1
JUDGING
Japanese judges and U.S. judges have little in common. Judges in the United States function in an unorganized hodgepodge of federal, state, and local systems; New York State alone has judges in more than 1,250 town and village courts. Some judges are elected, some are appointed, and most are former lawyers or practitioners. U.S. judges receive wildly disparate educations depending on which of the approximately two hundred U.S. law schools they attended. Some went to elite schools; some went to night schoolâand some judges in local courts never even finished high school.1
The Japanese judiciary is much more homogeneous. Consider Judge Tanaka. Tanaka is my invention, a fictional character based on a combination of facts from the literature (much of it written by judges) and countless interactions over the last two decades with Japanese judges, lawyers, and prosecutors. Obviously judges are individuals, but the amalgamated Judge Tanaka represents what it means to be a member of the Japanese judiciary.
Tanakaâs first major career break comes in his senior year of high school, when he passes an examination that awards him admission to one of Japanâs elite universities. He majors in law but he rarely attends classes; instead, he studies for the bar examination at a cram school. Soon, perhaps even as early as his junior year of college, he takes the bar exam, an exam which until very recently had a two percent pass rate. He passes on his third attempt, two years after he graduates from college, and is then admitted to the government-run Legal Research and Training Institute, where he is paid a stipend to study law.
Until 2004, the institute was Japanâs only law school. Then, in response to cries from business and citizens that legal services were too scarce, the government revised the system to increase the number of legal professionals. Almost all lawyers, judges, and prosecutors (with a few exceptions) now must earn a degree from one of Japanâs seventy-four graduate law schools.2 Those graduates are required to study for at least one year at the institute before entering the profession. Institute graduatesâand almost everyone graduatesâcan apply to be judges or prosecutors or can simply become lawyers. In this case, one of Tanakaâs instructors at the institute happens to be a judge. He encourages Tanaka to interview for the judiciary and writes a glowing recommendation for him.
What was it about Tanaka that so impressed his instructor? What traits and abilities made him seem like a good candidate for the judiciary? A 2003 Osaka High Court case provides an insiderâs view of how young judges are chosen. That case begins in 1994, when the Supreme Court rejected institute student Naoki Kamisakaâs application to enter the judiciary. Kamisaka sued the government over the decision, arguing that he had been discriminated against for having once participated in a controversial citizensâ suit against the government. After losing in the Osaka District Court, Kamisaka appealed.
The Osaka High Court recounted several discussions between Kamisaka and his instructors, detailing how the instructors repeatedly discouraged him from applying to the judiciary and refused to write recommendations on his behalf. In one conversation, an instructor told Kamisaka that a judge was not the kind of person who is politically active or brings lawsuits. In another conversation, the instructors voiced a more central concern. According to the court:
Instructor A . . . telephoned Kamisaka and told him, âInstructor B and I have both told you that youâre more suited to being a lawyer than a judge, and I just wanted to see what happened after that.â âIf you become a judge, youâll have a really rough time; you donât have what it takes, and you wonât get along well with your colleagues. I donât think you can stick it out. Itâs a job that operates on the basic premise of deliberation.â âA lawyer can be verbose [joÂŻzetsu], but judges are different. They have to listen carefully to the claims of the litigants and [guide them]. I really think youâre a lawyer type.â âI know youâre thinking about a lot of things, but I want to be very clear with you. In all likelihood you wonât become a judge. But I canât say for sure because itâs not really my decision.â
The same instructor then said, âYour grades arenât a problem. Youâre in the top of the civil class. The problem is circumstances. Some students canât find law firm jobs, and this year there will probably be more than one hundred applicants for the judiciary. So people with bad grades or bad personalities are being told that they canât make it or that it will be difficult.â In response, Kamisaka said, âAre you saying that I have a bad personality?â to which the instructor replied, âYes, I guess thatâs right.â Kamisaka said, âWhatâs wrong with my personality?â and the instructor replied, âFor starters, the Christian era system [is a problem]. Writing opinions like that will confuse litigants.â âAnd thatâs just a typical example. The Christian era thing isnât about expressing some background thought. Itâs a matter of form, not content.â
The courtâs opinion contains a lengthy discussion of whether Kamisakaâs failure to use the Christian era system was indeed sufficient grounds for rejecting his application. The Japanese court system catalogs cases by a year, a letter, and a docket number. The year is recorded in the imperial system, not the Christian era system. For instance, Kamisakaâs appeal was filed in the year 2000, which is known as Heisei 12 in the imperial system because it is the twelfth year of the Heisei emperorâs reign. Civil appeals are designated by the letter âne,â and the docket number of Kamisakaâs case was 2366. The official case citation, then, is Heisei 12 (ne) 2366. The court discussed the fact that Kamisaka had consistently ignored this convention while he was a student, choosing to write the year in the Christian era system insteadâand, even more oddly, writing both the Christian era year and the docket number in Japanese characters rather than Arabic numerals.
Kamisaka argued that he chose the Christian era system because of âglobalizationâ and the increasing number of foreign litigants in Japanese courts. The court dismissed those reasons and noted that the imperial system is widely used. It found that Kamisakaâs incorrect method showed that he was âpersistent in following his own thoughts and had an inflexible personality and character.â The court denied his claim.3
From the U.S. perspective, two factors in the opinion stand out. First, the qualities that matter to becoming a judge in Japan are institute grades and personality. In the United States, law school grades are less directly relevant, as people usually become judges later in life after they have gained work experience. Personality might matter in the United States, but not necessarily, and certainly not as early in life. Second, the type of personality that the Japanese judiciary expects (or for which applicants self-select) is clear: straitlaced, thoughtful, works well with others, and conformistâtraits that apparently are not expected of lawyers. The Christian era issue might seem trifling, but in the Japanese judiciary it was a clear reflection of a seriously incompatible personality.
Our hypothetical Judge Tanaka has both the grades and the personality necessary to obtain the job. After a year of formal study at the institute and practical training, he enters the judiciary as an assistant judge at a district court. On average, judges begin practice at age twenty-seven, compared to age twenty-nine for the overall pool of bar examination passers, but twenty-three- and twenty-four-year-old judges are not unusual.4 Judges are more likely to have passed the bar on the first try, a feat that is interpreted as a sign of intelligence.5
Tanaka has become one of 3,416 judges and assistant judges, of which 499, or 14.6 percent, are women.6 He is twenty-eight years old. It is his first job.
Tanaka earns about $27,000 per year.7 Despite his education and elite status, that salary is about 20 percent lower than the average for all Japanese workers and about one-fourth of what Tanaka would have earned as a lawyer in an elite Japanese firm. It is also far less than the $169,300 salary of U.S. federal judges and is roughly half the salary of the recent law school graduates who serve as those U.S. judgesâ clerks. Still, Tanakaâs job has nice benefits; he rents his government-owned apartment at about half of the market price.
As a young assistant judge, Tanaka sits exclusively on three-judge panels. In those panels, the presiding judge is a senior judge, in his fifties or early sixties. The âright-chair judgeâ (migibaiseki) is a mid-career judge, often in his forties. Judge Tanaka is the âleft-chair judgeâ (hidaribaiseki), a judge who has less than five yearsâ experience and is usually in his late twenties or early thirties.
These chair designations are literal. In a Japanese district courtroom, the three judges sit on three chairs on a raised stage that resembles that of a U.S. courtroom. The judges wear black robes and, as a result of their elevated seating arrangements, literally overlook the proceedings. The clerk and the stenographer sit below them. The witness box is in the center of the courtroom; witnesses face the judges. The parties and their attorneys sit on the left and the right of the courtroom on either side of the witness box, perpendicular to the bench, facing each other (and not the judges). Gallery space is designated for spectators, but the absence of a jury system makes most Japanese courtrooms relatively small.8 There are no insignia, flags, or symbols of state authority in the courtroom.
The panel usually assigns cases initially to the left-chair judgeâin this case, young Judge Tanaka. Tanaka conducts the initial three-judge conference that precedes the hearing of the case. After hearing the case, the judges meet for a decision-making conference, which typically lasts thirty to forty minutes. The conference usually begins with the oldest judge asking Tanakaâs opinion. The dynamics of these conferences vary. One Tokyo District Court judge writes that some presiding judges believe that âIâm the presiding judge, so I need to show these regular-seat judges how powerful I am,â while others enjoy a give-and-take that resembles a university seminar.9 In each case, maverick behavior is discouraged.
After the conference, Judge Tanaka writes the first draft of the opinion. Unlike the United States, the required format for a judicial opinion in Japan is stated precisely by law and the details are spelled out in officially issued sample opinions and institute textbooks.10 In a civil case, an opinion must contain a statement of the judgment, the facts of the case, and the reasons for the judgment, including a clear statement of the partiesâ claims.11 In a criminal case, an opinion must contain a statement of the judgment, the facts that constitute the crime, an examination of evidence, the application of law, and the reasons for the sentence imposed, if any.12 Virtually every opinion issued in Japan follows this strict pattern.
Run-on sentences and difficult vocabulary once made Japanese judicial opinions âthe champion of terrible writing.â13 But since 1990, under the motto âjudicial opinions that parties can readâ (toÂŻjisha ga yonde wakaru hanketsubun), judges have been instructed to write opinions more simply.14 Many judges of the older generation bemoan this change, claiming that it leads to less careful and less precise legal analysis. Many younger judges are happy to leave the turgid prose in the past.
If facts are undisputed by the parties, Judge Tanaka has considerable discretion as to whether or how much of those facts to include in the opinion.15 If they are disputed but are merely background facts, the evidentiary standard for determining them is unclear, but it is lower than the standard for proving the material elements of a case.16 Tanaka, then, has freedom to determine and use the facts to tell a comprehensive narrative âthat parties can read.â When he drafts his opinions, he includes as background some facts that are relevant to the story even if they have no direct, clear relevance to the ruling. Sometimes the result is a jarring juxtaposition of the banal with the sensational, but Tanaka believes the details give readers a more complete picture of the case.
When Tanaka has finished drafting the opinion, he gives it to the right-chair judge, who revises it if necess...