The case for managed judges: learning from Japan after the political upheaval of 1993.

• Author: Ramseyer, J. Mark
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

The Chief Justice of the United States supervises a vast judicial bureaucracy. He is the titular head of the judicial branch: 1200 judges with life tenure, 850 magistrate and bankruptcy judges, and 30,000 administrative staff members. The careers he can affect most are those of his administrative employees. Even the life-tenured judges, however, he can appoint to specialized judicial bodies. In doing all this, he supervises the Federal Judicial Conference with a budget of $5.4 billion. (1)

If the Chief Justice of the United States does much, his counterpart in Japan does much more. Not only does the Japanese Chief Justice supervise administrative employees, he also supervises the judicial personnel office called the Secretariat. In turn, the judges in the Secretariat control the jobs of the 3000 other national judges who decide cases. (2) The American Chief Justice does not tell lower-court judges where to sit. (3) Through the Secretariat, however, the Japanese Chief Justice does. The American Chief Justice does not decide how much the lower-court judges earn. Through the Secretariat, the Japanese Chief Justice does. Effectively, the Japanese Chief Justice exercises power over the career of every lower-court judge. All this he does as an appointee of a distinctly political Prime Minister.

This is not an institutional structure likely to foster judicial independence. Nor, over the four decades during which the Liberal Democratic Party (LDP) was in power, did the Party care to foster independence. Instead, the Chief Justices supervised the courts in ways that furthered the electoral interests of the LDP. Over time, litigants allied with opposition parties filed a variety of politically sensitive legal challenges. When judges decided cases along the lines the opposition wanted, they tended to suffer in their career.

The LDP temporarily lost power in 1993, and politicians from other parties took control. Although the LDP reclaimed the government in 1996, it had lost its electoral lock and now needed to consider the possibility that it might again find itself in the opposition. Throughout the ensuing instability, however, the courts retained their tightly controlled, conservative structure. Smarter and harderworking judges did better than the (relatively) dull and indolent. Those who served as loyal "organization men" did better than renegades who had allied themselves with the Left.

Both in Japan and in the United States, university professors and bar activists routinely express dismay at court systems so susceptible to control from the top. Yet their dismay misses much of the point. In Japan, these incentives place judges within a brutally competitive internal labor market. Through the resulting incentives, the Chief Justice effectively imposes on the judges stringent, uniform standards. That uniformity, in turn, enables potential litigants to settle their disputes out of court by using the expected litigated outcome as a guide to settlement.

Through its "managed judges," in other words, Japan maintains a system that lets people resolve their disputes by uniform and predictable legal standards. The standards remain uniform and predictable because the judges who impose them have far more incentives than American judges to keep them that way. That predictability, in turn, creates less need for lawyers to discover and argue the law and lets people in Japan use law and courts with far fewer lawyers than people in the United States. Through these incentives, in short, Japan has slashed the transaction costs that American lawyers, juries, and judges magnify so remorselessly.

The political costs to Japan of having "managed judges" are trivial. The vast majority of court cases involve no issues of political moment. Whether in Japan or in the United States, most legal disputes instead concern such things as traffic accidents and debt collection. What is more, before 1993, the LDP was the majority party. Thus, even in those rare political cases when judges furthered LDP electoral interests, usually the judges just gave Japanese voters what they wanted from their government.

In this Article, we detail the structure of the Japanese courts and use statistical analysis to see if the promotion structure changed after the LDP lost power in 1993. We start, in Part I.A, by laying out the institutional structure and explaining where political influence did or did not enter into the judiciary before 1993. We then describe, in Part I.B, the events of 1993 and how they might have affected the behavior of the courts. Next, in Part I.C, we look quantitatively at both the Supreme Court and the lower courts to see what actually happened after 1993. We conclude, in Part II, with a summary and fuller discussion--necessarily more speculative than the rest of the paper--of the advantages and disadvantages of the Japanese system of managed judges.

1. STRUCTURE AND IMPLEMENTATION

   A. The Pre-1993 Tradition (4)

   1. Institutional Structure

      1. The Secretariat

         At the apex of the Japanese judiciary stands the Chief Justice of the fifteen-member Supreme Court. Appointed by the Prime Minister, he participates in judicial decision making. He also presides over the Judicial Conference, which includes meetings of the justices of the Supreme Court on matters of rulemaking and judicial administration. And he runs the court's administrative office, the Secretariat.

         In administering the Secretariat, the Chief Justice runs an institution he knows well, especially compared to most of his fellow justices. From 1973 to 2003, a plurality of the eighty-two Supreme Court appointees had been career judges before joining the Court, but a majority had not. During the same period, every Chief Justice had been a career lower-court judge. Of the five Chief Justices appointed since 1983 (we lack career data on the earlier justices), each had worked in the Secretariat himself while a lower-court judge. Three of the five had even headed it as the Secretary General. (7) If we look beyond just the Chief Justice to all twenty post-1983 justices appointed from the lower courts, we find seven who had earlier served as Secretary General of the Secretariat, and another nine who had worked there in other capacities. Only four had never worked in the Secretariat. (8)

         Justices appointed from positions outside the court system would, of course, lack such experience and therefore have less power over the careers of lower-court judges. These include university professors, prosecutors, lawyers in private practice, and twelve bureaucrats. Of the last group, five had headed the Cabinet Legislation Bureau, five were former diplomats, one came from the ministry of Labor, and one from Health and Welfare. (9)

         Like other Supreme Court justices, the Chief Justice serves until mandatory retirement at age seventy. (10) In theory, voters can recall him and his Supreme Court colleagues at a general parliamentary election. In practice, they do not, and have never even come close. (11) The justices' jobs are secure.

         Not so the jobs of lower-court judges. To Japanese judges, the Secretariat represents what the Vatican is to ambitious Catholic priests: the ultimate locus of control over their careers. Japanese judges join the court young. Rather than being appointed in mid-career as in the United States, they join fight after completing their legal training at the national law school, the Legal Research and Training Institute (LRTI). Because for years the Institute entrance exam had a one to three percent pass rate (it is higher today), most judges flunked it several times before starting the LRTI. (12) As a result, by the time they joined the court, most were in their late twenties.

         Lower-court judges serve a series of ten-year terms. Although the Secretariat can choose not to reappoint them at the end of each term, it almost invariably does. Judges face mandatory retirement at age sixty-five, but most retire at about sixty. (14)

         Judges sit where the Secretariat tells them to sit. Ostensibly to train the young judges, to avoid corruption, and to equalize the quality of provincial courts, the Secretariat moves judges from post to post at regular intervals, typically of three years. These moves can be, and often are, from one end of Japan to the other, and from trial courts to appellate courts and back again. The Secretariat also decides lower-court judges' pay via promotions. Although the Constitution does protect judges against pay cuts, it does not promise them pay raises. Judicial salaries range widely, and the Secretariat decides how fast a judge's salary climbs the scale. (15)

         The Supreme Court also differs from lower courts in how readily the heterodox can express their views. By law, each Supreme Court justice must give his own opinion in a Supreme Court case. (16) Hence, published cases include dissenting opinions as well as majority opinions and dissenting votes. In the lower courts, dissenting judges on a panel do not publish separate opinions. They therefore cannot try to express their views and modify the law by the eloquent presentation of their arguments.

      2. The Hierarchy of Posts

         Not all posts are created equal. Usually, a judge wants a job in one of the major metropolitan areas, and in Tokyo if possible. American visitors may delight in the mountain towns and seaside villages of the Japanese countryside, but ambitious Japanese professionals stick to Tokyo. Tokyo houses the national government, as well as the Supreme Court and the Secretariat. It represents the locus of the opposition parties and contains most of the professional, civic, and nonprofit organizations. It houses the headquarters of most large corporations. It is the site of the best universities. And crucially for professionals with families, it has most of the best preparatory schools.

         Judges also want judgeships with administrative power. After about twenty-two years, they can expect a "sokatsu" posting--a...