Foote, D H --- "Forces Driving and Shaping Legal Training Reform in Japan" [2007] LegEdDig 8; (2007) 15(1) Legal Education Digest 20
Forces Driving and Shaping Legal Training Reform in Japan
[2007] LegEdDig 8; (2007) 15(1) Legal Education Digest 20
7 Aust J Asian L 3, 2006, pp 241–263
In the past few years, Japan has planned and implemented the most fundamental reforms to its system for training legal professionals in over half a century. The centrepieces of the reforms are the establishment of a new system of graduate-level law schools that bears many parallels to the US law school model. In April 2004, 68 new law schools commenced operations under this system. Numerous related reforms have already been undertaken, and other related transformations, including alterations to the bar examination and apprenticeship training (conducted through the Legal Training and Research Institute or LTRI), will take effect in the near future.
In 1999, then-Prime Minister Keizo Obuchi proposed the establishment of an advisory council, the Justice System Reform Council, and the Diet enacted legislation establishing that Council. The Reform Council was charged with reviewing the entire justice system. One of the most important sets of recommendations of the Reform Council related to reform to the legal training system.
To implement the legal training reforms, a vast range of matters needed to be addressed, including governing standards for the new law schools, chartering, accreditation, admission examinations and standards, curriculum and teaching methods, faculty, the bar examination and many other issues, not to mention the crucial matter of funding. Each university interested in establishing a law school had to undertake extensive activities, including establishing curriculum, hiring faculty, constructing new buildings or finding other space, and establishing and implementing admissions.
Before the recent reforms, the largest formal category of legal training in Japan, in terms of the total number of persons receiving training, occurred at universities, where legal education was conducted primarily at the undergraduate level. Law has traditionally been regarded as one of the prestigious undergraduate disciplines. Nearly 100 universities had undergraduate law faculties, which together enrolled a total of approximately 45,000 students per year. In keeping with the background of the faculty, legal education emphasised theory, with a heavy focus on mastery of legal doctrine and, with rare exceptions, virtually no attention to training in practice-related skills. Except in the case of a handful of the top-rated universities, very few of the graduates actually entered the legal profession. Rather, most entered companies after graduation.
To enter the legal profession, one must pass the bar examination and then successfully complete the apprenticeship training program, conducted through the LTRI. Passing the bar examination has been daunting and competition fierce. Until 1991, the number of passing was capped at approximately 500 persons per year, that being the capacity of the facilities of the LTRI then in use. The LTRI then moved to a new location, and since 1991 the number passing has gradually increased. As of 2003, however, the number was still under 1200. That year, over 45,000 candidates sat for the bar examination, meaning the pass rate was under 2.5 per cent. Indeed, the last time even 5 per cent of the applicants passed the bar exam was in 1952, over half a century ago. In recent years, approximately a quarter to one third of the successful applicants have still been in college at the time they passed the bar exam.
For those who do pass the bar exam, the final stage of the training process has been so-called apprenticeship training (jitsumu shûshû) conducted through the LTRI. The LTRI lies under the authority of the Supreme Court. Although academics give occasional guest lectures, the faculty of the LTRI has been drawn from the world of practice, consisting of judges, prosecutors and practising lawyers. As this suggests, training through the LTRI is focused primarily on practice-related skills.
In 1999, when the number passing the bar exam was increased to 1000 for the first time, the period of training was reduced from two years to 18 months. Following successful completion of the LTRI training (nearly all those admitted have passed), candidates were qualified to enter the legal profession. Traditionally, the vast majority of successful candidates have become either practicing lawyers, judges or prosecutors.
Over time, the number of university law faculties gradually increased, prep schools came to play a more prominent role (especially from the 1980s on), the number passing the bar exam gradually increased and the period of LTRI training was shortened somewhat. The basic structure of legal training set out above, however, remained essentially unchanged from 1947 until the recent reforms.
This does not mean, however, that there was universal satisfaction with the state of legal training. The Reform Council highlighted two major sets of concerns regarding the existing system: quantity and quality. To meet the needs of Japanese society, the Reform Council called for substantial increases in the size of the legal profession, including increases in the number of judges and prosecutors, as well as practising lawyers.
The Reform Council therefore called for raising the number passing the bar exam to about 3000 by the year 2010. As to quality, the Reform Council offered rather ambitious goals for the legal profession.
To some extent, the Reform Council’s concerns over quantity and quality reflect the changing nature of Japanese society and the demand for legal services in Japan. As the Reform Council observed, against the back-drop of increasing financial globalisation, increases in intellectual property and other legal issues requiring specialised knowledge, and expansion of the role of the legal profession in solving a wide range of problems, the demand for legal services is increasing and becoming more diverse and complicated.
Yet the basic concerns over quantity and quality are by no means new.
Given these longstanding concerns, why did it take so long for Japan to undertake reform? Part of the reason is simply inertia, that is, the difficulty of changing the existing system. As the Reform Council observed, however, until recently it was taken for granted that it was up to the legal profession itself to decide such matters as how many people should pass the bar exam each year and how legal training should be structured. Allowing the legal profession to decide how many new lawyers should be admitted ensured the size of the legal profession would not increase substantially. The bar frequently has framed its objections in terms of concerns over quality or ethics, but the primary reason for its opposition has been the desire to limit competition.
Until relatively recently, the bar had an important ally in the debate over the size of the legal profession: the business community. Throughout much of the 1980s, Japanese business leaders viewed the United States as a nation with too many lawyers, leading to excessive litigation, which, in turn, hampered the competitiveness of US businesses. In contrast, according to this view, the limited number of lawyers in Japan was one reason for Japan’s economic success.
What changed to enable reform now? To some extent the bar’s own views shifted. Following the passage of the Foreign Lawyers Law in 1986, many foreign law firms entered Japan and many business-orientated Japanese lawyers came to feel that, to compete with foreign law firms, Japanese law firms needed to strengthen themselves, both in terms of number and quality of lawyers.
A further reason for support for reform by the business community, as well as by the ruling Liberal Democratic Party, related to the broad issues of deregulation and administrative reform. A fundamental goal set forth by the Reform Council was ‘to transform the excessive advance-control/adjustment type society to an after-the-fact review/remedy type society. As the Reform Council emphasised, the legal profession would need to play a vital role both in shaping and in implementing the rules underpinning the review/remedy approach.
A final important factor is that, with the establishment of the Reform Council, deliberation on such matters as how large the legal profession should be and how legal training should be organised were no longer left to the legal profession itself.
The most important force that shaped the ultimate format of the reforms was the Reform Council’s vision for the legal training system. That vision in turn proceeded from the Reform Council’s vision for the legal profession itself. Coupled with the increase in quantity discussed earlier, the legal profession needed ‘to support Japanese society in the 21st century’ should embody the following qualities, according to the Reform Council: specialised legal knowledge; creative and critical thinking ability; capacity for legal analysis geared to solving real-world problems (as opposed, presumably, to doctrinal analysis divorced from real-world concerns, which at times seems to have been the primary focus of some undergraduate legal education in the past); broad and diverse back-grounds, with many members of the legal profession having studied fields other than law or having work or other real-world experience, thereby ensuring the legal profession’s ability to deal with new tasks and new fields as its role expands and at the same time helping to ensure an appreciation of the needs of society; mastery of basic practice skills and the ability to link theory and practice skills organically; basic understanding of cutting-edge legal fields; and a sense of humanity, responsibility to society and high ethical standards.
Having concluded that this broad range of qualities could not be achieved either simply by increasing the number of passengers of the existing bar exam or reforming undergraduate legal education, the Reform Council proposed the creation of graduate-level professional law schools. The Reform Council set out numerous principles to be embodied in the new law schools, including: (1) in principle, a three-year term; (2) admission of students from a broad range of academic disciplines and students with real-world experience, to ensure diversity; (3) small classes (of no more than approximately 50 students each), with extensive use of interactive discussion (rather than one-way lectures), to enhance critical analytical skills, creativity, and skill in advocacy; (4) education bridging theory and practice, achieved in part by hiring substantial numbers of faculty members with broad experience in the legal profession; (5) chartering standards, an ongoing third-party accreditation system, and other accountability mechanisms to ensure the quality of the law schools; (6) strict guarding and evaluation of students, to ensure their commitment to and successful completion of their studies; and (7) provision of ‘thorough education such that a significant ratio of successful graduates (for example, 70 to 80 per cent) can pass the new bar exam’ so as to afford students the ability to devote themselves to their study at law school (rather than feel compelled to spend most of their time attending exam prep schools or otherwise cramming for the bar exam).
One further point bears note. In its recommendations, the Reform Council explicitly stated that there would be no fixed limit on the number of law schools. Any law school meeting the minimum standards for chartering and accreditation was to be recognised.
With law schools based on the above principles, the Reform Council concluded the new legal training system would ‘not focus only on the “single point” of selection throughout the national bar examination [as in the past], but would organically connect legal education, the national bar examination and apprenticeship training as a “process.”’ In sum, legal training would become a continuum, beginning in undergraduate education (whether in law or in other fields); extending through the new graduate-level law schools, the bar exam, and apprenticeship training; and continuing on thereafter, through continuing legal education programs for those in practice.
Turning to experiences under the new system, I begin with an initial assessment of experiences at the University of Tokyo School of Law and then examine a number of specific concerns.
As one would expect, the law school students are on the whole more mature than undergraduates. The law students are also much more diverse, especially in the case of the three-year (mishûsha) course. As one would expect, in the case of the two-year (kishûsha) course, nearly all entrants had studied law at the undergraduate level, but over 10 per cent had work experience before coming to law school, including several former bureaucrats. The maturity and diversity of the students in both the mishûsha and kishûsha groups have contributed to stimulating interchanges in (and outside) class.
Also, as one would expect, the professors who have joined the law school faculty after careers in the legal profession bring a strong practice orientation to their teaching. As envisioned by the Reform Council, much of the education at the law school is aimed at bridging theory and practice.
Moreover, students at the University of Tokyo School of Law seem to have been freed from the ‘tunnel vision’ of preparation aimed at the ‘single point’ of the bar exam, initially at least. The curriculum covers the subjects that will appear on the bar exam, and students pay great attention to those subjects. Every student at the University of Tokyo School of Law is required to take at least one ‘perspectives’ course in fields such as jurisprudence, legal history or sociology of law. Even at the University of Tokyo, however, recent reports regarding the expected pass rate on the bar exam have posed a threat to the atmosphere just described.
First, before the new system began, many observers wondered whether students who had done their undergraduate training in fields other than law would be able to adjust to legal study. A related concern that was frequently expressed was whether such students — even with one year of intensive study at law school — would be able to attain the same level as students who majored in law at the undergraduate level (the kishûsha).
Based on my own experience, I view the former concern as simply unwarranted. In the United States, of course, law is overwhelmingly a graduate-level discipline.
A second frequently voiced concern is that Japanese students are not well suited to the Socratic method. According to this view, Japanese students, whether due to fear of embarrassment or some other reason, are reluctant to express their own views in front of others, so efforts to introduce the Socratic method or other interactive teaching methods would likely be met by student silence. In my view, this too represents a misconception, albeit one with the potential to become a self-fulfilling prophecy.
A third, widely voiced concern is that, while the Socratic method or other interactive teaching approaches may be well suited to the United States and its case-law system, it does not fit Japan’s Code-oriented legal system, for which a systematic teaching method based heavily on lectures is needed. The great value of the Socratic method lies in teaching students to reason and to think for themselves; and a wide range of materials could be used for that purpose, including statues, theories and problems. I simply cannot believe that the Socratic method and other interactive teaching methods cannot be effectively applied to the Japanese legal system.
From the outset, I have viewed the preceding three concerns as misplaced. For my part, however, I had a number of other concerns and reservations about the new system.
I had great faith that students would quickly embrace interactive learning, but I worried about whether faculty members would do likewise.
In relation to all three concerns, the experience of the first year at the University of Tokyo School of Law has greatly exceeded even my most optimistic hopes for the new system. Inspired in part by the students’ own energy and enthusiasm, faculty members (kenkyûsha kyôin and jitsumuka kyôin alike) have displayed true commitment to interactive methods and have devoted tremendous time and energy to preparation and teaching. Kenkyûsha kyôin have made conscientious efforts to reflect practice-related perspectives in their teaching. The level of collaboration between kenkyûsha kyôin and jitsumuka kyôin has been impressive.
To me, the most gratifying development of all has been dramatic change in ethos with regard to the attention accorded to teaching.
At the School of Law, great attention is paid to teaching. Student evaluations are mandatory for all classes and a new peer review system has been introduced, with all faculty members to be reviewed at least every three years. In addition, under the auspices of a new Faculty Development Committee, law school faculty members gather every month or two to discuss issues related to teaching. In a development that would have seemed unthinkable even a year or two earlier, several faculty members have consented to having their classes videotaped, with excerpts then shown at the gatherings and critiqued by their colleagues. In all these respects, the commitment to teaching and the desire to improve teaching have been truly impressive.
The news with regard to my second major concern, that is, the impact of the bar exam on the legal education process, is not quite so rosy. Given the numerical limits on the number of bar passers, the large number of law school students, and the as yet undetermined number of candidates who may reach the bar exam through the ‘bypass’ route, the pass rate on the bar exam is likely to fall below even 50 per cent of all takers. The rate under the new system promises to be far higher than the current 2-3 per cent; but with a rate under 50 per cent, it seems inevitable that many law school students, and even some law schools, will feel compelled to devote most of their efforts to preparation for the narrow range of subjects and skills likely to be tested on the bar exam. If that proves to be the case, the Reform Council’s goal of a shift from a focus on the ‘single point’ of the bar exam to an overall educational ‘process’, and its accompanying vision of a broad well-rounded and diverse legal profession, could be threatened.
In October 2004, however, the atmosphere changed rather dramatically. The reason for the shift was not the release of grades for first semester courses. Rather, the precipitating factor was an article published by the Asahi Shinbun newspaper. Reportedly based on deliberations of the Ministry of Justice’s advisory panel on the bar exam regarding the pass rate to be allocated to the existing bar exam and the new bar exam respectively in 2006, that article projected a rate of only slightly over 20 per cent for law school graduates in the first year of the new bar exam (2006), with rates declining somewhat thereafter, after repeaters begin taking the exam.
In early March 2005, the Asahi Shinbun published another report, announcing that the advisory panel had reconsidered and had decided to allocate enough slots to passers on the new bar exam to ensure a pass rate of approximately 50 per cent for law school graduates. While some of those involved in the reform process insist that 50 per cent is still far too low, this subsequent report appears to have alleviated much of the anxiety for University of Tokyo law school students. Yet the new bar exam is still over a year away. As that exam draws closer, it is entirely possible students at the University of Tokyo may feel compelled to focus nearly all of their attention on bar exam preparation.
The committee responsible for advising on the contents of the new bar exam has announced that the new exam will reflect the educational programs at the law schools, just as the Reform Council recommended.
The first bar exam under the new system will not be administered until May 2006 and it remains to be seen what its exact contours will be.
For these reasons, the impact of the bar exam has always been, and remains, my gravest concern regarding the success of the new system. From the very moment the Reform Council’s recommendations were released, it was evident that three major conditions regarding the new system lay in fundamental tension: open entry into the system, with any institution that could meet the minimum standards being permitted to establish a new law school; a numerical cap on the number of passers on the bar exam (to reach approximately 3000 by the year 2010, but presumably not before); and a pass rate of 70 to 80 per cent. The only way all three of these conditions could be achieved simultaneously was if only a limited number of qualified institutions sought to establish law schools. Yet, given the fact that over 90 universities already had law faculties, coupled with the prospects for a relatively high pass rate for law school graduates on the new bar exam, it was inevitable that a large number of institutions would seek to form law schools. The three possible ways of resolving this tension were clear: either limit the number of law schools, reduce the pass rate on the bar exam or uncap the exam (or at least set the cap much higher than 3000). To me, the last of those three was the only sensible solution but, for reasons discussed earlier, uncapping the bar exam was not a viable option. By very early in the planning process it was evident that the pass rate would bear the brunt of the pressure and would fall well below the 70-80 per cent goal.
Overall, the experiences of the first year of the new system give much reason for optimism. The legal training reforms hold great promise for raising both the quantity and quality of the Japanese legal profession. In addition, many aspects of the reforms, including the emphasis on interactive learning; the attention to bridging the worlds of practice and theory; the recognition of the value of diverse perspectives; the introduction of various accountability mechanisms; and, above all, the change in ethos regarding the value of teaching, seem likely to lead to spillover benefits for undergraduate legal education and, ultimately, higher education in Japan in general.