2.1 2004 Judicial System Reform

In 1999, the government of Japan established the “Justice System Reform Council” as a special advisory board to the Cabinet. After two years of research, the council released its final report, entitled Recommendations of the Justice System Reform Council - For a Justice System to Support Japan in the 21st Century. Footnote ¹ The report is based on three basic policies, which are as follows:

1. 1 in order to achieve “a justice system that meets public expectations,” the justice system mustFootnote ² be made easier to use and understand, and more reliable;

2. 2 by reforming “the legal profession system which supports the justice system,” a sufficiently large number of legal practitioners as high-quality professionals will be securedFootnote ³ ;

3. 3 for “establishment of the people’s basis [for the justice system],” public trust in the justice system should be enhanced by introducing systems including people’s participation in legal proceedings.Footnote ⁴

Under the second policy, the report specifies its recommendations:

In 2004, following the 2001 Recommendations, a new legal-education system was introduced. One characteristic of the new system is the coexistence of two- or three-year American-style JD law schools (JDLSs) and four-year undergraduate law schools (UGLSs). Traditionally, UGLSs have been key institutions in training not only lawyers, but also public employees and business persons with basic legal knowledge. In other words, very few graduates of UGLSs have passed the national bar exam (NBE), which generally has an extremely low pass rate.Footnote ⁵ On the basis of this tradition, the council proposed a dual-track legal-education system—JDLSs shall foster licensed lawyers and UGLSs shall foster public employees and business persons. For this purpose, the government changed the NBE system as well. Under the new system, only (1) graduates of JDLSs and (2) persons who passed the preliminary test for the national bar exam (PNBE)Footnote ⁶ are eligible to sit the NBE. In 2015, 1,850 out of 9,072 applicants passed the NBE; 186 out of 1,805 came from the PNBE and 1,664 came from JDLSs.

2.2 “Chaining Failures” of Legal-Education Reform

Twelve years after the introduction of JDLSs, the government and most lawyers recognize “chaining failures” of the legal-education reforms. Table 1 shows this clearly. The fundamental problem is the gap between the number of JD students (columns 3 and 4) and the number of successful applicants to the NBE (column 9). The pass rate is around 20% every year, and students are under considerable pressure from the NBE. The Japanese government has asked JDLSs to reduce enrolment numbers, and several JDLSs have decided to close. Students at UGLSs avoid enrolling in JDLSs, and JDLSs have lost good students. Most JD students simply concentrate on the NBE and avoid taking advanced courses, joining international programmes, or doing academic research.

Table 1 Statistics on Juris Doctor (JD) law schools and the national bar exam (NBE) in Japan 2004–15

*Anyone can sit the “Preliminary Exam for National Bar Exam” and a person who passes the exam is eligible to sit the NBE.

On 30 June 2015, the Council for the Promotion of Systemic Reform in the Fostering of Legal Professionals, a government council responsible for the NBE system, promulgated a new policy stating that the number of successful applicants of NBE shall be “more than 1,500” and the accumulative pass rate for the exam shall be “around 70%.”Footnote ⁷

2.3 Need for “Re”-Renovations

Needless to say, in confronting “chaining failures” of legal-education reform, “re”-renovations, or additional innovations, of legal education are needed. But, importantly, we have to consider why and how “re”-renovations shall be needed.

These factors should be counted as important reasons for re-renovations of legal education in Japan. For JDLSs, establishing an educational system that can foster students “beyond NBE” is a fundamental issue. Studying for the NBE is not truly productive, and it is the biggest reason why JDLSs have lost applicants. The primary issue for UGLSs is establishing their educational purpose. Even now, the raison d’être of most UGLSs is unclear: Law as a liberal art? Fostering business persons or bureaucrats? Paralegal education? Limited licensed legal specialists?Footnote ⁸ This is a truly important issue of Japanese society because about 35,000–40,000 new students enter about 130 undergraduate schools of law every year. Due to space constraints here, however, I cannot more fully discuss UGLSs.

3.1 Method of Analysis

The Japanese government has a huge budget to support universities. At national universities, all basic costs are covered by the government.Footnote ⁹ Even for private universities, the government supports about 10% of their general expenditures.Footnote ¹⁰ In addition, the government’s financial support is the de facto standard by which it endorses schools. Universities receiving additional financial support from the government enjoy higher reputations as good schools.

The government thereby uses its budget as an effective tool for the enforcement of its policies. For example, at the beginning of the new JD-style law-school system, the Ministry of Education, Culture, Sports, Science and Technology in Japan (“MEXT”) offered special funds to improve JDLSs educational programmes, and almost all JDLSs successfully received additional budgets.Footnote ¹¹ Using its budget, MEXT powerfully advanced educational reform at universities.

In the government budget for the 2015 fiscal year (FY 2015),Footnote ¹² MEXT introduced a new framework for public financial support to JDLSs, entitled “The Additional Public Support Program to Law Schools by Enhanced Review.” Before introducing the programme, the government provided its fiscal support to JDLSs based on a required number of tenured teachersFootnote ¹³ at each JDLS. However, in FY 2015, the government introduced a new calculation method, with a single-tier review process. For FY 2016, the system has been changed again, incorporating a two-step review process. The second step in this process is the policy tool used by the government for re-renovation of legal education at JDLSs. At this second step, a special committee evaluates projects proposed by JDLSs that aim at legal-education reform. The government provides additional financial support to each JDLS based on this evaluation.

The committee’s evaluation, and the process of evaluation itself, clearly shows the current situation of legal-education reform at the level of JDLSs.

3.2 New Framework of Government Support to Law Schools

As mentioned above, the new evaluative framework is composed of two steps. The first step consists in the classification of JDLSs into one of three groups, based on four factors that include (1) the accumulative pass rate for the NBE by its graduates (successful applicants/all applicants), (2) the latest pass rate for the NBE by its three-year course graduates (Mishusha)Footnote ¹⁴ (successful applicants who graduated the three-year course/applicants who graduated the three-year course), (3) the latest ratio of new students to authorized enrolment, and (4) the latest number of new students who have bachelor’s degree other than law, or who have working or social experience before entering JDLS, and the ratio of these new students to all new students. In September 2014, MEXT released the first review results of the programmes for the FY 2015.Footnote ¹⁵ Fifty-two JDLSs,Footnote ¹⁶ which applied to the government support, were classified into three groups: 13 were classified under Group One (G1), 32 schools were classified under Group Two (G2)—with three subclassifications: seven schools in G2A, five schools in G2B, and 20 schools in G2C—and seven schools were classified under Group Three (G3).Footnote ¹⁷

In September 2015, MEXT released the latest review (first-step) results for FY 2016 on 43 applied JDLSs.Footnote ¹⁸ Thirteen JDLSs were classified under G1, 26 under G2 (six in G2A, ten in G2B, and 20 in G2C), and four under G3.Footnote ¹⁹ Following this classification, JDLSs are eligible for basic financial support from the government. At first, the government calculates the hypothetical amount of financial support (HA) for each JDLS based on the size of each school, namely the statutory requirement of the number of tenured teachers. JDLSs in G1 can expect to receive 90% of the money for each HA. Those in G2 can expect to receive at least 60% (up to 80%) of the money for each HA. Those in G3 are not eligible for any basic public financial support.

On 25 December 2015, MEXT released its final review (second-step) results for FY 2016.Footnote ²⁰ The second step was added for FY 2016 to calculate additional amounts of government financial support based on proposed projects. JDLSs are eligible to propose projects related to renovating or improving their legal education, which they submit to the “Review Committee” attached to “The Additional Public Support Program to Law Schools by Enhanced Review.” The Review Committee is authorized to allocate additional financial support through its evaluation of these projects. For FY 2016, 41 out of 43 JDLSs proposed a total of 189 projects (75 from national JDLSs, 114 from private) and they were ranked into five categories: seven “excellent,” 13 “superior,” 58 “good,” 81 “normal,” and ten “need improvement.”Footnote ²¹ “Excellent,” “superior,” and “good” projects are given additional support, and 32 JDLSs were awarded additional support for FY 2016. In summing first- and second-step results, 17 JDLSsFootnote ²² will receive more than 90% of the money for each HA. Especially, ten JDLSs are eligible to receive more than 100% for each HA.

3.3 Overview of the 2015 Review Results

From the perspective of renovation and improvement of legal education, it is important to analyze the applications and results of the second step. This shows how JDLSs try to renovate and/or improve legal education, and where the government, as a systemic planner, is willing to go. I would like to begin the analysis with a quick overview of the results.

Projects are divided into nine categories: (1) enhancing Mishusha (literally, persons who have not studied lawFootnote ²³ ) education,Footnote ²⁴ (2) early entry to JD programmes, including early graduation from undergrad and continuous education through undergraduate and JD programmes, (3) continuous legal education, (4) internationalization, (5) enhancing community service and supporting career development of graduates in the new legal service area, (6) educational co-operation among JDLSs, (7) fostering legal academics, (8) fostering female lawyers, and (9) fitting various needs by using information and communication technologies (ICT) and other methods. Table 2 shows the number of adopted projects by these categories.

Table 2 Nine categories

ICT, information and communication technologies; JDLSs, Juris Doctor law schools.

Unfortunately, there is not enough space to analyze all nine of these categories in detail. However, from Table 2, we can discern broader tendencies within renovation and the improvement of legal education. Here, I would like draw attention to categories (3) and (5), and (4).

First, the Review Committee adopted the largest number of projects from category (3) (CLE), including two categorized as “excellent” and four categorized as “superior.” The second largest category was (5) (career development). These two categories, of course, overlap with regard to post-graduate education and support. This means that CLE and career development were the two most interesting topics to both JDLSs and the Committee. Facing a rapid increase in the number of lawyers, JDLSs and the legal services community are jointly trying to expand CLE and career-development programmes. In 1994, 14,809 Bengoshi lawyers were registered in Japan and, as of 1 February 2016, 37,704 are working.Footnote ²⁵

However, Table 2 also shows that new career-development programmes are still developing: 11 out of 14 projects in category (5) were classified as merely “good.” On the other hand, six out of the 15 proposed CLE programmes were evaluated as “excellent” or “superior.” This difference, probably, shows different faces of JDLSs to the communities, such as lawyers, business, local, international, or academic community. CLE programmes in category (3) are educational programmes offered by JDLSs to JD graduates and practising lawyers. This relationship would be one of service provider–customer. By contrast, the career-development projects are “joint ventures” among JDLSs and communities. At present, however, the establishment of such “joint ventures” is a model still relatively foreign to most JDLSs. In fact, most of the 11 projects ranked as “good” in category (5) proposed only very limited relationships with local bar associations and governments. Only a few proposed projects were based on close ties to business corporations, companies, or international organizations. In sum, it is truly important to develop career-development projects.

Second, “internationalization” was the third-largest category by proposed projects. This could be a sign of “re-renovation” of legal education at the JD programmes. Actually, “internationalization” of lawyers and/or legal services was one of main reasons for introducing the JD-style law-school system in 2004.Footnote ²⁶ Therefore, following the new policy of legal-education reform, in 2004, MEXT provided 48 special sets of funds to support the establishment of distinctive JD courses. Nine of a total of 48 of these projects aimed at international education programmes and 11 JDLSs received special government funds through this framework.Footnote ²⁷

Unfortunately, faced with the low pass rate of the NBE, most JDLSs and JD students lost their enthusiasm for internationalization in around 2008. For example, when the government offered follow-up funding to the JDLSs in 2008, only one international education project proposal was adopted by MEXT: a joint project by three JDLSs—Chuo, Meiji, and Ryukyu.Footnote ²⁸ Additionally, the Japan Law Foundation (JLF), one of three accreditation authorities for JDLSs in Japan, abandoned its requirement concerning international education on 11 May 2010. “[F]ostering internationality” was originally an independent accreditation requirement. By 2010, when amending its accreditation standards, the JLF deleted the requirement of “fostering internationality” from the standards.Footnote ²⁹ These two examples show that “internationality” has lost priority in JD curricula within the first decade of the new law-school education system.

However, today, there are signs of “re-renovation,” the beginning of fresh improvements. First, in 2015, the JLF amended its accreditation standards. The JLF asked the public for input regarding the amendment of its accreditation standards in March 2015 and announced its 2015 amendments on 20 May, 19 June, and 1 December 2015. The latest version of the standards was come into effect on 1 April 2016. In this version, the JLF restored the requirement of “fostering internationality,” which appeared in the sixth chapter regarding “coursework.”Footnote ³⁰ In the original standards promulgated in 2004, the requirement was placed in the eighth chapter regarding “studying environment.” In sum, the 2015 Amendment not only restores the requirement for internationality, but also moves this requirement from the periphery to the centre of the standards.

Second, the nature of the results of the Review Committee has changed. Twelve of the projects adopted by the Review Committee for additional financial support were international in nature. There were three projects categorized as “excellent,” submitted by Tokyo, Waseda, and Doshisha; three projects categorized as “superior,” submitted by Kobe, Keio, and Ritsumeikan; and six projects categorized as “good,” submitted by Yokohama National, Nagoya, Kyoto, Hiroshima, Kyushu, and Chuo. Surprisingly, almost all the major JDLSs made this list. As I mentioned above, only one international proposal (three JDLSs) was successfully funded by the government in 2008.

The Review Committee has not explained the reason projects associated with “internationalization” placed as the third-largest category. However, I would point out the influences of two other government policies related to JDLSs. First, at the beginning of the twenty-first century, facing serious concerns regarding rapid ageing and low birth rates, MEXT initiated a policy aimed at the globalization of Japanese universities. Three major government projects and sets of funds have been made available to top universities for last two decades, which include the “Global 30” (inbound project),Footnote ³¹ “Global Human Development” (outbound project),Footnote ³² and “Super Global University” (comprehensive project).Footnote ³³ In addition, in 2013, MEXT began a new project, the “Leap for Tomorrow, Study Abroad Initiative.”Footnote ³⁴ In Japan, these policies and programmes affect universities’ views of internationalization. Of course, although these are forms of financial support for specific programmes and projects, they are also de facto endorsements by the government, to both universities and JDLSs. Further, within several years, the pass rate of the NBE could rise to 70%. In 2015, although the authorized enrolment of JD was 3,169, only 2,201 students enrolled. The same year, 1,850 applicants passed the NBE—a pass rate of 20.65%. However, since Article 4, clause 1 of the Bar Examination ActFootnote ³⁵ allows only five years to JD graduates to sit the NBE, all applicants who graduated JDLSs before introduction of the new framework of government support to law schools will lose his/her eligibility to sit the NBE by 2019. Therefore, after 2020, the pass rate of the NBE could reach around 70%. Confronting this sensitive issue, most JDLSs have to re-establish their international programmes for building sustainable competitive advantage.

4.1 Overview

Focusing on categories (3) and (5), and (4) above, I offered a quick overview of the 2015 review results. Here, I would like to more closely examine “internationalization” because it is distinctive, rather than the other two points, to see how each JDLS tries to build sustainable competitive advantage. In this context, “internationalization” could be central to the “re”-renovation of legal education in Japan now.

The fourth category includes projects aimed at fostering lawyers who are active internationally. In 2015, 12 projects were awarded funding in this category. Analyzing these 12 projects highlights features showing recent efforts by JDLSs.

4.2 Long-Term Study Abroad Programmes for JD Graduates

First, some projects offer JD graduates with the opportunities to study abroad for long periods of time. Generally speaking, JD students are under considerable pressure from the NBE, and they are inclined to concentrate their attentions on that. Therefore, many JDLSs are offering, not to their students, but to their graduates opportunities to study abroad in a foreign jurisdiction, such as New York, California, or other states in the US, Australia, England, Germany, or France. Even now, to sit the New York bar is an attractive career path to the young lawyers in Japan. However, only a few JDLSs (Waseda, Doshisha, and Keiko) have long-term study-abroad programmes for their JD students and very few students apply to the programmes.

4.3 Short-Term Study-Abroad Programmes for JD Graduates

Second, several JDLSs offer short-term study-abroad programmes and short-term externship programmes abroad for their JD students. For example, Ritsumeikan manages a “Washington Seminar” in Washington, DC, in the US, while Chuo organizes a “Study Abroad Program in Melbourne” and a “Study Abroad Program in Hong Kong.”

Chuo’s Hong Kong Program is especially unique. This programme was started in 2005 by Chuo and the University of Hong Kong (HKU). Some years later, the Korean government introduced a JD-style law-school system as well. Chuo and HKU opened their programme to some Korean law schools. Now the Hong Kong programme is jointly managing by Chuo, HKU, and five Korean law schools, including Hanyang, Kyunghee, Ewha Women’s, Seoul City, and KonKuk. Law students from three different jurisdictions can participate in a one-week programme at HKU. The programme includes lectures, study visits to law firms, government, and the court, and students’ presentation, which is the highlight of the programme. All students make group presentations in English on a legal issue in his/her jurisdiction to the students and professors from other jurisdictions. During a one-week stay in Hong Kong to prepare their presentations, students from different jurisdictions discuss the differences in law and societies between each other’s backgrounds. It is a truly attractive “peer-leaning” opportunity for the students.

4.4 Teaching/Learning Japanese Law in English

Third, some Japanese law courses are taught in English. At least five JDLSs—Tokyo, Waseda, Keio, Ritsumeikan, and Chuo—offer courses on Japanese law in English. It is a truly new approach to foster global lawyers. For a variety of reasons, Japanese law courses have been taught only in Japanese. Most importantly, since its period of modernization in the late nineteenth century, Japanese law has been based on the civil-law tradition. In line with this civil-law tradition, statutes should be a primary source of law. Using hermeneutics, the duty of lawyers is to discover the exact meanings of provisions of statutes. Written in the Japanese language, Japanese law should be learned and interpreted using the Japanese language. Even now, this is a typical argument within Japanese academia.

However, a new trend can be discerned within several JDLSs projects on teaching/leaning Japanese law in English, with strong reasons in support of this approach. Here, I would like to discuss three of these.

First, legal services are becoming increasingly globalized: Japanese law governs many agreements and contracts written in English. Young lawyers have to prepare for these trends in “globalization.”

Second, in terms of education, law should be learned from a comparative perspective. An example of this is the following: in the common-law jurisdictions, “consideration” is the essential concept to learn law of contract. “[T]he doctrine of consideration is too firmly fixed to be overthrown by a side-wind.”Footnote ³⁶ On the other hand, civil law does not know a concept of consideration at all. This presents an opportunity to study these traditions from the perspective of not only concepts (common-law contract and Japanese law keiyaku, literally, contract), but also socioeconomic meanings (keiyaku compared with common-law contract). Why does common law need “consideration” even now? In thinking about this question, we have an opportunity to consider the meaning of Articles 549 and 550 of the Civil Code concerning the term “gift” from a comparative perspective.Footnote ³⁷

Third, learning Japanese law in English is a good method for “peer leaning” with local and international students. For example, Tokyo, Ritsumeikan, and Chuo host their summer programme and intensive courses for local and international students. In these courses, students can learn law from each other by exchanging their knowledge and ideas. Allow me to more fully explain Chuo’s case as an example.

Chuo has been hosting its summer programme, entitled “Introduction to Japanese Law in English,” since 2010. In its constitutional-law class, religious freedom and secularism are popular topics. At the beginning of the class, the teacher explains the basic nature of religion and religious organizations in Japan, including the relationship between Buddhism and Shinto. Footnote ³⁸ After the class lecture, participants visit the Shinto Shrine in the Chuo CampusFootnote ³⁹ and discuss the meaning of the principle of a “secular state.” Participants thereby become more familiar with the ways the notion of a “secular state” exists in different jurisdictions.

4.5 Focus on Asia

Five out of 12 projects in category (4) have mentioned Asia or Asia-Pacific as important to their education. Of course, because Japan is a part of Asia-Pacific and emerging economies in this area attract people, more attention should be paid to Asia-Pacific law. However, language differences present problems. English generally serves as an “intermediate” language in Asia-Pacific, for both people in general and lawyers specifically. Additionally, English is the “common-law” language. Thus, further development should occur regarding issues of legal language within the Asia-Pacific region.