Making Lawyers (and Gangsters) in Japan
West, Mark D., Vanderbilt Law Review
How insulting to have juxtaposed "lawyers" and "gangsters" in the title, to hint that lawyers are not engaged in a supremely noble profession, to insinuate a commonality between counselors-at-law and godfathers. There will be no explicit comparisons here, for this is an Essay about Japanese legal education, not La Cosa Nostra. Instead I offer a description of how Japan trains its lawyers and what lawyers in Japan do. I'll also talk a bit about how gangsters in Japan are trained, and what they do. Perhaps a serendipitous connection will present itself.
I begin by briefly discussing the old system of training Japanese lawyers and some of the forces that led to the breakdown of that system. I then detail and analyze the new system, much of which was borrowed from the United States after careful investigation. Finally, I offer a few words about Japanese gangsters, the yakuza. It's not impossible that the story suggests similarities between lawyers and their illegal counterparts.
I. OLD SCHOOL
Historically, all budding lawyers, judges, and prosecutors in Japan followed the same career path. Law was exclusively an undergraduate degree in Japan, and most students who wanted to enter the legal profession majored in law. Many students sat for the national bar examination in their third year of university, but only the best and brightest passed at that stage. Pass rates were kept extraordinarily low, averaging about two percent annually. Only about five hundred students per year passed as late as 1990, and in the 2000s, the number rose to only about one thousand.1 Bar-passers were eligible to enter the Legal Training and Research Institute ("LTRI"), historically Japan's only school for producing lawyers.
For a country with half the population of the United States, a rate of one thousand new lawyers per year is quite low. Several factors explain why Japan historically has had few lawyers. Perhaps the simplest explanation is the physical structure of the LTRI: officials argued for years that no more than five hundred bodies could be squeezed into its halls. At the same time, it is clear that the bar had reason to limit its numbers: In addition to the fear that admitting more students would necessarily mean lower standards, lawyers feared competition from a growing pool. As Japanese litigation rates remained low and lawyer-substitutes (with undergraduate degrees in law but not licenses) did some of the work that traditionally had been the domain of lawyers in Japan, there was little public clamor for more attorneys.
The LTRI produced prosecutors, judges, and predominantly one kind of lawyer: general-practice litigators. Lawyers had a monopoly on courtroom practice-but their monopoly consisted of nothing more than control of the courtroom, enabling those lawyer -.substitutes to elbow in on other potential action. Transactional lawyers of the sort seen in the United States were rare and the market for their services was small; the bureaucracy had little need for lawyers, and for better or worse, there was no market or role for a Japanese Ralph Nader, Greta von Susteren, or Ann Coulter.
The situation began to change in the 1980s and 1990s. Litigation rates rose. Contracts became ubiquitous. Business organizations pressed the organized bar to produce more lawyers, specifically more lawyers with transactional and negotiating skills.2
The universities, the places where lawyers received their initial training before entering the LTRI, had little to say in the process. University educators were law professors, scholars of the law; they were not practicing lawyers and never had been. Nor would their students become lawyers: roughly three-quarters of bar-passers graduated from one of ten elite schools, and many undergraduate law departments never graduated a single lawyer. The less elite schools gave students a general education in the law and prodded many into teaching, but in many cases these schools did not provide the kind of education that students really sought: bar preparation. …