In Print: Volume 88: Number 6
The Role of Precedent at Japan’s Supreme Court
By Hiroshi Itoh
88 Wash. U. L. Rev. 1631 (2011)
(PDF)
The question of how a judge decides a case has long captivated judges and court observers. Conceptualists of various kinds have long dominated inquiry in this question in Japan. They construct judicial process in a syllogistic deduction of conclusions by applying law as a major premise to fact as a minor premise. They are also convinced that judicial opinions explaining a judicial holding contain ratio decidendi and sometimes obiter dicta, and critically comment on the propriety of judicial opinions on the basis of their own value judgments. Given the fact that precedent emerges out of judicial decisions, they would argue that judicial interpretations of legal issues, applied to judicially ascertained facts of legal disputes, become the source of precedent for later cases of the same facts.
The behavioral model of judicial decision-making analysis conceptualizes the judicial process to proceed in the order of fact finding, tentative holding, and rationalization and justification thereof. This model also conceptualizes that this three-stage process continues until a justice has finalized his or her holdings. While justices write their opinions in the most convincing way, the behavioral approach would not assume that written opinions necessarily reveal actual reasons for final decisions in a case.
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