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Measuring Judicial Independence: the Political Economy of Judging in Japan

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By Eric Rasmusen

University of Chicago Press

Copyright © 2003 Eric Rasmusen
All right reserved.
ISBN: 0226703886

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1 - The Setting

In the aftermath of 1968, leftists and centrists traded a wide variety of insults over the courts. To unravel what actually happened, we turn first to the courts' institutional structure. We then ask how that structure affects judicial outcomes. In chapters 2-4, we explore the effect of structure on outcome in disputes stemming (in part) from the 1960s chaos. In chapters 5 and 6, we explore that relation in disputes that have arisen since. In this chapter, we first outline the organization of the courts and the personnel structure within it (section I). We discuss the implications of the theory of public choice for why Japanese politicians might choose to manipulate judicial incentives (section II.A). Finally, we recount some of the tales told by the Left about politically biased judicial incentives (section II.B).

I. The Career Judiciary

A. Court Structure

Japan maintains one national court system and no prefectural (i.e., state) courts. It has eight High Courts and a widely dispersed array of District and Family Courts (Courts Act, §§ 2, 15-52; Family Courts deal with disputes such as contested divorces). Attached to these courts are branch offices. About twothousand judges work within this system. Another eight hundred serve in Summary Courts (i.e., small claims courts). As the latter judges face less stringent hiring criteria and are not part of the career judiciary, we will not discuss them further. The Supreme Court has fifteen justices, appointed differently from other judges, as we detail in subsection G.

Judges in the lower courts face mandatory retirement at age sixty-five (Courts Act, § 50). Formally, they serve a series of ten-year terms (Courts Act, § 40). In practice, they work continuously. Only twice since World War II has the Cabinet formally refused to reappoint a judge at the end of a ten-year term. Of those two, claim critics, one was denied reappointment because of his liberal politics (a debate detailed in section II.B.3). The other was turned down shortly after he refused to accept a transfer to a court in another city (subsection D.1). Critics do argue that several judges have resigned in anticipation of not being reappointed (subsection II.B.3).

Note three additional points. First, Japanese courts do not use juries. All trials are bench trials, the judges deciding questions of fact as well as questions of law. Second, most trials are conducted by three-judge panels. Routine non-serious criminal trials are the exception. Third, lower-court opinions (though not Supreme Court ones) are signed by the entire panel. Even if a judge dissents, he does not publicly disclose that fact.

B. Education

A would-be judge begins his legal education while still a college undergraduate. Usually, he majors in law. During his last year, he takes the entrance exam to the one national law school, the Legal Research and Training Institute (LRTI). Until its recent expansion, the LRTI admitted only about five hundred students each year. A would-be judge passed the entrance exam on his first try if he was very lucky or very smart. Not many did. Given that the pass rate usually ranged from 1 to 4 percent, a rate that included not just first-time test-takers but those who had tried repeatedly, he more likely flunked. He then retook the exam once a year until he passed it four or five years later or despaired and chose a different career.

Students stay at the LRTI for two years (recently cut to one and a half years). There they attend lectures on legal practice and serve clinical assignments at various private and public offices. Toward the end of their stay, they select a career. Most became lawyers in private practice. Some apply to become prosecutors. Still others apply to become judges. Traditionally, the courts have included a disproportionate number of students from the top of the class, but because of the increase in the financial returns to international corporate practice in recent years the best have tended to join the bar.

C. Hiring Practices

Formally, the Cabinet chooses which judges to appoint to the lower courts (Courts Act, § 40). Typically, it delegates that power to the Supreme Court Secretariat, the administrative office of the courts. The Secretariat in turn hires almost all LRTI graduates who apply to be a judge. From time to time, defenders of the courts cited this administrative delegation as evidence that the Cabinet does not try to influence the courts. From time to time, they cited the Secretariat's willingness to hire all comers as evidence of political openness. Would that it were so simple.

That the Cabinet did not intervene might indeed reflect judicial independence. But there are other possibilities. First, the Cabinet's acquiescence in the decisions of the Secretariat might just reflect the fact that it could veto appointees with heterodox political views; that the Secretariat knew the Cabinet could veto such appointees; and that the Secretariat therefore maintained personnel policies that tracked the preferences of the long-time ruling Liberal Democratic Party (LDP).

Second, that the Secretariat accepted most applicants and appointed them as judges could reflect the effect that a politically biased set of career incentives had on the quality of those who applied. Suppose the Secretariat did penalize judges who indulged their leftist preferences (the issue at the heart of this book), and everyone knew that. If so, leftist LRTI graduates would disproportionately have opted to work in the private sector. Disproportionately, those who applied would have been those who shared LDP preferences.

The problem, which we revisit in more detail in section II.A, is that in equilibrium a completely independent court looks very much like a completely dependent one. The differences show up mainly when people make mistakes. If the Secretariat appointed a few troublesome judges, for example, the Cabinet might limit its discretion; if left-wing judges started promoting communist policies in court, the Secretariat might begin screening applicants more rigorously.

The problem has bedeviled students of corporate governance and government bureaucracies for years. If shareholders rarely intervene in corporate affairs, can corporate officers do as they please, running the business for their own purposes rather than to make profits for the shareholders? Or do those officers, because they know they could be fired if shareholders were to intervene or to sell to a hostile bidder, maximize profits to forestall the loss of their jobs? From several decades of work in finance, we now know that the answer is the latter: both in the United States and in Japan, corporate officers largely promote shareholder interests (on Japan, see Kaplan 1994; Kaplan and Minton 1994; Kaplan and Ramseyer 1996).

Similarly, if politicians rarely intervene in a government bureaucracy, is that because bureaucrats can do as they please? Or do bureaucrats, knowing the incumbent politicians could intervene at any time, implement policies that promote the reelection of incumbents? From several decades of work in political science, we now know that here too it is the latter: both in the United States and in Japan, bureaucrats largely promote the interests of key politicians (on Japan, see McCubbins and Noble 1995; McCubbins and Thies 1997; Ramseyer and Rosenbluth 1997).

Our question is whether judges similarly answer to the Cabinet. Untangling this could be tricky. Ask a judge and he will likely reply, "Of course we're independent." But he might add, "We carefully protect that independence. Whenever we're tempted to do something the Cabinet wouldn't like, we restrain ourselves. By avoiding asserting our personal views, we maintain our independence." Or, if leftists have disproportionately opted for jobs in the private sector, the issue would seldom even arise: disproportionately, the people who chose to become judges would have been those who shared LDP views anyway.

D. Postings

1. Incentive Structures

The crucial institutional incentive in the Japanese judicial structure is not the renewal of ten-year terms, a decidedly blunt and public instrument. Rather, it is the triannual transfer. About every three years, the Secretariat moves judges around the country and up and down the judicial hierarchy. To track those moves, we use the Zen saibankan keireki soran (the ZSKS, which details all posts held by all judges educated since World War II; unless otherwise noted, we rely on this volume for all judicial career data in this book). Table 1.1 shows the possible appointments a judge might face. When he joins the judiciary, the Secretariat names him to a specific court for two or three years. At the end of that term, it moves him to another. Some cities (such as Tokyo) are more desirable than others (see subsection 3 below), just as some duties (such as a Secretariat posting; see subsection 4) are more prestigious than others (such as branch office assignments; see subsection 2). As a result, by controlling these periodic assignments, potentially the Secretariat could reward and punish judges based on their performance, their politics, or whatever else it might care about.

Nominally, a judge can refuse any posting he dislikes. In fact, he refuses at his peril. By 1969, Judge Shigeharu Hasegawa had worked in Hiroshima for seventeen years. The Secretariat then assigned him to an out-of-town position, formally a promotion. Hasegawa, however, had a sick wife and did not want it. He declined the promotion, and when the time came for his next ten-year appointment he found himself out of work (Ramseyer and Rosenbluth 1997: 156).

2. Branch Offices

Almost uniformly, judges consider branch office assignments the worst posts in the system. In part this is a function of geography, since the branch offices tend to be in smaller cities. In part, it is a function of prestige, since they tend to be considered less important.

Despised as branch offices may be, even most successful judges usually spend some time there. In table 1.2 below we give the number of years as of 1990 spent in branch offices for all judges who began their careers in 1965. Most spend at least at least one three-year stint in branch offices; a few spend more than half their career there.

3. Geography

Like most Japanese professionals, judges generally prefer to work in Tokyo if possible and in one of the other metropolitan centers if not. This is a preference American readers often find hard to understand. To many Americans in Japan, Tokyo is the last place they want to be. An over-priced Manhattan, it seems the least interesting place in the country. Far better, they reason, to live in exotic shrine cities like Izumo or luscious mountain villages like Takachiho.

Japanese professionals are not looking for ancient architecture or scenic beauty, however, and judges are the quintessential fast-track professionals. For the sake of their careers, most Japanese professionals want to be near the hub of the system, and Tokyo is the ultimate hub. It houses not just the central government, but the headquarters for the incumbent and opposition political parties, the media, and most of the major corporations.

For their children's sake, Japanese judges want the best schools. As educationally obsessed as professionals anywhere--especially those who have entered their profession via one of the most restrictive merit examinations in the country--they want their children in the most selective schools. Tokyo contains not just the famed University of Tokyo (attended by one-sixth of the judges), but at least one other top-five national university, most of the best private universities, and most of the best preparatory schools. For exactly those reasons, when assigned to courts in smaller cities many judges (like their peers in business) leave their families in Tokyo and spend the workweek alone. Whether a judge favors career or family, in other words, he will likely to want to be in Tokyo, and if not in Tokyo at least in some other large city.

4. Administrative Duties

Some posts involve prestigious administrative duties. The most successful judges eventually become one of eight High Court presidents. Modestly successful ones become District or Family Court chief judges. Almost all judges spend some time as a district judge with internal personnel responsibilities (a sokatsu assignment), and a few judges work several years in the Secretariat or the Ministry of Justice. The Secretariat itself selects the judges who staff it, and apparently negotiates the Ministry of Justice postings with the ministry's own personnel office. Visibility and influence do not completely overlap: a staff position within the Secretariat can be highly influential, even if less visible than a seat on a High Court.

5. Pay

Can the Secretariat manipulate judicial pay? Although it cannot lower a judge's salary (Constitution, Art. 79), it can vary the pace at which it promotes judges up the salary scale. Pay data is not public, but place on the pay scale does correlate with some observable indices--notably, sokatsu assignments. We explore this issue in chapter 2, section II.

E. University Cliques

Critics argue that the courts have long been under the control of a clique of University of Tokyo and University of Kyoto graduates, a charge they routinely make of the elite bureaucracies as well. These graduates, they claim, dominate the personnel office in the Secretariat and manipulate it in ways that let them look out for their own. They route the best jobs to younger alumni from their schools, and promote them more quickly than anyone else.

The Universities of Tokyo and Kyoto do supply the largest number of judges. Of all judges hired from 1961 to 1965, 16 percent were from the University of Tokyo and 19 percent from the University of Kyoto (see table 3.2). The problem, of course, is that the Universities of Tokyo and Kyoto graduates are also disproportionately the most able. These are the schools with the most selective entrance examinations. Overall, University of Tokyo and Kyoto alumni routinely score among the highest in the LRTI entrance examinations (passage rates of 8.2 and 7.8, respectively, in 1995, compared to the overall average of 3.0; Ramseyer and Nakazato 1999: 7-8), and among judges the Tokyo and Kyoto alumni tend to fail the exam the fewest times (table 2.7, regression C). Inconvenient as the fact may be for some populist academics, exam performance does correlate with intelligence and hard work--and both qualities matter crucially to professional success. The old school tie might still matter, but merely looking at the numbers appointed from the old school tells us nothing about it if the old school is a selective old school.

F. Tracking

The Secretariat does not assign new hires randomly to their first postings. Instead, it distinguishes among the new recruits and posts those judges it believes most talented to the Tokyo District Court. During their career, these fast-track judges will rotate out of Tokyo and serve some time in less desirable posts--recall that most judges do spend time in branch offices at some point in their careers. In general, however, fast-track judges will spend less time in branch offices, spend more time in Tokyo and other metropolitan areas, and earn higher pay (as we show in various regressions in later chapters).

To illustrate the career track, see table 1.2, which compares fast-track and ordinary judges on several dimensions. For the sample of fast-track judges, we take all judges in the ZSKS who had by 1990 obtained postings either to the Supreme Court or to High Court presidencies. For the sample of ordinary judges, we take all judges hired in 1965 who had not retired or left the judiciary before 1990.



Continues...

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Excerpted from Measuring Judicial Independence: the Political Economy of Judging in Japan by Eric Rasmusen Copyright © 2003 by Eric Rasmusen. Excerpted by permission.
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