With Peter Frost
In reaction to Japan’s militarist era, their American-influenced 1947 constitution stressed the limited role of the emperor, the separation of church and state, parliamentary democracy, individual rights, and the independence of the judiciary. Law was based on the so-called Six Codes (the 1947 constitution, the Civil Code, the Code of Civil Procedure, the Criminal Code, the Code of Criminal Procedure, and the Commercial Code). Criminal cases were handled in a European court system model, where prosecutors had considerable discretion over what cases they brought to trial, and almost always got a conviction. There were no juries, so trials were designed for the convenience of the lawyers, judges, and prosecutors who conducted them. They were largely based on documents, not oral testimony, and were discontinuous, meeting periodically over months or years, rather than on consecutive days. In 1990, the number of certified lawyers per capita was 1/20th that of the US, litigation was relatively rare, and most disputes were resolved by mediation of one sort or another.1While most foreign observers were impressed by a low crime rate and what appeared to be an effective judicial system, not all Japanese agreed, and in 1999 the Diet (Parliament) established the Justice System Reform Council to consider reforms. The result was legislation that fundamentally restructured legal education, increased the number of lawyers, and introduced lay judges into certain serious criminal trials. With all this in mind, I recently asked New York University Law Professor Frank Upham the following questions.