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Matsui, S --- "Turbulence ahead: the future of law schools in Japan" [2013] LegEdDig 2; (2013) 21(1) Legal Education Digest 5


Turbulence ahead: the future of law schools in Japan

S Matsui

Journal of Legal Education, Vol 62, 2012, pp 3-31

On April 1, 2004, Japan introduced a new law school system. While legal education was offered at the undergraduate level in the past, the new system elevated law schools into graduate programs. The change was part of judicial reform proposals designed to increase the role courts play in Japanese society and to support that expanded judicial role by training more lawyers.

Prior to the 2004 reforms, legal education was separate from professional legal training. Those who wished to become lawyers had to pass the bar examination, mostly on their own. Applicants did not even need a law bachelor’s degree to take the bar examination. Those who passed the bar examination could enrol in the Judicial Training and Research Institute (JTRI) for two-years of practical training. The JTRI is run by the Supreme Court of Japan and is the only institution in Japan that provides practical training for those who wish to become judges, prosecutors, and attorneys.

The bar examination was very competitive. Until the 1990s, the number of candidates who could pass the bar examination was limited to 500 each year and the pass rate was less than 3 per cent.

As a consequence, very few law students chose to take the bar examination to become lawyers. Since so few graduates would pursue a career as a lawyer, traditional legal education provided a general liberal arts education rather than one focused entirely on law.

In fact, legal education was not designed to prepare students to pass the bar examination.

As a result, the number of persons who passed the examination and became lawyers was quite limited: the total number of lawyers in Japan was 13,800 in 1990, 15,108 in 1995, and 21,185 in 2005. As of 1997, Japan had about 20,000 lawyers, compared with 94,000 in the United States, 83,000 in the United Kingdom, 111,000 in Germany and 36,000 in France. The number of new lawyers admitted to the bar every year was about 57,000 in the United States, 4,900 in United Kingdom, 9,800 in Germany, and 2,400 in France, compared to only 700 in Japan.

Moreover, the rigorousness of the bar examination also had a significant impact on legal education. Test takers usually had to take the exam six times before finally succeeding, and the average age of those who passed the examination was over 28 in the 1980s and 1990s. As a result, it became an almost established practice for students who wished to pass the bar examination to go to ‘cram schools’ and take special courses and practice tests specifically designed for exam preparation.

Cram schools are not acceptable alternatives to comprehensive legal education curriculums. Since the students are focused entirely on passing the bar examination, instructors only prepare them to answer test questions.

Finally, no institution in the traditional system provided professional legal skills. It was only after one passed the bar examination and entered into the JTRI that they received practical training.

In 1994, the Keizai Dyukai (Economists’ Fellowship Association) published a report calling for a stronger judicial system and more lawyers. In 1997, the Keizai Dantai Rengoukai (the Federation of Economic Organisations) also published a report articulating similar recommendations. All these reports called for strengthening the judicial system, increasing the number of lawyers in the country and introducing a new legal education system that was capable of training lawyers who could uphold a strong judiciary. Japan is notorious for its immense administrative control on business activities. Japan needed a system, they argued, in which everyone could engage in economic activities freely and any violation of law could be corrected by the courts. As a result of administrative reform during the 1990s, many public corporations were privatised and the regulatory power of the bureaucrats was significantly reduced. After the deregulation, a growing number of business people came to expect the judiciary to play a more active role and started to demand the strengthening of legal services. The call for increasing the number of lawyers was a part of such demand.

In 1999, in response to these calls for reform, the Diet passed the Act to Establish the Judicial System Reform Council. The act instructed the Council to consider policies that would make the judicial system more accessible to the public, allow for public participation, and strengthen the legal profession.

It proposed establishing new law schools and introducing a new bar examination to increase the number of applicants who would pass to 3,000 per year by 2000.

Based on this final report, the government adopted the Promotion Plan for Judicial Reform as a Cabinet decision on March 19, 2002.

The MEXT (Ministry of Education, Culture, Sports, Science and Technology), which is in charge of education policy, prepared specific standards as well as a model curriculum for law schools.

In 2003, based on these standards, the MEXT accepted applications for establishing new law schools. Seventy two schools applied for approval and the MEXT approved 68 of them. These schools were set to open on April 1, 2004; eventually, 74 law schools were approved to accept 5,825 students each year.

The majority of’ law professors supported legal education reform. Though they differed on whether to abolish undergraduate legal education or the JTRI, they supported the idea of law school as a graduate school to provide professional legal training.

It was thus decided that the new law schools would follow the American model as three-year graduate schools and use the Socratic Method and other interactive teaching methods in small classes. This change would be complemented by introducing a revised bar examination.

However, despite calls to abolish undergraduate legal education, the MEXT decided to maintain the current undergraduate curriculum.

The most conspicuous characteristic of the Japanese law school system is the heavy involvement of the government. The government, through the MEXT, has the power to approve law schools, to decide how many law students are admitted, how many law professors each law school must have, how many credits a student must earn, and which courses the students must take to graduate.

Under the established Standards, law schools must have a sufficient number of faculty members and must present a detailed proposal, together with syllabi of all the courses to be offered, for approval. The goal is to establish law schools as professional graduate schools with the sole purpose of training future lawyers. The regular law school curriculum takes three years to complete. Students must acquire more than 93 credits to graduate. However, because officials anticipate many law students will have previously graduated from undergraduate law faculties, the school can exempt up to 30 credits, making it possible for them to graduate in two years.

Legal standards for law schools established by the MEXT merely provide for the bare minimum. However, the National Educational Advisory Council’s report functioned as de facto legal norms, including much more detailed guidelines for the new law schools.

The guidelines declare professional legal education should operate ‘as a process’ rather than simply preparing candidates for the bar examination. Law school must foster fairness, openness, and diversity and serve as ‘a bridge between theoretical education and practical education.’

Law school curriculum is divided into four categories: basic legal subjects, basic practical subjects, legal theory and related subjects, and advanced subjects. Basic legal subjects include public law (constitutional law and administrative law), civil law (civil law, commercial law and civil procedural law), and criminal law (criminal law and criminal procedural law). Basic practical subjects include legal ethics, legal research, legal writing, moot court, advocacy, clinic, and externship. Legal theory and related subjects include jurisprudence, foreign law, politics, and law and economics. Advanced subjects include labour law, economic law, tax law, intellectual property law, international transaction law, and environmental law.

Those who successfully graduate from law school can take the new bar examination. However, they can only take the examination three times, and must do so within the first five years after graduation. If a candidate cannot pass the new bar examination during this period, he or she must wait for two years after their last attempt and then try again.

The new bar examination takes place in May and consists of a multiple choice examination and essay examination. The multiple-choice examination covers public law, civil law, and criminal law and it takes a whole day to finish. The essay examination takes three days. The test-taker must answer essay questions in public law (four hours), civil law, including commercial law and civil procedure law (six hours), and criminal law, including criminal procedure law (four hours). The test-taker must also answer questions in one of the selective subjects (three hours), chosen from bankruptcy law, tax law, economic law, intellectual property law, labour law, environmental law, public international law, or private international law. Those who achieve the minimum score requirement on the multiple-choice examination are eligible for evaluation of the essay test.

Those who pass the new examination must enrol for a year of practical training. During the one-year program, students participate in eight months of field training in the district court’s civil and criminal departments, the prosecutors’ office and at law firms, with each rotation lasting two months. Then, students will return for selective practical training, focusing on a particular field for two months and collective training for two months in order to follow up the field training in a classroom setting. Those students who pass the final examination are eligible to become judges, prosecutors, and attorneys.

The new law school system was proposed as part of the judicial reform proposal to increase the role of the courts and add to the number of lawyers to support such an expanded judiciary. The basic aim of the judicial reform proposal is justified. There is a definite need to restructure the Japanese judicial system and for speedy resolution of legal disputes.

Even though there are criticisms against establishing law schools as professional graduate schools, following the American model, they do provide the overriding benefit of allowing students with various backgrounds to receive professional legal education. Moreover, the probability of passing the new bar examination has increased substantially and those who studied non-law subjects at universities are more likely to pass.

The new law school system emerged as a compromise between those who argued for radical transformation of Japanese legal education and those who did not want to change the traditional system. Unfortunately, there are significant drawbacks in the current system which can be traced back to this origin.

The first problem is that the number of people who are allowed to pass the bar examination is pre-determined by the government rather than by the market.

Although the new law school system is often called ‘American-style,’ Japanese law schools are very different from American ones.

In the United States, since there is no undergraduate legal education, all students enter law school without any legal knowledge. Law professors teach students how to think like lawyers through case method or Socratic Method during the first year.

However, since undergraduate legal education remained largely intact in Japan, Japanese law schools offer the expedited two-year program in addition to the American-style three-year program. Most students who enter law schools are graduates of undergraduate law faculties. But, since they were not provided with any professional legal education or practical skills training, they must acquire the necessary legal training in only two years.

On the other hand, students who did not study law as undergraduates must spend their first year catching up to those who did. The lower bar examination pass rates for three-year program students indicate that entering law school with no legal education background is difficult to overcome.

This situation made it hard for law schools to introduce the case method or Socratic Method in their first year curriculum because these methods do not cover all the materials that undergraduates learned over four years of legal study. There simply isn’t enough time to effectively implement the case method or Socratic Method in the first year because all available class hours must be spent introducing the students without law backgrounds to basic legal principles.

Moreover, many faculty members in law schools are not familiar with the case method or Socratic Method and tend to lecture instead. Because many of them never received an American style legal education (instead, they usually go to Germany or France for comparative study), they are not accustomed to the case method or Socratic Method. Additionally, since the Japanese legal system is heavily influenced by civil law traditions, many faculty members tend to emphasise the systematic understanding of law, avoiding the use of case method in the process. It is doubtful, therefore, that the case method or Socratic Method is effectively used even during the second and third year of law school.

Another striking difference between American and Japanese law schools involves the development of practical legal skills. The regular law school curriculum in Japan does not provide many opportunities to learn these skills and, unlike American law schools, the number of practicing lawyers who teach part-time at law school is quite limited.

The low pass rate for the new bar examination negatively impacts law schools. First, many law school graduates will initially fail the examination, forcing them to study for one or more years on their own after graduation. As it is uncertain what options these students have if their own law schools cannot offer them any further assistance, cram schools will surely step in to offer programs that help prepare for the bar examination. This grossly undermines the original purpose behind the law school reforms.

If the pass rate of new bar examination remains this low in the future, then we must anticipate that a substantial number of graduates will be forced to give up and must find a job instead. Yet, it is unclear what job opportunities exist for these law school graduates who failed the bar examination.

These future uncertainties, together with the low pass rate, work as a deterrent to keep applicants away from law schools. It is unclear to what extent law schools could survive if the number of applicants drastically decreased.

Moreover, if the overall pass rate remains below 30 per cent and the pass rate for three-year program students remains below 20 per cent, applicants who did not study law in their undergraduate degree may reconsider their goal of becoming a lawyer.

The low pass rate could also have an effect on law school education. Since law students constantly worry about passing the bar examination, they tend to focus only on subjects which are necessary for the examination.

The roots of these problems can be traced to the decisions to maintain the undergraduate law faculties and to maintain the cap on the number of people who can pass the new bar examination.

As long as the undergraduate law faculties remain unchanged, we can expect that most law school students will be graduates of these law faculties.

The best way to overcome these problems is to eliminate the undergraduate faculty of law and transform it into a faculty of political science or public policy. If there is no undergraduate legal education, law schools only need to maintain the regular three-year program. And since no law student would have any previous legal education, law schools can more effectively use the case method or Socratic Method.

Another possibility is to preclude graduates from undergraduate law faculties from enrolling in law school. It is noteworthy that the University of Melbourne in Australia established law school as a graduate school, while at other Australian universities legal education is provided at the undergraduate level. The University of Melbourne law school does not accept graduates of law faculties. If we could exclude the graduates of law faculties from entering law school, then all students would enter law school with knowledge in other subjects and could follow a uniform three-year program. There would be also no need to maintain the two-year program.

It is too early to draw any conclusions as to whether the introduction of the new law school system has been a success or a failure. Yet, if Japan keeps undergraduate legal education as is and keeps the numerical cap on the number of persons who can pass the bar examination, then the future of the new law school system will be bleak.


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