A look at the absurdities of Japan’s tests for lawyers, nurses and caregivers

THE ZEIT GIST Stop thinking — the test is about to start
Japan Times, Dec. 18, 2012

I spent a beautiful Sunday in May of this year taking a national law exam. I did not pass and wasn’t expecting to: I could barely work up the energy for the 90-minute commute to the test venue in Osaka, let alone study for it.

Of the 6,477 who took the exam last year, only 116 passed — I bet they cracked a book or two. Personally, I consider life too precious to spend studying for an exam with a 98.2 percent failure rate. Even if by some miracle I had passed, it would have only made me eligible to sit for a similar exam on essentially the same subject matter with a pass rate in 2012 of just 25 percent.

I sat for the multiple-choice portion of the Law School Equivalency Exam (LSEE). The diligent swots who pass it (including the subsequent essay and oral components) can sit for the National Bar Exam (NBE) and possibly qualify as a lawyer without wasting the time and tuition involved in becoming a law school graduate, which would otherwise be a prerequisite. I teach at a Japanese law school but did not graduate from one, so taking the LSEE is the closest I can get to experiencing what many of my students will have to go through on the NBE.

That the LSEE makes it possible for a select few to test straight into qualifying for a law license is odd given that Japan’s system of law schools was established less than a decade ago with the express purpose of training the country’s legal profession in a radical new way: by teaching them how to think and act like lawyers rather than just regurgitate information on an exam. This lofty goal is embodied in reams of rules and administrative guidelines from the Ministry of Education, Culture, Sports, Science and Technology (MEXT).

Unfortunately, this goal is incompatible with the primary purpose of the NBE, which has always been to limit entry to the legal profession to whatever number the government (or perhaps more accurately, the Ministry of Justice) thinks should be allowed to pass, rather than to objectively test whether candidates are competent to practice law. These conflicting policy goals have resulted in a system that can best be described as insane.

With every law school having a history of only a few years, the NBE pass rate of their graduates is one of the few concrete metrics available for evaluating the “quality” of their education. MEXT established a task force devoted to “improving” law school education after only two sets of NBE results had been announced and before any successful test-takers had even qualified to practice law. More recently, the ministry has started to cut funding to institutions whose grads are underperforming.

This is all a bit ironic given the myriad of MEXT rules and accreditation requirements intended to prevent law schools from teaching how to pass the NBE, including limits on the amount of curriculum time devoted to bar exam subjects. While the press has made much of low NBE pass rates, the simple reality is that too many law schools were licensed, resulting in too many graduates sitting for the “permitted” number of passing slots. Apparently it is easier to blame the results on educators than policymakers.

For its part, the Justice Ministry hews to the ridiculous tatemae that the NBE is a “qualifying” exam that in theory everyone who gets above a certain score could pass, while at the same time openly engaging in speculation about what the “correct” number of passers might be. Less openly, it has issued guidance to bar exam graders “suggesting” that they effectively fail 70 percent of all essay question responses.

The multiple-choice portion, meanwhile, abounds with “gotcha” questions that have less to do with applying correctly understood legal rules to factual situations than with simply thinning the herd. Requiring examinees to be able to identify the correct characterization of the theory expressed by the dissenting opinion in a decades-old Supreme Court judgment doubtless helps winnow out the people who don’t do all the assigned reading or have bad memories, but does the ability to remember highly specialized trivia that can readily be googled have anything to do with being a good lawyer?

I have to admit that some of the questions on the LSEE were surprising. This one, for example: “Which of the following changes is not caused by reduction-oxidation?”

A chunk of the multiple-choice component of the LSEE is on general knowledge rather than law, with takers choosing 20 out of 42 questions on a range of subjects including literature, philosophy, science, math and even English comprehension (yay!). There is probably a Ph.D. to be had in looking at all of the cultural biases involved in the way these subjects are chosen and tested. For example, the exam I took had several questions on modern world history, but seemed a bit short of recent Japanese history (no official “correct answer” there yet, perhaps?).

Graduating from university is not a prerequisite to sit for the LSEE, but apparently the authorities are still reluctant to pass people who haven’t absorbed a college degree’s equivalent of useless factoids somehow. A more likely explanation, however, is that this “Trivial Pursuit” approach is just another way to cull the herd. So while it may seem odd that being able to fill “Bretton Woods system” into the proper blank or correctly identify a protein sequence makes you a bit more eligible to practice law, if the real purpose of the test is to exclude the right number of people, why not?

It even makes sense that the initial stage of the LSEE gives more weight to general knowledge than constitutional law. After all, legal subjects can be more thoroughly tested on the essay portion, and why waste time there grading answers written by people who can’t even properly identify a random passage from a Natsume Soseki novel?

The great paradox of the current system for training Japanese lawyers is that law school involves teaching people to think rationally and critically, yet the bar exam process requires people to limit the application of those skills to the officially approved parameters of the exam questions. Thinking that way about the system beyond the exam will only make your head hurt.

A different kind of paradox may be part of what is bedeviling foreigners trying to pass the Japanese nursing or caregiver exams. Economic Partnership Agreements (EPAs) between Japan and the Philippines and Indonesia allow qualified medical workers to come to Japan for up to three years, during which time they are supposed to learn enough of the lingo to pass the exam while working as assistants at hospitals or nursing homes. The nursing exam has proved particularly challenging, with only 11 percent of EPA test-takers passing against an overall pass rate of 90 percent (the gap on the caregiver exam is smaller: 38 percent to 64 percent).

Unlike the bar exam, the nursing test is presumably not intended to limit competition. After all, if Japan does not actually need more nurses than are being produced domestically, then the whole EPA program would be a cynical ploy to develop a steady stream of ambitious, overqualified Asians who come to Japan, spend a few years giving sponge baths to the bedridden and then have to leave.

That view might be part of the reason for the negative press coverage the program has received. However, there has also been a lot of focus on Japanese Being Difficult for Foreigners as the reason for the nonnatives’ high failure rate. That may be true in part, but having read through the 240 multiple-choice questions comprising the most recent nursing exam (held Feb. 16), I wonder if another factor might also be at work.

The very first question — “What was the average life expectancy of Japanese men in 2009?” — did not inspire hope, particularly since it was shortly followed by another similar statistical question: “According to the 2009 population census, what percentage of households consisted of nuclear families?” (Q. I-9). I counted no less than six questions requiring candidates to have remembered statistical data that can be looked up in two seconds on a smartphone — and thus smacking of the same sort of mindless “fail a certain number of people for something, anything” imperative evidenced in the bar exam.

Similarly, about a dozen questions were about law and Ministry of Health, Labor and Welfare (MHLW) policies. Perhaps questions such as “What is the legally mandated color of oxygen bottles in Japan?” (Q. I-22) have their place, but question I-72 — “Which of the following correctly describes the purpose of the MHLW’s “Mental Health Barrier-Free” Declaration?” — seems to come from a test for party cadres rather than medical professionals.

Ensuring nurses understand relevant regulations is probably desirable, but there actually may be a lot of context here that makes these questions particularly difficult for people who did not grow up with the idiosyncrasies of the Japanese health care system. Indeed, such people might find it hard to understand why they have to know whether the discounted train and bus fares enjoyed by holders of a Mental Disorder Welfare Handbook are uniform nationwide (Q. II-90).

A non-Japanese test-taker might also have trouble with the notion that dealing with patients involves following a script. There may be any number of “correct” ways to comfort an elderly patient lamenting “I don’t want to die alone” (Q. II-103), but so much would seem to depend on the context of the individual patient — not to mention cultural attitudes to the elderly and death itself — as to defy a multiple-choice testing protocol. (That said, choice No. 1, “Don’t worry, I hear dying isn’t painful,” is probably wrong in any situation.)

Not being a medical professional, I am unqualified to comment on the 80-90 percent of exam questions about symptoms, disease and treatment (though I think I could have guessed that “cessation of pulse” is the correct answer to Q. I-11, “Which of the following is one of the three indicators of impending death?”). It seems odd, however, that the MHLW has begun including the English names for diseases and symptoms in the test questions, presumably to make it easier for foreigners. While it might make some sense to compromise on certain testing standards to facilitate passing by EPA examinees, the ability to communicate with Japanese patients and colleagues about symptoms and diseases is an odd place to start.

Perhaps a few more foreign test-takers might pass if they didn’t have to spend time memorizing statistical trivia and random quirks of mental health regulation — in other words, if the exam was just about nursing. After all, to even qualify to sit for the nursing exam under the EPA program, candidates must already be qualified and experienced nurses in their home countries, a fact that makes their high failure rate even more discouraging.

Intriguingly, although EPA candidates did poorly, so did Japanese examinees who did not take the exam immediately after graduating from a nursing school. In 2012, new graduates had a pass rate of 95.1 percent compared to only 33.7 percent for those who were not fresh out of nursing college (which includes the small number of EPA test-takers). This may have any number of reasons, but perhaps one is that those who take it after working a while — most likely in a medical field — may be less capable of getting their minds around the silly aspects of Japanese testing protocols, while nursing schools (and bar exam cram schools, for that matter) can work with fresh young minds untainted by relevant experience and thus capable of retaining some of the pointless trivia until the exam date.

So perhaps I was not the only one who laughed out loud when I got to question II-89 on the nursing exam: “Which of the following is a category of impaired thinking?” It was a multiple-choice question, but I wonder how many test-takers — Japanese and foreign alike — were tempted to write in, “This type of exam.”

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and ideas to community@japantimes.co.jp .

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