2013.05.21
May 10, 2013
Keio University Law School
Naoya Katayama, Dean
Introduction
I believe it shows extremely sound judgment that the Interim Report of the Council for the Study of the Legal Profession Training System (hereinafter "the Report") confirms that the philosophy behind the establishment of the new legal profession training system centered on law schools was not in itself mistaken and states that the philosophy of legal profession training as a "process" should be firmly maintained.
In that regard, I would like to express my basic agreement with the Report's point that, while maintaining the legal profession training system as a process centered on law schools, a fundamental review of the system should be undertaken, taking into account operational issues such as the decline in applicants for the legal profession.
Keio University Law School, under the philosophy of the judicial system reform and its own unique principles (internationality, interdisciplinarity, and cutting-edge research), has achieved certain results in both the quality and quantity of legal professionals it has trained, and we are committed to making unceasing efforts for further improvement.
Here, as one of the law schools on the front lines, playing a part in the legal profession training system as a "process," I would like to state a few opinions.
Part 1: Fields of Activity for Qualified Legal Professionals
I have no objection to the Report's point that, in order to further expand the fields of activity for qualified legal professionals, related institutions and organizations need to collaborate and proactively undertake initiatives for expansion. Furthermore, I agree that for this purpose, the Ministry of Justice and other related institutions and organizations should collaborate to hold ongoing meetings for exchanging opinions and conduct further studies.
As a law school, considering the current situation where, looking nationwide, about half of our graduates do not hold a legal qualification, we believe that the issue of so-called "expansion of professional fields" needs to be discussed within the framework of opportunities for "legal professionals in a broad sense" (highly specialized legal experts, not necessarily defined by whether they hold a legal qualification).
For example, corporate demand is polarized between mid-career hires of qualified legal professionals who can be immediately effective and new graduates from law schools. For the latter, a legal qualification is not always necessary. Instead, on the premise of having a certain level of legal knowledge and legal thinking ability, there is a demand for an interest in business, flexible communication skills, and foreign language abilities. If such demand is anticipated in various fields, then law schools, given the current low pass rate of the bar examination, should consider a review of the system. On one hand, they should train legal professionals in the narrow sense who pass the bar examination, undergo legal apprenticeship, and become active as qualified legal professionals. On the other hand, for graduates and students who wish to work as legal specialists in various fields without obtaining a legal qualification, law schools should provide education that cultivates the qualities of a legal expert (the so-called "fourth legal profession") required in each field. This includes leveraging their diverse backgrounds to develop high-level expertise corresponding to their field of activity and the ability to work in a global field.
Fields of activity requiring a high degree of specialization could be categorized by specialty, such as intellectual property, competition law, finance, tax, labor, environment, and medical/pharmaceutical fields. In addition, more general categories by job type could be envisioned, such as in-house counsel (especially in the global corporate legal field), public administration legal affairs, and public interest legal affairs.
Part 2: The Future of the Legal Profession Population
I have no objection to the Report's point that as society becomes more diverse and complex, the demand for legal professionals is expected to continue to increase, and to meet this societal demand, the philosophy of training a rich pool of legal professionals in both quality and quantity remains unchanged. I also agree with the analysis that setting a numerical target of around 3,000 successful bar examination candidates per year is currently unrealistic.
However, I am opposed to the point that it is appropriate not to set a numerical target for the annual number of successful bar examination candidates at this time. I believe a realistic, tentative, or gradual numerical target should be set.
Of course, the bar examination is ultimately a qualifying examination, not a competitive one. Therefore, as long as a certain quality is ensured, there should ideally be no upper limit on the number of successful candidates, and placing qualified legal professionals in a competitive environment should lead to the provision of high-quality, more accessible legal services.
However, during the transitional period until a stable competitive environment is formed, a numerical target will be necessary. In particular, as long as the new legal profession training system has not yet been fully established in society and is based on the policy judgment that the legal profession population needs to continue to increase, a numerical target seems indispensable. Even if a drastic increase in the legal profession population like that of the past decade is not necessary, if it still needs to be increased, shouldn't a modest increase be set as a goal?
In the first place, for lawyers, who are in a liberal profession, the difficulty of finding employment in law firms should not be a reason to limit the population of legal professionals. What is important is to maintain quality while ensuring a competitive environment. For those who start their own practice immediately after qualifying, support from bar associations and law schools should be enhanced. Furthermore, as awareness among stakeholders regarding the expansion of professional fields has only just begun to emerge, removing the numerical target at this timing could nip that bud.
Of course, since ensuring quality is a prerequisite, an increase in the number of successful candidates should not be desired unless the quality of law school education can be improved. In that sense, the issue of the number of successful bar examination candidates should, for the time being, be discussed not at the level of policy on the legal profession population, but in conjunction with the issue of ensuring quality.
Part 3: The Legal Profession Training System
1. Philosophy and Current State of the Legal Profession Training System
(1) Legal Profession Training as a "Process"
I agree with the Report's analysis that abandoning the concept of legal profession training as a "process" centered on law schools and abolishing the system that makes law school completion a qualification for taking the bar examination would prevent the achievements of law school education from being utilized and could lead to a decline in the overall quality of applicants for the legal profession. I also agree with the point that the philosophy of legal profession training as a "process" should be firmly maintained.
Furthermore, I agree in principle with the Report's point that in order to make the system function more effectively, it is necessary to promote organizational reviews such as quota reductions and consolidations of law schools with inadequate educational systems, and to take necessary measures to improve the quality of law school education, such as enhancing education for students without a prior law degree. However, I would like to state some opinions on the specific points later (in 2 and below).
(2) Decline in Applicants for the Legal Profession and Ensuring Diversity in the Profession
I believe the Report's analysis of the causes of the decline in applicants for the legal profession and the factors making it difficult to ensure diversity in the profession is generally accurate. I also agree with the point that in order to increase the number of applicants and ensure diversity, it is necessary to take concrete measures on individual issues from the perspective of contributing to an increase in the bar examination pass rate, while paying attention to maintaining the quality of the legal profession.
(3) Financial Support in the Legal Profession Training Program
I cannot necessarily agree with the Report's perception that financial support for law school students is already quite substantial compared to that for regular graduate students. Considering the high tuition fees, I recognize that it is still insufficient. I agree that it is necessary to continue efforts to support students with the will and ability. In particular, I believe consideration should be given to ensure that students from regional areas are not at a disadvantage compared to students from large cities.
Also, regarding the financial support for legal apprentices, I believe that rather than assuming a loan system, the loan system itself should be reconsidered. The statement that "while there were opinions that a grant system should be adopted, the loan system should be maintained in light of the purpose of its introduction, its content, and the course of government deliberations to date" is understandable as financial support involves budgetary measures. However, considering the rationality of nurturing the bearers of the people's rights with national grants, I humbly believe that the possibility of a grant system should continue to be considered in the future.
2. On Law Schools
(1) Improving the Quality of Education, Quotas and Number of Institutions, and Accreditation and Evaluation
(a) I agree with the Report's point that law schools are required to provide a fulfilling education so that a substantial portion (for example, 70-80%) of their graduates can pass the bar examination.
(b) I agree that for law schools with significant variations and challenges in their educational situation, it is necessary to improve the quality of education and to proceed with organizational reviews such as quota reductions and consolidations. However, I believe that even law schools providing a fulfilling education should consider their quotas and reductions thereof, taking into account their position within the entire law school system.
(c) I do not oppose the Report's point that "regarding admission quotas, reduction policies should be considered and implemented, such as by reducing the disparity between the current admission quotas and the actual number of enrolled students, to achieve a scale that is appropriate for the education provided by the law school." However, I believe that what is more important is ensuring competitiveness in the admission selection process. Shouldn't the top priority be to manage the actual number of enrolled students to ensure a certain admission competition ratio?
It goes without saying that ensuring the quality of graduates should depend on the educational capabilities of the law schools, but there is no doubt that conducting a competitive admission selection process is an important factor in guaranteeing the quality of education at each law school. There is a concern that overemphasizing the reduction of the disparity between admission quotas and the actual number of enrolled students may lead to neglecting the need to ensure competitiveness in the admission selection process.
(d) While it goes without saying that it is important to promote voluntary organizational reviews of law schools with challenges, I cannot agree with implementing a review of human support in addition to financial support as part of the review of public support.
It would be good if reviewing public support immediately led to voluntary organizational reviews, but a time lag is expected. In that case, not providing human support during that period raises concerns that it could further lower the quality of education at the targeted law schools.
(e) As one way for law schools to conduct a voluntary organizational review, I would like to propose the promotion of the active use of the professional degree "Master of Laws (Professional, Legal Studies)." Specifically, shouldn't we consider revitalizing law schools by establishing a "Master of Laws (Professional, Legal Studies)" course separate from the Juris Doctor (Professional, Legal Profession Training) course and transferring a part or all of the law school's quota to it?
This is because, as mentioned in "Part 1: Fields of Activity for Qualified Legal Professionals," I believe that the diversification and specialization of the legal profession should be further promoted to meet the diversifying and specializing demands of the new legal society. For example, in the future, it will be necessary to provide classes in transnational law in English for those aiming to become legal professionals active in the global field, to cultivate global legal thinking and dispute resolution skills, and to create an environment for discussions with international students from around the world who are also aiming to become legal professionals, as part of legal education in our country. The use of the "Master of Laws (Professional, Legal Studies)" course seems effective as a framework for this. This is because it would facilitate the acceptance of international students and is thought to contribute not only to adding value for legal professionals in the narrow sense (recurrent education for legal professionals) but also to the training of legal professionals in the broad sense who are active in areas such as in-house counsel (especially in the global corporate legal field).
(f) I agree with the Report's point that for law schools with serious issues and no prospect of improvement, it is necessary to further consider establishing new legal measures, while also paying attention to the relationship with accreditation and evaluation, such as by making the eligibility certification through accreditation and evaluation more stringent. While giving consideration to university autonomy and prioritizing voluntary organizational reviews first, in parallel with that, based on a shared understanding that the entire legal profession training system centered on law schools is in a critical situation, it would be appropriate to also consider implementing a fundamental system review after a certain period of preparation and adjustment, while presenting a clear vision that the public and each university can agree on.
(2) Education for Students without a Prior Law Degree
I agree with the Report's point that for students without a prior law degree, it is necessary to focus on educating them in basic legal subjects, ensure a thorough mastery of the fundamentals, and have a mechanism to objectively assess their level of achievement at each stage of the educational program.
However, I believe the introduction of a "Common Achievement Test (tentative name)" should be judged cautiously. In the first place, a properly functioning law school can confirm the level of achievement through final exams and other means. Also, since each law school has its own unique educational philosophy and different educational systems, there is a risk that the introduction of a common test could cause confusion in each law school's educational system. Realistically, making a common test a condition for promotion and having each law school implement it fairly would involve considerable administrative difficulties and is expected to become a significant burden on the operation of law schools.
3. On the Bar Examination
(1) Limit on the Number of Attempts
The Report proposes a plan to relax the limit on the number of times one can take the bar examination, but I am opposed to relaxing this limit.
This is because I believe it is important that education at law schools and education at the Legal Training and Research Institute are conducted continuously in the new process-based legal profession training system. For example, allowing five attempts may have some effect in reducing so-called "hesitation to take the exam," but it would lead to a decrease in the pass rate for each bar examination, which I believe would not be a plus for individual examinees or for the legal profession training system as a whole.
(2) Format and Content, Pass Standards, and Determination of Successful Candidates
I am opposed to the Report's point of considering a reduction in the number of bar examination subjects (abolition of elective subjects).
This is because the basic legal subjects are all essential required subjects to become a legal professional in the narrow sense, and I believe that abolishing elective subjects would run counter to the purpose of training diverse legal professionals. The burden on bar examination candidates should be reduced not by reducing the number of exam subjects, but by devising better question formats. In addition, to reduce the burden on bar examination candidates, it could be considered to make some of the basic legal subjects elective in the bar examination, on the premise that they have been mastered at law school. Also, for the current elective subjects, exempting high-achieving students at law school from taking the exam in that subject could also be considered.
Fundamentally, it should be thoroughly established that the examination is to measure the level of achievement based on law school education. It is putting the cart before the horse for the bar examination to set the level of achievement and for law school education to be conducted with that as the target.
Also, it should be re-recognized that the examination is positioned at the midpoint between law school and the Legal Training and Research Institute as part of the process-based legal profession training system. Questions should be formulated that emphasize the content of basic legal practice subjects, even for basic legal subjects, and are conscious of the division of roles between the two.
(3) The Preliminary Examination System
The Report states that it is necessary to continue collecting necessary data on the trends of the preliminary examination results, the results of the bar examination taken by those who passed the preliminary examination, etc., and then, while also observing the improvement status of law school education, to consider whether it is necessary to review the preliminary examination system. I cannot readily agree with this.
Rather, I believe that the preliminary examination system is a system that goes against the philosophy of the new legal profession training system centered on law schools, so it should be operated restrictively, and if a mechanism to replace the preliminary examination can be created, it should be abolished as soon as possible.
That is, if the purpose of introducing the preliminary examination system is to rescue those who cannot advance to law school due to economic reasons, then reforms should be considered in the direction of enabling them to receive a law school education, for example, by establishing free or grant-based law schools in regions where the legal profession population is said to be insufficient. Also, if the reason for introducing the preliminary examination system is the time burden, then the use of early graduation from undergraduate programs, grade-skipping systems, and grade-skipping systems in law schools should be promoted instead.
If the preliminary examination system is to be continued for the time being, it would be appropriate to consider establishing a mechanism to screen applicants for the preliminary examination to see if they match the purpose of the system.
4. On Legal Apprenticeship
(1) Collaboration with Law School Education
I have no objection to the Report's point that regarding legal apprenticeship, further consideration should be given to enhancing collaboration with law school education, based on the division of roles with law school education.
(2) Content of Legal Apprenticeship
I also have no objection to the Report's point that further consideration should be given to enhancing legal apprenticeship, but regarding elective practical training, the division of roles with various initiatives at law schools should be considered.
5. On Continuing Education
I agree with the Report's point that law schools should consider providing necessary cooperation for continuing education after obtaining a legal qualification, and that law schools are expected to actively provide opportunities for legal professionals to learn about cutting-edge fields.
On this issue, I believe it is particularly desirable to establish a forum for discussions between bar associations and law schools.
End.