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.
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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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 fulltime 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.
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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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 coorganized 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
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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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).
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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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.
Colin P.A. Jones, “Japan’s New Law Schools: The Story So Far,” 27 Zeitschrift für Japanisches Recht
248, 2009.
http://sydney.edu.au/law/anjel/documents/ZJapanR/ZJapanR27/ZJapanR27_21_Jones.pdf
Miki Tanikawa, “A Japanese Legal Exam That Sets the Bar High,” New York Times, July 10, 2011.
4. Legal Profession
Japan Federation of Bar Associations, “About Us.” http://www.nichibenren.or.jp/en/about/us.html
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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Japan Federation of Bar Associations, White Paper on Attorneys 2011.
http://www.nichibenren.or.jp/library/en/about/data/WhitePaper2011.pdf
Japan Legal Support Center, “What is the JLSC?”. http://www.houterasu.or.jp/en/about_jlsc/index.html
Takayuki Ii, “Young Migrants from Big Cities: Measures for Dealing with the Shortage of Legal
Services in Japan,” 27 Zeitschrift für Japanisches Recht 59, 2009.
Bruce E. Aronson, “The Brave New World of Lawyers in Japan Revisited: Proceedings of a Panel
Discussion on the Japanese Legal Profession after the 2008 Financial Crisis and the 2011 Tōhoku
Earthquake,” 21 Pac. Rim L. & Pol’y J. 255, 2012.
5. Courts and Judges
Supreme Court of Japan,” Overview of the Judicial System in Japan.”
http://www.courts.go.jp/english/system/index.html
Setsuo Miyazawa, 10. “Administration of Justice,” in Gerald Paul McAlinn, Chapter 1 “Introduction:
Japan,” in Gerald Paul McAlinn (ed.), Japanese Business Law, Kluwer Law International, 2007.
Nuno Garoupa & Tom Ginsburg, “Judicial Audiences and Reputation: Perspectives from Comparative
Law,” 47 Colum. J. Transnat’l L. 451, 2009.
David S. Law, “Lessons of Experience in the Enterprise of Constitutional Design: The Anatomy of a
Conservative Court: Judicial Review in Japan,” 87 Tex. L. Rev. 1545, 2009.
Hiroshi Takahashi, “Career Judiciary, Judicial Reform, and Practicing Attorneys,” 27 Zeitschrift für
Japanisches Recht 39, 2009.
Takayuki Ii, “Japanese Way of Judicial Appointment and Its Impact on Judicial Review”, 5 National
Taiwan University Law Review 73, 2010. http://www.law.ntu.edu.tw/ntulawreview/articles/52/03-Article-Takayuki%20Ii.pdf
6. Civil Justice
Supreme Court of Japan, “Outline of Civil Litigation in Japan.”
http://www.courts.go.jp/english/proceedings/civil_suit_index/index.html
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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Intellectual Property High Court, http://www.ip.courts.go.jp/eng/index.html.
Osamu Inoue & Tatsuya Nakamura, Chapter 17 “Litigation and Alternative Dispute Resolution,” in
Gerald Paul McAlinn (ed.), Japanese Business Law, Kluwer Law International, 2007.
Carl F. Goodman, The Rule of Law in Japan: A Comparative Analysis, 2nd revised ed., Kluwer Law
International, 2008, Chapter 12 “Civil Litigation.”
Ikuo Sugawara, “Asia: Japan,” 622 Annals 280, 2009. On class action in Japan.
Mark A. Levin, “Civil Justice and the Constitution: Limits on Instrumental Judicial Administration in
Japan,” 20 Pac. Rim. L. & Pol’y J. 265, 2011.
Naoko Okamoto, “Japan’s Business Revitalization ADR: An Economic Savior or a Convenient Excuse
to Avoid Bankruptcy?”, 12 Cardozo J. Conflict Resol. 636, 2011.
7. Criminal Justice
Supreme Court of Japan, “Outline of Criminal Justice in Japan.”
http://www.courts.go.jp/english/proceedings/criminal_justice_index/index.html
David T. Johnson, “Criminal Justice in Japan,” in Daniel H. Foote (ed.), Law in Japan: A Turning
Point, University of Washington Press, 2007.
David T. Johnson, “Early Returns from Japan’s New Criminal Trials,” The Asia-Pacific Journal,
Vol.36-3-9, 2009. http://japanfocus.org/-David_T_-Johnson/3212
Matthew J. Wilson, “Japan’s New Criminal Jury Trial: In Need of More Transparency, More Access,
and More Time,” 33 Fordham Int’l L.J. 487, 2010.
Hiroshi Fukurai, “Japan’s Prosecution Review Commissions: Lay Oversight of the Government’s
Discretion of Prosecution,” 6 E. Asia L. Rev. 1, 2011.
Hiroshi Fukurai, “Japan’s Quasi-Jury and Grand Jusry System as Deliberative Agents of Social
Change: De-Colonial Strategies and Deliberative Participatory Democracy,” 86 Chi.-Kent L. Rev.
789, 2011.
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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Japan Federation of Bar Associations, White Paper on Attorneys 2011, Part2, Chapter 1 “Criminal
Advocacy Activities.” On the extension of state-appointed attorneys.
http://www.nichibenren.or.jp/library/en/about/data/WhitePaper2011.pdf
Shigenori Matsui, “Justice for the Accused or Justice for Victims?: The Protection of Victims’ Rights
in Japan,” 13 Asian-Pacific L. & Pol’y J. 54, 2011.
Elizabeth M. Sher, “Death Penalty Sentencing in Japan under the Lay Assessor System: Avoiding the
Avoidable through Unanimity,” 20 Pac. Rim L. & Pol’y J. 635, 2011.
Successes, Failures, and Remaining Issues of the Justice System Reform in Japan
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