"Chosakan": research judges toiling at the stone fortress.

• Author: Kamiya, Masako
• Position: Symposium: Decision Making on the Japanese Supreme Court

1. INTRODUCTION

   We know that they are there, but, unlike law clerks at the United States Supreme Court, (1) not much has been written (2) about our "courtiers" (3) to the Supreme Court of Japan: saiko saibansho chosakan.

   To avoid confusion and to indicate who they really are, "saiko saibansho chosakan' should be translated as "research judges at the Supreme Court." According to Article 57 of the Judiciary Act of 1947:

   (1) "Chosakan" will be assigned to the Supreme Court, high courts, and district courts.

   (2) "Chosakan" will engage in research necessary for trial and adjudication of a case as instructed by judges (at district court level, "chosakan" will only deal with intellectual properties and tax cases), and other matters provided in other laws. (4)

   In 2010, there were thirty-seven research judges (5) working at the Supreme Court. These are judges with at least ten years' experience, some with over twenty years' experience at ordinary law courts (i.e., trial or appellate experience), who are assigned by the Supreme Court to this position. They are distinctively different from other "chosakans" at various other courts mentioned in Article 57 who are not necessarily, and usually not, judges. They are definitely not freshly graduated law school students recruited by Justices themselves. Yet, they appear to perform functions at the court similar to those performed by American law clerks--or do they?

   One of the supplementary provisions to Article 57 further provides that the Supreme Court will assign, whenever necessary, judges and prosecutors as "shiho kenshujo kyokan" instructors at the Legal Research and Training Institute (LRTI), and judges as "chosakan," for the time being. (6)

   Justice Kitagawa indicates the possibility that the American law clerk system might have had some influence upon the initial plan to establish "chosakan" because, in the first draft, "chosakan" would have been appointed either from court clerks and those eligible as clerks or from those who passed the National Bar Examination (7) but have not been to the LRTI and are therefore not properly qualified as lawyers. (8) In the end, "chosakan" as provided for in the Act were placed in the category equivalent to judges, and the supplementary provision outlined above was added in 1949, justifying appointments of judges as "chosakan." (9) In 1951, the clause referring to those who passed the National Bar Examination was deleted. (10) In spite of several changes in the statutory language, in reality, research judges have been with the Court since the beginning, and they have always been judges.

   The fact that research judges have always been recruited from younger judges appears to support Hiroshi Itoh's theory that the history of research judges goes back to the practice at the Great Court of Cassation, the highest court under the 1889 Constitution, not to the American law clerk system. (11) Itoh states that when a young judge at the beginning of his career sat to the left side of a presiding judge, he "assumed ... the task of reviewing a lower court's handling of facts and law in an appeal" under the supervision of the senior judge. (12) In those days, the Great Court of Cassation consisted of forty-five judges, in comparison to about thirty research judges assisting fifteen Justices today.

   The fact that the Supreme Court was newly established in 1947 with a different mandate makes Justice Kitagawa's view based upon statutory evidence more persuasive, although, in deciding details such as the number of research judges to be assigned, prewar experience, as Itoh suggested, might have had some influence.

2. RESEARCH JUDGE SYSTEM AND HOW IT WORKS

   The current Supreme Court Rule (SCR) No. 8 concerning the chief research judge and others (13) dates from December 2, 1968. There are thirty-seven "research judges" at the moment. (14) one chief research judge, or "shuseki chosakan," (15) is responsible for all matters concerning "research judges at the Supreme Court." (16) Three senior research judges, or "joseki chosakans" (17) under the direction of the chief research judge, will manage matters concerning research judges at the Supreme Court. (18) The other thirty-three (19) are assigned to three chambers: minji (civil), keiji (criminal), and gyosei (administrative). Each of the three senior research judges mentioned above is in charge of one of the three chambers. (20) There are three rooms in the civil chamber, one in the administrative chamber, and three in the criminal chamber.

   Because they are judges, and because they are part of Japanese career judiciary, these research judges are assigned to the present positions by the Supreme Court. Nominally, they belong either to Tokyo District or High Court while serving as research judges and will be relocated to high courts or to district courts as ordinary judges after spending four to five years at one of these chambers. (21) This means that nine or ten judges are appointed as new research judges every year, making the annual turnover rate high. A few have had the chance to serve as research judges twice in their entire career as a judge.

   Theoretically, the Judicial Conference, consisting of all Justices of the Supreme Court, is the ultimate organization to determine all administrative matters pertaining to the Judiciary, including hiring and assigning judges to courts all over Japan. (22) According to the black-letter law, it is the Supreme Court who appoints research judges to their positions. (23) Having said this, I must emphasize that Justices admit that proposals, be it on personnel, budgetary, or even SCR and other rules coming from the Secretariat, are invariably ratified without any amendment at the conference. (24) In reality, Justices do not decide personally who will be chosen as research judges to help them. (25) The Secretariat, whose members are invariably judges of high caliber, exercises the power to assign all judges to their individual positions, including those at the Secretariat and research judges. (26) In early years, one young judge was audacious enough to refuse to promise that he would accept any assignment after spending three years at Koriyama. (27) I have not heard of another case in which a judge refused to be relocated, but then, the judge has the choice of leaving the judiciary to practice or teach if she does not want to go to wherever she will be assigned. (28)

   A very rough estimate by one of the senior research judges whom I interviewed is that about eighty percent of present research judges have had their "year abroad" experience, mostly in the United States, Germany, France, and the united Kingdom. In other words, they are a select few who are relatively familiar with foreign legal systems, legal trends, and new theories.

   1. The Tasks

      In his paper discussing research judges, the future Justice Kitagawa indicated that they are there to "conduct the research necessary for trial and adjudication of a case as instructed by" (29) the Justices, to provide their opinions if necessary, and to attend the Justices' conferences. (30)

      According to Judge Kurata, (31) who was a research judge from 1959 to 1963, research judges write case memoranda (and present that report to a Justice in charge of that case), attend Justices' conferences whenever asked, (32) help Justices select judgments to be published as "hanrei" or precedents of the Supreme Court in the narrowest sense of the word, and write case notes known as "chosakan kaisetsu." Five decades later, current research judges confirm during interviews that they continue to perform the same tasks that Judge Kurata mentioned.

      1. Case Assignment and Research

         The Supreme Court Manual on arrangements concerning chambers (33) defines "civil" as all matters of civil dispute, excluding those matters assigned to the "administrative" chamber and including matters concerning industrial properties; (34) "criminal" as all criminal cases; and "administrative" as all administrative cases, civil labor disputes, and civil cases listed in article 45, Section 1 of the Administrative Litigation Act. (35) Senior civil and administrative research judges may, after consultation, assign civil and administrative cases pertaining to industrial properties, civil cases whose outcome will be greatly affected by interpretation and application of administrative law, and other cases deemed appropriate for administrative research judges to conduct research. The Manual also mentions collaborative research by providing that such research shall be conducted whenever a Justice in charge of a case designates collaborative research for the case, or the chief research judge deems it appropriate for several research judges, either within one chamber or among two or more chambers, to conduct research together. (36) Having said this, it has been the practice to classify cases being appealed to the Supreme Court into the above-mentioned three categories--civil, criminal, and administrative--as they are filed and then allocate them mechanically within the three chambers.

         The practice has been for a research judge to start the research as soon as she is assigned her case (without waiting for some instruction from a Justice assigned to the case). (37) The research shall cover the applicable statutes (i.e., the text), legislative history (including legislative facts), important court decisions interpreting the statute (particularly whether there are relevant precedents by the Court), influential academic theories, practice, and foreign statutes, cases, and theories whenever relevant. These materials are distilled into a short memorandum to the Justice who is assigned the case. She is often called the presiding Justice for the case.

         For a research judge, it is important to write that memorandum in a form useful to the presiding Justice. Thus, she states the facts and issues and explains what law should be applicable and why, based on the materials she had gone...