September 2006 #3. Where are the Japanese Going With Their New Law Schools?.

• Author: by James A. Jolly

Hawaii Bar Journal

2006.

September 2006 #3.

Where are the Japanese Going With Their New Law Schools?

Hawaii State Bar JournalSeptember 2006Where are the Japanese Going With Their New Law Schools?by James A. JollyBy James A. Jolly

In recent years a new era in the practice of law in Japan began with the establishment of new "Law Schools" at select universities around the nation. The Japan Minister of Education, Science and Culture broke the suspense of this awaited event with its announcement in November 2003 of the selection of the sixty-six successful applicant schools for the initial classes that began in April 2004.1 The selection was fairly broad-based and, with the subsequent addition of two more schools, the new law school programs were ushered in at twenty national, two public, and forty-six private universities nationally. The opening of the school year in 2005 saw the number of law schools increased to seventy-four (adding three national and three private universities)2 and there was no change from that number in April 2006.3 This modest start indicates the cautious approach being taken in this matter, since enrollments and student performance are still in an experimental stage.4

The pros and cons of this action have been hotly debated, but in any event it is now an accomplished fact and the Japanese legal profession is faced with a new reality. For good or ill, this development presages an expanded corps of bengoshi5 in Japan and, from the enhanced competition that will be generated, a transformation in the way law is practiced. Such change does not necessarily have to be drastic or disruptive, since the institutions, governing regulations, and many of the customs of the profession will continue intact, but it should be definitely noted as a change of direction that is bound to affect the role of the bengoshi in Japanese society.

The Law Profession in Japan

Although there are differences between the Japanese legal system and the American legal system(s), there are also many striking superficial similarities: organizational structure of the judiciary, criminal law proceedings, and borrowed statutory provisions such as antitrust or product liability laws. These similarities are really form over substance. The underlying way of thinking and attitudes toward the law are quite different from the United States, basically a product of our different cultures. It is really a different world.

The first aspect is that the Japanese adopted the Continental or Civil Code system, patterned on the German and French models, rejecting the English-American Common Law system as unsuitable. In trying to establish a form of post-Meiji Restoration government that could withstand Western colonial pressures, the Japanese implemented many governmental practices that included a start-from-scratch legal and judicial system. Perhaps the Japanese saw this system as more manageable under the monarchic form of government they wanted; also, the idea of having formal, written, government-decreed laws was more in line with the Japanese mind set. Even today, Japanese tend to think derisively of American law as judge-made and dominated by out-of-control juries.6

The second aspect is the unlikelihood of finding a lawyer in Japan. One of the first and greatest problems American businessmen encounter in trying to set up a new business in Japan is finding a lawyer to advise and guide them through the jungle of regulation and red-tape that is part of the "doing business" landscape. The multifaceted, general legal practice of a typical law firm in the United States is scattered around in several different professional categories in Japan, and simple terms like "lawyer" or "attorney-at-law" do not quite work.

A bengoshi is akin to a "barrister" or a representative of the client's interests in court proceedings. Accordingly, unless a lawsuit is required, a...