Guest Blog – Public Participation in Legal Decision-Making

Prof Valerie Hans of Cornell Law School recently convened a fascinating online Forum comparing issues involving public participation in legal decision-making, especially but not limited to (quasi-)jury systems that have been (re)introduced into Asia-Pacific countries like Japan and Korea.
With kind permission from Prof Annelise Riles, well-known for her studies in legal anthropology and comparative legal theory with respect to Japan and Asia, we reproduced below Valerie’s opening questions for the (usually closed) Forum convened by the Meridien180 initiative. That is followed by my brief Japan-focused posting in response to some of those questions as well as some intervening postings and topics raised by other Meridien180 members from around the Asia-Pacific region.
As explained on the website for Meridien180, it is:

a multilingual forum for transformative leadership. Founded in 2012, Meridian 180’s strength comes from its membership—800+ thought leaders from academia, business, and the public sector from 29 different countries. With a center of gravity in the Pacific Rim, Meridian 180 builds the intellectual, social, and political infrastructure required to address the crises of today and tomorrow.
Meridian 180 is a partnership of Cornell University’s Mario Einaudi Center for International Studies and the Clarke Program in East Asian Law and Culture at Cornell Law School, Ewha Womans University in Seoul, Korea, the Institute for Social Science at the University of Tokyo and the University of New South Wales in Sydney, Australia. The director of Meridian 180 is Annelise Riles, the Jack G. Clarke ’52 Professor of Far East Legal Studies at Cornell Law School.

Hopefully a summary of the Forum discussions will made publically available. I certainly hope to draw on its many comparative insights when helping to set readings and marking essays by USydney students who are always intrigued by Japan’s quasi-jury system in the criminal justice class in the ANJeL-supported “Kyoto Seminar on Japanese Law“. That class was last taught in February 2018 by Profs Makoto Ibusuki and Dimitri Vanoverbeke.

Written by: Prof Valerie Hans, Cornell Law School
This forum focuses on public participation in legal decision making, and the causes and consequences of its rise and fall around the world. Decades ago, I began to study lay participation in law, concentrating on jury trials in common law countries. I was led to expand my focus in the 1990s by the introduction of new jury systems in Russia during the glasnost period, and in Spain following the death of the dictator Francisco Franco. Over the last ten years, Japan, South Korea, and Argentina have started up new systems of lay participation into their legal systems to great fanfare. China has reportedly renewed its commitment to public participation in legal cases. Considering the dominance of legal professionals in legal systems worldwide, these are fascinating developments.
At the same time, in other countries, including those with long-standing jury and lay judge systems, the proportion of cases decided by members of the public has declined dramatically. Take the USA, for example, where the proportion of civil and criminal cases decided by juries has declined so dramatically that commentators have warned about the “vanishing trial.” They caution about what will be lost when virtually all legal cases are resolved not in public trials but rather in private settlements and plea bargains. Some countries with long-standing systems of public participation in law are reducing their scope (England and Wales), eliminating them (Switzerland), or modifying them (Belgium). And some scholars claim that the Russian jury system has been undermined so significantly that it can no longer serve its intended purposes.
These conflicting trends raise a number of issues that I hope will spur a robust global discussion over the next several weeks.
1. First, what’s going on? What political, legal, cultural and other factors help to explain the fact that different countries appear to be moving in opposite directions?
2. I am especially curious about the conditions that facilitate the introduction of new systems and the expansion of the role of citizen participation as legal decision makers. How important are democratizing impulses? How significant is the knowledge of models from other countries that can be transplanted or translated into an acceptable form of citizen participation? Suppose an activist came to us and asked what would be necessary to start a new jury system. Have we learned enough from the experiences in Japan, South Korea, Argentina, Russia, and Spain to give the activist some sound advice?
3, A related question is what causes a system of public participation in law to flourish or to go into decline. I’d love to hear from people who have observed either of these trends up close. Reviewing some of the research on mixed courts of lay and professional judges, my assessment is that legal professionals have to be generally supportive of their lay citizen counterparts for the system to work well. If this is true, what an irony that the strength of a system of public participation depends on legal professionals’ support! I also assume the public – those who are going to be called to participate as legal decision makers – must be supportive as well. Surveys in South Korea showed widespread support among both legal elites and the public for the advisory jury system adopted there. But in Japan, I recall concerns expressed about a low level of public support prior to the introduction of Saiban-in seido. Have those public attitudes persisted?
4. The biggest questions for me – and ones I can’t currently answer – all involve whether it makes a difference that a legal system includes, or does not include, public participation in decision making. I can draw on empirical research on juries and mixed courts to share in the forum what scholars have learned about how judges, lay judges, and juries differ in terms of their decision making (spoiler alert: there is a lot of overlap). I can also discuss how the experience of participating as a decision maker has some profound effects on the individuals who serve. But other effects are not as easy to study. What about efficiency? Transparency? Acceptability of the outcomes? The promotion of democracy?
Response by Luke Nottage:
Japan’s lay assessor system for serious criminal cases was enacted in 2004 as an add-on to broader justice system reform recommendations in 2001. Those focused on civil justice – improving court processes and, less successfully, privately-supplied ADR (also “lay participation”?) – as well as expanding the legal profession and adding postgraduate law schools. This program was supported by (big) business groups, which in other developed countries usually don’t want to expand access to justice, but liability exposure in Japan is limited (still low per capita litigation). In some desperation after a decade of economic stagnation, business groups pushed the Liberal Democratic Party to move away from ex ante regulation (before being able to try things) to more freedom subject to ex post controls (redress to consumers etc if they got things wrong).
But as the catchphrase became “bringing the law closer to everyday life”, individuals on the justice system reform council (like chair Prof Koji Sato) and others saw an opportunity to revive sporadic calls for criminal justice reform, including some form of lay participation. The lay assessor or mixed-jury compromise system does not seem to have been strongly opposed by the career judiciary, which has diligently promoted the system during and since the five-year lead-in period from 2004. There is no corruption among judges, but occasional miscarriages of justice (associated with over-eager police or prosecutors, indirectly targeted by this reform) and some public impression that judges are too elitist and therefore divorced from everyday society.
In criminal as well as civil justice and the legal profession, the conclusion from Wolff/Nottage/Anderson (eds) “Who Rules Japan? Popular Participation in the Japanese Legal Process” (Elgar 2015) is that there have been some significant shifts away from the “strong state” model, but Japan has now largely settled into a new equilibrium.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.