The failure behind trends in Japan’s bar exam pass rate

Achieving the ‘correct’ level of passers has cost vast amounts of money and energy

COLIN P.A. JONES Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed here do not reflect those of Doshisha Law School or any other organization with which the author is affiliated.

2023-11-21T08:00:00.0000000Z

The Japan Times

https://epaper.japantimes.co.jp/article/281736979191008

Opinion

On Nov. 8, the results of the 2023 sitting of Japan’s national bar exam (NBE) were announced. A pass rate of just over 45% brought it close to the California State bar exam, the United States’ most difficult, with a recent pass rate of 51.5%. Still, considering that pass rates for the NBE hovered between 1% and 4% for decades, the recent score may seem like a great improvement. In fact, it is the latest in a more complex, less upbeat saga. The NBE was revamped with the opening of graduate professional law schools in 2004. The pass rate on the “new” NBE was 48% at its first sitting in 2006, though it immediately declined in the years that followed before bottoming out at 22.6% in 2014. It then recovered to the 40%-plus rates that have prevailed since 2021. This progression might seem to tell a story of challenges in legal education that were overcome. In fact, it is more a story of triumph in making legal education unattractive. When Japan’s new law school system was designed at the turn of the millennium, the plan was to have around 20 law schools and a bar exam with a pass rate of 70% to 80%. Politics intervened, however, and 74 law schools were licensed. This was unfortunate because, despite the NBE supposedly being a qualifying exam — one that anyone who demonstrates a minimum threshold of knowledge passes — its primary purpose is to fail the right number of people so as to generate a predefined number of passers. Passing the NBE entitles one to enter the training program run by Japan’s Supreme Court, completion of which is the way most passers qualify to practice law. For decades, this program could accommodate only around 500 people per year. Law schools did not exist and anyone could sit for the bar exam. For example, in 1977, 29,214 people sat for the exam and 465 passed. Do the math and you get a pass rate of 1.59%. Although law school education was supposed to be a substitute for part of this training program, the basic formula driving pass rates did not change. The main difference was that you generally needed to be a law school graduate to sit for the NBE, but the number of passers was still somewhat fixed. A 2002 Cabinet resolution declared this number should be gradually increased to 3,000 per year by 2010. However, before law graduates had even hit the job market, bar associations were complaining about there being too many new lawyers; the number of passers under the old exam had already been increased before it was phased out. The 3,000 target was abandoned and the number of people passing the new NBE peaked at 2,102 in 2012, and then declined to around 1,500 where it seems to have stabilized (though 1,781 passed in 2023). It was popular to blame law school education for the inability to achieve the 3,000 annual target, as well as the initial decline in pass rates. Yet the former was simply an arbitrary, politicized number, and the latter a function of the number of people taking the exam against where that number was set. Seventy-four law schools instead of 20 meant more graduates sitting for the exam and thus more people who needed to be failed to get to the “correct” number of passers — a number that ended up being lower than what universities had been promised before they established their law schools. As time passed, the situation grew worse because those who failed the NBE one year would naturally take it again, competing with a new crop of graduates, driving the pass rate down further (caveat emptor, I am a law school professor). An ever-increasing number of law graduates repeatedly sitting for the exam would have ultimately driven pass rates back to single digits but for another completely arbitrary rule introduced with the new NBE; eligibility to sit for it was limited to the five years following graduation, constitutional guarantee of freedom of occupation notwithstanding. This was to prevent the pool of bar passers being clogged up with repeat takers. Under the old system, the average lawyer passed on their fifth attempt, and some people spent much of their productive years studying for and repeatedly failing the exam. Limiting exam sittings might seem a kindness that encourages the unsuccessful to try something else, but a real-world, completely ridiculous outcome is that law schools receive applications from people who have already graduated from law school once. Why? Because graduating again will get them five more chances. Unsurprisingly, the risk calculus around spending two or three years at law school and then another five years sitting for and failing an exam with a pass rate as low as 22% helped make law school an unattractive prospect for some. This may have been a good thing for law school regulators, since improving the NBE pass rate still entailed reducing the number of people sitting for it by destroying many of the law schools that had just been established. This was accomplished through various means, including reducing government subsidies and requiring law schools to accept fewer students and fail more of those admitted. The Ministry of Education developed various metrics for sorting “good” law schools from “bad” ones, virtually all of which involved some relationship to graduate bar exam pass rates. This was ironic because law schools are literally prohibited from “teaching to the bar exam,” or even devoting excessive curricular time to subjects tested on the NBE. Cram schools teaching bar passing techniques were a supposedly pernicious feature of the old bar exam regime that was not supposed to taint the new law schools. The thing law students want most out of a law school education, how to pass the bar, is one of the things law schools are not supposed to teach, at least not directly. The campaign to annihilate an appropriate number of still-new law schools has been a success. Applicants dropped from 72,800 in 2004 to 12,174 in 2023. As of today, just 34 of the original 74 law schools are still accepting new students and there were only 1,197 new law students in 2023, compared with over four times that number at inception. All it took was vast amounts of wasted money, energy and young people’s time to achieve what may finally be the “correct” number of bar passers and pass rate. Things have definitely improved for law schools since a decade ago, but not even those that survived the bloodbath can rest easy. You see, the 2023 pass rate for graduates was actually only 40.7%. This is because another feature of the NBE regime is a law school equivalency exam; passing it entitles you to sit for the NBE without going to law school. The stated reason is to ensure opportunities for those without means to go to law school, though there is no means testing for admission and many who pass it are actually law students (who don’t have to stick around for graduation if they pass). The equivalency exam looks suspiciously like the old bar exam, including its pass rate and the fact that anyone can sit for it (I did once, on a lark). In 2022, 13,004 people took it but only 472, or 3.6%, passed. Of those who passed this exam, 353 sat for the 2023 NBE and a whopping 92.6% passed. The youngest was just 19. The equivalency exam has thus evolved into a system that annually produces the equivalent of several law schools worth of new test takers who reliably ace the exam. The whole law school system could still conceivably fail, even be deliberately allowed to do so. After all, the Ministry of Justice (which administers both exams) has conveniently preserved a qualifying regime completely outside the scope of whatever the Ministry of Education has been trying to accomplish with law schools. Together with the courts, the MOJ seeks to hire the best of the bar passers into government service and may want little more than the law-based IQ test they had for decades, just with a limit on sittings to keep that talent pool young. Law schools may well survive, but a case system will form within the legal profession. Those who qualify to practice without going to law school will likely become an elite minority. Perhaps that is the intent. In any case, bar pass rates will continue to tell a confusing story of personal success, regulatory blunders and law schools trying their best in a difficult situation.

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