Japan’s ambitious project to drastically increase its lawyer population while at the same time changing the way lawyers are trained is foundering a mere four years after the country’s new U.S.-style law schools opened their doors.
A pillar of the government’s grand strategy for reforming the Japanese legal system, the law schools face some painful adjustments, as does the legal profession itself.
First, some background. For decades Japan had a system for training lawyers that was both egalitarian and exclusive. It was egalitarian in that there were few formal prerequisites for taking the bar examination.
It was exclusive in that until about a decade ago, only 500 people got to pass each year, giving the exam an annual pass rate of 1% to 3%. Passing such a difficult exam was part of what made the lawyers, judges and prosecutors who did so a rarified elite.
Passing the bar exam entitles the successful applicants to enter the Japanese Supreme Court’s Legal Research and Training Institute (LRTI). Completion of a training course at this government-run institution is a requirement for qualifying to practice law in Japan. Thus, both the bar pass rate and the number of new lawyers entering the job market each year are set by the government through the number of seats at the LRTI.
Expanding access to legal services is one of the fundamental goals of the new law school system. One possible explanation for the supposedly cultural Japanese aversion to litigation is the artificial scarcity of counsel. As of 2007, Japan had just 23,000 lawyers serving a population of about 127 million.
The old system produced attorneys who were scarily intelligent, very good at taking standardized tests or both. Even so, it is said that the average lawyer passed the exam on the fifth attempt — a five-year investment of time and energy. Because of the difficult odds on the old exam, devoting time to anything other than the study of law could result in a fatal competitive disadvantage.
The legal profession in Japan has thus tended to have a much narrower focus when compared to the multidisciplinary output of American law schools.
As an academic discipline, law was, and still is, taught primarily at the undergraduate level, with graduate programs for those wishing to become legal scholars. Since many of those studying law as undergraduates never take the bar exam and go on to careers unrelated to law, universities have never been too concerned with preparing students for either the bar exam or the legal profession. Preparing for the bar exam was a matter of individual study and privately run cram schools that focused on test-taking techniques rather than a comprehensive understanding of law as an academic discipline.
Preparing for the legal profession was left to the LRTI and on-the-job training through law firm apprenticeships.
Seeking a broader perspective
It is against this background that Japan created a system of U.S.-style graduate professional law schools intended to train a new generation of legal professionals to have a broader perspective on the law.
Since 2004, a total of 74 Japanese law schools have opened throughout the country, mostly at major universities where law is already taught at the undergraduate level.
Like their U.S. counterparts, law schools offer three-year programs that assume entrants know nothing about the law. But because law is still taught at the undergraduate level, there are also two-year programs for students who can demonstrate an adequate understanding of core subjects such as constitutional law and criminal procedure.
Because one of the goals of the law school system is to develop a legal profession with a broader perspective, the law schools have been mandated to admit a significant percentage of people who have work or other life experience, or have undergraduate degrees in disciplines other than law.
Law schools are also supposed to have well-rounded curricula and avoid the dry, one-way lecturing that tends to dominate undergraduate coursework. Instead, they are supposed to use the Socratic method to ensure that students develop the analytical skills needed to apply legal knowledge to real-world problems. And, importantly, law schools are not supposed to be teaching to the bar exam.
As for the bar exam, increasing the number of people who pass it and thus the size of the Japanese legal profession is another pillar of legal system reform in Japan.
Between 2,100 and 2,500 people are expected to pass the new bar exam in 2008, with the goal to have 3,000 passing annually by 2010.
The target is for the country to have a lawyer-to-population ratio roughly comparable to that of France.
This means that becoming a lawyer in Japan is now easier, which is probably one factor behind the drop in Japanese enrollment at LL.M. programs of some U.S. law schools. When the Japanese bar exam had a 1% to 3% pass rate, it was often easier for students to qualify in the United States, a dynamic that has changed now that the pass rate is 30% to 40%.
Still a risky proposition
At the same time, however, a number of factors have combined to make law school a risky proposition for some students. First, law school graduates who pass the bar exam must still complete a course of study at the LRTI. Thus, while the bar exam still has a higher pass rate, it is still a function of the number of slots available at the LRTI, a number set arbitrarily by the government.
The pass rate for the class of 2006, the first crop of law school graduates to take the new bar exam, was 48%. In 2007, the rate dropped to 40%. In 2008, some 6,261 graduates took the exam, and of these, perhaps 35% will pass.
As more students graduate and compete for a set number of LRTI slots with a growing number of people who are on their second or third attempt, the pass rate can be expected to decline further.
Another problem is that law school graduates are only permitted to sit for the bar exam three times during the five- year period following graduation. This restriction is intended to eliminate the sad class of people who existed under the old system — those whose careers consisted of perpetually studying for, taking and failing the bar exam.
But it has also had the effect of making the new, “easier” bar exam much more of a gamble, and law school itself a stressful experience for just about everyone involved. Under the new system, everyone taking the exam has made the same investment of time and law school tuition, and runs the same risk of it being rendered worthless. Since most law schools have touted themselves as incubators for the lawyers, judges and prosecutors of the future, little thought has been given to what will happen to the students who will never achieve this status, even though simple arithmetic dictates that it will be the fate of many graduates.
Law schools are already receiving applications from “three-strikers” — people who have already failed the exam three times and want to go to law school all over again just to qualify for further attempts! This grim dynamic has had a serious impact on efforts to implement the ideals behind legal education reform in Japan, and risks turning law schools into glorified test-prep academies.
Students are under intense pressure from the moment they enter law school. Most just want to be taught whatever orthodox view of the law is likely to be tested on the bar exam and may express dissatisfaction with professors who go off on academic tangents.
Since law schools are forbidden from teaching test-taking techniques, some students also go to cram schools, just as under the old regime, and may regard their law school as nothing more than the place where they get the degree they need to sit for the bar exam.
With some prospective lawyers now having studied law for up to eight years — four years as undergraduates, three years in law school and one year at the LRTI — the old system under which law was studied to the exclusion of other subjects is in danger of becoming institutionalized.
As a result, law school enrollments are already dropping. Applications to take the Japanese equivalent of the LSAT were down 17% in 2008, compared with the prior year.
In one sense the problem is a simple one: The new system has too many law schools accepting too many students.
While the government still controls the size of the entrance to the legal profession, it will probably be market forces that drive some schools out of business or to at least reduce their class size, the latter process having already begun.
At some point, a more favorable equilibrium can be expected to develop between the number of law graduates and the number of people allowed to pass the bar. The question is the degree to which the current environment will force law schools to diverge from their founding ideals — a well-rounded legal education that is not focused on the bar, like their U.S. counterparts — before this balance is achieved.
Will bar pass rates be reduced?
The mismatch between the number of graduating students and bar pass rates alone would be enough of a problem, but the law schools may be dealt another blow. There are now increasing calls on the government to reconsider its target of having 3,000 people pass the bar annually by 2010 — a number that some say is too many.
The very first crop of law school graduates — those who entered a two-year program in 2004, graduated in 2006 and finished their program at the LRTI in late 2007 — have just hit the job market. Yet, bar associations across the country are already complaining about the increased competition and threatened degradation of quality in the legal services offered by new entrants.
While some of these complaints smack of blatant self-interested protectionism, there are some legitimate concerns. In particular, there may not be enough seasoned lawyers to provide the crucial apprenticeships necessary to becoming a useful member of the profession. And lawyers in some parts of the country complain that there is not enough work for their members as it is.
The unpleasant reality may be that Japan does not actually need so many lawyers.
Colin P.A. Jones is a U.S.-qualified attorney and a professor at Doshisha University Law School in Kyoto, Japan.