Japanese Law not Lost in Translation

Marc Gottlieb, 2L

Contributor

Like many Americans, I have grown up with a sense that Japan is a bit like Willy Wonka’s chocolate factory—it exists within our theoretical reach, but very few have been inside, and they return with conflated tales of candy-powered flight and brown-uniformed men with green hair. Still, the cosmopolitan within me had always doubted these exaggerated rumors. Surely, I thought, Japanese culture cannot be so monolithic and alien as I’ve seen reported in irresponsible American media. Like Veruca Salt, I had to find out for myself.

On May 30, 2009, exhausted and filthy, I touched down at Narita International Airport in Tokyo, a generous five pages into the thick packet of readings I had been assigned as preparation for Cardozo’s eight-day comparative law seminar in Japan. Sitting on the tarmac, I considered the view out the window. It looked so unimpressively earth-like; nothing like the Japan I had been told to expect. My apprehensions of familiarity were interrupted and belied by the appearance of two Japanese customs personnel. Like extras from “E.T.,” they wore hospital scrubs and respirators, and passed through the aisles distributing questionnaires regarding our swine flu status. After passing through customs, I grouped up with the rest of the Cardozo students, where we were soon joined by Professor Ed Stein, our trip leader, and Yuko, our translator.

It seems important to point out that our visit coincided with a very interesting time for law in Japan. Over the last few years, the Japanese legal system has implemented two major alterations that promise to completely revamp the practice, and perception, of law. Naturally, there are plenty of Japanese lawyers that would supplant “revamp” with “undermine,” but this controversy, as with so many others in Japan, is somewhat clandestine. Indeed, only a few of our various hosts ventured more than perfunctory approval, but I’m getting ahead of myself.

The first reform seeks to increase the number of practicing attorneys, or bengoshi. As I was surprised to learn, Japan employs about one third of the number of legal specialists in the United States (per capita). This figure includes notaries and tax attorneys, who perform a greater variety of services than in America. Outside of Tokyo, there is one lawyer per 30,000 citizens. This figure, which we found astounding, is supported by another equally-baffling statistic: in Japan, the average rate of bar passage is about 3.5 percent.

Compared to New York, (where, in February of 2009, 73.3 percent of graduates from ABA-approved schools passed the bar exam) hopeful bengoshi traditionally underwent an extremely rigorous process, where, after undergraduate studies in law, they studied for as many as four years in preparation for the bar. Then, after years of full-time, individual preparation, generally without the help of BarBri equivalents, a lucky few would be admitted. Of the students who failed, those who could afford it would return to their studies; those who could not would move on.

To combat this state of affairs, Japan has founded 74 American-style law schools since 2004, where those with undergraduate degrees in a variety of disciplines may enroll in preparation for a reworked bar exam, with a passage rate of approximately 30 percent. When asked about the new law schools, most bengoshi expressed the perfunctory enthusiasm that Japanese often bring to discussions on the joys of death and taxes. Eventually, one of our speakers confirmed this undercurrent of skepticism, dismissing the new system as insufficiently rigorous. Japan’s attorney shortage, coupled with this “society knows best” cultural posture, brings us to the subject matter of the nation’s next major legal reform.

In a recent scandal, police in a rural province arrested 13 suspects in a vote-buying scheme. At trial, the court found that, during months of questioning, six of the detainees had given false confessions. Empowered to hold a suspect for up to 23 days without a charge, Japanese police have always placed singular importance on securing a confession, and will conduct marathon interrogations, 10 hours a day for weeks on end. Indeed, 99.8 percent of Japanese criminal cases conclude with a guilty verdict. While this figure includes the Japanese equivalent of plea bargains, it is nevertheless clear that the insufficiency of legal advocacy, both in the scarcity of legal representatives and the submissive attitudes of individual citizens, has a tremendous impact.

This summer, Japan concluded its first jury trial for the first time since 1943, when World War II interrupted an unpopular experiment with the proceeding. Although the suggestion of jury trials had prompted flustered consternation from both attorneys and the public at large, the Japanese Diet recently adopted the practice, hoping to ease the growing burden on judges while simultaneously encouraging Japanese civic responsibility and involvement, as opposed to the omnipresent deference. The Diet’s unilateral decision also provided for education in the new process. Throughout the country, potential jurors have been called in for mock trials, while litigators have been honing their public speaking, practicing their smiles, and Googling Perry Mason.

Unlike the strained optimism with which our hosts approached the new law schools, very few of them had anything positive to say about the jury system. When I asked a former criminal prosecutor if he might like to try a case before a jury, he laughed at the very idea. To him and, it seemed, to most Japanese, the social discomfort of passing judgment in public nearly outweighs any civil benefits adhering to the jury trial. Of course, while few Japanese we met would say as much in public, fewer still seemed to think otherwise.

Indeed, I was constantly awestruck by the cognitive dissonance that inheres to nearly every single aspect of Japanese society. At every turn, fantastic technological developments, along with drastic social and demographic changes, struggle to co-exist with ancient cultural traditions. Where successful, this compromise generally comes at the expense of human actors and environmental conditions. In Tsukiji fish market, technology satisfies Tokyo’s well-established appetite for seafood, to the tune of 700,000 metric tons of seafood each year. Visiting the tuna auctions (fresh and frozen) at 5 a.m., I was staggered to consider the fresh ecological disaster that meets Tsukiji’s 65,000 registered employees each morning. And this in a country with some of the world’s most rigorous recycling laws.

In the end, the unbending formality of Japanese culture proved to be one of the most pervasive, and so most memorable, aspects of the trip. No matter where we went, we were treated with incredible care, whether shepherded through the empty hallways of the Tokyo bar association or politely convinced that we would probably prefer a bar that plays American music. But no matter how much restraint they exercised, our Japanese hosts soothed our cultural confusion with sympathy born of experience.

Admittedly, my eight days in Japan have afforded me little insight into Japanese culture, or into American perceptions thereof. Limited by my cultural biases, I regularly trimmed my observations to match my expectations. Nevertheless, I can draw one lesson that is equally supported by my observations of the seminar as well as of the country itself. However much Japan’s legal and cultural heritage may seem to reinforce stereotypes of rigid collectivism, the Japanese are not so monolithic as I had been told to expect. Through its recent legal reforms, Japan may well yield a new culture, one that encourages transparency without wholesale imitation of Western counterparts.