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Publisher: German-Japanese Association of Jurists
Languages: English
Types: Article
Subjects:
This article seeks: to explain features of the previous system of legal education in Japan; to present criticisms made of it; to describe, in the context of wider social and economic reform, the origins of the Judicial Reform Council and its key recommendations including the creation of law schools, the most important development in Japanese legal education for sixty years; to recount their opening and the preparation beforehand; to give an account of the factors that have obstructed achievement of their goals; to set out how law schools, students and commentators responded; to list the very real achievements of law schools and\ud finally to offer some concluding thoughts about their future and attempt to put them in an international context.\ud At the beginning of the last decade the Japanese government saw a reformed legal system as key to social ordering and resolving disputes, which were expected to rise as the country moved away from organisation by central administrative planning and guidance towards the\ud free market, individualism, personal autonomy, and fuller participation in globalisation.\ud Vital to this was the creation of graduate law schools intended to increase both the size and capabilities of the legal profession. The most striking – and much commented upon – characteristic of the old system, that of\ud tens of thousands of candidates sitting the National Legal Examination, and on average two per cent passing, vanished as a result of the inception of law schools in 2004.\ud However, although capable of teaching a deeper intellectual, critical and more reflective understanding of law and many useful lawyers’ skills, law schools have been hindered in their ability to do so by a decision taken in 2003 which permitted many more to be created than was originally anticipated and subsequently by government refusal to allow the number of their graduates who pass the new National Legal Examination to rise to that initially\ud projected because, contrary to predictions, demand for legal services did not increase. These factors combined to produce an annually decreasing pass rate. Understandable preoccupation by students, and their teachers, with success in the National Legal Examination led to concentration at many law schools only on examinable subjects and marginalisation of those not but nonetheless beneficial. Also features from the previous system appeared, including students attending cram schools for exam techniques and even absenting themselves from classes in order to do so.\ud Because of considerable anxiety about passing the National Legal Examination, substantial expense and uncertain job and salary prospects, uniting to form what one professor\ud described “as a process of suffering,” student enrolment at many schools, especially those whose graduates perform badly in the NLE, sharply decreased.\ud Most law schools have suffered reductions in the amount of subsidy they receive for their courses from the government. At the time of writing, 23 out of the 74 law schools had\ud stopped accepting new students, more were anticipated to follow, and many of these were expected to close when existing students completed their courses.\ud Substantial reductions in places available and in students to occupy them – many law schools now report they are undersubscribed – may well lead to fewer taking the National\ud Legal Examination and hence a rise in the success rate, notwithstanding the capping of the number who may pass to 1,500. Freed from intense competition with each other and from the enormous exam anxiety of their students, the remaining law schools may be able to deliver the deeper and broader legal education recommended over a decade ago by the Judicial Reform Council: Certainly this is the optimistic prediction of some law school professors.\ud Law schools are much exercised with the Preliminary Examination, introduced in 2011, successful candidates in which are allowed to take the National Legal Examination without attending law school. Critics say this exam, intended for people unable to afford law school\ud but wanting to become lawyers, or those who had practical legal experience, has become a shortcut used by undergraduate law students and law school students to take the National Legal Examination. If numbers passing this examination continue to rise, it is feared it will\ud become a grave threat to the existence of law schools.
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    • I. Introduction II. What Existed Previously 1. The National Legal Examination 2. Why Did So Many Try? 3. The National Legal Examination: A Series of Tests III. Criticisms of Legal Education IV. Calls for Fundamental Reforms of the Legal System 1. The Judicial Reform Council 2. The Judicial Reform Council's Report 3. Developing New Legal Training 4. Underpinning Educational Philosophy 5. Law Schools: Key Points 6. The New National Legal Examination 7. The Need for a Co-ordinated Approach V. Towards a New System 1. Law School Applications and the Run-Up to Opening 2. Law Schools Become a Reality 3. A Landmark VI. The Skies Darken 1. The Quality of Graduates 2. “A Vigorous Counter Offensive about the Size of the Legal Profession” 3. Removing the Target: The Right Thing to Do? 4. Government Investigation of Law Schools, Reduction of Subsidies and Closures 5. Ramifications of the Preliminary Examination 6. Abolition of the LTNI Apprentice Allowance, Financial Burdens and Consequences VII. Some Responses to Events by Universities, Students and Commentators VIII. Accomplishments of Law Schools IX. Conclusion X. Appendix - Chronology of Events WATSON, supra note 7, 66 f.; A. WATSON, Training for the Legal Profession at the Legal Training and Research Centre in Tokyo, in: Justice of the Peace 162 (1998) 299 f.
    • MIYAZAWA, supra note 3, 111.
    • 24 It has been suggested that this proposal represented a compromise with, and possibly a triumph for, those who did not want a law school system, see C.P.A. JONES, Japan's New Law Schools: The Story So Far, in: Journal of Japanese Law 27 (2009) 248, 254 and Y. KAWABATA, The Reform of Legal Education and Training in Japan: Problems and Prospects, in: S. Tex. L. Rev. 43 (2002) 419, 430-431, who describes pressure from the Liberal Democratic Party for an alternative route to take the National Legal Examination. Further see S. MIYAZAWA, Law Reform, Lawyers, Access to Justice, in: McAlinn (ed.), Japanese Business Law (Austin u.a. 2007) 65 f., who describes the prominence of the yobi shiken in JRC discussions about the reform of education and training of legal professionals. A former assistant professor at Kyōto University Law School and Dōshisha University Law School, and now prosecutor in Ōsaka, interviewed on 12 July 2015, considered thleate 1990s and early 2000s spirit, or “tide”, of sweeping away obstacles to economic activity contributed to the proposal for the preliminary exam and its acceptance.
    • 25 In the event, this timetable slipped by one year.
    • 28 Japan Times, 30 November 2002.
    • 29 If all had been approved, a total of 5,950 students would have been accommodated. The 20 state-run law schools would accept 1,650 students in the first year, the Tōkyō and Ōsaka city run public schools 140 each and the 50 private institutions a combined figure of 4,160.
    • 30 Asahi Shinbun, 2 July 2003.
    • 31 Japan Times, 2 July 2003.
    • 85 MATSUI, supra note 52, 30.
    • 86 Figures kindly supplied by Mr Fumihiko Sakamoto, First Secretary (Legal), Embassy of Japan, London.
    • 87 However above the 55.63 success rate of Hitotsubashi Law School, the highest performing law school.
    • 88 Yomiuri Shinbun, 11 September 2014.
    • 89 “Weaker case for the law schools,” Japan Times, 2 October 2014. The Japan Federation of Bar Associations called for a review of the yobi shiken to ensure that it does not “undermine the philosophy of the new professional legal training and education system in which law schools play a central part,” JFBA, supra note 64.
    • 90 Statistics, available from the Ministry of Justice, for 2012 show that of 7,183 candidates for the preliminary examination 1,657 (23 per cent) were undergraduates and 555 (7.5 per cent) were students attending law school. This meant that well over 5 per cent of students enrolled at law school took the examination.
    • 91 On 6 July 2015 at the offices of Yamaguchi Attorneys in Ōsaka. A senior public prosecutor, interviewed on 12 July 2015 said that preference was not given to those who had passed the preliminary examination by the Public Prosecutors Office where the criteria for employment was personality, capability and willingness to work.
    • 92 See JFBA, supra note 64.
    • 93 JAPAN FEDERATION OF BAR ASSOCIATIONS (JFBA), Statement Concerning the “Report of the Study Council for the Professional Legal Training System” (2013).
    • 104 See earlier section, Law Schools Become a Reality (page 1), and JFBA, supra note 1, 15, Table 1-2-4. See FOOTE, supra note 5, 435 for proposals made to assist non-law graduates, including lectures in their first year, to enable them to master core legal subjects more quickly, and relaxing the requirement they earn credits in subjects not examined in the National Legal Examination, so they may concentrate on those that are tested.
    • 105 To raise National Legal Examination pass rates by obtaining students with an already solid understanding of core subjects examined, it was reported that some universities introduced, or reintroduced, advanced courses in these fields at undergraduate level, FOOTE, supra note 5, 429.
    • 106 Professor Suichi Furuya, curriculum coordinator, Waseda Law School, interviewed by the Daily Yomiuri, 11 September 2010.
    • 107 For a fuller account see MATSUI, supra note 52, 25 and T.C. CHEN, Legal Education Reform in Taiwan: Are Japan and Korea the Models?, in: Journal of Legal Education, 62-1 (2012) 32. Following the Keiō Law School episode professors who draft National Legal Examination questions are prohibited from teaching law students in their final year.
    • 111 MATSUI, supra note 52, 24. The Head of Ōsaka City University Law School reported falling numbers taking mooting, organised by a practitioner-professor, because students wished to concentrate time on examinable core subjects. Interviewed on 6 July 2015.
    • 112 JONES, supra note 24, 252.
    • 113 WEST, supra note 13, 446.
    • 114 “Government moves to put floor under bar exam failures,” supra note 71. Similar views were expressed earlier by ARONSON, supra note 65, 260, who wrote: “While graduate law schools were seen as a means of facilitating more broad-based and practical training for attorneys, falling bar passage rates have encouraged, if not forced, law schools to assume the role once filled by preparatory schools.” Mr Hara, Chairman, Nagashima Ohno and Tsunematsu (a large firm of attorneys), and a contributor to a panel, upon which Mr Aronson reported in his article, saw almost all law schools focused on how many of their students could pass the national Legal Examination. In the context of Japan, Daniel Foote thinks it inevitable that the law school curriculum will be driven by the content of the National Legal Examination. Minded by this, he would extend the Examination to include skills in communication, research, problem solving, identifying the interests of clients and others and ethical responsibilities. He would also import testing a broad range of abilities and qualities into the Preliminary Examination, FOOTE, supra note 5, 441. Similar views about expanding what is examined beyond the present core subjects and electives were expressed by Tsuyoshi Hamada, formerly a professor at Kyōto University Law School and Dōshisha University Law School, interviewed on 12 July 2015.
    • 115 A recently qualified attorney who had attended Kyōto University Law School said that unlike some others on her course, she had not attended yobikō, but had in common with others used written material produced by them to assist her study. Interview held at Yamaguchi Attorneys, Ōsaka, on 6 July 2015. At one point it had been thought hte value of yobikō attendance was diminishing. Candidates who took the essay section of the National Legal Examination in 2010 were surprised to find far greater weight attached to application of knowledge and rational thought and less to reproducing facts and examination technique than previous years. The picture was similar in 2101Interview with a professor of law, Ōsaka City University, held in London on 25 July 2011.
    • 128 FOOTE, supra note 5, 409-410.
    • 129 FOOTE, supra note 5, 407.
    • 130 A Director of Prosecutions (Traffic), Ōsaka District Public Prosecutor's Office, and former Professor at both Kyōto and Dōshisha University Law Schools, interviewed on 12 July 2015.
    • 131 Interviewed on 6 July 2015.
    • 132 Interviewed on 7 July 2015.
    • 133 See I. KITAMURA, The Judiciary in Contemporary Society: Japan, in: Case W. Res. J. Int'l. L. 25 (1993) 263, 270-275, especially 270.
    • 134 It was suggested that the strictness of these rules contributed to the low level of litigation in Japan. KITAMURA, supra note 133, 275.
    • 135 Interview with a professor of law at Ōsaka City University on 17 July 2015.
    • 136 Interview held on 7 July 2015 at Ōsaka City University, Graduate School of Law.
    • 137 Interviewed on 21 July 2015.
    • 150 Information kindly supplied by Mr Yunil Kim, counsellor, The Embassy of the Republic of Korea, 60 Buckingham Gate, London, SW1E 6AJ.
    • 151 J. KIM, Socrates v. Confucius: An Analysis of South Korea's Implementation of the American Law School Model, in: Asian-Pacific L. & Pol'y J. 10-2 (2009) 322, 326 and S. S. R. LEE, Legal Education in Korea, in: Steele / Taylor (eds.), Legal Education in Asia (London u.a. 2010) 169, 170 f.
    • 152 The largest law schools are located at Seoul National University (150 students), Korea University (120), Yonsei University (120) and Sungkyunwan University (120). The smallest school has an enrolment of 40 students.
    • 153 The law school curriculum consists of the: “Basic” element - Public Law (Constitutional Law and Administrative Law), Private Law (Civil Law, Commercial Law and Civil Procedure) and Criminal Law (Criminal Law and Criminal Procedure); and the “Practice Curriculum” element which is made up of studying the Lawyers' Code of Conduct, Legal Research, Legal Documents Writing, and participating in mock trials and other practices. In keeping with the objective of broadening lawyers' education the curriculum also comprises a “Related” element which includes Sociology of Law, Comparative Law, Economics, Politics and Statistics. Information kindly supplied by Mr Yunil Kim, counsellor, The Embassy of the Republic of Korea, 60 Buckingham Gate, London, SW1E 6AJ.
    • 154 See CHEN, supra note 107, 33.
    • 155 Information kindly supplied by Mr Yunil Kim, counsellor, The Embassy of the Republic of Korea, 60 Buckingham Gate, London, SW1E 6AJ. In 2009 there were 9,619 lawyers in Korea; 2010: 10,263; 2011: 10,976; 2012: 12,533; and 2013: 14,242.
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