Announcements- Midterm study guide posted on course

webpage TODAY.- A. Stone Sweet Guest Lecture, Thursday

4/26 on the midterm- Wednesday, 4/25 Quiz Sections meet in

Computer Labs. Locations are as follows: AA, AB, AC, AD, AF Sections meet in Poli Sci Computer Lab, Smith Hall 220; AE Section meets in CSSR lab in Savery Hall 135. In Section exercise

(Announcements, cont.)

- Extra Credit Opportunity:European Constitutionalism Conference, Fri. 4/27 see following Link for information:

faculty.washington.edu/rcichows/EUConstitutionalismConference

Constitutional Law and Politics in Japan

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

II. Japanese Supreme Court

A. Creation: - Meiji Constitution of 1889 - significantly restructured, in

Constitution of 1946 - sits at the top of the judiciary

(II. Japanese Supreme Court, cont.)

B. History: substantive rules of law, legal structure and legal consciousness

1. 1889- Meiji Restoration - created law and courts, not a separate

branch of govt. - 1882 criminal code (French) - 1898 civil code (German)

(II. Japanese Supreme Court B. History, cont.)

2. 1946- 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) 2. Judges (Art 79) and Court Organization

law of 1947, 15 justices, appointed, retired age is 70.

3. 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 systema. separate judicial branch (like US), but constrainedb. 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

Diagram of the Court system in the US

Diagram of Court system in France

Diagram of the Court system of Japan

3 Types of Review by Constitutional Courts

A. Abstract Review

1. Govt writes law

2. Parliament adopts law

3. Opposition Party refers law to the CC

5. Govt. and Parliament implement CC ruling

4. CC reviews the law

ParliamentConst. Court

(3 Types of Review by Constitutional Courts, cont.)

B. Concrete Review by ordinary court

1. Dispute arises between 2 individuals

2. Case comes before ordinary court. Judge refers to CC as the case raises a constitutional question.

4. Court applies the CC ruling

3. CC resolves the dispute and sends back to court.

Ordinary Court Constitutional Court

Disputants

(3 Types of Review by Constitutional Courts, cont.)

C. Concrete Review by individual complaint

1. Individual has a claim, and exhausts all judicial remedies (went through lower courts)

2. Makes a claim on grounds of unconstitutionality before the CC

3. CC rules on the case

Individual

Constitutional Court