Thursday, October 29, 2009

"Law schools troubled by bar exam failure rate

"When the results of this year's national bar examination were announced in September, officials of law schools nationwide were stunned: Only 2,043 people, even fewer than last year, were successful.

"The success rate among applicants was 27.6 percent, the lowest since the new bar exam was introduced in 2006 with the stated aim of sharply increasing the number of legal professionals in Japan. Last year, the success rate was 33 percent.

"The gap in the success rate between top schools and lower-ranking ones remained huge, with those from the 16 top schools accounting for 75 percent of new graduates who passed this year.

"To achieve the government goal set in 2002 to gradually raise the annual number of successful applicants to 3,000 by around 2010, this year's figure was supposed to hit between 2,500 and 2,900.

"The 2010 target now appears hard to meet, and the results posed a serious question to law schools: Are they fulfilling their expected role as a pillar of the nation's judiciary system reform, along with a citizen judge system?

"Some officials and legal professionals call for a drastic reform of graduate-level law schools, opened in 2004 or later under a new judicial education system.

""It may be inevitable for those which cannot fulfill their role to withdraw," said an official of the education ministry, who suggested some law schools with low success rates may have to be merged with others or closed.

"The system of graduate-level law schools was established in April 2004 to nurture legal professionals with varied backgrounds and bolster their number while maintaining quality.

"The new law exam for their graduates started in 2006, with an expected success rate eventually reaching 70 to 80 percent of test takers, who have graduated from law schools.

"Under the old system, the bar exam was taken mainly by those who majored in law at undergraduate level. The rate of success was only about 3 percent, or about 1,000 applicants.

"Following the grim results of the new exam, the education ministry is requesting law schools to slim down and shape up so the rate of success will be higher.

"Behind the move is the idea there are too many schools accepting too many students, leading to a drop in quality of bar exam takers.

"According to a survey this year by the Japan Association of Law Schools, 65 of the nation's 74 law schools are planning to reduce enrollment by the 2011 school year.

"The total number of students admitted each year will be slashed by about 1,000 from the current 5,765.

"The new graduate law schools accept those who did not major in law as undergraduates for their three-year courses and those who studied law at two-year courses.

"The former was supposed to attract "high-level students with varied backgrounds," including mid-career people. But in fact the success rate for those from the three-year course was a low 18.9 percent, compared with 38.7 percent for the two-year course.

"The gap has discouraged those who already have jobs to go back to school to pursue a new career in the judiciary.

"It has also prompted some schools to shift their focus to two-year courses since they are rated for their graduates' success in the bar exam.

"Tokyo's Waseda University has put emphasis on non-law majors. More than 90 percent of its law school students did not major in law as undergraduates.

"After falling behind its rivals with more former law majors, Waseda Law School has decided to admit about 100 law majors for its 300 places next year.

"In 2011, the school will reduce the quota to 270, of which 150 are set aside for law majors.

""We take pride in the fact our system better served the new system's ideals, but the reality was fast deviating from the ideals," said Shuichi Furuya, a professor of international law who is in charge of the school's curriculum. "We cannot just sit and be left behind others."

"Many law school officials voiced doubts about the new bar exam at a meeting on Sept. 14 of a special panel on law schools of the Central Council for Education.

"Some asked if the new exam fails to meet the ideals of the judiciary reform that puts emphasis on law school education, after the old exam was under fire for requiring special test-taking skills to pass.

"Others asked if the pass mark may have been set too high, or if the Justice Ministry still values paper exam results more highly.

"Masahito Inouye, dean of the Graduate School of Law and Politics at the University of Tokyo, asked Justice Ministry officials if the government was really going to stick to its goal of 3,000 passers.

"There is a wide gap in views of where problems lie between the education ministry, law schools and the legal community.

"The Justice Ministry appears to put the blame on law schools; officials say the low quality of their graduates has led to low success rates.

"A case in point, they say, is a rising rate of failure in the final exam for a training course for those who passed the bar exam at the Legal Training and Research Institute of Japan.

"Last fall, 113 apprentices, about 6 percent, failed.

"The Supreme Court, which examined test papers of 2007, said those who failed were far from having the capability required to serve as legal professionals.

""The 3,000-people plan means nothing if they don't have the ability required," a senior court official said.

"Some top court officials say the education ministry is to blame for approving too many law schools.

"A lawyer who teaches at a law school in the Kanto region laments that some students have problems even in reading and writing.

""I am teaching while well aware they will never pass (the bar exam)," the lawyer said. "Whatever reform is done, the maximum for the annual successes will be about 2,000."

"While admitting the need for drastic reform of schools with low success rates, law school officials are wary the past emphasis on the rigorous bar exam may be revived. "The quality now required of legal professionals should be different from the past," said a member of the special panel.

"The basis for the government's goal of 3,000 successful bar exam takers a year, set in 2002, is to double the nation's legal professionals to 50,000 by around 2018. But critics say the basis for the figure is vague.

"The Japan Federation of Bar Associations in March proposed keeping the annual number at 2,100 to 2,200 for a few years because a sharp increase in lawyers has led to difficulty finding jobs.

"The new Democratic Party of Japan administration may review the plan as indicated by Justice Minister Keiko Chiba, who said on Sept. 18 the 3,000-target is difficult to meet by 2010.

""Legal circles, the education ministry and law schools are blaming each other," said a Central Council for Education member. "It is important to get back to the original ideals of the nation's judiciary reform and enhance cooperation between education and training of legal professionals and the bar examination.""

By Tomoya Ishikawa, Mitsusada Enyo, and Daisuke Nakai (Asahi Shimbun, 10/27/2009), Link to article (last visited 10/29/2009)

Saturday, October 17, 2009

Separate Surnames

"When couples register their marriage, they are required to choose only one of their family names under the current Civil Law.

"Wives or husbands who change their surnames upon marriage are forced to make adjustments in work-related and personal relations accumulated under their original surnames.

"In most cases, it is the wife who changes her surname to that of her husband. Many working women must feel disinclined to change their names. But if they opt for a common-law marriage because they don't want to change their names, those people could face disadvantages in inheritance and other matters.

"Forcing people to change their names--symbols of their personalities--also runs counter to the constitutional principle that says, "All of the people shall be respected as individuals."

"Under the proposed optional dual-surname system, married couples would be allowed to keep their original surnames if they want.

"The Democratic Party of Japan and others had submitted bills to revise the Civil Law to that effect. After the start of the DPJ-led government, Justice Minister Keiko Chiba stated that she plans to submit a revision bill to the ordinary Diet session as early as next year.

"Few countries force married couples to have the same surnames. It has been a quarter of a century since Japan ratified the Convention on the Elimination of All Forms of Discrimination against Women, which effectively calls for a two-name system. Among industrialized countries, Japan is about the only one that has not adopted the system.

"During the Edo Period (1603-1867), farmers and commoners were not allowed to have surnames. Married couples were legally obliged to have the same surnames under the old civil law enacted a little more than a century ago during the Meiji Era (1868-1912).

"With women's advancement in society, married couples and families have taken diversified forms. According to an opinion poll conducted by the Cabinet Office three years ago, a record high 46 percent of the respondents said they find it inconvenient to change their surnames at marriage.

"Thirteen years ago, the Justice Ministry's Legislative Council recommended a legal revision to introduce the optional dual-surname system for married couples.

"Since then, critics have cited the following reasons for their opposition: It is Japanese tradition and culture for married couples to have the same surnames; if couples are allowed to have separate surnames, familial ties would be broken; and it would confuse children and be detrimental from an educational perspective.

"In a survey conducted this week by The Asahi Shimbun, opinions were divided, with 48 percent for the revision and 41 percent against it.

"Changing a long-standing system will inevitably bring about concerns and resistance. We also understand that a sense of unity in a family is so important in providing a good environment for nurturing children.

"Still, there are more important elements in maintaining familial ties--such as everyday love and care--than simply sharing the same surname.

"Obviously, families in which all members have the same surname can experience problems, just as couples in common-law marriages are capable of loving each other and caring for their children.

"The idea is not to force all couples to take separate surnames, but to give them a choice. We should part with the vestiges of the old "family" system.

"Accepting diversified ways of life can also be useful in breaking the sense of stagnation that society faces today. Recognizing married couples with different surnames can be a major step in that direction.

"The government should submit the revision bill without hesitation. It is time for the Diet to settle the matter."

By Asahi Shimbun (Editorial, 10/16/2009), Link to article (last visited 10/17/2009)

Sunday, October 4, 2009

Supreme Court: Illegitimate Children and Discrimination

"The Supreme Court has ruled a controversial Civil Code provision that grants only half the inheritance from a deceased person's estate to children born out of wedlock constitutional.

"The ruling came as the top court's Second Petty Bench dismissed a special appeal filed by four illegitimate children. Three out of the four justices ruled that the Civil Code provision does not violate Article 14 of the Constitution that provides for equality under the law.

"The four plaintiffs, from Okinawa Prefecture, had sought equal shares of their father's estate after he died in 2000, while their legitimate counterpart demanded a split based on Civil Code provisions. The Nago branch of the Naha Family Court and the Naha branch of the Fukuoka High Court both ruled in favor of the latter party.

"On Wednesday, Isao Imai was the only justice to uphold the plaintiffs' claim. "It is the source of the inheritance who is responsible for the birth of his children, and his out-of-wedlock children are not to blame. The (Civil Code) provision is unconstitutional," he said.

"Justice Yukio Takeuchi, who ruled the provision constitutional, added a supporting opinion. "It was constitutional when the legacy was inherited, but the social circumstances have changed and there are now extremely strong suspicions that the provision is unconstitutional," he said.

"Discrimination against out-of-wedlock children over inheritances has long been a controversial issue in Japan. In 1995, the Supreme Court's Grand Bench ruled the Civil Code provision constitutional for the first time, with five out of the 15 judges ruling against. Three other rulings handed down by the top court's petty bench between 2003 and 2004 showed a narrow margin between the pros and cons of the provision, with three out of the five judges ruling it constitutional in each case.

"In 1996, the Justice Ministry's Legislative Council endorsed a bill to revise the Civil Code with the aim of eradicating discrimination over inheritances. However, the bill met strong opposition from some lawmakers and has yet to make its way into the Diet.

"The birth ratio of children born out of wedlock in Japan jumped from 1.63 percent in 2000 to 2.11 percent in 2006, while many countries abroad allow equal shares of estates among legitimate and illegitimate children.

"With these trends in mind, Justice Takeuchi urged the Diet revise the Civil Code provision, while Justice Imai said, "We have come to a point where we are not allowed to just wait for a law to be enacted."

"Newly appointed Justice Minister Keiko Chiba, meanwhile, has shown her willingness to submit a bill to revise the Civil Code provision to the Diet at an early date."

By Mainichi Shimbun (10/3/2009), Link to article (last visited 10/4/2009)