From the substance to the shadow: the role of the court in Japanese labour markets

Abstract Modern contract law generally does not allow property rights or similar claims to be made against employees. This undermines a claim on the return on the employer’s investments in recruiting and training a worker, making them vulnerable to possible infringement from a bystander. Accordingly, employers’ investment in recruiting and training might become deficient. Therefore, protecting an employer’s investment, balanced against the mobility of the labour market for better employer/employee matches, has emerged as an issue during the transition towards a market-based economy. This article explores how the Japanese state court in its early period addressed this issue in the tight labour market of the silk-reeling industry, which was the leading industry at that time. Initially, the court directly protected the interests of employers whose employees were poached, at the expense of workers’ mobility. Then, it seemed to govern transactions between employers indirectly as a shadow off-the-equilibrium path. Thus, an employer whose employee was poached and an employer who carried out the poaching would privately negotiate to settle the dispute, using a possible suit as a threat against the poacher. An examination of the suits that were actually filed supports this hypothesis. This indirect governance facilitated labour market mobility with some protection of the original employer’s claim.