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Ramseyer on judges in Japan and in the US



In a Harvard Law Review article otherwise about a judicial disagreement between Judges Posner and Easterbrook on the scope of fiduciary duty to minority shareholders, J. Mark Ramseyer writes:

By all accounts, Japanese judges are relentlessly honest, and among the smarter members of the bar. Yet they work within a judicial bureaucracy that rigidly rewards conformity � and conform they do. Hired in their late twenties, Japanese judges are regularly evaluated by senior judges in the judicial personnel office. Those senior judges then decide which judges to promote, which to stall, and when necessary (it rarely is), which to fire. Judges who work hard, who clear their dockets quickly, and who do not make waves earn regular promotions. They climb the pay scale quickly and obtain postings in the most desirable cities. The heterodox wallow in undesirable posts at low pay.

The result is an institution that does not work perfectly but that does facilitate dispute resolution more effectively than American courts do. The courts do not attract or encourage creative minds, but that is the point. In the vast majority of real and potential disputes, the law that applies would be easy to predict if judges did not � and in Japan they do not � try too hard to improve the world. And if parties could predict it, they could and would � and in Japan they can and do � settle their disputes out of court in the law�s shadow and pocket the fees they would otherwise pay their lawyers.

A provocative Ramseyer conclusion:

Judges may enjoy creating better rules, but judicial experimentation necessarily makes it harder for disputants to predict what judges will do. An efficient legal system is one that disputants can avoid through settlement. To do so, they need courts that operate rigidly and mechanically � and judges who abandon any intellectual ambitions and resign themselves to working as lower-level bureaucrats. For that to happen reliably, judges need to suffer career penalties for deviating from established rules. We lack ways to impose such penalties in the United States. But appointing judges with the intelligence and creativity of Judges Easterbrook and Posner is � not to mince words � exactly what we should not be doing. As judges, they simply do too much: they muddy the law by trying to fix it, and they worsen the law by encouraging (through example) their less talented peers to do so as well.

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.