Thursday, October 5, 2006
posted by Alan Childress
Not each one ("Daaaad, that would be gross"). But the overall number of lawyers licensed in Japan is about to grow, big-time. By a new system of testing (and adding a new exam alongside the traditional one) set to start this year, the pass rate will effectively go up--from the toughest in the world (about 1.5% passing) to a fundamental increase in bar admittees that may actually come close to the percentage I made up in my title. The new pass rate will probably fall somewhere around 45%, though for the past two years the bar and law schools have negotiated over projected ratios between 20% and 60%.
It is a reform worth watching, to be sure. And the wholesale expansion of the formal bar is real, with real effects to anticipate. But much of the stereotype of the old rate has always been overstated, and its shock value depended on an American-centric definition of "lawyer" that ignored the reality that tons of Japan's law graduates were doing what we’d call the practice of law without the title of "bengoshi" and its specific exam. We have always undercounted Japan's legal occupation, by assuming the people worth tallying looked like the classic U.S. generalist private practitioner-advocate licensed to appear in multiple courts. It does not work that way in civil law countries--certainly not Japan.
The disconnect will likely continue. It is still a low pass rate compared to other industrial countries, and we will likely tend to ignore lots of legal actors with a law diploma who are not given the supposedly-analog title of bengoshi. If one has to look like Matlock or Perry Mason to really be a lawyer, we'll continue to mis-census Japan's legal profession -- and continue to make silly political arguments based on the supposed superiority of the lawyer-lite Japanese economy.
The old pass rate, used forever and mentioned in U.S. cocktail parties, was notorious: imagine the coffee- and Xanax-abuse in your school if the students knew that 5 of their graduating class of 320 would pass the exam and get a license to practice law. No other modern country came close. More after the jump.
No other country has shared the virulence of that kind of formal gatekeeping: even Germany, proud of its rigorous testing, apprenticeship, and retesting, eventually licenses a majority of its law graduates. That’s needle-eyed enough to raise a real question of whether it will hold up under EU directives that ease licensing across borders; the Greek and English lawyer may become eligible to practice in Germany easier in many ways than a German–-guess the backlash to come within Germany on that one. (I’ll explore transnational licensing in the EU in a later post. It is fascinating and ironic, given how hard it is for a New York attorney to get licensed in New Jersey). But the German gauntlet is not as weeding as even the new standard set by Japan. By contrast, one can expect that the new pass rate in Japan will continue to be low by western standards and its bar still "elite" to any outside voyeur.
Even so, much of the cocktail party value of the Japanese lawyer-counting comparison was always vastly overstated. Worse, the myth of the purported figure–-Japan has only like 25,000 attorneys in a country half our size while we have millions–-has fueled policy debates and lawyer bashing in the U.S. as Japan’s low-attorney-emission society is presented as driving a superior economic engine. Politicians as different as Jimmy Carter and Dan Quayle, plus both Presidents Bush, have ridden the anti-lawyer horse to election, expressly relying on the chestnut of the comparatively smaller Japanese lawyers, meaning in numbers. Harvard’s president Derek Bok, in speeches and print, made the most sustained public call to numbers-comparison-as-why-our-economy-stagnates, and even lamented the waste of talent attending law schools. Typical is this count:
"Japan boasts a total of less than 15,000 lawyers, while American universities graduate 35,000 every year." Bok, Derek C. (1983). "A Flawed System of Law Practice and Training." Journal of Legal Education 33: 574.
Now imagine your law school with its PR campaign being led by a guy telling your 320 1Ls they, morally, should have enrolled in drywall school.
At least Bok used real numbers, if only based on a definitional apples-and-oranges. Quayle famously asked in 1991, "Does America really need 70% of the world’s lawyers?" It sounds like the only reasonable answer is, Hell no, if the 70% figure is even close to accurate. The figure is based on no known arithmetic, as noted by Marc Galanter in 1994, but has been off-repeated as fact in later political and media discourse. It is not just bad statistics, it is "an accusation of monstrous disproportion," Galanter nicely adds.
All of this counting does not work if the analog bengoshi is not the only legal actor with a law degree that does basically "law" work in Japan. And it should not be surprising in any civil law society that the core legal actors are not private practitioners representing multiple clients independently, but rather a huge number and variety of legal workers in government, corporations, and institutions doing the bulk of legal work in a system not driven by the advocacy model we use. Judges, prosecutors, legal bureaucrats, court employees, notaries, law professors, salarymen in the law department–-they all really matter. Public and corporate employment of the legal work force is at much higher rate than we are used to, and much of the heavy lifting of legal work, including even litigation and administrative work, is done by unlicensed legal professionals trained in law school. Yet if the estimate for Japan included all who perform lawyerly functions in other countries, the ratio is similar to modern countries in Europe (nearly 1200:1). Indeed, Japan’s law schools—eighty of them and not just the institute which produces bengoshi—graduate approximately 37,000 students per year. This is comparable to the output of U.S. law schools. Admittedly their "law school" is an undergraduate degree in law, as with almost all other nations besides ours. Yet if even a healthy fraction of those graduates do what we would consider the practice of law, the stereotype count of 15,000 to 25,000 total lawyers in Japan breaks down, along with the policy implications it fuels in public discourse and cocktail parties.
Here is hoping the new arithmetic in Japan ends the false comparison stunt so common here. I have my doubts because it is still a relatively low pass rate and the rhetorical value of the Japanese contrast remains; it has never really depended on accurate numbers. The real bar pass rate will still be low to U.S. eyes, but in truth the shock and awe of that ought only recur if we continue to ignore the fact that not all lawyers are Matlock, and that is especially so in civil law countries like Japan.