Judicial System Reform Through Formation of Law Schools

 

Keiji Kondo, Attorney-at-Law

Fukuda & Kondo

 

Background

 

In 1999, a committee was formed under the administration of Keizo Obuchi.  It was aimed at reform of the Japanese judicial system.  It held sixty-three meetings, and four public hearings.  It also made two investigational trips abroad, one to the United States, and the other to Europe.

 

At the sixty-third meeting, which was held on June 12, 2001, the final opinion of the committee was adopted and submitted to Prime Minister Junfichiro Koizumi.  Along the line of the opinion, the Cabinet, the Japan Federation of Bar Associations and the Supreme Court of Japan issued programs to implement the proposed reform, respectively on March 19, March 19 and March 20, 2002.

 

Among other proposals, one that is praised much by innocent journalists is formation of law schools.  However, there are questions about both its effects and realization.

 

 

1.              Present Judicial Examination

             

1.1              Requirements

 

                            Anyone that has finished the first two years of college education can take the Judicial Examination irrespective of his/her major.  Although applicants are usually those who have majored in law at the undergraduate level, there a substantial number of applicants and passers that have not taken any formal law education.

 

              After passing the judicial examination, they must take a training course supervised by the Supreme Court of Japan to be admitted to the bar.  It can be taken whenever he/she likes; that is, he/she can take it even thirty years after he/she passes the examination.  During the period they are taking the training course, they are paid by the Supreme Court.  At the end of the training course, they must take another examination that is pretty much practice-oriented.  For each test, they are given a court record including transcripts of testimonies, and instructed to draft a judgment of the court, a final argument of the public prosecutor or a summary brief of the counsel for the plaintiff or the defendant.

 

              1.2              The Judicial Examination in 1990

 

                            About 500 applicants passed the examination out of nearly 25,000 applicants.  The passers were required to take a two-year training course.

 

              1.3              The Judicial Examination in 2001

 

                            About 1,000 applicants passed the examination out of nearly 39,000 applicants.  The passers were divided into two groups, a free-competition group and a priority group, the ratio of which is about 7 to 2.  Those who had not been applicants more than three years were entitled to the priority group and even if they failed to reach the cutting line of the free-competition group, they could pass the examination by reaching the cutting line of the priority group.  The priority group was made a few years ago to increase the number of young passers, which the Supreme Court and the Ministry of Justice regarded as preferable.

 

The passers were required to take a one-year-and-a-half training course.  The term of the training course was shortened in 1999 to compensate the increased number of the passers, and thus to reduce the budget of the Supreme Court.

 

1.4              The Judicial Examination in the Future

 

          The Judicial Examination Committee has announced that the number of passers will be about 1,200 this year, and the ratio of the free-competition group to the priority group will be about 9 to 2.  It is further expected that the number of passers will be about 1,500 in 2004.  The priority group may be abolished in 2004.

 

 

2.           Law Schools

 

              2.1              Problems in the Present System

 

                            With the number of passers increased, the level of the examination has been lowered substantially.  Now, many law students think that college education is nothing to do with the judicial examination.  They usually attend preparatory schools that offer classes that are somewhat comparable to BAR/BRI.  Law school professors, especially those of private universities, have become concerned about this new trend.  This concern has led them to argue that selection by a single examination is not a proper way to have people admitted to the bar, and selection by process should be the right way.

 

              On the other hand, less-informed journalists have a misconception that the judicial examination is too difficult even for law students.  This misconception may have been a result of the fact that many law students attend preparatory school classes instead of regular college classes.  They argue that law schools should provide graduates majoring in other subjects than law with a better opportunity to be lawyers.  For this reason, they agree with law professors in the conclusion that law schools should provide a better way of selecting people for their bar admission.

 

              2.2              Contemplated Plan

 

                            Law schools will have two different courses, one for those having finished undergraduate law courses and equivalents, the other for others.  The first students will enter them in April, 2004, and graduate from them in March, 2006.  They will take a new judicial examination which most of them are expected to pass.  As a transitional measure, the present judicial examination will be given in parallel to the new one for about five years.  In or around 2010, when the transitional period will have ended, the number of passers of the new judicial examination will be 3,000.

 

              Education in the present undergraduate law schools is given in a mass class with many (more than hundred) students.  Almost all the time is spent in lectures.  In contrast, education in the new law schools will be given in a small class with a small number of students with more time spent in discussion.  The subjects to be taught will be more practice-oriented, for example with more emphasis on the law of evidence, including the burden of proof.

 

              2.3              Foreseeable Problems

 

                            Compared with the present system, the barrier will be higher for non-law-major students.  Now, any college graduate can take the bar examination.  Many preparatory schools offer evening classes.  Therefore, if an engineer, for example, determines to change his/her career, he/she can take the bar examination without any substantial change in his/her life.

 

              After the transitional period, he/she must go to law school to take the bar examination.  Although it is argued that law schools must offer evening classes, no one can be sure there will be many classes available.  In addition, it is widely believed that the tuition for the law school will be very expensive, because there must be many teachers compared with the number of students.

 

              One of the rationales of the law school is to enhance the variety of lawyers.  They say that engineers, bankers, accountants, or even artists or musicians can be lawyers more easily.  However, they are silent about the fact that those who have majored in law at the undergraduate level can finish the law school in two years.  They say that the law schools in the United States have a variety of students that have majored in computer science to genetic engineering.  However, they are silent about the fact that the United States does not have an undergraduate law school.

 

              Another problem is that very few people are available as teachers at law schools.  Under the contemplated curriculum, the teachers must have some knowledge of practice of law, but very few law professors have practicing experience.  Therefore, many law schools are trying to recruit practitioners as teachers.  However, good practitioners are usually too busy to teach at law schools, while bad ones are not capable of teaching.

 

              For the above reasons, we cannot be sure that law schools will be successful.

 

(End)