatrick, President of the Center for Claims Resolution, all of the more than 200,000 people who have filed personal injury claims against asbestos manufacturers experienced occupational exposure instead of exposure from being in buildings with asbestos materials.
89. Matthew L. Wald, Experts Say Fear of Asbestos Exceeds the Risk in Schools, N.Y. TIMES, Sept. 4, 1993, at 1.
90. In response to Ralph Nader's criticisms of airline safety in the United States, James E. Landry said that a person had a greater chance of being killed by lightning than dying in an airline accident.
91. Edwin McDowell, New Nader Booh Attacks Record Of Safety of Airlines and F.A.A., N.Y. TIMES, Sept. 4, 1993, at 9.
92. Type II risks of mass disaster accidents, however, tend to be exaggerated by the media and, as a result, users (or potential users) may believe that the risks are Type I risks.
93. See infra Part III.A.1.
94. In cases concerning fires caused by lighters, only one federal court has held that a lighter manufacturer has a duty to make its lighters child-resistant.
95. Bonthe v. Bic Co., 739 F. Supp. 346 (E.D. Mich. 1990). Other courts have stated diat such a duty does not exist.
96. See Griggs v. Bic Co., 786 F. Supp. 1203, 1207 (M.D. Pa. 1992). Although the signals sent by courts are inconsistent, some lighter manufacturers have developed a child-resistant lighter at a significant cost despite the lack of any mandatory standard enforceable by a government agency.
97. Bic Unveils New Disposable Lighter With Child-Resistant Safety Feature, 19 Prod. Safety & Liab. Rep. (BNA), No.35, at 996 (Aug. 30, 1991).
98. Bic Unveils New Disposable Lighter With Child-Resistant Safety Feature, supra note 45.
99. Lighter Regulation, supra note 39, at 36, 947.
100. Griggs v. Bic Co., 61 U.S.L.W. 2415 (CA3 Dec. 31, 1992).
101. This is one of the important rationales behind the theory of strict liability as expressed in American product liability cases. In his concurring opinion in Escola, Justice Traynor stated that "the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business." Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 441 (Cal. 1944).
102. Professor Komesar attributes this power differential between potential injurers (manufacturers) and potential victims (consumers) to their different per capita impact. Komesar, supra note 26, at 41-42.
103. See also supra note 37.
104. Komesar, supra note 26, at 42.
105. In most Japanese mass-tort product liability cases, a group of lawyers and public organizations devotedly support victims. Japan Federation of Bar Association, Shuji Nakamura, Wagakuni no Kekkan Syōhin Mondai no Cenjō [The Situation of Defective Product-related Problems in Japan], 41-10 LIBERTY & JUSTICE 14 (Sept. 1990).
106. The media may exaggerate Type II risks, but they are more likely to cover dramatic Type I injury-related accidents to get a larger authence. If an agency takes an action against Type II risks, it runs the risk of being critized for overlooking more important issues. For examples of those criticisms, see Hood, supra note 7, at 14.
107. See infra notes 278-286 and accompanying text for an example of manufacturers' strong incentives to improve product reliability. Market mechanisms do not work as an incentive-creating mechanism if potential victims are not product users but instead are people related to the products.
108. See infra note 270 and accompanying text.
109. See supra notes 11, 12, 19 and accompanying text.
110. Galanter, Beyond the Litigation Panic, supra note 11, at 24.
111. These figures are based on information provided by the Administrative Office of the U.S. Courts Annual Report, excerpted in Galanter, Myths and Facts, supra note 11.
112. Wald, supra note 43.
113. Cooper, supra note 14, at 335.
114. The victims in most asbestos cases in the sampling consist of workers using asbestos materials. 3410 Awards By Product, Prod. Liab. Rep. (CCH), ¶¶ 7755-7903 (June 1993) [hereinafter Damage Awards].
115. This information is based on Damage Awards, supra note 60. The cases introduced in this Damage Awards section are not an exhaustive listing of all U.S. product liability cases. Id.
116. Nevertheless, the information provides a general idea regarding the varying amounts of damage awards in asbestos cases and other product-related cases. Id.
117. Id.
118. MICHAEL RUSTAD, DEMYSTIFYING PUNITIVE DAMAGES IN PRODUCT LIABILITY CASES: A SURVEY OF A QUARTER CENTURY OF TRIAL VERDICTS 26 (Lee Hays Romano ed., 1991).
119. Making a manufacturer take additional safety measures is not the only way to reduce product risk. Requiring a manufacturer to reduce production levels or to stop producing dangerous products is another effective way, especially for Type I accidents. Closing a company that is creating product risks is a more aggressive way to reduce product risks. Johns-Manville Corp., one of the biggest asbestos manufacturers, filed a Chapter 11 petition as a result of large damage awards against it. Cooper, supra note 14, at 335.
120. A.H. Robins Corp., the manufacturer of the Dalkon Shield, also sought protection from product liability suits through bankruptcy laws. Id.
121. The "Damage Awards" section of the CCH Product Liability Reporter listed 730 plaintiff-winning cases involving 260 kinds of products or product hazards litigated between 1963 and 1991. Damage Awards, supra note 60.
122. Most of the accidents in these cases stem from Type II product risks. Id.
123. 108 cases out of 730 plaintiff winning cases listed in the "Damage Awards" section of the CCH Product Liability Reporters constitute the "million dollar verdict" cases. Id.
124. The products subject to million dollar verdicts are not only Type I risk-related products but also Type II risk-related product, such as lawn mowers and helmets. Id.
125. RUSTAD, supra note 63, at 26.
126. Some commentators assert that the information concerning the liability crisis and litigation explosion is not actually supported by evidence. Saks, supra note 11, at 1156-59.
127. According to a survey conducted for corporate representatives at product safety conferences, a majority of these representatives believe that they would be a target of plaintiff attorneys and the subject of large jury awards if Type II accidents occurred.
128. See infra notes 106, 160 and accompanying text.
129. See Appendix II, survey 2.
130. Information regarding the exchange rates between the U.S. dollar and the Japanese yen is based on: Board of Governors of the Federal Reserve System, Federal Reserve Bulletin, April, 1995, at A66, for the 1992-1994 rates; U.S. Bureau of Census, Statistical Abstract of the United States: 1992, at 850, for the rates between 1980 and 1991; Statistical Abstract of the United States: 1980, at 927, for the rates between 1973 and 1979; Statistical Abstract of the United States: 1975, at 863, for the rates between 1970 and 1972.
131. YASUDA RESEARCH INSTITUTE, supra note 19, at 414-60.
132. According to Article 1 of the Government Compensation Law, when any public servant or public entity exercises the public authority and wrongfully causes damages to another person associated with its duty intentionally or negligently, the government or the public entity is liable for the damages.
133. Yukihiro Asami, Product Liability in Japan, JAPAN BUS. L. LETTER 10 (July 1989).
134. The role of the Japanese government will be examined in Part III.B.1.
135. David Cohen & Karen Martin, Western Ideology, Japanese Product Safety Regulation and International Trade, 19 U.B.C. L. REV. 315, 328-29 (1985).
136. See generally YASUDA RESEARCH INSTITUTE, supra note 19.
137. AKIO TAKEUCHI, WAGAKUNINI NO SEIZOBUTSU SEKININ HO-GENJYO TO RIPPORON [JAPANESE PRODUCT LIABILITY LAW-THE ACTUAL SITUATION AND POSSIBLE LEGISLATION] 21-23 (1990).
138. Yoshio Nakai, Chloroquine Yakugai Hanketsu ni okeru Songai-ron [The Damage Theory in the Judgment of the Chloroquine Defective Drug Case], 1045 HANJI 3, 6 (1982).
139. Id.
140. See infra notes 173-179 and accompanying text.
141. In this case, the seller of the car was also held liable. MASAHISA YAMAGUCHI ET AL., JIDOSHA JIKO NO SONGAI BAISHO TO HOKEN [COMPENSATION FOR CAR ACCIDENTS AND INSURANCE] 51 (1991).
142. Id. at 46-51.
143. See infra notes 173-179 and accompanying text.
144. John Owen Haley, The Myth of the Reluctant Litigant, 4 J. JAPANESE STUDIES 359 (1978).
145. See also Galanter, Beyond Litigation Panic, supra note 11, at 27, 28.
146. KEIZAI KIKAKU-CHO KOKUMIN SEIKATSU-KYOKU, SHOHISHA GYOSEI DAIICHI-KA [CONSUMER ADMINISTRATION OFFICE OF THE SOCIAL POLICY DIVISION IN THE ECONOMIC PLANNING AGENCY], SEIZOBUTSU SEKININ WO MEGURU SAIKIN NO UGOKI [THE RECENT TREND REGARDING PRODUCT LIABILITY] 50 (1987).
147. Supra note 20, Appendix I.
148. See Table I and supra notes 20-22.
149. David E. Sanger, Japanese Say They Plan to Relax Restrictions on Foreign Lawyers, N.Y. TIMES, Sept. 21, 1993, at A1, A9.
150. There are roughly 14,000 lawyers in Japan. Id.
151. The Japanese population is half that of the United States. JETRO, U.S. and Japan in Figures 110 (1991).
152. KEIZAI KIKAKU-CHO KOKUMIN SEIKATSU-KYOKU [SOCIAL POLICY DIVISION: ECONOMIC PLANNING AGENCY], ŌSHŪ NO SEIZOBUTSU SEKININ SEIDO NI TSUITE [PRODUCT LIABILITY SYSTEM IN EUROPEAN COUNTRIES] 74-75 (1992). National populations per lawyer in Euro-pean countries are: Germany-819, France-1944, Italy-1152. Id.
153. Richard H. Sander & E. Douglass Williams, Why Are There So Many Lawyers? Perspectives on a Turbulent Market, 14 L. Soc. INQUIRY 431, 441 (1989).
154. Id. at 442.
155. Robert J. Samuelson, The Litigation Explosion: The Wrong Question, 46 MD. L. REV. 78, 80 (1986).
156. Sanger, supra note 87.
157. John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 STAN. L. REV. 983, 1003 (1991).
158. According to the Civil Litigation Research Project's 1983 report, half of the complaints brought to a lawyer were actually filed. Saks, supra note 11, at 1190 (citation omitted).
159. Id. at 1191.
160. The strength of the existing evidence in a case is also an important factor to take into consideration in the filtering process. Id.
161. Id.
162. A higher probability of accidents usually makes it easier for counsel to prove a defendant's liability, especially when the causation or defendants' knowledge of the similar types of accidents (or negligence in knowing the potential for accidents) is at issue.
163. Saks, supra note 11, at 1192.
164. For an example of a plaintiff attorney's use of a "portfolio" investment approach, see John C. Coffee, Jr., Understanding the Plaintiffs Attorneys: The Implications of Economic Theory for Private Enforcement of Law through Class and Derivative Actions, 86 COLUM. L. REV. 669, 704-705 (1986).
165. Even a frivolous action may possess some settlement value when it is more cosdy for a defendant to litigate than it is for a plaintiff. Id. at 701 (citing Rosenberg & Shavell, A Model in Which Suits Are Brought for Their Nuisance Value, 5 INT'L REV. L. & ECON. 3, 4-5, 9-10 (1985)).
166. Coffee points out that defendants would prefer not to setde if: 1) they believe that the settlement would only expose them to future litigation; they see reputational injuries; they expect that their litigation expenses would be fully indemnified by the company; and 4) their insurance companies resist the settlement (because the insurance company is a "repeat player"). Coffee, supra note 99, at 702.
167. Id. at 712-714
168. Coffee also mentions that litigation victories may significantly enhance the rank and seniority of plaintiffs lawyers in the plaintiffs bar, allowing them to obtain a more advantageous position when they work with other plaintiff's attorneys. Id.
169. Supra note 20, Appendix I.
170. Id.
171. Id.
172. This survey was conducted by the author for 39 American manufacturers participating in The Roles of Warning and Instruction Program, in Madison, WI (Sept. 15-17, 1993).
173. See Appendix II, survey 2.
174. Sanger, supra note 87.
175. Galanter, Beyond the Litigation Panic, supra note 11, at 28.
176. NIHON BENGOSHI RENGOKAI CHO SASHITSU [JAPAN FEDERATION OF BAR ASSOCIATIONS INVESTIGATION OFFICE], BENGOSHI HOSHU KITEI COMMENTARY [ATTORNEY'S FEE RULE COMMENTARY] 73 (1988).
177. For recent changes in the attorney's fee rules, see Junko Sumida, Bengoshi Hōshū -kitei no kaisel [Change in Attorney's Fee Rules], NIKKEI SHINBUN, Feb. 26, 1996, at 39.
178. For example, in one of the Kanemi mass-tort cases, the lawyer who took the case was an old friend of one of the victims.
179. Michael R. Reich, Public And Private Response To A Chemical Disaster In Japan: The Case Of Kanemi Yusho, 15 LAW IN JAPAN 102, 113 (1982).
180. In the Kanemi cases, a group of activist lawyers promoted litigation and played an important role in fashioning remethes for the victims. Id. at 114.
181. According to the survey, 54 cases were settled but no action was taken in 166 case. HARUO KITAMURA, PL HO wo KO KANGAEYO-PL HO WA SEKAI NO JOSHIKI [HOW TO THINK ABOUT PRODUCT LIABILITY-PRODUCT LIABILITY IS THE WORLD'S COMMON SENSE] 84 (1992).
182. Saks, supra note 11, at 1190.
183. For a description of the Japanese attorney fee system, see generally NIHON BENGOSHI RENGOKI CHO SASHITSU. supra note 109.
184. See also Sumida, supra note 109.
185. Mikio Akiyama, SŌSHŪ̄ Hiyō Seido tō no Gōrika [Rationalization of Litigation Fee System], 1028 JURIST 132, 133 (1993). Until the civil procedure law was amended in 1992, this figure was 17.7% higher. Id.
186. Interview with Staff Member, Civil-Family Office of Dane County Courts, in Madison, WI (Dec. 6, 1993).
187. Interview with Staff Member, Clerk of Court's Office of U.S. District Court, in Madison, Wi (Dec. 6, 1993).
188. Warranty law may also be a basis of product liability. In applying warranty law to product liability cases, many jurisdictions remove privity requirements either by developing common law or adopting the Uniform Commercial Code.
189. See U.C.C. § 2-318 (1977). Therefore, if products do not serve their ordinary/particular purpose and cause damages, the victims can seek recovery directly from manufacturers regardless of the type of product risk involved. Id. However, the scope of product risk targeted by warranty law is more limited than that targeted by tort law because some products can satisfy the ordinary/particular purpose test but also have dangerous features. Id.
190. RESTATEMENT (SECOND) OF TORTS § 402A (1965).
191. Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir. 1940) (emphasis added).
192. Bowman v. General Motors Corp., 427 F. Supp. 234, 243-44 (ED. Pa. 1977) (emphasis added). This approach is based on the risk/utility test. Another approach to determining a defect of a product is the consumer expectation test. Under this test, a product may be found defective if "the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner."
193. Barker v. Lull Engineering Co., Inc., 573 P.2d 443, 454 (Cal. 1976). Proving a defect based on this test is usually more difficult than the risk/utility test, "because [in] many situations ⋯ [a] consumer would not know what to expect, because he would have no idea how safe the product could be made." Id. (citation omitted).
194. Persons v. Salomon North America, Inc., 265 Cal. Rptr. 773, 777 (Cal. App. 3d 1990) (emphasis added) (citation omitted).
195. See supra notes 46-48 and accompanying text.
196. Cunningham v. MacNeal Memorial Hospital, 266 N.E.2d 897, 902 (111. 1970).
197. Id.
198. Barker v. Lull Engineering Co., Inc.,, 573 P.2d 443, 455 (Cal. 1976).
199. Cronin v.J.B.E. Olson Corp., 501 P.2d 1153, 1162 (Cal. 1972).
200. Japanese courts use warranty law as well, although less often than tort law in product liability cases. Under warranty law, manufacturers are liable if their products do not serve their ordinary or particular purposes. MINPO (CIVIL CODE), Law No.89 of 1896, art. 415. In order to hold manufacturers liable, Japanese courts stricdy require victims to show a contractual relationship (privity) with the defendants. YASUDA RESEARCH INSTITUTE, supra note 19, at 339.
201. This privity requirement often bars victims from recovering in product
202. MINPO (CIVIL CODE), Law No.89 of 1896, art. 709. For Japanese laws applicable in product liability cases, see generally Asami, supra note 72.
203. On June 22, 1994, the Japanese Parliament enacted the Product Liability Law, which introduced strict liability into Japanese tort law in product liability cases.
204. See PL Hō ga seiretsu, supra note 3.
205. Judgment of Aug. 3, 1978, Tokyo Chisai [Tokyo District Court], 899 HANJI 289 (1978) (Japan), reviewed by YASUDA RESEARCH INSTITUTE, supra note 19, at 336.
206. YASUDA RESEARCH INSTITUTE, supra note 19, at 336.
207. Judgment of Oct. 5, 1977, Fukuoka Chisai [Fukuoka District Court], 866 HANJI 56 (1977) (Japan), reviewed by YASUDA RESEARCH INSTITUTE, supra note 19, at 337.
208. Judgment of Mar. 11, 1988, Tokyo Kosai [Court of Appeal in Tokyo], 1271 HANJI 400 (1988) (Japan), reviewed by YASUDA RESEARCH INSTITUTE, supra note 19, at 337.
209. Koji Harada, Civil Discovery Under Japanese Law, 16 LAW IN JAPAN 21, 32-39 (1983).
210. Harada described the difference between civil procedure systems in Japan and the United States as follows: With respect to the pretrial process, civil procedure in the United States can be characterized as a war with weapons, and Japanese civil procedure as a bare knuckles fight. In Japan, formal oral arguments, comparable to the exchange of letters between shy lovers, are repeated in court to specify the alleged negligence without the parties having any effective means of obtaining information about the particulars of the negligence. On the other hand, the American system, while it works very effectively, costs a great deal, takes time, and is subject to abuse.
211. Id. at 32.
212. Yuko Inoue, Controversy highlights in debate over product liability law: Industry initiates opposition campaign, NIKKEI WKLY., Oct 12, 1992, at 1.
213. Id.
214. Id.
215. Id.
216. Judgment of Mar. 1, 1978, Kanazawa Chisai [Kanzawa District Court], 879 HANJI 26 (1978) (Japan), reviewed by YASUDA RESEARCH INSTITUTE, supra note 19, at 336.
217. See also Judgment of Aug. 3, 1978, Tokyo Chisai, 899 HANJI 48 (1978) Qapan), reviewed by YASUDA RESEARCH INSTITUTE, supra note 19, at 336.
218. Cohen & Martin, supra note 74, at 331. But see Hideyuki Kobayashi, Matsushita Denki Kara Terebi Kasai Jiken [A Case Involving a Fire Caused by a Color TV Made by Matsushita Electric], 165 HOGAKU KYOSHITSU 113 (1994), for a recent court ruling that reduced a victim's burden of proof in a non-Type I injury case.
219. Product Liability Reform Act, supra note 13, at 44.
220. Harry Kalven, Jr., The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1065 (1964).
221. Id.
222. Interview with Participant at The Roles of Warnings and Instructions Program in Madison, WI (Sept. 15-17, 1993).
223. Ayers v. Johnson & Johnson Baby Prod. Co., 818 P.2d 1337, 1342 (Wash. 1991).
224. Although the Washington Court of Appeals and the Washington Supreme Court ruled in favor of the plaintiff, the trial court granted defendant's motion for judgment notwithstanding the verdict on the grounds that the evidence failed to establish proximate causation or foreseeability of harm.
225. Id. at 1339-40.
226. Siegel v. Mazda Motor Corp., 835 F.2d 1475, 1478 (D.C. Cir. 1987). The defendant criticized the decision, stating that "accident plus injury, without more, equals recovery." Id.
227. David G. Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products, 49 U. CHI. L. REV. 1, 11 (1982).
228. Id. Owen attributed this jury attitude to general hostility toward "big business."
229. Id.
230. AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS-WHO WINS IN COOK COUNTY JURY TRIALS 42 (1985). The survey information is based on federal and state jury trials held in Cook County between 1960 and 1979.
231. Id.
232. Id. When defendants were individuals, they lost 43% of the cases against plaintiffs suffering severe injuries and 47% of the cases against plaintiffs not severely injured.
233. Id.
234. Kalven, supra note 143, at 1065.
235. CHIN & PETERSON, supra note 150, at 43.
236. Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436 (Cal. 1944) (Traynor, J., concurring).
237. For a discussion of the liability test of punitive damages, see generally Owen, supra note 148.
238. A well-known example of this type of case is the Grimshaw case. Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348 (Cal. CL App. 4th 1981). In this case, a California Court of Appeals affirmed a jury award of $2.5 million in compensatory damages and $123 million in punitive damages to a three-year old for severe bums caused by an automobile fire. Id. at 399.
239. This fire resulted from improper gas tank placement. Id. at 361. Knowing of the car's gas tank defect, the car manufacturer failed to take feasible and inexpensive safety measures, most of which cost less than $10. Id.
240. In a recent case, a jury returned an $11.3 million verdict against General Motors Corporation (GMC) for a truck fire that killed a woman. Jury Blames General Motors In a Fatal Truck Fire in 1990, N.Y. TIMES, Feb. 5, 1993, at A1. The plaintiffs attorney presented into evidence a GMC report estimating that a safety measure costing $2.20 per car could have prevented the accident. Id.
241. Comments of a trial lawyer, participating in the successful defense of a product liability lawsuit program, in Madison, WI (Apr. 5-6, 1993).
242. Product Liability Reform Act, supra note 13, at 44. The tort reform bill currently proposed focuses on placing a cap on punitive damages juries may award in product liability cases.
243. See Lewis, supra note 15. See also generally Federal Tort Reform, Confer-ence Committee Reaches Comprise on Product Liability Bill, CCH Product Liability Reports No. 854, at 1 (Mar. 18, 1996).
244. See supra note 106 and accompanying text.
245. See also Appendix II, survey 2.
246. See supra note 136 and accompanying text.
247. See generally YASUDA RESEARCH INSTITUTE, supra note 19, at 403-66 But see Kobayashi, supra note 141.
248. See infra notes 164-168 and accompanying text.
249. Id.
250. Judgment of Mar. 23, 1979, Kobe Chisai Amagasaki Shibu [Kobe District Court, Amagasaki Division], 942 HANJI 87 (1979) (Japan).
251. Judgment of Mar. 26, 1984, Tokyo Chisai [Tokyo District Court], 1143 HANJI 105 (1985) (Japan).
252. Judgment of July 18, 1983, Tokyo Chisai [Tokyo District], 1099 HANJI 67 (1984) (Japan).
253. Judgment of Mar. 23, 1979, 942 HANJI at 90-91
254. Judgment of Mar. 26, 1984, 1143 HANJI at 111.
255. Judgment of July 18, 1983, 1099 HANJI at 80.
256. But see Kobayashi, supra note 141.
257. AKIO MORISHIMA, FUHOUKOUIHOU KOUGI [TORT LAW LECTURES] 364-365 (1987).
258. See supra note 77 and accompanying text.
259. Ferris v. Honda Motor Co., Ltd., No.C-672437 (Los Angeles Cty. Super. Ct. Cal. May 9, 1991), [Mar. 1992] Verdicts, Settlements & Tactics 93.
260. Judgment of Feb. 4, 1975, Yokohama Chisai [Yokohama District Court], 324 HANTA 268 (1975) (Japan).
261. Ferris v. Honda Motor Co., Ltd., No.C-672437 (Los Angeles Cty. Super. Ct. Cal. May 9, 1991), [Mar. 1992] Verdicts, Settlements & Tactics 93.
262. Id.
263. Id.
264. Id.
265. Id.
266. Judgment of Feb. 4, 1975, 324 HANTA at 268-69.
267. Id. at 270.
268. Id. at 268-69.
269. Id. at 270.
270. Id.
271. Judgment of Feb. 4, 1975, 324 HANTA at 271-72.
272. Id. at 272.
273. Id.
274. Id.
275. RUSTAD, supra note 63, at 31.
276. See Joseph H. Ballway, Jr., Products Liability Based Upon Violation of Statutory Standards, 64 MICH. L. REV. 1388-89 nn. 3-9 (1966).
277. Id.
278. For a discussion of professional legislative strategies for Type II risk, see POLITICAL APPROACHES TO INJURY CONTROL AT THE STATE LEVEL (Abraham B. Bergman ed., 1992).
279. Murray L. Katcher, Efforts to Prevent Burns from Hot Tap Water, in POLITICAL APPROACHES TO INJURY CONTROL AT THE STATE LEVEL 69, 69-78 (Abraham B. Bergman ed., 1992) (explaining the process of Wisconsin scald burn prevention legislation in terms of these three stages).
280. Id. at 72.
281. See infra notes 197-198 and accompanying text.
282. Professor Komesar attributes this overrepresentation of potential injurers (manufacturers) to the significant differences in per capita impact between potential injurers and potential victims. Komesar, supra note 26, at 41-42.
283. Katcher, supra note 193, at 74.
284. Id. at 75.
285. Id. at 74.
286. Peter Passell, Economic Scene, N.Y. TIMES, Sept. 9, 1993, at D2, quoting from STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE 13-14 (1993) (noting that panic over asbestos had led to a cleanup effort costing an estimated $250 million per life saved, but that at the same time, it might actually kill dozens of asbestos-removal workers).
287. 15 U.S.C. § 2053 (1994). The CPSC has jurisdiction over products except for those subject to other laws, such as the Federal Aviation Act and Federal Food, Drug, and Cosmetic Act. Consumer Product Safety Act of 1972, 15 U.S.C. § 2052 (1994).
288. Regulation of Products Subject to Other Codes under the Consumer Product Safety Act, 16 C.F.R. § 1145 (1995).
289. See supra notes 175-79;
290. see also supra notes 157-58.
291. Peter Applebome, Government Rejected Sensor System On Nation's Railroad Bridges in 1981, N.Y. TIMES, Sept. 25, 1993, at 6.
292. Id.
293. See, e.g.. Federal Hazardous Substances Act, 16 CFR § 1500.121 (1973), in Figure II, infra.
294. This author-created warning is based on the format and rules described in NATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION, AMERICAN NATIONAL STANDARD: PRODUCT SAFETY SIGNS AND LABELS (ANSI Z535.4) (1991) and uses a graphic based on FMC CORPORATION, PRODUCT SAFETY SIGN AND LABEL SYSTEM 8-18 (1990).
295. Some advocates criticize manufacturers for sometimes manipulating the CPSC standards for their own benefit. See Hood, supra note 7. For example, complicated bicycle standards serve to protect domestic bicycle manufacturers from cheap or foreign-made bicycles rather than to prevent bicycle related accidents. Id. at 16.
296. As another example, according to a study concerning the impact of mattress flammability standards, sales by small producers fell by 11% while those of large manufacturers rose by 44% as a result of the regulation. Id. at 16-17.
297. Bany Meier, Product Safety Commission is Criticized as Too Slow to Act, N.Y. TIMES, Sept. 21, 1991, at 46.
298. Id.
299. Id. The CPSC has spent $4 million since 1985 on ride-on lawn mower research. Id. Additionally, the CPSC recendy has decided to require manufacturers to produce child-resistant lighters beginning in the summer of 1994. Lighters Required to Be Child-Proof, N.Y. TIMES, June 10, 1993, at A25.
300. Michael deCourcy Hinds, Escalator Dangers Called Preventable, N.Y. TIMES, Apr. 29, 1989, at 52.
301. See infra Part V (discussing the interrelationship of institutional mechanisms).
302. THE JAPAN CONSUMER INFORMATION CENTER, CONSUMER POLICY IN JAPAN 7-12 (1989).
303. See infra notes 254-256 and accompanying text.
304. One commentator has attributed the Japanese design standards and certification system requirements to Japanese culture. Cohen & Martin, supra note 74, at 320.
305. See infra notes 253-56 and accompanying text.
306. See supra note 24.
307. See also supra note 207.
308. Cohen & Martin, supra note 74, at 318-19.
309. Id. at 367 (citing MITI, REVIEW OF STANDARDS AND CERTIFICATION SYSTEMS, Mar. 25, 1983, at 7) (emphasis in original).
310. See KEIZAIKKAKU-CHO KOKUMINSEIKATSU-KYOKU [SOCIAL POLICY DIVISION: ECONOMIC PLANING AGENCY], 92 HANDBOOK SHOHISHA ['92 HANDBOOK FOR CONSUMERS] 137 (1992).
311. The Japanese government's response to environmental issues is one example. After several mass disaster pollution accidents, the government succeeded in controlling environmental problems through its "vigorous regulation of all significant sources of air and water pollution." FRANK UPHAM, LAW AND SOCIAL CHANGE IN POSTWAR JAPAN 56 (1987).
312. KAORU YODA, NIHON NO KYONINKASEIDO NO SUBETE [JAPANESE GRANT SYSTEMS] 26-27 (1993). After 1995, the government will relax some of these requirements. Id.
313. Id.
314. As of December 1994, the number of cars owned in Japan was 65, 122, 026. Telephone Interview with a Ministry Officail of the Administration Section of the Ministry of Transportation, in Tokyo, Japan (Apr. 30, 1996).
315. Recently, the Japanese people have started demanding fewer government control over their lives. James Sterngold, Thinking the Unthinkable, Japan May Curb Its Bureaucrats' Power, N.Y. TIMES, sept. 13, 1993, at A1, A3.
316. Cohen & Martin, supra note 74, at 359 (quoting B. Rowland, Japanese Corporate Behaviors: An Outside View, in U.S.-JAPANESE ECONOMIC RELATION: COOPERATIONS, COMPETITION, AND CONFRONTATION 83 (D. Tasco ed., 1980))
317. Id.
318. Id. at 363.
319. Recently, this strong government control has come under attack. Responding to public demand for deregulation, some political groups are trying to ease several regulations to reduce consumers' costs and improve their lives.
320. See generally Stemgold, supra note 226.
321. YODA, supra note 223, at 14.
322. Id. Yoda states that 40% of GNP-related activities in Japan were regulated by Japanese grant systems.
323. Id. at 12-13.
324. Id. at 27.
325. MORIHIRO HOSOKAWA, NIHONSHINTO SEKININ ARU HENKAKU [JAPAN NEW PARTY, RESPONSIBLE POLITICAL REFORM] 107-24 (1993).
326. UPHAM, supra note 222, at 167.
327. Id.
328. Id. at 168-69.
329. KAREL VAN WOLFEREN, THE ENIGMA OF JAPANESE POWER, PEOPLE AND POLITICS IN A STATELESS NATION 215-18 (1989).
330. Id. at 112-13.
331. See generally SHHIN ANZEN KYOKAI [CONSUMER PRODUCT SAFETY ASSOCIATION], SEIHIN ANZEN KYOKAI NO GAIYO [THE SYSTEM OF THE CONSUMER PRODUCT SAFETY ASSOCIATION] (1992).
332. Id. at 7.
333. Currently, 92 kinds of consumer products have SG Mark safety standards. Seihin Anzen Kyōkai [Consumer Product Safety Association], SG Mark Taishō Hinmoku Ichiran Hyō [List of Consumer Goods which Have SG Mark Standards] (1992) (internal publication, on file with author).
334. SEIHIN ANZEN KYOKAI, supra note 240, at 24. The maximum amount of compen-sation is 30,000,000 yen ($270,075; $1 - ¥l 11.08 in 1993). Id. at 7.
335. Id. at 13-14.
336. Id.
337. KEIZAI KIKAKU-CHO KOKUMIN SEIKATSU-KYO-KU SHŌHISHA GYOSH DAIICHI-KA [THE FIRST CONSUMER ADMINISTRATION OFFICE, SOCIAL POLICY DIVISION: ECONOMIC PLANING AGENCY], SEIZŌBUTSU SEKININ TO BAISHŌ RIKŌ KAKUHO [THE PRODUCT LIABILITY SYSTEM AND THE ASSURANCE OF COMPENSATION] 56 (1988). The fees are approximately less than 5/ 1000 of the price of a product. Id.
338. SEIHIN ANZEN KYŌKAI, supra note 240, at 10-12.
339. Seihin Anzen Kyōkai, supra note 242.
340. Seihin Anzen Kyōkai [Consumer Product Safety Association], SG Mark Seihin Jiko jyōkyō Baishō Sochi Jisshi Jyōkyō [The Number of Accidents Reported for SG Mark System and the Situation of Compensation] (1992) (internal publication, on file with author).
341. UPHAM, supra note 222, at 201.
342. Id. at 203-04.
343. Id. at 167-68.
344. Id. at 202.
345. Id. at 203.
346. Sterngold, supra note 226, at A3.
347. Id.
348. T. R. Reid, Japan's Top Party Loses Its Majority, WASH. POST, July 19, 1993, at A1.
349. Yasuhiro Tase, Real Rejorm Requires Stand Against Bureaucrats, NIKKEI WKLY., Aug. 16, 1993, at 2.
350. In June, 1994, the LDP regained power by forming a coalition with the Socialist Party. Andrew Pollack, A Startling Choice, Socialist's Leap to the Top in Japan Endangers Painfully Won Measures, N.Y. TIMES, June 30, 1994, at A10. However, the unstable political situation still continues in Japan. Id.
351. See Sterngold, supra note 226.
352. Id. Some experts predict that Japan will move in the direction of deregulation, independently of who takes power. Andrew Pollack, Japanese Premier's Fall Forces Shift by the U.S. at Trade Talks, N.Y. TIMES, June 26, 1994, at A1, A8.
353. See also Andrew Pollack, Japan Taking Steps on Deregulation, N.Y. TIMES, June 29, 1994, at D2.
354. Andrew Pollack, From Tumult, New Visions Of Japan Inc., N.Y. TIMES, June 22, 1993, at D1. This change has not been accomplished yet.
355. See also James Sterngold, The Men Who Really Run Fortress Japan, N.Y. TIMES, Apr. 10, 1994, at 1, for the characteristics of Japanese bureaucrats and their relationship with Japanese politicians.
356. Lawrence M. Fisher, Smaller Families Perhaps, But More To Buy, N.Y. TIMES, Dec. 8, 1991, at 10.
357. Id.
358. Among 29 advertisements placed by car dealers and manufacturers in Newsweek issues during October, 1993 (Oct. 3, 10, 17, 24, 31 issues), 18 mentioned an "airbag," and 15 of them referred to "dual" airbags, while only one out of 38 advertisements in the same magazine (Oct. 4,11, 18, 25, 1988 issues) five years earlier mentioned any type of airbag.
359. Jacqueline Mitchell, Without 2 Air Bags, Sales May Deflate, WALL ST. J., Oct. 12, 1993, at B1.
360. Barry Meier, How Safe Is Children's Sleepwear?, N.Y. TIMES, Aug. 18, 1990, at 50.
361. Id.
362. See supra notes 157-58 and accompanying text.
363. Barry Meier, Study Shows Air Bags Save Lives, but Says Seat Belts Are Needed Too, N.Y. TIMES, June 26, 1992, at A10.
364. Waldman, supra note 6, at 48. A lawyer in Los Angeles spent $70,000 to renovate his house after he discovered that his daughter had harmful levels of lead in her blood. Id.
365. SUSAN P. BAKER ET AL., THE INJURY FACT BOOK 313 (2d ed. 1992).
366. Id.
367. Id.
368. Diane Cabo Freniere, Comment, Private Causes of Action against Manufacturers of Lead-based Paint: A Response to the Lead Paint Manufacturers' Attempt to Limit Their Liability by Seeking Abrogation of Parental Immunity, 18 B.C. ENVTL. AFF. L. REV. 381, 409-410 (1991).
369. See supra note 96 and accompanying text.
370. For data limitation, see Appendix I.
371. See Takumi Anzai, Fires Prompt Call for Product Liability Law; Manufacturers Urged to Improve Safety Record, NIKKEI WKLY., Aug. 15, 1992, at 9.
372. Cohen & Martin, supra note 74, at 362 (quoting Robert H. Hayes of Harvard Business School).
373. Id.
374. John Holuha, Quality Woes Bedevil Detroit, N.Y. TIMES, Apr. 30, 1981, at D1.
375. Id.
376. Id.
377. Agis Salpukas, Quality Circles Aid Productivity, N.Y. TIMES, May 25,1981, at D1.
378. Cohen & Martin, supra note 74, at 362-63.
379. David E. Sanger, Another No.1 Rating to Japan, N.Y. TIMES, Aug. 25,1983, at D1.
380. YUKIHIRO SUGANO ET AL., CONCEPT NOTE 206, 208 (1991).
381. See supra note 278 and accompanying text.
382. According to a survey conducted for retail stores selling electrical household products, 35.8% of the stores incurred all or part of the product repair costs after a product's warranty period had expired. KOKUMIN SEIKATSU CENTER [THE JAPAN CONSUMER INFORMATION CENTER], KADEN HANBATTEN NI OKERU SHŌHISHA TAIŌ TO MAKER ENO YŌBŌ [RETAILERS' RESPONSE TO CONSUMER CLAIMS AND THEIR REQUEST TO MANUFACTURERS] 18-19 (1991). Among retail stores incurring the repair costs, 78.4% asked the product manufacturer for reimbursement.
383. Id. In such cases, 75.3% of the manufacturers reimbursed the entire costs.
384. Id.
385. See Ai Nakajima, Product Liability: How Tough a Law; Consumer Advocates Press for Endorsement in Planned Interim Report to Prime Minister, NIKKEI WKLY., Aug. 31, 1991, at 4.
386. Kokumin Seikatsu Center [Japan Consumer Information Center], supra note 289, at 13.
387. Id.
388. In response to the recent surge of the Japanese yen against the U.S. dollar, a deputy director of the price policy division at the Ministry of International Trade and Industry (MITI) stated that the surge presented an opportunity for U.S. companies to increase market share in Japan if they reduced prices.
389. Andrew Pollack, In Yen Windfall, U.S. Companies Prefer Profits, N.Y. TIMES, May 5,1993, at D1. American manufacturers claimed that price reductions would not increase market share because Japanese consumers focused on quality, not on price. Id.
390. Japanese executives, however, said that this notion of quality over price was outmoded, pointing to the recent success of American computer companies in increasing market share through lower prices. Id.
391. For a discussion of the new attitude of Japanese consumers toward inexpensive foreign-made goods, see Sterngold, Japan's Rat Race-A Special Report; Life in a Box: Japanese Question Fruits of Success, N.Y. TIMES, Jan. 2, 1994, at 1, 6.
392. Satoshi Isaka, TV Recalls Raise Questions on Safety Control. JAPAN ECON. J., Apr. 7, 1990, at 15.
393. See supra note 70. Until just recently, the value of the Japanese yen against the U.S. dollar was continuously increasing. In June, 1994, the U.S. dollar fell below 100 yen.
394. Peter Passell, The Battered Dollar: The Impact, a Primer on the Dollar: The Currency's Well-Publicized Decline Hasn't Meant Much for Most Americans, N.Y. TIMES, June 28, 1994, at A1.
395. On April 19, 1995, the U.S. dollar fell below 80 yen on the Tokyo foreign exchange market. Anthony Ramirez, Dollar Sets Lows vs. Yen and Mark, N.Y. TIMES, Apr. 19, 1995, at A1. Although the U.S. dollar has subsequently recovered above 100y, the uncertainty in the exchange rate still exists.
396. Andrew Pollack, Shock in a Land of Lifetime Jobs: 35 Managers Dismissed in Japan, N.Y. TIMES, Jan. 9, 1993, at 1.
397. Judgment of Feb. 4, 1975, Yokohama Chisai, 324 HANTA, at 270-71 (1975) (Japan).
398. See Judgment of October 20, 1983, Saikosai [Supreme Court], 1102 HANJI 48 (1983) (Japan).
399. See supra notes 173-79 and accompanying text.
400. Judgment of Feb. 4, 1975, Yokohama Chisai, 324 HANTA 268, 270 (1975) (Japan).
401. This information is based on a survey conducted for manufacturers participating in The Roles of Warnings and Instructions Program in Madison, WI, (Sept. 15-17, 1993).
402. See Appendix II.
403. Owen, supra note 148, at 35.
404. See generally CONFERENCE BOARD, THE PRODUCT SAFETY FUNCTION: ORGANIZATION AND OPERATIONS (1979).
405. See Appendix I. In the same survey, 68.2% of manufacturers responded that litigation fees were one of their most important concerns.
406. See note 22 and accompanying Table I.
407. AIU INSURANCE COMPANY, supra note 21, at 6. When this survey was conducted, the Japanese Product Liability Law had not been enacted.