lunes, 28 de diciembre de 2009


"Judges are government bureaucrats. Their job is to be honest, to unravel a set of facts, to decide what law applies, and not to think too hard about it all. Despite our attempts to cow first-year students over the ambiguities involved, applying legal rules to facts is rarely rocket science... By all accounts, Japanese judges are relentlessly honest, and among the smarter members of the bar. Yet they work within a judicial bureaucracy that rigidly rewards conformity — and conform they do. Hired in their late twenties, Japanese judges are regularly evaluated by senior judges in the judicial personnel office. Those senior judges then decide which judges to promote, which to stall, and when necessary (it rarely is), which to fire. Judges who work hard, who clear their dockets quickly, and who do not make waves earn regular promotions. They climb the pay scale quickly and obtain postings in the most desirable cities. The heterodox wallow in undesirable posts at low pay. The result is an institution that does not work perfectly but that does facilitate dispute resolution more effectively than American courts do. The courts do not attract or encourage creative minds, but that is the point. In the vast majority of real and potential disputes, the law that applies would be easy to predict if judges did not — and in Japan they do not — try too hard to improve the world. And if parties could predict it, they could and would — and in Japan they can and do — settle their disputes out of court in the law’s shadow and pocket the fees they would otherwise pay their lawyers. If parties to contractual arrangements did not like the rule, they could and would — and in Japan they can and do — simply adjust the contractual terms and price accordingly ex ante".

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