Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
Written by Setsuo Miyazawa
This symposium is planned as one of the events which will commemorate the inauguration of the East Asian Law Program at the UC Hastings College of the Law.
The Japanese government established the Justice System Reform Council under its cabinet in July 1999. The Council presented an extensive set of recommendations to Prime Minister Jun’ichiro Koizumi in June 2001 (For an official English translation of the recommendations, see http://www.kantei.go.jp/foreign/policy/sihou/singikai/990612_e.html ). The recommendations were so extensive and many of them were so ambitious that many supporters expected that the reform might become the third fundamental change of the Japanese justice system, following the introduction of the modern justice system under the Meiji government in the late 19th century and the democratic reform during the applied occupation after the World War II.
Council’s recommendations included the following.
1. Legal education and legal profession
1) Introduction of post-graduate professional law schools;
2) Tripling of the number of new lawyers;
3) Strengthening of ethics of practicing attorneys;
4) Further deregulation of legal professionals;
5) Introduction of a national system to operate civil and legal aid, partly with staff attorneys.
2. Courts and judges
1) Introduction of an IP High Court;
2) Increasing appointment of practicing attorneys as judges;
3) Introduction of a system to review candidates for lower courts by an independent committee;
4) Increasing transparency of internal evaluation of sitting lower-court judges;
5) Reform of the appointment process of Supreme Court Justices.
3. Civil justice and ADR
1) Enactment of a Speedy Trial Act;
2) Amendment of the Administrative Litigation Act;
3) Introduction of a system to certify consumer organizations for consumer litigation.
4) Introduction of a system to certify ADR providers;
4. Criminal justice
1) Extension of criminal legal aid;
2) Giving binding force to decisions by the Prosecution Review Board;
3) Introduction of criminal trials by a mixed panel of professional judges and ordinary citizens.
Some reforms have been successfully implemented, while other reforms are facing challenges, particularly under pressures and resistance from vested interests, or experiencing unexpected developments due to factors which were not anticipated by the Council. Victim participation in criminal trials may be one of such unanticipated developments. Some recommendations have not been implemented at all. (See my chapter “Law Reform, Lawyers, and Access to Justice,” in Gerald Paul McAlinn (ed.), Japanese Business Law, Kluwer Law International, 2007, for an overview of the backgrounds, contents, and implementations of the reform as of 2007.) There were also several problems untouched by the Council which remain as issues for further reform, including, most notably, criminal investigation.
June 2011 marked the tenth anniversary of the reform, and 2012 is the apt moment to review its successes, failures, and remaining issues. A symposium on those successes, failures, and issues will give us the best vantage point to examine the current situation and the future direction of the Japanese justice system.
KEYNOTE SPEAKER
Mr. Shunsuke Marushima
Former Senior Staff of the Secretariat, Justice System Reform Council, Japan
Former Secretary General, Japan Federation of Bar Associations
Shunsuke Marushima graduated from the Law Faculty of the University of Tokyo in 1976 and became an attorney in 1978 in the Tokyo Bar Association. He has been intimately involved in the justice system reform in Japan, particularly as a senior staff member in the Secretariat of the Justice System Reform Council of the Japanese government in 1999-2001 and as the Secretary General of the Japan Federation of Bar Associations in 2008-2010. He is currently a board member of the Nuclear Damage Liability Facilitation Fund which was established by the Japanese government in August 2011 in the wake of the disaster at the Fukushima Daiichi Nuclear Power Plant in March 2011.
MODERATOR
Setsuo Miyazawa
Visiting Professor Setsuo Miyazawa is a legal sociologist who received LL.B., LL.M., and S.J.D. from Hokkaido University and M.A., M.Phil., and Ph.D. in sociology from Yale University. He has been a full-time faculty member at Hokkaido University (1972-1983), Kobe University (1983-2000), Waseda University (2000-2003), and Omiya Law School (2004-2007) in Japan. He is currently a professor of law at Aoyama Gakuin University Law School in central Tokyo, where he teaches the sociology of law, legal profession, public interest lawyering, and legal research, and coordinates courses on American law. He has also taught as a visiting professor at the law schools of York University (Canada), the University of Washington, Harvard University (Mitsubishi Visiting Professor of Japanese Legal Studies), UC Berkeley (Sho Sato Visiting Professor), UCLA, New York University (Global Law Faculty), the University of Hawaii, the University of Pennsylvania, and Fordham University. His first visit to Hastings was in 2008, and 2012 is his fourth visit. Professor Miyazawa has a wide range of research interests, including police and criminal justice, legal ethics and public interest lawyering, legal education, and corporate legal practice; he received his doctoral degree in Japan with a study on police, while receiving his American doctoral degree with a study on corporate legal departments. He has published or edited more than a dozen books in Japanese and English. His first English book, Policing in Japan (SUNY Press, 1992), received the 1993 Distinguished Book Award of the Division of International Criminology of the American Society of Criminology. One of his most recent books in Japanese is the first casebook on legal ethics in Japan that is co-edited with two lawyers. He has been highly active in the promotion of judicial reform in Japan and is one of the most prominent proponents of the introduction of the American-style graduate professional law schools into Japan. He has also been active in the Law and Society Association, twice serving on its Board of Trustees.
SPEAKERS
Daniel H. Foote is Professor of Law at the University of Tokyo, where he holds the chair in Sociology of Law. Prior to moving to the University of Tokyo in 2000, he taught at the University of Washington School of Law in Seattle for twelve years. Professor Foote has written widely on numerous aspects of Japanese and comparative law, with major research interests including criminal justice, labor and employment law, the judiciary, the legal profession, dispute resolution, and legal education. His most recent book is Hābādo: takuetsu no himitsu – Hābādo LS no eichi ni manabu[Harvard: Secrets to Its Preeminence – Learning from the Wisdom of Harvard Law School] (Y. Yanagida & D.H. Foote, Yuhikaku 2010). Since joining the University of Tokyo faculty, Professor Foote has been heavily involved in the legal education reform process. He also was a member of the Roundtable Discussion Group on Criminal Justice Policy, convened by the Public Prosecutor General of Japan, which met from 2002 to 2004; and, since 2003, he has served on the Citizens’ Advisory Council (Shimin Kaigi) for the Japan Federation of Bar Associations.
Hiroshi Fukurai is Professor of Sociology and Legal Studies at UC Santa Cruz. He received his Ph.D. in sociology from UC Riverside. Having published nearly 100 articles, including law reviews, op-ed pieces, and book chapters, his research explores the potential utility of citizen participation in law for creating an effective deterrent and investigative mechanism against corporate predation and governmental abuse of power. His four books are indicative of his critical research on adjudicative justice and equality in law: Race in the Jury Box: Affirmative Action in Jury Selection (2003), Anatomy of the McMartin Child Molestation Case (2001), Race and the Jury: Racial Disenfranchisement and the Search for Justice (1993, Gustavus Meyers Human Rights Award), and Common Destiny: Japan and the U.S. in the Global Age (1990). As a Board of Trustee member of the Law and Society Association (LSA), he co-organized the Inaugural and Second East Asian Law and Society Conferences in Hong Kong in 2010 and Korea in 2011 and served as a guest editor of three special issues of law/criminology journals in the publication of conference papers.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago, where he also holds an appointment in the Political Science Department. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. He currently co-directs the Comparative Constitutions Project, an NSF-funded data set cataloging the world’s constitutions since 1789. His recent co-authored book, The Endurance of National Constitutions (2009), won the best book award from Comparative Democratization Section of American Political Science Association. His other books include Judicial Review in New Democracies (2003), Administrative Law and Governance in Asia (2008), Rule By Law: The Politics of Courts in Authoritarian Regimes(with Tamir Moustafa, 2008), and Comparative Constitutional Law(with Rosalind Dixon, 2011). He has served as a visiting professor at the University of Tokyo, Kyushu University, Seoul National University, the Interdisciplinary Center Herzliya, the University of Pennsylvania, and the University of Trento. Before entering law teaching, he served as a legal advisor at the Iran-U.S. Claims Tribunal, The Hague, Netherlands, and he has consulted with numerous international development agencies and governments on legal and constitutional reform.
Mark Levin joined the faculty of the William S. Richardson School of Law from the Law Department of Hokkaido University in Sapporo, Japan in January 1997. In 1992, he was one of the first recipients of a Blakemore Foundation Grant for Advanced Asian Language Study, which enabled him to study at the Inter-University Center for Japanese Language Studies in Yokohama for one year. This was followed by a Japan Foundation Fellowship for one year of research at the Tokyo University Faculty of Law. He was then invited to Hokkaido to become the first non-Japanese given full status as a faculty member at the law department there, teaching a variety of subjects concerning American law and advising graduate student researchers on related topics. His scholarly publications have considered diverse topics including smoking and tobacco regulation in Japan, legal education in Japan, and the legal circumstances of race and indigenous peoples in Japan. Brief writings have looked at Japanese legal history, Japan’s lay judge system, and the April 2007 Japanese Supreme Court decision concerning the nation’s history of sexual slavery and forced labor during mid-20th century wartime engagements in Asia and the Pacific. Works have been published in leading law journals in both the United States and Japan. His current research is centered around a multi-year project focusing on judicial administration and procedural justice in Japan. The first of three works envisioned in the project – “Courts and Constitutions: The Limits of Instrumental Judicial Administration in Japan,” was published in Volume 20.2 of the University of Washington’s Pacific Rim Law and Policy Journal in February 2011.
Frank Upham is the Wilf Family Professor of Property Law at NYU School of Law. In addition to property law, he offers courses on law and development with an emphasis on Asia. He currently serves as co-director of the U.S.-Asia Law Institute. Professor Upham has spent considerable time at various institutions in Asia, including as a Japan Foundation Fellow and Visiting Scholar at Doshisha University in 1977, as a Research Fellow of the Japan Society for the Promotion of Science at Sophia University in 1986, and as a visiting professor at Tsinghua University in Beijing in 2003. His scholarship has focused on Japan, and he published in 2006 a Japanese language essay on the “stealth activism” of the Japanese judiciary. His book Law and Social Change in Postwar Japan received from Harvard University Press the Thomas J. Wilson Prize in 1987. More recently he has begun researching and writing about Chinese law and society and law and development generally. His 2005 Yale Law Journal essay, “Who Will Find the Defendant if He Stays with his Sheep? Justice in Rural China,” helped introduce contemporary Chinese sociolegal scholarship to an English-speaking audience for the first time. Professor Upham graduated from the Woodrow Wilson School of Public and International Affairs at Princeton University in 1967 and Harvard Law School in 1974. From 1967 to 1970, he taught in the Department of Western Languages at Tunghai University in Taichung, Taiwan, and was a journalist in Southeast Asia. After law school he worked as a litigator in the Office of the Attorney General in Massachusetts. Before moving to NYU in 1994, he taught at Ohio State, Harvard, and Boston College law schools.
Takayuki Ii (presenting on Saturday) is Associate Professor in the Faculty of Humanities, Hirosaki University, Japan. He teaches the sociology of law. He received his Ph.D. in Law from Waseda University, Japan. His research interests are in the legal professions, quasi-legal professions, citizen's access to legal service, lay participation in justice, and other law and society issues. He has published papers in Japanese and English, and has presented his research findings in local and international conferences. His English papers include “Young Migrants from Big Cities: Measures for Dealing with the Shortage of Legal Services in Japan,” 27 Zeitschrift für Japanisches Recht (Journal of Japanese Law) (2009) and “Japanese Way of Judicial Appointment and Its Impact on Judicial Review”, 5 (2) National Taiwan University Law Review (2010).
Justice System Reform in Japan
-Selected Bibliography within Five Years-
Prepared by Setsuo Miyazawa
1. Final Recommendations of the Justice System Reform Counsel
The Justice System Reform Council, Recommendations of the Justice System Reform Council – For a Justice System to Support Japan in the 21st Century -, June 12, 2001. http://www.kantei.go.jp/foreign/policy/sihou/singikai/990612_e.html
2. Overview
Daniel H. Foote, “Introduction and Overview: Japanese Law at a Turning Point,” in Daniel H. Foote (ed.), Law in Japan: A Turning Point, University of Washington Press, 2007.
Setsuo Miyazawa, Chapter 2 “Law Reform, Lawyers, and Access to Justice,” in Gerald Paul McAlinn (ed.), Japanese Business Law, Kluwer Law International, 2007.
3. Legal Education
Kahei Rokumoto, Chapter 8 “Legal Education,” in Daniel H. Foote (ed.), Law in Japan: A Turning Point, University of Washington Press, 2007.
Setsuo Miyazawa, Kay-Wah Chan, and Ilhyung Lee, “The Reform of Legal Education in East Asia,” 4 Annu. Rev. Law and Soc. Sci. 333, 2008.