Announcements -Pi Sigma Alpha Lunch with a Professor: today, 12-1:30pm upstairs eating area in the HUB with Professor Jamie Mayerfeld

Teach for America Event Name: Info Session Come hear the experiences of a Teach For America corps member. Date: Thursday, October 27, 2005 Time: 1:30 PM to 2:30 PM Location: HUB Room 309

Constitutional Law and Politics in Japan I. Distinctive Characteristics of Japanese Courts A. Mixed Historical Legacy - Germany, France, US - civil law and common law traditions B. Interaction between legal institutions and Japanese cultural norms: consensus/common interest rather than individual C. Supreme Court is powerful in theory not in reality

II. Japanese Supreme Court A. Creation: - Meiji Constitution of significantly restructured, in Constitution of sits at the top of the judiciary

(II. Japanese Supreme Court, cont.) B. History: substantive rules of law, legal structure and legal consciousness Meiji Restoration - created law and courts, not a separate branch of govt criminal code (French) civil code (German)

(II. Japanese Supreme Court B. History, cont.) Post WWII - US assisted with new Constitution (1946) - strengthened the supreme court (const. review), created Bill of Rights (similar to US)

(II. Japanese Supreme Court, cont.) C. Structure and Relative Autonomy 1. Constitution 1946 Chapter VI: Judiciary (Art 76-82) (see course webpage)see course webpage 2. Judges (Art 79) and Court Organization law of 1947, 15 justices, appointed, retired age is Judicial Review: Constitutional review powers (Art 81), but review is constrained

(II. Japanese Supreme Court C. Structure and Autonomy, cont.) 4. Access: - primarily appellate jurisdiction (similar to US) - Individuals with grounds to appeal lower court decisions.

(II. Japanese Supreme Court C. Structure and Autonomy, cont.) 5. Separation of Powers/Relationship to Judicial system a. separate judicial branch (like US), but constrained b. 5 types of courts: civil, criminal, family affairs, appeals c. Other types: - Civil conciliation and admin. hearings.

III. Politics of Rights in Japan A.Supreme Court plays a weak role in politics REASONS 1. Cultural Values: concern for the common good/interest

(III. Politics of Rights in Japan A. Supreme Court 1. Cultural Values, cont.) How do values affect civil litigation? a. Rights Claims: Westerners publicly assert rights. Japanese rarely assert rights in one- on-one arguments. b. Myth of the Reluctant Litigant: Japanese disputant prefers to settle disputes in other forum besides formal adjudication (courts).

(III. Politics of Rights in Japan A. Supreme Court 1. Cultural Values, cont.) c. Criminal System: Prevent and suppress crime, extensive criminal reintegration efforts - short prison sentences, confessions, focus on wrongdoings.

(III. Politics of Rights in Japan A. Supreme Court, cont.) 2. Institutional Factors a. Civil Law Tradition b. Government creates alternative dispute resolution mechanisms

(III. Politics of Rights in Japan, cont.) B. Examples of Rights Litigation 1. Environmental Big 4 Cases - changed public attitudes regarding using litigation for policy reform - led to government reaction to create alternative dispute resolution for environmental claims.

(III. Politics of Rights in Japan B. Examples, cont.) 2. Sex Discrimination - cases in the 1960s and 1970s - Government reaction: Equal Employment Opportunity Act of 1986 and informal dispute resolution mechanism.

IV. Comparative Conclusions on the Political Impact of Courts A. Judicial Review Powers US- constitutional/judicial review, widespread in legal system FRA- abstract review by CC, no judicial review for ordinary judiciary, admin. review by tribunals JAP- constitutional/judicial review, but limited role for courts as they defer to parliament and few constitutional claims arise

(IV. Comparative Conclusions on the Political Impact of Courts, cont.) B. Access to Supreme/Constitutional Court US- de-centralized, with wide access at various court levels to indiv., groups, govt. officials, etc. FRA- CC has access only by govt. officials JAP- wider access including individuals, but encourages alternative dispute resolution

(IV. Comparative Conclusions on the Political Impact of Courts, cont.) C. Relative Autonomy/Structure US- separate branch of govt., judges have lifetime appointments FRA- CC is fused to legislature, judges have 9 year terms. JAP- separate branch of govt. but limited by civil law tradition

(IV. Comparative Conclusions on the Political Impact of Courts, cont.) D. Historical/Cultural Factors: US- privileges individual rights, courts given power to protect rights. FRA- government and parliament job to protect rights, minimal political power to the courts JAP- common good v. individual rights, minimal power to courts, alternative dispute mechanisms lowers litigation rates

Question: Comparing these three legal systems, make an argument for why either the French or Japanese system does the best job of ensuring the democratic protection of constitutional rights? Evaluate the various characteristics of the legal systems (e.g access, etc.) in light of this question.