Blaming: Harm Attribution in the United States and Japan

Abstract

Do Americans interpret accidents in a culturally distinct way? This Article addresses the possibility of an affirmative answer; such a tendency has significant implications for comparative law studies of accidents and the attribution of harm. Differences in how individuals perceive accidents can translate into differences in how legal systems relate to their underlying society.

This Article also reports the results of an empirical study designed to test the hypothesis that people understand accidents in culturally-inflected ways; this study was done as a preliminary effort to spark further discussion concerning harm, attribution and culture. Subjects in the United States and Japan reviewed a nonverbal cartoon illustrating an accident that could be attributed to multiple factors and then were presented with a second set of images illustrating those factors. Some of the factors were images of human actors, and were thus more immediately suggestive of human agency; others were images of machines, animals or conditions. Respondents were then asked to mark the images, if any, that they considered to be the factors to attribute the harm to. Results of the study were consistent with the hypothesis that Americans, in contrast to Japanese, were less likely to decide not to attribute harm to any particular cause, were less likely to attribute harm to the overall situation, and in some cases, more likely to attribute harm to a salient human action.

These findings suggest that a line of empirical inquiry may be relevant to debates on the comparatively high U.S. litigation rate. In particular, if U.S. attitudes towards causation, blame and liability tend to favor attributing harm to human action, then judicial resolution between plaintiffs and defendants may simply reflect U.S. attitudes. Additionally, the U.S. commitment to “adversarial legalism” may reinforce how Americans view accidents. As a result – and contrary to the claims of a generation of U.S. scholars on Japanese law – individual Americans may indeed be more “litigious” than their Japanese counterparts – if that term is redefined as the tendency to see things from the viewpoint of a potential litigant. With the caveat that further investigation is warranted, the divergence identified here should be taken into account in international and comparative law: these fields may be on a collision course with behavioral law and economics.

Keywords: comparative law, Japanese law, empirical legal studies, experimental studies of law, torts, law and society, law and economics

JEL Classification: K10, K13, K40, K30, K39