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Grim bar system may hurt legal reforms

Sweeping changes are not a legal cure-all

by Colin P.A. Jones

Sept. 21 is awaited with a mixture of anticipation and dread in campuses across Japan. It is the date on which results of the country’s first new bar examination are announced. How well a school’s students do on this test, which is projected to have a pass rate of about 40 percent, may have a serious impact on the success of institutions entirely new to Japan — graduate professional law schools. Around the country 74 of these now exist (with over 5,000 students), compared to none three years ago.

Some background: As in many countries, law has traditionally been taught as an undergraduate discipline in Japan. Students got a bachelor’s in law and then joined the workforce — maybe in a legal field but just as likely not. Those entering legal academia went to the graduate school, did research and published, just like in any other discipline. Pretty much anyone could take the bar exam, but it had a pass rate of 3 percent, making it one of the world’s most difficult standardized tests.

This success ratio was a function of the Japanese government’s monopoly over the licensing of lawyers, judges and prosecutors. Bar passage merely qualified one to enter the Supreme Court of Japan’s Legal Research and Training Institute, where completion of two years’ training (more recently 18 months) was a required part of the licensing process. For decades, the Institute only had 500 openings per year, a number that has been gradually increased, but only by a few hundred. Thus, the low pass rate was a function of tens of thousands of people taking an exam to qualify for one of these few slots.

The very tough odds led to the development of an entire sub-culture of people whose careers effectively consisted of studying for and repeatedly failing a test. Furthermore, since any time devoted to pursuits other than the study of law could lessen already slim chances of success, the old system tended to generate professionals with a very narrow range of expertise: remembering law and taking tests.

Despite decades of supposedly being a consensus-based society in which litigation is shameful and the assertion of rights selfish, Japan’s government recently decided that the country needs more lawyers. Moreover, that it needs lawyers who have a wider range of backgrounds and are trained to be more proactive. Hence the idea of creating a system of (supposedly) U.S.-style law schools, where the Socratic method, not rote memory would predominate. These schools would be open to graduates from any field, and would welcome those already in the workforce, so that individuals with backgrounds in business, government or other professions could develop more specialized legal careers based on their prior work experience.

On the face of it, Japan’s 40 percent pass rate compares favorably with, say, California, where the range varies from 30-50 percent. The new Japanese test, however, is only offered once a year (California, twice). Furthermore, the failure rate is projected to actually increase as people who fail the first time sit the exam again. And crucially, graduates can only take the exam three times — ever.

This seemingly sadistic limitation was apparently imposed to prevent people from wasting their whole lives studying for an exam. Under these conditions, the prospects are real that some graduates will never become lawyers, rendering a significant investment of time and money potentially meaningless.

The problem is that despite the intent behind the new law schools, the exits are still controlled by the government. The bar exam remains a qualifying test for entrance to the Institute, passage through which continues to be part of the licensing process. While the government intends to gradually increase the number of slots at the Institute to 3,000 per year by the 2010, this seemingly arbitrary number has no apparent relationship to actual demand for legal services.

The continuing government monopoly on professional licensing is only one facet of the problem. Another is that once the law school system was formally launched, there was a mass rush by virtually all of Japan’s major universities to establish one, probably fueled by the view that there would be only a limited window during which to get accreditation.

As a result, far more schools were built than were originally anticipated. Few involved in the new schools seem willing to publicly discuss it, but one likely scenario is that a significant number of the schools fail, eventually creating an equilibrium between number of graduates and bar passage (or more accurately, number of slots at the Institute). It is hard to imagine a business model enjoying success when over half of customers go away disappointed.

Whatever happens in the long term, the grim arithmetic of the current bar exam seem to be in danger of locking law school students and faculty into patterns of behavior contrary to the original purpose of the new system. Professors of core subjects run the risk of becoming glorified bar exam prep course providers. The free-ranging inquisitive dialogue between student and teacher supposed to be encouraged by the Socratic method is seemingly incompatible with the need to adequately cover all the areas of a core subject that might be tested on the exam.

Students effectively start preparing for the bar exam from the moment they enter law school, and courses in subjects that are not tested on it (my own classes in American law, for example) may be resented as unwelcome distractions of time and energy. And what does it mean if students who get good grades at their in law school nonetheless fail the bar exam?

The goal of producing legal professionals with experience in fields other than law is also in danger of being betrayed. Most law schools offer two programs: a two-year program for students with an undergraduate degree in law, and a three year program for students from other disciplines.

Three-year programs, however, include many law graduates who feel that the extra year may give them an edge (or were unable to get into a two-year program). Thus, becoming a lawyer for many now involves a minimum of six years of study (two of the four undergraduate years, three in law school, and one at the Institute) devoted almost exclusively to the study of law.

Thus, the “law-only” focus of legal studies that tended to develop naturally under the old system now seem in danger of becoming institutionalized. And while the government has sought to have law schools fill at least 20 percent of entering classes with mid-career students, applications are already dropping off. With no assurances of a pay-off, the costs are simply too great for many to contemplate giving up a paying job.

Another issue is that what are commonly referred to as lawyers in Japan (“bengoshi”) do not have a monopoly on the practice of law, except when it comes to litigation and a few other areas. There are in fact whole other legal professions — tax lawyers, administrative law specialists, labor benefits specialists and in-house corporate legal specialists, to name a few — who provide legal services and would be considered lawyers in the United States, yet practice under different licensing regimes (or in some cases without any formal license).

These parts of Japan’s legal service industry have been largely been ignored by the law school system, which remains focused on the creation of the traditional elites of the system — the “true” lawyers, judges and prosecutors.

Yet one of the purposes of the new law schools was to make law more relevant to the daily existence of the average person. For this to happen, the perception of lawyers as being a privileged elite will have to change.

From this standpoint, probably no increase in the amount of lawyers will make any difference without further structural changes to the Japanese judiciary and other institutions. Thus, whether Japan’s new law schools and their graduates will be at the vanguard of truly revolutionary changes, or remain something much more modest, is yet to be seen.

The author is an Associate Professor of Law at Doshisha University Law School in Kyoto

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