Inside Japan's Legal System

Columbia Law School Students Get a Glimpse Into Japanese Courts and Lawyers in the First Installment of a Lecture Series Sponsored by the Center for Japanese Legal Studies

 New York, February 12, 2016—A 14-year reform program to expand and fortify Japan’s legal system has led to more lawyers, but the numbers have not met the government’s own targets. Japanese law firms have grown, but remain small by Western standards; a wave of new law schools has come to an end, with students facing long odds in a rigorous bar exam; and corporate legal departments have hired more attorneys, but are often staffed with non-lawyers.

These observations were delivered to Columbia Law School students with numbers, explanations, and good humor—by Yoshimasa Furuta, a visiting professor from the University of Tokyo and a partner in the firm Anderson Mori and Tomotsune. The Law School’s Center for Japanese Legal Studies sponsored Furuta’s Feb. 9 lecture, the first in a four-part series that are part of a course, “Japanese Law and Legal Institutions,” taught by center director, Curtis J. Milhaupt ’89. 
 
Milhaupt, the Parker Professor of Comparative Corporate Law and the Fuyo Professor of Japanese Law, introduced and moderated Furuta’s talk, which he began with a smile. “I am a litigator,” Futura said, “but I am still a nice guy.”
 
Until the 1990s, he explained, “we did not need many lawyers in Japan, because bureaucrats decided everything” for businesses. Lawyers focused on lawsuits, but litigation was slow and judicial resources limited. Businesses preferred the bureaucrats, so sole practitioners dominated the legal field. “No law firm had 50 lawyers,” said Furuta.
 
Becoming a lawyer was difficult. While anyone could sit for the National Bar Exam—even if they didn’t possess a law degree—the passing rate was extremely low. “In 1987, the year I passed, it was 1.98 percent,” Furuta said. By 2002, “there were fewer than 20,000 practicing lawyers in Japan,” or one lawyer per 6,300 citizens. For comparison’s sake, at that same time, there were more than 20,000 lawyers in Maryland alone, or a lawyer for every 228 people in that single U.S. state.
 
“Then everything changed when the bubble economy collapsed in the 1990s,” Furuta said. Some blamed economic problems on the entrenched bureaucracy. “Gradually, business disputes began to end up in the courtroom.”
 
A program to reform the Japanese legal system was introduced in 2002 and hailed as the most significant change since the constitution and laws regarding criminal procedure, labor, and business were enacted in the years after World War II. The new reform program pushed for more lawyers. It called for about 3,000 candidates a year to pass the bar exam—increasing the passing rate to at least 70 percent—so law schools were established to supplement the practical-skills training required at the Supreme Court’s Legal Training and Research Institute.
 
Yet the bar exam remained a difficult hurdle, with the passing rate rising last year to just 23.2 percent of test takers (or 1,850 successful candidates), not the 3,000 anticipated in 2002. That’s convinced many young Japanese students to view law school as a costly and time-consuming gamble on their futures. Of the 74 law schools established in 2004, 30 have since closed their J.D. programs—and some aspiring lawyers have decided to avoid law school altogether and pin their hopes on passing a preliminary bar exam, which was established in 2011 for people who could not afford law school.
 
“If you are an ambitious college student and want to be a lawyer, you will take the preliminary exam while you are still in college,” Furuta explained, because “if you pass, you can sit for the bar exam without going to law school.” When asked whether prospective employers considered people who passed the preliminary exam to be “smarter” than those with J.D.s, Furuta said, “Yes. . . . Some deem the preliminary exam as a platinum ticket, or an elite route to be a lawyer.” The passing rate of the preliminary test is dismal, just 3.8 percent in 2015.      
 
By 2015, the number of lawyers in Japan had almost doubled to 36,451, a 93.5 percent jump from 2002. But now, said Furuta, some claim there are too many lawyers. In 2012, the Japan Federation of Bar Associations argued that no more than 1,500 candidates should pass the bar exam each year. “This could be a grave challenge against the rule of law in Japan,” Furuta said, “as the number of lawyers remains small.”
 
Today Japan has one lawyer per 3,484 citizens, compared to one lawyer per 252 in the U.S., 394 in the U.K. (428 in Germany, and 996 French.
 
After a short break in his lecture, Furuta returned to examine the judiciary in Japan, where judges are independent and bound only by the constitution and laws, yet their careers are largely determined by the supreme court. Over the last 13 years, Furuta pointed out, the overall number of judges has increased by 20.9 percent. Few practicing lawyers are ever appointed as full-fledged judges. Instead, the system favors those who started as assistant judges fresh out of the Legal Training and Research Institute, working as members of three-judge panels, and then rose through the ranks of the judiciary. In order to become a full-fledged judge, a candidate must have at least 10 years’ experience as an assistant judge, public prosecutor, attorney, or law professor. The vast majority spent their careers in the judiciary. Unlike the U.S. Supreme Court, Japan’s supreme court has a mandatory retirement age of 70.
 
Japanese supreme court justices are typically appointed in their 60s, Furuta noted, so they may spend just five years or so on the highest court. Milhaupt contrasted their tenure to that of U.S. justices. “We have people on the Supreme Court for 20, 30 years,” he said. But in Japan, “no one has time to really develop their own voice as a justice.”
 
Furuta detailed the careers of various justices. All of them had studied law at the University of Tokyo and started as assistant judges, working their way through the system. Chief Justice Itsuro Terada ’76 LL.M. joined the supreme court in 2010 at the age of 62. “Elite judges have spent more time in administrative roles than in adjudicating cases,” Furuta said. In a 36-year career, Terada began as an assistant judge, spent 26 years in the Ministry of Justice, and then adjudicated actual cases for just eight years.
 
“You left off the most important part of his resume,” Milhaupt said. “He’s a Columbia Law School graduate.” Terada earned his LL.M. from Columbia in 1976.
 
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