When are Judges and Bureaucrats Left Independent? Theory and History from Imperial Japan, Postwar Japan, and the United States

Abstract

This is one chapter from the book, Judicial Independence: Economic Theory and Japanese Empirics, that Mark Ramseyer and Eric Rasmusen are writing. In preceding chapters we explain the institutions of modern Japan's judiciary and use regression analysis to test whether judges who rule in ways the ruling Liberal Democratic Party (the LDP) disliked were penalized in their careers. We find that they were for some kinds of cases-involving such things as the constitutionality of the military, injunctions against the national (but not local) government, reapportionment, and electioneering laws. They were not penalized for other kinds of cases-tax and criminal cases. Those results are drawn from our earlier published papers, reorganized and synthesized for the present book. This chapter does not draw on our published work. It asks why the degree and type of independence of judges in modern Japan is different from that of other civil servants. In particular, we compare judges in modern Japan, pre-war Japan, and the United States; and we compare judges with other kinds of public employees, asking why they are not elected and why they are not directly under the control of politicians.