Kan is not a “Japan rarity,” but decent foreign reporting may be

I’m going to break down this post from the WSJ’s Japan blog piece by piece.

In the U.S., the current president, vice-president, first lady and secretary of state are all lawyers.

Sure—the Democratic Party is mostly run (and also mostly financed) by lawyers. But the Bush administration had few lawyers in its ranks; the composition of the cabinet is really determined more by who is choosing its members.

More than 40% of the members of Congress hold law degrees, in fact. Finally, they have some like-minded counterparts at the top of the Japanese government.

Prime Minister Naoto Kan is the first ”benrishi” lawyer to be prime minister in Japan since World War II, “benrishi” being licensed to handle patents — such as for his Mahjong machine — and other intellectual property matters. His top aide, Chief Cabinet Secretary Yoshito Sengoku, is a “bengoshi”, or general lawyer.

First of all, benrishi is a very narrow qualification, somewhat like being a patent agent in the US except that it also involves advisory functions and covers a range of intellectual property. Kan doesn’t even have a law degree, and the benrishi exam only tests a few specific IP laws (see the official spec here).

Secondly, Kan is not the first postwar lawyer prime minister. Tetsu Katayama, prime minister from 1947 to 1948, was a full-fledged bengoshi and is even pictured on Wikipedia wearing his attorney pin.

But most importantly, this analysis betrays a basic misunderstanding of how legal services differ between the US and Japan. Harvard professor Mark Ramseyer attacks the under-lawyered Japan myth in his excellent book Japanese Law: An Economic Approach. In one early section of the book, he points out that there are many other qualifications to provide legal services to third parties, and that a huge amount of Japan’s legal work is performed by people with no Japanese law license whatsoever, including Justice Ministry bureaucrats, corporate legal staff, and foreign-qualified lawyers like me.

Ramseyer also points out that the number of law school graduates in the US (many of whom also end up not practicing law independently) is not that different on a per-capita basis from the number of law faculty graduates in Japan. This brings us back to the WSJ:

Altogether, the Kan “irregular militia” cabinet has four lawyers, the same number as the final Hatoyama cabinet it replaced, and the new secretary general of the ruling Democratic Party of Japan, Yukio Edano, is also a lawyer. That’s quite a sea change from the last administration in the Liberal Democrat Party’s nearly 50-year rule: Taro Aso had no lawyers in his cabinet at all.

This is all technically true, but not very relevant. Again, most legally-trained people in Japan end up not becoming attorneys. This includes several members of Aso’s cabinet, including Kaoru Yosano, Yoichi Masuzoe and Shigeru Ishiba, who all graduated from law faculties of top universities.

Besides, the LDP has plenty of licensed lawyers on hand, even if Aso didn’t utilize any of them. His successor as leader of the LDP, Sadakazu Tanigaki, is a bengoshi. So is one of the most popular LDP-backed politicians at the moment, Osaka governor Toru Hashimoto. Many lesser LDP legislators sport attorney pins, too.

Mr. Kan’s Justice Minister Keiko Chiba, a holdover from the previous cabinet, practiced law for years — a less common background for Japan’s top law official than one might expect. While in the U.S. it would be considered irregular to appoint an attorney general who lacked experience as an attorney, many Japanese justice ministers have come from other fields, including engineering and nursing.

This comparison overlooks a very fundamental difference between the US Cabinet, which can consist of whomever the president can push through the Senate, and the Japanese Cabinet, the majority of which has to be comprised of legislators. Pretty much all Japanese Cabinet members, including the Justice Minister, come from a single background: the Diet. They get to the Diet in different ways, but they never walk straight from a drawing board or operating room to head up the Justice Ministry.

It also overlooks a very fundamental difference in the two posts. The Japanese Justice Minister has practically no advisory role, whereas the US Attorney General is expected to give legal advice to the President and the Cabinet. The Justice Minister has few formal duties, and they only personally carry out one of those duties: administration of the death penalty. Other duties, like stamping foreigners’ entry permits and representing the state in court, get delegated in practice to much lower-ranking bureaucrats, and the minister’s theoretical oversight of the prosecutor corps is rarely exercised.

Despite all these differences, full-fledged lawyers still get to be Justice Minister on a fairly regular basis. Chiba is the fourth Justice Minister in this decade (out of eleven) to have a bengoshi qualification. The previous three were, of course, all LDP people (Okiharu Yasuoka, Masahiko Komura and Seiken Sugiura).

For decades Japan had the fewest lawyers per capita of virtually any developed nation, but that is changing. The country now has nearly 29,000 lawyers, a figure that has roughly doubled in 15 years. A law-school system introduced in 2006 has opened the doors wider to the profession.

Now we’re talking about bengoshi, not benrishi. Kan’s qualification has pretty much nothing to do with law school.

Law school also has little to do with the slowly-rising number of lawyers. Entry to the bengoshi profession is strictly a function of the bar exam pass rate, which was extremely low (3% or so) under the old bar exam which required no graduate school, and is still only one-third or so for people who have finished three years of law school under the new licensing system. The exam is full of tricky questions which effectively require the exam taker to memorize all the central statutes of the Japanese legal system as well as the key precedents and scholarly arguments surrounding each one. Other law licenses like benrishi have similarly onerous exams, though no others force people to sit in school for three additional years just to have a one-out-of-three shot at the license.

In all of these cases, the doors could be opened wider by making the exams more practical, but the exams are designed to create a high barrier to entry. As a result, the people who pass these exams tend to be the type of people who could not be bothered with going into a corporate or government job straight out of university, and they tend to stay in private practice rather than joining large institutions—which, as we know, hold all the political power in Japan.

In contrast, US bar exams are designed to mint larger numbers of lawyers, with a passage rate between 80% and 95% in most states. The passage rate is lower in some states where people can take the exam without going to law school, such as California (where apprenticeship study and unaccredited law schools are both options) and New York (where foreign lawyers and law graduates can sit the exam with a certain minimal level of US legal training). They test a narrower range of law and are generally meant to check a person’s reasoning skills rather than knowledge of the chapter and verse of the law.

And with more than 4,000 women lawyers (up from a mere 42 a half-century ago), Japan may be closer to having a pair of lawyers someday as its first couple, following in the footsteps of Bill and Hillary Clinton and Barack and Michelle Obama.

Yuck. One lawyer is more than enough.

16 thoughts on “Kan is not a “Japan rarity,” but decent foreign reporting may be

  1. Nice overview on lawyers and Japanese politics. Interesting to have a comparison between the Japanese and US systems to put things in perspective. Plus, it’s always fun to read a smart piece that points out the lack of proper foreign reporting on Japan.

    Just one thing. Maybe he meant different, but I’m not sure Ramseyer’s pointing out that the per-capita number of graduates from US law schools and Japanese law faculties are about the same is the best argument, because Japanese law faculties are quite different from US law schools. They include both undergraduate and graduate, and include a wide of range of majors such as politics, history, international relations, etc. so it’s probably not a fair comparison. Most law faculty students don’t enter with the intent of becoming lawyers. However, a few years ago Japanese universities started Houka Daigakuin (Law Graduate Schools) that are modeled after US law schools. Maybe that’s what Ramseyer meant but I’m guessing that the number of Houka Daigakuin grads is still relatively low even on a per-capital basis.

    Thanks for the great posts.

  2. “The Justice Minister has few formal duties, and they only personally carry out one of those duties: administration of the death penalty.”

    I know this wasn’t the point of the article, but I was fascinated by this sentence. Did you mean that the Japanese Justice Minister personally executes people? That’s kind of awesome.

  3. Ed, if you want to know what the death penalty actually looks like in Japan, check out the movie 休暇. (http://www.eigakyuka.com/)

    And no, the Justice Minister doesn’t personally ADMINISTER the death penalty, I think it just means that his personal signature, rather than an underling, is required on the death warrant.

  4. The Ministry of Justice in Japan has a similar portfolio to the the old Home Office in Britain. However, in 2007, some Home Office duties were split off to our own Ministry of Justice. Our current Home Secretary, Theresa May, has no academic background in law and that has often been the case for Home Secretaries.

    It’s intended that the Secretary of State for Justice, who is also the Lord Chancellor, will be an elected MP. Jack Straw, who held the post for Labour, happened to be a former barrister but the newly appointed Ken Clarke has no legal background

    For legal advice to the government, we also have an Attorney General, who plays a similar role to his US namesake. The holder is a government minister, answerable to Parliament, but not a member of the Cabinet. The current AG is actually an elected MP with professional legal experience but previous occupants have often been legal professionals appointed first to the unelected House of Lords, thus becoming part of Parliament, before being given the job.

    So, like Japan, Britain has senior officers with no legal training overseeing courts, police etc. But, like the US, we have qualified legal professionals in government offering official legal opinion. I suppose my question is, does anyone know who formally carries out the second function in Japan?

    As an aside, I’ve worked with two different Japanese ministries drafting new legislation – which sounds a lot more interesting and important than it was – and, on both occasions, the legal advisors were on secondment from private practice, due to return after the project was concluded. I was told this was normal because ministries generally don’t have sufficient legal resources of their own. It was a bit laughable that the consultation process was considered at all independent because you could tell which way the decision was going to go by looking at the clients and cases handled by their practices.

    I was also told that it’s common for these seconded legal professionals to be tapped to join government, partly because they are the only ones who fully understand the legislation. One of the people with whom I worked was indeed elected to the Upper House shortly afterwards while the other remains a leading light in his field.

  5. Having gone to law school (Temple, 1993) and passed the bar of two states (Pennsylvania and New Jersey), I am not certain what special magic there is to being a U.S. lawyer compared to someone here who has specialized for years in one area of legal practice (whether or not they have broad-based training in “law”.)

    I meet many U.S. lawyers who are downright stupid. (It’s more sickening when that lawyer is a judge.) I meet many (too many) lawyers who are incredible liars, and who seem to think the profession is more about who can make the best lies, rather than who can best remain faithful to the law while advocating on behalf of a client. They seem to lose the “faithful to the law” part when they are at work. I wonder what they thought that oath was about when they joined the bar.

    Don’t ask me for a list of names here in Tokyo on that.

    So I see little difference between a law-specialist here and someone stateside who got the couple years book-learning and then went into a specialty legal practice for a career.

  6. Adamu, thanks for the link, but Kan’s response was to Yoshimi Watanabe of the Your Party, not Tanigaki, no?

  7. Hoofin, I suppose the only real difference is that the American lawyer is allowed to practice any kind of law, no matter how little they comprehend it, while Japanese “lawyers” are only licensed to be incompetent in a much narrower field.

  8. Something that I’ve been meaning to ask Joe and Curzon and anyone else with experience (or an opinion) – what do you think law school and the subsequent qualifying exam should ideally be like?

  9. @Hoofin: I didn’t know you were a Temple alum. I am as well.

    American and Japanese bar exams are structurally not that different. Most US states have more multiple choice questions, and Japan has an oral component which isn’t found in the US at all, but both countries basically employ essay tests as the key determinant, and the essay involves applying law to a particular set of facts. The subject areas are not that different—Japan is actually a bit more flexible under the new exam because it provides for one “elective” where the exam taker can choose to be tested on labor law, international law, bankruptcy law or whatever interests them most.

    There is one key difference between the two. The Japanese bar exam (like the exams for most other Japanese legal professions I’ve seen) has nothing but “right” and “wrong” answers. In other words, it tests how the law has already been applied: in order to pass it, you memorize all the rules and all the precedents. The essay portion of American bar exams does not always have right and wrong answers. Sometimes it asks the applicant to form an argument for one side of a case based on the rules of law they happen to know, while anticipating possible counter-arguments. In this sense it’s a good assessment of practical skills.

    But the differences in methodology have an impact on the types of lawyers you run across in both countries. In the US, you find many lawyers who only know a couple of fields but who can argue their way out of anything. In Japan, lawyers generally know the rules of all the basic areas of practice, and can even recall them by chapter number, but are not nearly as creative or resourceful in forming legal arguments unless they are seriously pressed to be that way. This is one reason why the largest Japanese law firms often send mid-level associates to the US for an LLM and a stint at an affiliated American firm: besides being more accessible to foreign clients, it also gives them better training in thinking “around” the law.

    Japanese lawyers are still usually generalists, by the way, although there has been more specialization in recent years. One lawyer I worked with (back in my short private practice days) “specialized” in infrastructure finance and divorces, with some random corporate housekeeping work and commercial contracts thrown in. It was a surreal combination to me, but it’s basically par for the course in this country.

    I personally think the Commonwealth countries have the best system of training lawyers—apprenticeship. The American law school model (which Japan has now basically copied) is flawed in a number of ways, chiefly in that it places a price tag of $100k or more on the law license and new lawyers STILL have to work under someone for a while in order to get any useful skills.

  10. A Japanese friend of mine recently bemoaned the rise of the law school, mainly because under the old system, anyone with the skill or tenacity and pass the bar exam could become a bengoshi. According to him the lack need for either a formal training in the law to sit the exam was a great equalizer and opened the profession to people from a number of backgrounds.

    (of course, he was also paying for his son to go through law school at the time.)

    Is that true? Could people without formal quals sit the exam before the advent of the new system? In the Commonwealth system lawyers have to be formally trained (i.e. hold an undergraduate degree in law), at least in the countries I am familiar with.

  11. The old exam system was very flexible. I believe the old exam required 12 years of formal education, but if you didn’t have at least a two-year university degree, you had to take a pre-exam to determine your eligibility to take the real exam.

    That said, the fact that the pass rate was only <3%, and never got much above 15% even among Todai Law graduates, meant that one probably needed a law degree AND a lot of juku cramming in order to pass the exam. It wasn't rare to see bright Todai kids pass the exam in the middle of university, though.

  12. Great post and discussion.

    The company where I worked before going to law school had a kind of “exchange program” with the in-house legal department from its US subsidiary’s office. The US attorneys were always surprised to find that his/her Japanese components were not “lawyers” at all. I’m not sure why they made of the situation, but I guess they just accepted it as “that’s how they do it at this company.” I wonder though if they figured that that’s how they do it in Japan overall.

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