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\begin{LARGE}

\newpage
\begin{center}THE SUPREME COURT 
\end{center}



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

	Like other Supreme Court justices, the Chief Justice serves until
mandatory retirement at age 70.

 Voters  can recall him and his Supreme Court colleagues at a general
parliamentary election
 

	   From 1973 to 2003, a plurality of the 82 Supreme Court appointees had
been career judges before joining the Court.

 All Chief Justices had been career lower-court judges. 

 Since 1983 all CJ's   had worked in the Secretariat  
  Three of the five  were   Secretary General. 

Of the     20 post-1983 justices appointed from the lower courts,   7   served
as Secretary,   and another 9 had worked there in other capacities.
    Only 4 had never worked at the organization. 
	 
 
\newpage
\begin{center}THE LOWER COURTS
\end{center}


  Japanese judges join the judiciary right after completing their legal training
at the national law school, the Legal Research \& Training Institute (LRTI).

 Because for years the Institute imposed an entrance exam with a 1-3 percent
pass rate (it is higher today), most judges flunked it several times before
starting the LRTI.     As a result, by the time they joined the court most were
in their late 20s.

	Lower-court judges serve a series of 10-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 65, but most retire at
about 60

	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.

   Judicial salaries range widely, and the Secretariat decides how fast they
climb the scale.

	 Supreme Court decisions publish dissents, but not lower court
decisions.


\newpage
\begin{center} POST STATUS
\end{center}



1. Location--Tokyo


  	  2. Leadership: Sokatsu, 
  District Court Chief Judge.    Chief Judge of one of the seven High Courts  

3. Type of Court: Avoid: Summary Courts, Branch Offices, Family Courts
   
4.  Non-Judicial Jobs: The Secretariat, Justice Department, LRTI. 
    
 \bigskip
 
\begin{center}OUR FINDINGS: NONPOLITICAL VARIABLES
 
\end{center}


	  
First, the Secretariat favored judges from the most selective universities 

	Second, the Secretariat favored the judges who passed the entrance
examination to the LRTI most quickly

	Third, judges who did well early in their careers tended to do well
later.

	Fourth,   judges who published the most opinions tended to obtain better
jobs.

   Fifth, men seem to have climbed the pay scale (sokatsu) more quickly than
women.


\newpage
\begin{center} POLITICS
\end{center}



   The Prime Minister appoints the Chief Justice.

   The Chief Justice supervises the Secretary General. 
 The Secretary General runs the Secretariat.

  The Secretariat decides which judges obtain the best jobs and quickest raises. 

An important fact: The LDP controlled Parliament for a long time and expected to
continue to control it.
  
	 
 
	Thus, the LDP wanted two things from the courts:

1.	For judges to keep their political views to themselves and out of their
opinions

   2.For   judges to refrain from invoking the Constitution when the
Constitution would offend the LDP.

 

\newpage
\begin{center}  TESTS FOR POLITICAL VARIABLES
\end{center}



   Using multivariate regressions, we consistently found that those judges who
decided the cases in the way that LDP leaders wanted obtained better jobs in the
decade after the decision than those judges who flouted those preferences.

--redistricting, door-to-door canvassing, the Self-Defense Force, U.S. military
bases.

--injunctions against the national government (contrast with against local
governments)

-- Tax cases and criminal cases 


	  The several hundred judges who, in the 1960s, joined the left-leaning
Young Jurists League (YJL)  suffered in their careers.  All else equal, they
obtained less attractive positions than their peers.  Concomittantly, they
earned pay raises more slowly than those peers.


\newpage
\begin{center} POLITICAL HISTORY
\end{center}



1955-1993: LDP rule

1988: National sales tax. Loss of upper house by LDP. 

1993: No-Confidence Vote, Election lost by LDP

August 1993: Eight-party coalition, Morihiro  Hosokawa, Ichiro Ozawa.  

January 1994: End of multi-member constituencies. Move to 300 single-members,
200 regional proportional reps.

April 1994: Hosokawa resigns. Hata is PM  for two months. 


 June 1994 - January 1996: Tomiichi Murayama, Socialist, in coalition with LDP  


1996-2005:  Hashimoto,     Obuchi, Mori, Koizumi 


 2005:  LDP split,  big  LDP election victory


\newpage
\begin{center}AN ALTERNATING PARTIES THEORY OF JUDICIAL INDEPENDENCE
\end{center}

   

\begin{verbatim}

                                Opposition

             Managed judges         5,0

Incumbent 

             Independent judges     4,3

\end{verbatim}



If the LDP and Left play this indefinitely, and the LDP is always in power (or
has a high enough probability of being in power in any given period), it will
always choose Managed.



If the LDP and Left play this indefinitely and have a 50% chance of switching
each period,  one equilibrium is to always choose MANAGED.
Another is to choose INDEPENDENT unless the other player has chosen MANAGED in
some previous period.

  
\newpage
\begin{center}CHANGES AFTER 1993
\end{center}



1. LDP did not have as high a probability of winning.

2. Leftwing parties had a share in power. 

3. Coalitions, instead of one party ruling
	   
 \bigskip

\noindent
  The effect of having long-term control: 
  
1. Can appoint old SC justices

2. Lower-court judges will expect stability in promotion criteria. This will
affect decisions and the choice to become a judge.


 
\begin{center} OBSERVABLE IMPLICATIONS
\end{center}


 

 
(i)	Younger Supreme Court justices 

(ii)	More justices from the universities and the bar.   


(iii)   Changed career patterns within the lower courts.   



 \newpage
\begin{center}Supreme Court appointees since  1993
\end{center}

 	  

 
    Independent Hosokawa appointed his four justices at an average age of 64.8 

 Socialist Murayama appointed his five at a mean 62.6. 

 Since 1996, the LDP has kept the appointment age largely unchanged.

 

   Earlier LDP prime ministers had appointed over 40 percent of their justices
from the judiciary.  Hosokawa and Murayama each chose only one of their justices
from the courts.

	Curiously, however, Hosokawa and Murayama did not turn to the obvious
sources for the rest.  They could have found plenty of independents and
Socialists in the bar and the universities.  Yet Hosokawa picked only one of his
four from the bar, and Murayama picked only two there.  Neither chose a law
professor.

 Instead, Hosokawa picked one from the Ministry of Justice (a prosecutor) and
one from the Ministry of Labor, and Murayama picked one from the Ministry of
Justice (a prosecutor) and one from the diplomatic corps.

 Judicial lines. 

	 
\newpage
\begin{center} Managed Judges: Constitutional Constraints
\end{center}

 
	  
JAPAN:  Japan could move to a system like America's.  Article 80:


``[J]udges of the inferior courts [shall] be appointed by the Cabinet from a list
of persons nominated by the Supreme Court.  All such judges shall hold office
for a term of ten(10) years with privilege of reappointmen, provided that they
shall be retired upon the attainment of the age as fixed by law.''

   If the Diet wanted to give judges life tenure, it could change the statutory
retirement age from 65 to 120.

If it wanted to end three-year rotations, it could authorize (by statute)
appointment to specific courts in specific regions.


\bigskip

THE U.S   By statute, Congress could abolish them and empower the Chief Justice
to decide the location and court at which each federal judge would work.  It
could allow the Chief Justice to run a personnel office that would preliminarily
make that decision

	Even under the existing statutory framework, a President with a loyal
Chief Justice could use postings to punish a disagreeable judge.

  If the Chief Justice agreed, he could find an ``overworked court'' that needed
more judges.

 \newpage
\begin{center}

The Costs and Benefits of a System of Managed Judges
\end{center}
 
 

Costs? 
1.	Constitution might be ignored. 
 
2.	Talented judges not used because their politics are wrong.
 
3.	Instability in the system, if parties alternate

4.	Punishment for   findings of fact in high-profile cases. 

Benefits?

 1. More incentive to work hard

2.	 More incentive to enforce laws as desired by voters

3.	More uniformity in decisions, leading to less litigation and injustice.   

Are these  the same   costs and benefits of independence as for any
bureaucrats?


\bigskip

     Where the federal and state governments in the U.S. employ 27,000 judges
and magistrates, the Japanese government uses barely 3,000 regular and summary
court judges.  With half the American population, Japan makes do with one ninth
the number of judges.


 	These many fewer judges process cases with the alacrity of many federal
courts.  Over all, federal district courts decide about 65 percent of their
cases within a year, and 85 percent within two years.  Japanese courts decide 55
percent within a year and 78 percent within two.  Slower than the federal
courts, but close -- and that  puts them far ahead of many state court systems.

\end{LARGE}
     
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