Day: 2011/07/11

Quick Link: In Japan, Blame for Widespread Bar Exam Failure Placed on Exam, Not Scores of “La Vernes”

Before reading Miki Tanikawa’s New York Times piece, “A Japanese Legal Exam That Sets the Bar High,” you should read Takahiro Saito’s law review article, aptly titled, “The Tragedy of Japanese Legal Education: ‘American’ Law Schools,” in the Wisconsin International Law Journal (2006ish). Saito writes:

In 1985, about five hundred candidates, out of twenty-five thousand, passed the National Bar Examination in Japan. This low passage rate led to strong criticism by some that the examination was too difficult to attract able young people to the practice of law. This criticism sparked a very strange reform in Japanese legal education.

Until 2000, some believed that the best solution to the problem was to increase the number of successful applicants to the bar examination. However, the Japanese government decided instead to import the “American” legal education structure to address the low passage rate problem. The business community endorsed the reform plan because it wanted to increase competition in the lawyers’ market, and the mass media generally supported the reformers due to the endorsement by the business community.

Japan now has more than seventy newly established law schools, although all are still in the two-year preparatory stage. For the 2005 academic year, the number of applicants for most schools is far below that of the 2004 academic year, so some of these schools may close in the near future. The real victims, however, are not the law schools but their students. Most students will be forced to spend approximately four million Japanese yen (US $36,000) on tuition for three years of study. However, fewer than 40 percent of these students will be able to become legal practitioners… (197-198; pdf 1-2)

Before the reforms, like many civil law countries, Japan allowed students to study law during their undergraduate years—sort of like a political science degree in the U.S., people use it in business and other professions if not law—and then sit for the bar exam before going to the law institute. A civil law bar exam requires memorizing the civil code, which is much harder than any U.S. bar exam. As Saito points out, the passage rate was brutal, so some people complained that the bar was too hard, which led to the reforms. As to whether there was an attorney shortage, I’ve seen conflicting evidence, but the main point is that the reforms began due to people thinking the exam was too hard and not to address a shortage. I’m fairly sure that the reform was an outcome of administrative turf fights typical in Japanese politics. However, the Tanikawa piece quotes lawyers who believe there’s now a surplus of underemployed lawyers who are working for loan sharks.

The problem is that when scores of law schools opened, and many of their graduates did not (or could not) pass the bar, it looks really bad for the law schools with low passage rates. Unlike “employment at nine months,” bar passage rates are not stats law schools can juke. People began avoiding them. For whatever reason though, in the U.S. people enroll at institutions like the California’s disaccredited University of La Verne that have awful bar passage rates publicly available. Unlike La Verne, though, the criticism is aimed at the bar exam, not at the institutions for taking in too many students who lacked the aptitude to pass it, unless you talk to Japanese bar authorities.

I wish I could say there’s a moral to this story, besides a warning not to take comparisons between the Japanese and American legal education systems’ problems at face value. The only true commonality I see is that neither country is reforming its professional education system to match demand for professional services. The fact that they can’t even come up with a system that doesn’t fail large numbers of young people after years of study and money is shameful.