Passion, Exaggeration, and Importance: Comments on Japanese Industrial Policy and American Extraterritorial Antitrust

• Published date: 01 September 2003
• Date: 01 September 2003
• DOI: 10.1177/0003603X0304800304
• Subject Matter: Symposium: Global Antitrust Law and PolicyPart II: Competition Policy and Industrial Policy

The Antitrust Bulletin/Fall 2003

Passion, exaggeration, and

importance: comments on Japanese

industrial policy and American

extraterritorial antitrust

BY STEPHEN CALKlNS*

667

When Dean Thomas Sullivan asks, you accept. In part that's because

his has been such an extraordinary career; in part that's because he has

performed so many services for such a wide array

of

people; in part

that's simply because you've learned that it's useless to

try

to decline.

Accordingly, Iwasted no time in

agreeing-with

enthusiasm-to

participate in this conference.

My enthusiasm was dampened a little when the assignments were

handed out. Mine was to

comment

on

works

by giants. No one

outside Japan knows more than Professor

Mark

Ramseyer about

Japanese competition policy (and much more, besides), and his article

was co-authored

by

distinguished University

of

Tokyo Professor

Yoshiro Miwa. No

one

anywhere

knows

more

about

American

antitrust law than Professor Herbert Hovenkamp.

The two articles' written by these three formidable authors on

*Professor of Law, Wayne State University Law School.

AUTHOR'S NOTE: Thanks go especially to professors Hovenkamp

and

Ramseyer, who so graciously received my comments at the conference

honoring Dean Sullivan at which this was presented.

Herbert Hovenkamp,

Antitrust

as Extraterritorial Regulatory

Policy, in this issue

of

The Antitrust Bulletin; Yoshiro Miwa &J. Mark

© 2003 by Federal Legal Publications, Inc.

668

The antitrust bulletin

which I was to

comment-comparing

and

contrasting-gave

further

pause. The articles are among the more seemingly disparate articles

ever

paired

in a program. One pure Japan; one pure U.S. (more

specifically, extraterritorial U.S.).

In fact, however, the articles are surprisingly similar. Both sound

passionate

calls;

both

are perhaps alittle exaggerated;

both

are

nonetheless important. This commentary develops these points and

briefly reflects on some

of

the intriguing implications that can be

drawn from the articles.

I.

Sounding passionate calls

Miwa

and

Ramseyer's

article is the quintessential academic

"Emperor

Has

No Clothes" story. It can be quickly summarized:

everything you thought you knew about Japan is wrong.

Analyzing another country's legal or economic system is always a

little intimidating. It is perhaps even more intimidating to appraise

someone

else's

analysis of another country--especially when that

someone (or those someones). unlike you, speak the native language.

(Any uneasiness on this score is not relieved by the authors' earnest

recommendation that readers seeking truly to understand the situation

should

consult

their

forthcoming

book

in Japanese on Japanese

economic regulation.')

Normally, refuge can be taken in secondary sources. Others have

ploughed almost every vineyard, and comfort can be found there.

But

Miwa

and

Ramseyer do not overlook the leading secondary

sources. They do not give those sources short shrift. To the contrary,

Miwa

and

Ramseyer

cite

and

even

quote

from

the

leading

authorities, one after another, and, having done so, proceed to set

about demolishing each claimed authority. At one point, Miwa and

Ramseyer

describe

the views

of

Professor Paul Krugman about

Japanese businesses as "bizarre,"

and

"assume our readers agree"

Ramseyer,

Capitalist

Politicans, Socialist Bureaucrats? Legends

of

Government Planning From Japan, in this issue of The Antitrust Bulletin.

2Miwa &Ramseyer,supra note 1, text at note 6.