Top>Education>“Falling Law School” in the US and Japan

EducationIndex

ITO Hisaei

ITO Hisaei [profile]

“Falling Law School” in the US and Japan

ITO Hisaei
Professor at Chuo University Law School : Visiting Researcher at Georgetown University Law Center (2014)
Areas of Specialization: Commercial Law, Law of Negotiable Instruments, Comparative Law

It is widely known both in the US and Japan that the “law school system” has entered a downward phase. “Falling Law School” is the title of a book written by Brian Tamanaha, Professor at the University of Washington School of Law[1]. With reference to the book, this Essay approaches the current dire situation in law school in the US and Japan, analyses the background of the problem, and endeavors to propose some ideas for the future of legal education. Opinions and comments expressed here are my own and in no way represent those of the institution to which I belong.

Dire Situation in Law School

Decrease in Number of Applicants

In the US, the number of law school applicants shows a decreasing trend. According to the Law School Admission Council (LSAC), the number of applicants in the 2014 fall semester is 51,570 as of April 7th, 2014, compared to 78,500 in 2011, 67,900 in 2012 and 59,426 in 2013. This decrease can be partly attributed to the serious consideration given by students regarding a job shortage for the legal profession after the Lehman shock and subprime crisis. For comparison, the period 2001-2003, which was marked by the Enron scandal and subsequent legislation of the Sarbanes-Oxley Act, shows that the number of applicants was 100,000[2] on average. It is said that students who previously enrolled in business school or accounting school expected a career in the legal profession.

In Japan, in a similar fashion, the number of applicants for 2014 is 11,450, compared to 18,446 in 2012 and 13,924 in 2013. The peak number of applicants was 72,800 in 2004, the year when the new law school system was started. However, the downward phase has come rapidly[3]. It is obvious that students were discouraged by the lower passage rate of the national bar exam, as well as the job shortage at law firms which awaited successful examinees.

Job shortage

After the Lehman shock and subprime crisis in the US, many law firms have become keen on cutting the jobs of young lawyers and staff. It is reported, in 2011 data, that only 55% of law school graduates found a full-time job that requires a bar license[4]. Some students who failed to find a full-time job as expected took a class action against their law school because the defendant law school provided misleading information on job opportunities as too optimistic. Plaintiff students claimed that correct information would have prevented financial upheaval due to student loan debts for tuition[5].

In Japan, the Japan Association of Law Schools conducted a survey in 2013 to investigate the career path of law school graduates[6]. The Association received answers from 57 of the 67 law schools which were surveyed. The total number of graduates from the responding schools was 25,926, of which 11,922 passed the national bar examination. 6,396 of graduates who passed the bar examination registered in the bar. The remaining 9,893 of 25,926 graduates are categorized as “Unknown.”

What’s Wrong?

Shrinkage of Legal Market

In response to the recession since the Lehman shock and subprime crisis, the legal market is rapidly shrinking and job opportunities for law students are disappearing at a drastic rate. A full-time job as a legal profession is critically vital to students with an average student loan debt of $120,000 at the time of graduating from law school. This debt is not discharged in the bankruptcy rule[7].

Economic downturn has a serious impact on corporate legal practice. This impact is particularly severe when a sophisticated corporate client does not need legal service for stylized documentation, thus leading to cost-cutting for the respective amount of such services. Upon receiving a request for cost-cutting from a corporate client, many law firms become keen on out-sourcing and the use of information technology for stylized documentation. The more those law firms implement cost-cutting and out-sourcing, the fewer job opportunities that exist for law students[8].

In Japan, debate on the population of the legal profession reflects shrinkage of the market in the same fashion as in the US, where the legal market does not demand a legal professional who completed a JD course at law school.

Failure of Institutional Design

In addition to market shrinkage caused by economic recession, a certain degree of failure in institutional design can be observed for the new law school system in Japan.

On June 9th, 2014, deans of six law schools delivered to Mr. Tanigaki of the Ministry of Justice an urgent proposal for reform of “preliminary examination” for the national bar exam[9]. The proposal points out that the number of applicants for preliminary examinations who ultimately passed the bar exam has increased rapidly. Indeed, not only undergraduate students but also current JD students tend to focus on the preliminary examination in disregard of learning at law school. In this case, many would-be users of law school avoid the learning process at law school, thus providing evidence to show that institutional design of the law school system based on the US model was a failure.

The structure of institutional complementarities can apply to the legal system including legal education and nurturing professional lawyers. The legal system in a particular country has originated endogenously, formed and developed from a historical, cultural and social perspective. Thus, in the case of designing a new system, it is required to apply the concept of institutional complementarities to analyze possible impact of the new system on other systems, assuming the current system and possible correlation among those systems in an endogenous institution. Without such cautious thinking, the result would be a negative “transplant” effect. In Korea, for example, the government now requires university who plan to establish a new law school to discontinue the undergraduate legal education, and has decided to introduce the “unified bar” system by 2020. This method of transplanting the US model is a useful reference for discussion on the current law school system in Japan.

Future of Legal Education

ABA approval standards for law school[10] that require three-year JD courses, curriculum with academic subjects, relaxing a professor’s teaching-road, etc., Tamanaha says, are mismatched with the fundamental changes in the legal market. He proposes to set up a new training institution, instead of law school, with two-year education for professional skills after three-year undergraduate courses. The cost of the institution must be reasonable. He also stresses that the institution offers practical training through apprenticeships, not through in-school clinical programs. He notes that such in-school programs are artificial and not useful in equipping students with real professional skills[11].

In Japan, the rapid transition of an aging society and globalization will create diversified and variable interests among those members of society. In case a conflict between members of the society happens to occur, a lawyer who commits to the dispute must be required to acquire interdisciplinary integrity and professional skills for problem-solving as in the US. Referring to Tamanaha’s thoughts, I will now try to illustrate a prospective design for a new legal education system that would suit our endogenous institution.

A new College of Law or Inn of Court: this educational institution is to focus on practical training by a senior practicing lawyer through an apprenticeship. The Carnegie Report 2007 insists that apprenticeship is the best pedagogy for training a member of a professional body like the bar[12]. Regardless of whether or not this institution is called a “law school,” the size and management would be similar to past organizations like Middle Temple or the current “College of Law” in the UK.

Eligible Students: Students are required to have two undergraduate degrees: a law degree (LL.B) and non-law degree (Bachelor of Arts, etc). Even under the current University system, students have an opportunity to learn interdisciplinary integrity. In Australia, for example, many universities offer “dual degree programs” under which students can earn two Bachelors degrees in five years[13].

Practical Training: After one-year courses for professional skills, students are entitled to register as a trainee solicitor or pupil barrister. She/he can’t represent a client by himself/herself alone, but can provide legal service only with a senior lawyer. After a two-year practical training period at a law firm, she/he can register to the bar as an independent lawyer with a letter of recommendation by a senior partner of the firm. This framework is already in effect in Hong Kong[14].

By looking at the existing framework in foreign jurisdictions, particularly those with common law culture, the above ideas could be incorporated into Japan with considerable thoughts on the structure of institutional complementarities in legal system. It is true, however, that when reviewing a decade of history as portrayed by “Houka Daigakuin,” no one is capable of predicting the workings of a newly designed institution. With its long tradition as “English Law School” and high prestige in producing a number of practicing lawyers, Chuo University must actively contribute to debate on how to improve “Falling Law School” through a comparative perspective and collaboration with many colleagues in every jurisdiction that shares the same concerns about legal education.

  1. ^ Brian Z. Tamanaha, FALLING LAW SCHOOL, Chicago Univ. Pr., 2012.
  2. ^ See, LSAC, Three Year ABA Volumenew window (last visited July 14, 2014): LSAC, 2003 Applicant Volume Likely Largest in History, September 2003new window (Last visited July 12, 2014).
  3. ^ Special Committee for Law School, Central Education Council at the Ministry of Education, Culture, Sports, Science and Technology, “Transition of Number of Applications and Applicants in 2004 to 2014,” April 1, 2014new window (last visited July 12, 2014).
  4. ^ David Segal, Is Law School a Losing Game?, New York Times, January 8, 2012new window (Last visited July 12, 2014)
  5. ^ Tamanaha, supra note 1, at 175. Cf. Katherine Mangan, Lawsuits Over Job-Placement Rates Threaten 20 More Law Schools, Chronicle of Higher Education, March 14, 2012new window (last visited July 12, 2014).
  6. ^ The Japan Association of Law Schools, Investigation on Career Path of Law School Graduates and Efforts by Law School (Tentative), October 15, 2013new window (last visited July 13, 2014).
  7. ^ Tamanaha, supra note 1, at 248 – 250.; Ethan Bronner, Law Schools’ Applications Fall as Costs Rise and Job Are Cut, New York Times, January 30, 2013new window
  8. ^ Tamanaha, supra note 1, at 371; Bronner, supra note 7.
  9. ^ Hiroshi Suzaki, et. al., Urgent Proposal for Reform to the Preliminary Exam for the National Bar Exam, June 9th, 2014new window (last visited July 13, 2014).
  10. ^ See, 2013 – 2014 BA Standards and Rules of Procedure for Approval of Law Schoolsnew window (last visited July 11, 2014).
  11. ^ Tamanaha, supra note 1, at 380 -388.
  12. ^ William M. Sullivan, et.al., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW, Jossey-Bass, 2007.
  13. ^ Michal Coper, Recent Development of Legal Education in Australia, Chuo Law Journal Vol.8 No.2, pp19.
  14. ^ H. Ito, Legal Education for Nurturing Lawyers with Theoretical Approach in Australia and Hong Kong, News Letter Hikakuho No. 37 (2008).See, Law Society of Hong Kong, Hong Kong Trainee Solicitors, available at http://www.hklawsoc.org.hk/pub_e/admission/trainee.aspnew window (last visited July 31, 2014)
ITO Hisaei
Professor at Chuo University Law School : Visiting Researcher at Georgetown University Law Center (2014)
Areas of Specialization: Commercial Law, Law of Negotiable Instruments, Comparative Law
Born: 1955 in Akita Prefecture.
1980 LL.B., Chuo University
1982 LL.M., Chuo University
1987 Completed LL.D. Course, Chuo University
1987 - 1990 Full-Time Lecturer, Takasaki City University of Economics
1990 -1993 Associate Professor, Takasaki City University of Economics
1993 - 1995 Associate Professor, Chuo University Faculty of Law
1995 - 2004 Professor, Chuo University Faculty of Law and Graduate Course of Law
2004 - present Professor, Chuo University Law School
Research Interest:
Current research topic is on “Possible Regulatory Framework for Indirect Financial Transaction and its Impact on Corporate Governance.” Further concern is about comparative study on Asian Law with reference to the Study Abroad Program at the Law School.