A Platinum Parachute By Nicholas Thompson
When Pigs Float By Krista Carothers
Land of the Rising Lawyer? By Annie Murphy Paul
Land of the Rising Lawyer?
A bold solution to Japan's floundering economy: 68 American-style law schools.
MOST GOVERNMENTS, ESPECIALLY HIGHLY CENTRALIZED and bureaucratic ones like Japan's, are awash in official paper: studies, surveys, plans, projections, guidelines. But in June 2001, Japan released an exceptional document. Entitled "Recommendations of the Justice System Reform Council for a Justice System to Support Japan in the 21st Century," this voluminous report was a blueprint for remaking the country's legal system.
The report addressed a full spectrum of issues, ranging from the pace of justice delivered in civil proceedings to the fairness of criminal trials and the changes ushered in by globalization. Compared with about 20,000 legal professionals then in the country, it predicted that 50,000 would be practicing by 2018. These lawyers, the report opined, should be "persons with kind hearts who can deeply sympathize with the happiness and sorrows of people who are going through their one and only life." The report's recommendations were striking, however, not for their expansive ambition or their florid language but for the speed with which they became reality.
One of the most ambitious proposals was a plan to revolutionize the country's system of legal education. Japan had long restricted entrants to the bar to no more than 1,000 a yearless than 3 percent of the people who took the bar exam. The resulting pool of lawyers, the council noted tartly, "can hardly be regarded as being capable of sufficiently responding to the legal demands of the society in any respect." The undergraduate programs that taught aspiring lawyers were inadequate, the report continued, so it was imperative that "graduate schools specialized in training of legal professionals shall be established." And so they were. Less than three years later, 68 new law schools opened their doors.
It's hard to overstate the magnitude of this effort. Opening 68 new law schools meant building or finding space for 68 new facilities. It meant recruiting 68 new faculties and attracting 68 new student bodies. It meant developing a new bar exam, scheduled to debut in 2006. Perhaps most important, it meant changing Japan's traditional attitude toward the lawa tool long regarded, in the words of a well-known proverb, "like an heirloom sword: treasured but not used."
THROUGHOUT THE POST-WORLD WAR II ERA, disputes in Japan were settled not by lawyers but by bureaucrats (or, failing that, by organized crime syndicates known as yakuza). Government officials had a hand in resolving matters ranging from minor car accidents to major business deals. But this, the council declared, had to change: Its report heralded "a transformation in which the people will break out of viewing the government as the ruler and instead will take heavy responsibility for governance themselves." The agents of this transformation, the council decided, would be lawyers, and Japan needed to graduate more of them.
For longtime observers of the relationship between Japan and the West, this was a startling development. Twenty years ago, Japan was the "Rising Sun," an "Asian Tiger" whose roaring economy threatened to overtake America's faltering industries. Back then, many analysts pointed to a dramatic difference between Japan and the United States: the number of lawyers in each country. In a well-publicized report in 1983, Derek Bok, then president of Harvard University, warned that America was suffering "a massive diversion of exceptional talent" into the law and away from more useful pursuits like teaching and public service. Noting that the United States had "a whopping twenty times" as many lawyers as Japan, Bok approvingly quoted another Japanese adage: "Engineers make the pie grow larger; lawyers only decide how to carve it up."
But that was before Japan slid into a recession, a 15-year trough from which it is still trying to pull itself out. Japan's "difficult conditions," as the council's report put it, made lawyers more necessary than before. Disputes among businesses became more common, exposing competing interests and undermining the goodwill that prevailed when times were flush. In an effort to free up Japan's struggling industries, the country's government embarked on a campaign of deregulation, leaving lawyers to establish and enforce standards of corporate behavior. "Japanese companies are more and more aware of the need for legal compliance," said Yoshiko Nakayama, an associate in the Tokyo office of the American firm Skadden, Arps, Slate, Meagher & Flom who also teaches law at Meiji Gakuin University. "That may be partly because of the increasingly strict gaze of financial investors."
Expanding globalization also placed a strain on Japan's small population of lawyers. There were often too few attorneys available to conduct international transactions and other complex deals, forcing Japanese companies to hire foreign lawyers at exorbitant rates. Through such exposure to lawyers from other countries, Japanese executives came to see that lawyers could expand the pie as well as divide it by giving advice, negotiating contracts, and facilitating deals. Meanwhile, foreign governments and companies doing business with Japan were beginning to demand the transparency and accountability that were expected in Western business and that lawyers can help provide.
Responding to pressure from Japanese corporations and to its own sense that change was necessary, the Japanese government established the Justice System Reform Council in July 1999 and charged it with exploring ways to reform the country's legal system. Chaired by Koji Sato, a law professor at Kinki University in Wakayama, the council was composed of 13 members and included lawyers, university administrators, executives from ironworks and electrical power companies, and the secretary general of the Japan Housewives Association. Its members gathered information from many countriesthe United Kingdom, Germany, Francebut they paid particular attention to America. Council members were sent to the United States. "I couldn't even count how many delegations came through Columbia, basically asking what is our secret, what is the essence of American legal education," said Curtis Milhaupt, Fuyo Professor of Law and director of the Center for Japanese Legal Studies at Columbia University.
The Japanese were especially interested in American pedagogy, inquiring about teaching from casebooks and about the Socratic method, in which teachers ask questions designed to make students think on their feet and to elucidate key points in the give-and-take. The ministry officials were also curious, said Milhaupt, about the "back-office operations" of law schools. "They asked, 'What does an admissions office look like?' 'What does a financial aid office look like?'" The reformers invited American professors to visit their country and consulted American legal experts already living in Japan.
Few were surprised, then, that the council in its final report endorsed the creation of new law schools strongly resembling their American counterparts. The report didn't mention the resemblance, however. "It was never politically correct to note that America was the model," said Mark West, Nippon Life Professor of Law and director of the University of Michigan Center for Japanese Studies, who recently returned from a semester at Kyoto University. "You weren't even supposed to say 'law school.' You were supposed to say 'hoka daigakuin,' so it didn't sound like it was an American copy."
The new schools were to be three-year professional programs. Students would have more diverse interests like literature or science than the single-minded aspirants of days past. They would include a sizable shareat least 30 percent, the council announcedreturning to the academy from jobs in business and public service, among other fields. The large lectures traditionally used in Japanese undergraduate courses would be replaced by smaller classes featuring dynamic, interactive teaching. Graduates would not be the narrow specialists of old, but would be, in the words of the report, "equipped with such basics as rich humanity and sensitivity, broad education and expertise, flexible mentality, and abilities in persuasion and negotiation."
The ambitious plan got off to a stronger start than the council had anticipated. When the government issued a call for new schools, over 70 universities appliedmore than three times as many as had been expected. Sixty-eight were approved, and in 2004, their first year of operation, 72,800 applicants vied for 5,590 slots. The overall student body was indeed more diverse than previous ones, with more varied academic backgrounds; a survey of the first class of students showed that about a third of them studied subjects other than law as undergraduates. Still, much remains to be worked out, including an appropriately Japanese curriculum. The United States is a common law society and Japan a civil law one, so the new schools cannot borrow wholesale from the American model. "Japan simply does not have the volume of cases that provide the grist for the American law school system of education," said Gerald McAlinn, an American who has taught law in Japan for more than a decade and is currently a professor at Keio University Law School in Tokyo.
Students have also had to get used to a new way of learning. Japanese law students are accustomed to a highly passive style, which emphasizes compromise rather than the adversarial kind of advocacy taught at American law schools. "Many Japanese professors think that the Socratic method is impossible to import here because the students won't debate or respondthey're too afraid of not being polite," said Mark West.
But, he added, students are not the only ones who have difficulty adapting. "The professors themselves can't do it. They're not used to opening themselves up to questions, not used to ad-libbing. It's really frightening if you're not used to it." West has taught several mock classes at Kyoto to show Japanese professors how to teach American-style. Other American innovations, such as moot court competitions, legal clinics, and externships with law firms and government agencies, are also being introduced to Japan.
Because all of the new law schools opened at the same time, competition for faculty, students, and funding has been fierce. "It's a battle with no mercy," law professor Shinichi Ishizuka of Ryukoku University in Kyoto told the Japan Times of the race to sign up professors from law firms and from university law departments. Yuichiro Anzai, president of Keio University, echoed this sentiment: "Frankly speaking, this is a war to get as many talented students as we can." Schools are touting their affordable tuition (three years at a Japanese law school averages about $60,000, which represents Japan's average household income), their diversity of classes, and their brand new facilities.
PERHAPS PREDICTABLY, THERE HAVE BEEN MYRIAD OTHER CHALLENGES involved in combining Japanese and American institutionsor, as Koichiro Fujikura, a law professor at Tezukayama University in Nara, has put it, "trying to graft bamboo to the trunk of an oak tree." But at least one of these problems looms so large that it threatens to bring down the enterprise. Even though the new law schools are educating thousands of students, a cap on the number of people who can pass the barlong used to tightly restrict the number of new lawyersremains in place.
In its report, the council indicated that 70 to 80 percent of those who took the exam would pass it. Three years later, unexpectedly large numbers of students from the abundance of new schools prompted the Ministry of Justice to revise the pass rate to a much lower figure of 30 percent. "I was so disappointed and angry, as were many of the other students," said Rie Okawachi, a second-year student at Keio University Law School. "I felt cheated." McAlinn reported that some of his students complained that they had been fraudulently induced to attend law schools by the promise of a high pass rate. Last November, almost 2,000 law school students submitted a petition to the Japan Federation of Bar Associations, the body most strongly opposed to increasing the number of lawyers, demanding that the bar passage rate be raised.
Law school applications are dropping precipitously, falling off by 50 percent or more from the level in the law schools' first year of operation. And enrolled students may be forced by the prospect of a stringent bar-exam pass rate to thwart the lofty goals of the council's report. "Originally, the new law schools were going to offer a generalist education," said Thomas Ginsburg, director of the Program in Asian Law, Politics and Society at the University of Illinois. "Now, because the bar passage rate looks like it's going to be fairly tight, we're seeing a return to the traditional pressure to focus only on those subjects which are going to be on the bar."
Such pressures impede another of the council's intentions: that the new law schools graduate lawyers with practical skills. The imperative to pass the bar "often leads to the students blindly memorizing isolated chunks of legal reasoning without being able to place them in a larger picture," said Kentaro Matsubara, associate professor at the University of Tokyo Law School. "That makes it very difficult for them to put their knowledge to use in a 'real' situation."
The solution to this quandary appears simple: lift the cap on the number of people who can pass the bar. The reasons why this hasn't been done speak volumes about Japan's transitional state. In its report, the council wrote of "promoting decentralization" and reforming "the bloated administrative system." But as long as that administrative system is still predominant, Japan's shift to a more mobile and dynamic society will be incomplete. In the case of the bar exam passage rate, the Ministry of Justice is aligned with the Japan Federation of Bar Associations, which doesn't want to dilute the monopoly on legal services held by its members with a flood of new lawyers. Hence the almost comical spectacle of Japan's bureaucracy calling for its own demise while keeping a firm grip on the reins of power.
There are signs that the power of the bureaucracy is waning, however, with law and the legal profession on the ascendancy. Research by Curtis Milhaupt and Mark West demonstrates that, even before the recent reforms, more graduates of Japan's elite universities were taking the bar over the past decade, while fewer were sitting for the civil service exam. Other studies indicate that rates of litigation are on their way up, as are lawyers' salaries. The increasing dominance of law is perceptible even in Japan's popular culture. One of the country's most popular TV shows now is "Gyoretsu No Dekiru Horitsu Sodansho," in which a panel of celebrities debates a group of lawyers about how a hypothetical case should be decided. As Atsushi Kinami, a law professor at Kyoto University Law School, put it, "More and more people are learning to 'think like a lawyer.' " In Japan these days, that's not an insult.