Associate Professor of Law and Society
Institute of Social Science, The University of Tokyo
7-3-1 Hongo, Bunkyo-ku, Tokyo 113-0033 JAPAN
Email: hsaito [at] iss.u-tokyo.ac.jp
Personal website: https://www.hiroharusaito.com
I am a social scientist and a legal scholar. My research interests center around law and society and empirical legal studies, particularly in the areas of children and youth, legal profession, negotiation, dispute resolution, and voting rights, in Japan and the U.S. I mainly use quantitative methods such as survey and vignette experiment. I also write theoretical and doctrinal law articles from social science perspectives.
I joined the University of Tokyo faculty in 2016, first at the Graduate Schools for Law and Politics. I moved to, and got tenure at, the Institute of Social Science in 2021. I received an LL.B. and a Master of Education from the University of Tokyo as well as an LL.M. from Harvard Law School. I also completed the Japanese legal apprenticeship and worked as a cross-border corporate lawyer for five years.
My Research & Selected Publications in English
New Loss Aversion for the Value of Voting Rights
New Hiroharu Saito (2022) “Loss Aversion for the Value of Voting Rights: WTA/WTP Ratios for a Ballot,” 69 International Review of Law and Economics 106041. | PDF (eprint) | Link
Abstract What is the subjective value of voting rights? This article presents an empirical demonstration of people’s loss aversion for the value of voting rights. By way of vignette experiments using scenarios of the 2020 U.S. presidential election (Studies 1 and 2, with U.S. citizens) and a fictitious direct premier election in Japan (Study 3, with Japanese citizens), the present research measured the willingness-to-accept compensation (WTA) and the willingness-to-pay price (WTP) for a ballot(s) in political elections. A great disparity between WTA and WTP was found regardless of the electoral setting, the proportion and width of ballot alteration, and the initial status. Specifically, the observed WTA/WTP ratios for a ballot(s) were within the range of 5.00–27.36, which is much larger than the ratios for ordinary market goods (about 1.5–2.5) and which is comparable to the ratios for other non-market goods. In addition, WTA for a mere 10% dilution of voting rights is still higher than WTP for full voting rights; the powerful effect of loss aversion might help explain universal barriers against suffrage extension.
Effects of Lawyer Fees on Lawyer Behavior
Hiroharu Saito (2021) “The Impact of Lawyer Fees on Lawyer Partisanship: The Reciprocity Norm May Matter,” 28(3) International Journal of the Legal Profession 319–334. | PDF (eprint) | Link
Abstract Do lawyer fees influence lawyer behavior? The impact of lawyer fees on lawyer behavior has been discussed theoretically and anecdotally, mostly from an aspect of economic incentives. Yet little research has empirically examined this issue. This article aims to add one empirical study. I conducted a vignette experiment with 206 Japanese divorce lawyers. Scenarios of divorce disputes involving certain ethical dilemmas were used to measure partisanship. The description of fee arrangement in the scenarios varied to compare three conditions: (a) no specific description of lawyer fee (the control condition), (b) JPY 300 thousand retainer with additional JPY 300 thousand contingency (a typical fee arrangement in Japan), and (c) JPY 450 thousand retainer with no contingency (a lump-sum prepaid arrangement). I found that partisanship of lawyers became higher in conditions with fee descriptions, when they were conscious of (the existence of) the fee. This phenomenon was observed in condition (c) of a lump-sum prepaid fee arrangement as well as in condition (b) of a typical fee arrangement combining a retainer and contingency. The findings indicate that the reciprocity norm, rather than economic incentives, may have a power on the relationship between lawyer fees and lawyer behavior.
Equal Protection for Children and Youth: Suggesting Heightened Scrutiny
Hiroharu Saito (2020) “Equal Protection for Children: Toward the Childist Legal Studies” 50 New Mexico Law Review 235–286 | PDF Link | Backup
Abstract This Article focuses on one doctrinal question, which has not yet been examined by the Supreme Court of the United States: the appropriate review standard for discriminations against children (children qua children) under the Equal Protection Clause. This Article extensively argues, by applying the traditional three-factor criteria (visible and immutable/irreversible trait, limited access to politics, and existence of prejudice), that we should treat children as a suspect or quasi-suspect class and that we should apply heightened scrutiny for children–adults classifications. It also refutes erroneous arguments commonly seen in the courts that have justified the application of rational basis review for children—the argument to lump the elderly and children together as age discriminations and the argument to consider childhood as a temporal stage of life. This Article particularly highlights that people’s cognitive structures are different between discriminations against the elderly and children. The constitutional argument in this Article has a potential to develop a new critical framework for the jurisprudence on children and the law—the “childist legal studies.”
Japanese Divorce Lawyers: Their Success After Their Own Divorce
Hiroharu Saito (2018) “Japanese Divorce Lawyers: Their Success After Their Own Divorce,” 20 Asian-Pacific Law & Policy Journal 1–49 | PDF Link | Backup
Abstract This is an empirical study of divorce lawyers’ practices in Japan—it reports major findings from my survey and interviews. This Article is the first to quantitatively describe the details of the characteristics and practices of Japanese divorce lawyers. This Article is also the first, around the world to my knowledge, to undertake in-depth analyses of the impacts of lawyers’ private experiences on their professional practices. It addresses inter-person disparities of lawyers’ practices—what the determinants of lawyers’ daily practices and behaviors are. In particular, this Article sheds light on how divorce lawyers’ practices and behaviors are influenced by divorce- or family-related experiences in their private lives. It analyzes three important aspects of divorce lawyers’ practices in Japan: (i) incomes; (ii) fees; and (iii) disputing behaviors. Key findings about Japanese divorce lawyers: (i) lawyers with an experience of own divorce, parents’ divorce or having a child have higher incomes; (ii) lawyers with an own divorce experience have higher odds of requesting an overall contingency fee to clients; (iii) lawyers with an experience of own divorce have lower ratios of divorce litigations to divorce conciliations. These findings indicate that lawyers’ own divorce- or family-related experiences facilitate them to be better divorce lawyers who are more diligent and successful. The generalized implication is that lawyers’ practices can be positively affected by their private emotional experiences in the past, which are relevant to their practice areas.
Effects of Learning Professional Ethics: Partisanship, Truthfulness, and Fairness in Negotiation
Hiroharu Saito (2017) “Do Professional Ethics Make Negotiators Unethical? An Empirical Study with Scenarios of Divorce Settlement,” 22 Harvard Negotiation Law Review 325–373 | PDF Link | Backup
Abstract This is an empirical study to examine effects of the U.S. attorneys’ professional ethical rules in negotiation. This study is the first to seriously measure the effects of the professional ethical rules. The first novel feature of this study is in its methodology: the author conducted a survey of law school students, which enabled a comparison of two groups: those who have already learned professional ethics and those who have not yet learned them. The questionnaire presented three hypothetical cases with certain ethical dilemmas in divorce settlement negotiations. It asked the respondents how they would deal with the situations and what the reasons behind their decisions were. The second novel feature is the inclusion of ethical dilemmas concerning a third party’s human rights. Specifically, this study used situations to negotiate custody of a child, a non-monetary issue. Key findings: compared to respondents before ethical education, respondents after ethical education defer to the parent’s (the client’s) interests more; and in return, they are more reluctant to disclose true information or to care about the child’s welfare. The results indicate that the professional ethical rules and legal education in the U.S. diminishes attorneys’ ethical sense of fairness (in particular, truthfulness) and public interests (in particular, third party’s human rights) while enhancing loyalty to their clients.
Adverse Effects of Hearing Children’s Voices in Divorce Custody Disputes?
Hiroharu Saito (2016) “Bargaining in the Shadow of Children’s Voices in Divorce Custody Disputes: Comparative Analysis of Japan and the U.S.,” 17 Cardozo Journal of Conflict Resolution 937–988 | PDF Link | Backup | Correction
Abstract This paper discusses the social impact of hearing children’s wishes in judicial procedures for divorce custody disputes by comparing the different legal systems in Japan and the U.S. In particular, through a plain law and economics approach with the analytical framework of “Bargaining in the Shadow of the Law” suggested by Mnookin and Kornhauser (1979), this paper discusses the backlash to parents’ bargaining outside the court by empowering children to be heard in court. There has been a child advocacy movement in Japan to empower children’s participation right in the judicial procedures in accordance with the UN Convention on the Rights of the Child, and the act for family court procedure was reformed in 2013 accordingly. However, this paper argues: (i) in general, the more the legal system empowers children’s right to be heard in the judicial procedure, the less opportunity children will have to be heard in society (i.e., during the parents’ negotiations outside the court); and (ii) particularly under the unique Japanese divorce system, the 2013 reform would hinder the social change to empower children in society—children would rather lose their opportunity to be heard outside the court. In order to really empower children in society, society should not only grant children procedural rights in court but also substantive rights regarding their parents’ divorce.
Note as of April 2021 Unfortunately, the family court practice has remained largely unchanged by the 2013 reform until now (particularly, appointment of a counsel attorney for children has been very rare in practice). Therefore, I have not had an opportunity to empirically examine the backlash I discussed in this Article.