AustLII Home | Databases | WorldLII | Search | Feedback

Canberra Law Review

Canberra Law Review
You are here:  AustLII >> Databases >> Canberra Law Review >> 2022 >> [2022] CanLawRw 5

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Arnold, Bruce Baer --- "Surveillance Machines in Ivory Towers? Surveillance Capitalism, Dignity and Learning Management Systems" [2022] CanLawRw 5; (2022) 19(1) Canberra Law Review 70

Surveillance Machines in Ivory Towers? Surveillance Capitalism, Dignity and Learning Management Systems

Bruce Baer Arnold*

Universities in the Global North are embracing digital platforms as the basis for the delivery of content, assessment of proficiencies and cost reduction. Those platforms are surveillance machines, a manifestation of surveillance capitalism. They abstract students and academics alike, embodying a politics in which people are addressed as digital artefacts – instances of when, what and how they have interacted online rather than being respected as people who are more than a data point on an educational social graph. Digital panopticism in online teaching, where students might only have a virtual presence and teachers may be precarious, conflates seeing with understanding. It rewards a bureaucratic rationality that rewards conformity rather than creativity on the part of teachers and students, contrary to supposed improvements in the ‘student experience’ that construe students as clients in a market for credentialism. Although data may be neutral and might even be accurate, its interpretation has biases and political impacts. Academic achievement may be understood as deviations from norms or through algorithms about ‘students at risk’. Automated analysis of performance targets fosters casualisation of the academy alongside buying-in of course material from enterprises that have shifted from publishing textbooks to licensing courseware. The academic surveillance machine foreshadows a legal practice in which decision-making is automated, employee productivity is assessed through artificial intelligence and justice is driven by data profiles rather than respect for dignity.


This article explores contemporary legal education as a matter of digital analytics, in other words pervasive automated observation and appraisal of both learners and educators. It argues that digital panopticism[1] in online law teaching, where students might only have a virtual presence and teachers may be precarious,[2] conflates seeing with understanding, Fordist data collection with wisdom.

The panopticism embodies an imperative, fostered by solutions vendors and by a ‘big data’ governmentality in society at large as part of what Shoshana Zuboff dubbed Surveillance Capitalism, to minimise costs by tacitly and automatically collecting data at every opportunity.[3] It fosters a disciplinarity in which academics, alongside students, internalise an ‘analytics mindset’[4] and which reinforces a ‘metrics tide’.[5] That disciplinarity erodes both the autonomy and dignity of academics in favour of managers, an echo of both 1920’s Fordism in factories, contemporary robotisation of labour within Amazon and other corporations,[6] and marketing of Artificial Intelligence (AI) services that assess white collar productivity on the basis of screen time and keystrokes or under the rubric of ‘emotion recognition systems’ scan online activity for indications that employees are discontented, suicidal or likely to ‘go postal’.[7] Those managers – a ‘new class’ – have embraced a neoliberal hegemony, construing the university’s mission and surveillance activity through a market lens and a misplaced enthusiasm for technological affordances.[8]

The panopticism sits awkwardly with questions of choice, a core facet of both dignity and language about neoliberalism.[9] Unlike engagement with global social media platforms such as Twitter, Facebook, TikTok or Instagram the surveilled in what are variously characterised as learning management systems (LMS), content management systems (CMS) or digital learning platforms – students and academics alike – do not have a choice about being surveilled. Exit from the particular institution’s platform or refusal to engage with the platform constitutes a decision to not seek the academic qualification or, if remaining enrolled, to forgo the mark/grade for the specific unit delivered via the platform. As a matter of ‘exit’ it is unavailing, given that use of LMS is hegemonic: most universities are using the platforms in most courses.[10] Student voice is typically absent – few students appear to be aware of how platforms operate – or is misdirected, for example as expressions of discontent over matters outside the control of an academic (such as on-campus parking fees, cleaning or security) or instances of anonymous upwards bullying (often with a gendered bias) noted below. Many students do not engage with ‘satisfaction’ surveys they regard as lacking value.[11]

Alongside social media platforms the operators of LMS rarely disclose to the surveilled –

• what data is collected,

• how it is stored,

• who sights ‘raw’ and enhanced data,

• how it is interpreted,

• what decisions are made on the basis of that interpretation, as distinct from marks assigned to individual students for specific assessment items and affirmed by moderators.

In practice many people are likely to be unaware that there is a black box rather than merely what happens inside the box and what comes out of the box.

The imperative for digital panopticism is typically legitimated through reference to enhancement of the ‘student experience’, with students being construed as consumers in a market for legal education and as abstractions – data profiles – rather than individuals.[12] It interacts with appraisal of legal academics on the basis of digital ‘teaching scores’ that are potentially misunderstood and misused by managers.[13] It also interacts with a governmentality on the basis of publication indices construed as objective indicators of merit, a ‘truth in numbers’ that erodes dignity by regarding scholars as units of production for a global marketplace.[14]

The article begins by considering digital learning platforms as a manifestation of biopolitics[15] and a misplaced ‘wisdom of the managerial crowd’ for digital solutions. Those platforms are increasingly prevalent as universities across the globe respond to the ongoing COVID-19 pandemic, whether autonomously or in partnership with entities such as 2U whose raison d’etre is exemplary return on investment by offering ‘online program management’ (OPM)[16] services that extend from student recruitment through to curriculum design and assessment in ways that refashion traditional understandings of the university.[17]

The article considers a tyranny of digital metrics in relation to the legal academy’s generation and critique of knowledge, in other words institutions that deserve a privileged position. The article concludes by looking beyond specific criticisms of metrics to offer a critique from the perspective of theorists such as Nussbaum, Lanier and Gewirth who are concerned with flourishing rather than life as a matter of markets and digital affordances.[18] It suggests some responses by students, academics and regulators.

The following pages provide one Australian perspective, drawing on practice in public and private institutions, but are applicable to the legal academy in the United Kingdom, New Zealand, United States, Canada and elsewhere.

Seeing like a university

Contemporary universities have been characterised as exemplifying a hegemonic neoliberalism – a soft biopolitics – that understands public/private institutions in terms of markets, consumers and competition.[19] It is hegemonic because global, apparent in both the public and private sectors, and so prevalent as to be largely unremarked. What is unrecognised or regarded as inevitable is unlikely to be successfully contested.

Although there are differences in the autonomy of institutions, the relationship between professional training and each academic curriculum, and broader legal frameworks regarding human rights such as privacy, overall we can construe law faculties and their parent universities as information machines. They collect, process and act upon data regarding students and staff. As such they are counterparts of many public/ private sector entities, with universities increasingly embracing a private/private sector managerialism that encompasses use of external service providers, restructuring of work practices through use of digital technologies and reference to ‘clients’ or ‘customers’ as determinants of both an institution’s financial viability and legitimacy.

That market orientation involves standardisation of what is taught and how it is taught, with reliance on what are characterised as learning management systems (LMS), content management systems (CMS) or digital learning platforms. The ‘platforms’ characterisation adopts language used by entrepreneurs and consumer protection regulators in identifying social media and other digital platforms such as Twitter, Facebook, LinkedIn and YouTube where consumers interact with each other as part of an ‘attention economy’[20] in which the platform operators track those interactions and thus profile users in ways that may not be apparent to or desired by those consumers.[21]

Those processes are a manifestation of surveillance capitalism,[22] a radical extension of the profiling by marketers and credit referencing bodies evident since at least the 1850s.

They are also an extension of the more traditional exercise of authority by governments engaged in ‘seeing like a state’[23] – a matter of abstraction in identification and deployment of human and other resources on a grand scale with inadequate regard for the diversity inherent in human dignity. Concerns regarding dignity are noted below.

Australian universities voice a rhetoric of autonomy, grounded in claims of community benefit that transcend partisan politics and parochial interests. Their existence is a matter of state sanction (many are specifically established by statute) and supervision (for example compliance with qualification frameworks supervised by the Tertiary Education Quality & Standards Agency.[24] They assist the national government to see as a state, in other words to understand human needs and interactions on a population scale, through the digital provision of statistical data about student demographics that include age, gender, nationality, place of residence and previous/intended qualifications.

Some of that data is aggregated. Some is individual-specific, facilitated for example in Australia by a Unique Student Identifier that is independent of the particular institution or qualification and thus underpins efforts by policymakers to make sense of education as a dynamic, complex but single market across an individual’s lifespan and accordingly embracing tertiary, vocational and secondary education.

Universities also seek to see in their own right, mapping cohorts and individuals through individual-specific identifiers, often referred to a student numbers, that only used by the particular institution and any partners. Those identifiers enable the institution to both see the student’s presence on its digital platform and associate that presence with other sources of data.

Digital learning platforms are mechanisms for panopticism, observation that is pervasive and that disciplines observed individuals – abstracted as data subjects, manifestations of particular traits.[25] That observation is typically non-reciprocal. The platforms are administratively convenient. However, like other technologies, they are not value neutral[26] and should be actively critiqued within a dignitarian framework of human rights rather than reinforcing a biopolitics that is soft because it does not feature physical force valorised by theorists such as Schmitt.[27]

They enable law faculties (and the universities of which faculties are a part) to see like a state, including building and parsing rich stores of data about individual students and about broader demographics such as gender, nationality, age and prior qualifications. As universities come to rely on OPM providers those for-profit entities also engage in panopticism regarding law students and law teaching, potentially in a more sophisticated and more challenging way than the partner institutions. Some challenges are discussed below.

Academic panopticism is not restricted to universities: surveillance capitalism as a matter of faith is being promoted in primary and secondary education, with for example proposals from technology enthusiasts for AI-based ‘virtual teaching assistants’ that in ‘orchestrating and organising social activity in the classroom’ will record conversations, interactions, and emotional data.

One US study thus comments

In future classrooms, it could be common for AI agents to collect and use data associated with affective state through sensors such as pupil size, heart rate, and similar physiological data. Indeed, work on affect detection is well developed although challenging in terms of privacy and ethics.[28]

It would be unsurprising if an Australian institution, concerned about claims regarding student mental health, embraced such agents to ‘orchestrate’ wellness and incidentally further the career prospects of ‘learning engineers’, ‘education architects’ and other administrators whose ontology of teaching is somewhat at odds with past notions of ‘authentic teaching’ and learning.

Platforming and Panopticism

In many countries legal education, centred on building capability for activity as a solicitor or advocate or administrator, has taken two forms over the past seventy years. One form has been provision of doctrine and skills building in law schools within public/private universities, consistent with embrace by the professions of tertiary qualifications as both a quality assurance mechanism and a basis for assertion of professional autonomy.[29] It has complemented the other, more traditional form: practice-oriented training by legal practitioners through for example pupillage to a barrister.

The first has often been a matter of ‘chalk and talk’, in other words face to face lectures in which an academic expounds principles to a student audience, tutorials in which there is a socratic dialogue with/between students to deepen understanding of what was presented in the lectures, and assessment on the basis of written exercises such as invigilated exams. Exams have traditionally been justified as mechanisms for ensuring integrity, testing understanding through problem-solving and tacitly building self-reliance through experience in a stressful environment analogous to an appearance in court or negotiation with an adversary.

That model is disrupted or simply reoriented by digital platforms that have been adopted by universities across the globe, with increasing uptake as a response to COVID-19 as institutions shifted to a partly or fully online content delivery and assessment model because of concerns regarding the pandemic.[30] Those platforms might be developed de novo within an institution, involve integration of a range of off the shelf ‘learning tools’ and integrity mechanisms (such as plagiarism checkers) provided by non-profit/commercial entities, or involve a partnership between the institution and online program management business as discussed below.

Key features of the platforms are typically online provision of lecture content on a synchronous or asynchronous basis (usually involving the PowerPoint tool that is ubiquitous for corporate presentations in the public and private sectors), online tutorials in ‘virtual rooms’ and online submission of text/video assessment items that are automatically checked using plagiarism software that compares the particular submission with published material and other assessment items.[31] Some universities have sought to strengthen integrity by using specialist assessment invigilation service providers such as Proctorio that involve the provider undertaking a video scrutiny of both the student and the location in which the student is undertaking an exam,[32] for example that person’s bedroom, an invasiveness that raises ethics questions[33] that are not obviated by reference to use of supposedly neutral and racially-blind AI. In future platforms are likely to move beyond automated quiz marking and feedback to automated essay marking, with algorithms replacing human involvement but embodying norms that are discussed below.[34]

Platforms, irrespective of whether they are social media services such as Twitter and Facebook or enable law teaching, involve systemic observation by the platform operator of those people who are using the platform.[35] In considering digital learning platforms, otherwise known as learning management systems or online program management systems, it is useful to recognise that the observed and therefore managed users are both students and academics, with the latter including people who might be highly skilled and certified on the basis of their own academic achievement but have a precarious employment status.

The language used to characterise the systems is revealing: they are indeed concerned with management of people. Seeing on a large scale, through abstraction that elides individual variation and dignity, and through integration with (or benchmarking against) other data sources is a feature of contemporary ‘truth in numbers’ managerialism. It is not restricted to universities. Historically it is not remote from the authoritarian observational states critiqued by James Scott, [36] with radical centralised decision-making about lives, infrastructure and ecosystems by authorities remote from those affected by their decisions and indifferent to the human impacts epitomised by the apocryphal ‘the death of one man is a tragedy, the death of a million is a mere statistic’.[37]

Platforms vary in sophistication and globally there is uncertainty about the extent to which law faculties (and more broadly universities) have embraced the ‘featuritis’ that may or may not be used by specific institutions and understood by managers who do not use the feature.[38]

In principle students might ‘live’ on the platform, the academic version of a walled garden, and accordingly be open to pervasive surveillance. Their virtual presence potentially encompasses the downloading or viewing of pre-recorded or synchronous lectures (on occasion in the binge mode evident in consumption of television series), drafting and submission of assessment items on an individual or group basis, chat with academics and peers, reading and contribution to discussion fora, viewing of text or video course material such as articles and chapters. It might also encompass identification and viewing of publications through an interface between a specific course/unit on the platform and an associated library database that provides access to content held by that library or to content accessed via the library’s subscription to commercial publisher databases.

In many law faculties COVID-19 appears to have resulted in a normalisation of reliance on digital platforms, an inflection point in which ‘talk’ occurs in virtual classrooms and ‘chalk’ has moved to a laptop, mobile phone or other networked device. Talk to academics by managers (some of whom in relying on digital statistics are disquietingly but comfortably remote from the realities of teaching)[39] has also normalised rhetoric regard ‘wellness’ that is at odds with the experience of many junior academics and support staff.[40]

Platforms might be embraced by students and teachers alike as necessary on public health grounds or as convenient, with for example interaction outside traditional time frames and accordingly promoted as ‘student centric’.[41]

They might be regarded by students and academics as alienating, whether because face to face interaction was richer or because administration of the particular platform requires a reductive standardisation.[42]

Managers might regard them as beneficial and inevitable,[43] presenting an opportunity for restructuring of course content[44] and even tacitly for a change in the university workforce. Those managers, who typically do not teach (and are not teaching during COVID), might more subtly regard implementation and enhancement of platforms as a justification of their existence[45] and source of institutional pride, analogous to rulers of developmental states understanding the establishment of pervasive official data collection mechanisms as a badge of modernity. Awareness and endorsement of platforms as observation machines thus varies.[46]

In considering digital platforms in legal education as an enabler of a particular biopolitics there is another perspective. Platforms function as dynamic sets of data points – representations of moment by moment attributes, actions, capabilities – that generate data profiles and objectify people in ways that are erosive of dignity[47] but are unresisted because normative.

Norms, Observation, Identities

Foucault claimed, at odds with the biopolitics of Schmitt and Agamben,[48] that modern politics is

no longer a matter of bringing death into play in the field of sovereignty, but of distributing the living in the domain of value and utility. Such a power has to qualify, measure, appraise, and hierarchize, rather than display itself in its murderous splendor; it does not have to draw the line that separates the enemy of the sovereign from his loyal subjects. It effects distributions around the norm.[49]

Learning platforms build and reinforce norms in ways that may not be recognised and not necessarily beneficial. One way, predating digital networks, is that law teaching involves social sorting. People who perform gain admission; continued performance is rewarded with graduation or with opportunities for further employment as an academic. In that process particular traits such as resilience and attention to detail may be fostered. Conversely values such as a commitment to social justice might be discouraged, reinforcing both a class system (including for example co-option of talented members of minorities)[50] and a way of thinking about law.[51]

As with traditional teaching, that performance may be as much a function of social capital (including family or peer expectations and support) as it is of intellect and diligence. Abstraction of students and academics, exemplified for example by use of student numbers rather than names or faces and by automated marking, might be perceived as providing equality for everyone on the platform, a neutrality that mitigates potential biases in legal education. That equality however is likely to be formal rather than substantive.

One issue with norms regarding learning platforms is that they may not be consistent with the needs and capability of individual law students. Some institutions for example in making inferences from the frequency with which students visit the platform and the duration of time on that platform have concluded that infrequent and short-term engagement is definitively an indicator of weak performance that requires intervention by a tutor or lecturer to support someone who is ‘at risk’.[52] In some instances the intervention has been mechanistic, with students receiving an automated alert about the need for greater engagement.

Engagement statistics might however be misleading, given that students have a range of learning styles and operate in different environments such as working full time rather than accessing content during standard hours. Some for example may have a highly structured approach, downloading content at the beginning of each teaching period rather than on a ‘drip feed’ basis. That approach is facilitated by a teaching style in which academics ‘front load’ course material and clearly articulate expectations, so that in following weeks the emphasis is on exegesis and discussion rather than introduction of new content.

Platform architects who influence, and in some instances determine decisions by faculty executives, might however impose different norms regarding how law is taught using the platforms.[53] A strength of traditional law teaching has been variation, with academics as individuals within a non-Fordist culture using different teaching styles to impart knowledge and build skills. That variation is consistent with differing student learning styles and with differing professional needs: many legal practitioners work collaboratively rather than in isolation, all practitioners require skills in persuasion but not all are advocates in a courtroom or tribunal, a law degree might be of social and personal benefit in roles other than that of a practitioner.

One tendency in the design and maintenance of learning platforms is to inhibit variation by emphasising standardisation in how content is delivered and how performance is assessed. That norm might accordingly result in reliance on a template approach that extends beyond the appearance of content, for example requires each academic to provide students with quizzes in a specified format in a weekly or fortnightly progression.

Such standardisation enables administration of the overall platform and disciplining of academics, discussed below, but exclusion of teaching outside the norm results in a sameness that does not necessarily engage students. It also potentially reinforces social divides, with elite institutions offering customised teaching and their poorer peers – that in the past have relied on courseware from vendors such as Cengage and Pearson – providing offerings that are weakly indistinguishable from other universities and from one course to another. A McDonaldisation of teaching is administratively convenient (and potentially reassuring to managers and governance bodies, especially if benchmarked against similar standardisation at a peer institution). However it reinforces social divides and the status of law faculties as vendors of teaching as a commodity.[54]

A preceding comment noted the scope for students, in particular students who are time poor or lacking diligence and initiative, to ‘live’ on a platform rather than exploring outside the walled garden. Assessing academics on the basis of student satisfaction metrics may result in a norm where students expect to receive everything they need via that platform, analogous to the traditional ‘if it is not in the exam it does not matter’ and the new ‘if it is not on Wikipedia it does not exist’.[55] That norm potentially results in assessment that is biased towards a lower-ranked cohort rather than those students who are exceptional and to retention rather than achievement metrics, given that academics and faculties might be evaluated on the percentage of students who progress through a course to graduation rather than on a bellcurve regarding distribution of grades. Automated tracking of proficiency in ‘marking to the curve’ (and by extension to assessment design in order to meet metrics-based understanding of student capability) reinforces evaluation of individual academics against a production norm, in other words an abstraction relative to statistics relating to the performance of their peers.

Seeing like a consumer?

Legal education – alongside legal practice – involves dialogue, an engagement with authority in which students, academics and practitioners draw on lived experience and literature (practice-based, historical and theoretical) to identify and critique principles, precedent and practice. That dialogue might liberate students and academics alike from preconceptions, for example that law is necessarily a representation of morality[56] (in other words a traditional biopolitics based on punishment or elimination of those whose behaviour was contrary to norms founded on religious texts) or that female working class students are less capable. It also fosters professionalism, including habituation to norms about courtesy and cogency in asking and responding to questions.

Those norms are fundamental for legal practitioner interaction with peers, courts, clients and others. They are however a potentially awkward fit with student feedback regarding teaching, in particular feedback through learning management systems and in institutions that have embraced a neoliberal understanding of students as ‘clients’, consumers who are axiomatically ‘right’ and in an exercise of magical thinking somehow aware of what practitioners need.[57]

The awkwardness reflects four facets of the anonymous feedback mechanisms embedded in several platforms. The first is that there is a potential dissonance between institutional rhetoric for students about the status of those students as customers and academic expectations regarding professional communication and the development of resilience for a life (and a post-university market) in which not all get prizes.

The second is that anonymity fosters the disinhibition that has been noted in studies of online anonymous/pseudonymous communication, with students performing a culture of complaint that on occasion amounts to upwards bullying.[58] Institutions have typically sought to reduce oppressive behaviour, gendered or racist expression and bullying by academics in face to face or virtual modes.[59] There has been less recognition of bullying by ‘customers’ directed at those delivering content and appraising capability.[60]

As a corollary, the third facet is that feedback may be guides through prompts that skew answers, for example a yes or no to the question asking ‘is this unit’ (or your teacher) giving you ‘everything you need’ or ‘what you need professional practice’. Qualitative rather than quantitative feedback mechanisms may also encourage students to comment on the quality of content delivery/assessment at a stage when they have unrealistic expectations about what the legal profession requires or about the effort that they need for high marks in the more challenging subjects. First year law students who are not employed as paralegals rarely have much sense of the realities of legal practice but may be unaware of their ignorance or their gender bias.[61]

The final facet is that irrespective of the subjectivity of the feedback it may be misinterpreted by managers, particularly if a small number of strongly negative comments is misread as representative of a class as a whole. That misreading might not be offset by recurrent online surveys, typically undertaken by students on a voluntary basis but on occasion recognised as resulting in survey fatigue that leads to student disengagement.

If, paraphrasing Foucault, data is power we can identify two consequences of such online feedback activity. Given student resistance to engagement with metrics generation that they construe as misplaced or onerous some institutions are responding by assessing academics on the percentage of students in each class who provide feedback. Higher rates of feedback might be attributable to encouragement by a respected teacher or by inducements such as free pizza and cookies in face to face sessions or online badges, dismissed by later year law students in particular as an infantilisation of their cohort. A more pernicious consequence, to which precarious academics might be particularly susceptible,[62] is an effort to ‘game the system’ by teaching and assessing at a level that elicits positive student responses.[63] Peers might however dread the numbers and there appears to be no comprehensive cross-institutional study about the impact of rule by numbers on the wellbeing of those employees in Australian law schools, particularly precarious academics.

That impact is obfuscated by promotional language used by managers, with one Australian university for example referring to its “award-winning” data collection tool as “one of the institution’s arsenal of new tools supporting progressive, adaptive learning” that “uses learning analytics to provide both students and staff with relevant, real-time data and feedback on their learning and teaching”.[64]

Towards a rights critique

Lemke, in discussing the ‘regime of truth’ (aka power), asks

In what vocabulary are processes of life described, measures, evaluated and criticised? What cognitive and intellectual instruments and technological procedures stand ready to produce truth?[65]

Preceding paragraphs contended that law faculties and more broadly universities in embracing digital platforms are increasingly relying on a ‘truth in numbers’ derived from pervasive observation and graphing of performance by students and academics. The use of platforms for the delivery of content, strengthening of capability and assessment of proficiencies is not inherently pernicious.[66] It is remote from the biopolitics espoused by legal theorist Schmitt, in which the ‘enemy’ was to be excluded from learning, teaching or life itself. Given ostensible blindness to some attributes it is also remote to the exclusionism evident in the ethno-religious quotas used by elite United States law schools last century.[67]

Financial pressures on universities, concerns about contagion through endemic COVID and the hegemonic status of neoliberal managerialism as the only way to successfully administer a university means that digital platforms are here to stay. Few institutions, particularly those with a large and financially disadvantaged student body, are likely to reject them. As indicated above, many universities are likely to enter into relationships with for-profit platform providers whose business model is founded on rigorous standardisation and even more rigorous use of precarious academics who are simply units of production.

That embrace is in part a matter of normativity. Managers are, to adopt Deresiewicz’s mordant characterisation, ‘excellent sheep’ who emulate their peers and do not disrupt the hegemony.[68] Few strategic plans or vision documents from governance body are notably distinctive. In part it is simply a matter of pragmatism, a promise of revenue and student recruitment in a cost-transfer relationship: fewer inhouse academics and support staff costs as the price for rewarding platform providers such as 2U and their private equity backers.[69]

Institutions are similarly unlikely to disregard global, national and sectoral performance metrics such as the Times Higher Education Index or Quacquarelli Symonds given that those indices may be tied to funding and to student enrolment, irrespective of credibility.[70]

Panopticism may be administratively convenient and a norm that privileges particular stakeholders but is not inevitable. Couldry and Powell argue that

emerging cultures of data collection deserve to be examined in a way that foregrounds the agency and reflexivity of individual actors as well as the variable ways in which power and participation are constructed and enacted.[71]

A rights critique, drawing on work by theorists such as Nussbaum, might offer an alternative understanding of platforms as tools rather than outcomes, emphasising legal education as a matter of personal and social development that fosters individual/collective flourishing and that necessitates looking beyond metrics to engage with human frailties, diversities and aspirations.[72]

That education might avoid mechanistic platform-based quizzes, reductive rubrics and a drift to automated marking. It might instead emphasise close engagement between students and academics in ways that emphasise dignity, a learning for citizenship. Such engagement is not utopian, although requiring activism on the part of students and a shift on the part of academics away from the retreat into theory and virtue signalling.[73]

It requires investment in infrastructure, in staff and in support for disadvantaged students. It is possible however given that, from the market perspective questioned above, law faculties typically generate more revenue than they cost and that systemic problems such as the Global Financial Crisis or inadequate responses to COVID indicate a need to reorient the state.[74]

Against the panoptic sort

Foucault, in an unconscious echo of Max Weber's iron cage,[75] construed understandings as inherently repressive. In embracing Nussbaum's more positive view of knowledge as a potential basis for agency by people who are the subjects of understandings we might recognise that data subjects – students and academics – have some scope to refashion panopticism.[76] Gaining knowledge about panoptic practices and outcomes is consistent with the emphasis in law teaching and research on principle- and fact-based critique as a basis for justice through law reform.

This article began by commenting that the biopolitics of legal education is rarely articulated (and even more rarely understood) through explicit reference to the use of learning management systems or dominant publishing indices such as Scimago, h-index and i10-index. Few academics in the course of teaching appear to explain what data is collected and how that data is or might be used. Many academics and students may be sceptical about the subjectivity of qualitative surveys about performance. Some may note inconsistent panopticism: academics are observed by managers but have less scope to observe those managers – few institutions engage in ‘360 Degree’ reviews that incorporate feedback ‘from the bottom’ – and no scope to go to the market by buying in services from outside their institution.

A lack of understanding of the realities of panopticism reinforces the norm of acceptance by ‘consumers’ of surveillance capitalism in life outside legal education, with people taking as a given that they will be surveilled, that they have little scope as individuals to mitigate their status as data subjects and that governments are indifferent to – if not complicit in – pervasive data collection/analysis in the private sector. One response is accordingly that law academics in their teaching should expressly identify learning platform data collection processes/uses and relate that panopticism to what students experience in dealing with Facebook, Twitter, Linked-In and online retail services.[77]

If students are understood as customers in a market for legal education, where axiomatically the customer is right and has agency, they might go further and require restraints on potential abuse of data by universities and OPMs, irrespective of any intervention by consumer protection agencies and privacy regulators.[78] Such activism is consistent with Nussbaum’s understanding of education as facilitation of autonomy, self-awareness and embrace of responsibility.[79]

It might be centred on an express commitment by institutions to not collect data absent a compelling need to do so, something that in the first instance would reduce survey fatigue. It might involve nuanced approach to the appraisal of performance by law academics and students. It might most directly involve the abandonment of integrity mechanisms that involve videoing students in their bedrooms or other private spaces during examinations on the basis that they are suspects who have agreed to waive rights in order to undertake a law degree.[80]

It might involve universities looking beyond the weak requirements for disclosure under the Privacy Act 1988 (Cth) and state/territory privacy statutes by proactively disclosing what data is collected, who accesses that data and how the data is used. It might involve using a procurement framework in which institutions choose not to engage with service providers that threaten critics[81] or that experience large scale data breaches encompassing identifiers such as usernames, unencrypted passwords, legal names and full residential addresses.[82]

Academics also have a role to play. In August 2021 the national tertiary education union approached Australia’s Fair Work Commission – the employment regulator – to stop publication of course evaluation data at the University of NSW and the potential for that data to be misused to create league tables of academics. Law faculties provide teaching and independent research; they may feature stars (and domestic dramas) but are not a reality television show.

Universities are part of a global surveillance economy. They are embedded in power structures and collective understandings about rights, roles, responsibilities and agency. They might however set an example. In Australia and other jurisdictions that provide weak human rights protection the law faculties for example might step beyond minimal requirements by embracing the principles in the European Union’s General Data Protection Regulation regarding everyone’s rights to be informed, to rectification, to erasure, to restrict processing, to data portability, to object, and access. That is one way of signalling to the community that law teaching is not simply a servant of the market and that faculty autonomy is one basis for resisting the drift to a justice system where outcomes are determined by automated decision-making on the basis of data profiles.


* Dr Bruce Baer Arnold is an Associate Professor and CELTS Fellow at Canberra Law School, University of Canberra. Statements in this article do not necessarily reflect the views of the University.

1 Oscar Gandy Jr, The Panoptic Sort: A Political Economy of Personal Information (Westview, 1993).

[2] John Cross and Edie Goldenberg, Off-Track Profs: Nontenured Teachers in Higher Education (MIT Press, 2009); Christian Mauri, The Social Structures of Global Academia (Routledge, 2019); and Guy Standing, The Precariat (Bloomsbury, 2011).

[3] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (Public Affairs, 2019). See also Julie E Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism (Oxford University Press, 2019); and Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan, 2002).

[4] Jason Pooley, ‘Metrics Mania: The Case Against’ (2018) Chronicle of Higher Education

[5] James Wilsdon, Liz Allen, Eleonora Belfiore, Philip Campbell, Stephen Curry, Steven Hill, Richard Jones, Roger Kain, Simon Kerridge, Mike Thelwall, Jane Tinkler, Ian Viney, Paul Wouters, Jude Hill and Ben Johnson, The Metric Tide. Report of the independent review of the role of metrics in research assessment and management (Sage, 2015).

[6] Jake Alimahomed-Wilson and Ellen Reese, ‘Surveilling Amazon’s warehouse workers: racism, retaliation, and worker resistance amid the pandemic’ (2021) 1(1-2) Work in the Global Economy 55; Alessandro Delfanti, ‘Machinic dispossession and augmented despotism: Digital work in an Amazon warehouse’ (2021) 23(1) New Media & Society 39; and Carl Benedikt Frey, The Technology Trap (Princeton University Press, 2019).

[7] From a rights perspective about ‘bossware’ see Annette Bernhardt, Lisa Kresge and Reem Suleiman, Data and Algorithms At Work: Case for Worker Technology Rights (UC Berkeley Labor Center, 2021); Malcolm Campbell-Verduyn, ‘The Pandemic Techno-Solutionist Dilemma’ (2021) 2(1) Global Perspectives 27077; Toija Cinque, ‘Quantified me: Curatorial lives and the pixelated spectre of self’ in Toija Cinque and Jordan Beth Wilson (eds) Materializing Digital Futures: Touch, Movement, Sound and Vision (Bloomsbury, 2022) 87; and Aizhan Tursunbayeva, Claudia Pagliari, Stefano Di Lauro and Gilda Antonelli, ‘The ethics of people analytics: risks, opportunities and recommendations’ (2021) 51(3) Personnel Review 901.

[8] Andrew McGettigan, The Great University Gamble: Money, Markets and the Future of Higher Education (Pluto Press, 2013); Ronald Barnett, ‘The Marketised University: Defending the Indefensible’ in Mike Molesworth, Richard Scullion and Elizabeth Nixon (eds), The Marketisation of Higher Education and the Student as Consumer (Routledge, 2011) 39; Nigel Palmer, ‘The Modern University and its Transaction with Students’ in Margaret Thornton (ed), Through a Glass Darkly: The Social Sciences Look at the Neoliberal University (Australian National University Press, 2015) 121; Roger Brown and Helen Carasso, Everything for sale? The Marketisation of UK Higher Education (Routledge, 2013); and Gaye Tuchman, Wannabe U: Inside the Corporate University (University of Chicago Press, 2009).

[9] Margaret Thornton and Lucinda Shannon, ‘Selling the Dream: Law School Branding and the Illusion of Choice’ in Margaret Thornton (ed), Through a Glass Darkly: The Social Sciences Look at the Neoliberal University (Australian National University Press, 2015) 157.

[10] Albert O Hirschman, Exit, voice, and loyalty: Responses to decline in firms, organizations, and states (Harvard University Press, 1970).

[11] Anniken Hoel and Tove Irene Dahl, ‘Why Bother? Student Motivation to Participate in Student Evaluations of Teaching’ (2019) 44(3) Assessment & Evaluation in Higher Education 361.

[12] Mike Molesworth, Richard Scullion and Elizabeth Nixon (eds), The Marketisation of Higher Education and the Student as Consumer (Routledge, 2011).

[13] Aneta Hayes and Jie Cheng, ‘Datafication of epistemic equality: advancing understandings of teaching excellence beyond benchmarked performativity’ (2020) 25(4) Teaching in Higher Education 493; and Juliana Raffaghelli and Bonnie Stewart, ‘Centering complexity in ‘educators’ data literacy’ to support future practices in faculty development: a systematic review of the literature’ (2020) 25(4) Teaching in Higher Education 435.

[14] Gary Becker, Human Capital: A theoretical and empirical analysis, with special reference to education (University of Chicago Press, 2009); Jamie Peck, Constructions of Neoliberal Reason, Oxford University Press, 2010). See also Kyle Bunds, ‘“Please Let It Stop”: Fear, Anxiety, and Uncertainty on the Neoliberal Tenure Track’ (2021) Qualitative Inquiry 1; and Megan Lee, Rosanne Coutts, Jann Fielden, Marie Hutchinson, Richard Lakeman, Bernice Mathisen, Dima Nasrawi and Nichole Phillips, ‘Occupational Stress in University Academics in Australia and New Zealand’ (2021) 44(1) Journal of Higher Education Policy and Management 1.

[15] Nikolas Rose, The Politics of Life Itself (Princeton University Press, 2007); Michel Foucault, The Birth of Biopolitics (Lectures at the Collège de France 1978-79) (Picador, 2010); Claire Blencowe, Biopolitical Experience: Foucault, Power and Positive Critique (Palgrave Macmillan, 2012); and Julie Cohen, ‘The biopolitical public domain: The legal construction of the surveillance economy’ (2018) 31(2) Philosophy & Technology 213.

[16] Within Australia the University of Sydney has a relationship with 2U; OES has a relationship with Swinburne, Monash, Western Sydney and QUT; and Keypath has relationships with UNSW, UTS, Deakin, Canberra, RMIT and others.

[17] Ben Williamson, ‘Making markets through digital platforms: Pearson, edu-business, and the (e) valuation of higher education’ (2021) 62(1) Critical Studies in Education 50; Suzanne Mettler, Degrees of Inequality (Basic Books, 2014); and Stephanie Hall, ‘Getting Online Higher Education Right’ in Huili Han, James H Williams and Shasha Cui (eds), Tackling Online Education: Implications of Responses to COVID-19 in Higher Education Globally (Cambridge Scholars, 2021) 77.

[18] Martha Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Harvard University Press, 1997) and Creating Capabilities: The Human Development Approach (Harvard University Press, 2011); and Alan Gewirth, Self-Fulfillment (Princeton University Press, 1998). See more broadly Richard C Levin, The Worth of the University (Yale University Press, 2013); Jarod Lanier, Who Owns The Future (Simon & Schuster, 2013); and Anthony T Kronman, Education’s End: Why our Colleges and Universities having given up on the meaning of life (Yale University Press, 2007).

[19] Margaret Thornton, Privatising the Public University: The Case of Law (Routledge, 2012); Andrew Whelan, ‘Academic critique of neoliberal academia’ (2015) 12(1) Sites: a journal of social anthropology and cultural studies 1; Simon Marginson and Mark Considine, The Enterprise University (Cambridge University Press, 2000); and chapters in Margaret Thornton (ed), Through a Glass Darkly: The Social Sciences Look at the Neoliberal University (Australian National University Press, 2015).

[20] Vincent Hendricks and Mads Vestergaard, Reality Lost (Springer, 2019).

[21] Jun Yu and Nick Couldry, ‘Education as a domain of natural data extraction: analysing corporate discourse about educational tracking’ (2021) 25(1) Information, Communication & Society 127.

[22] Zuboff (n 3); and David Lyon, ‘Surveillance capitalism, surveillance culture and data politics’ in Didier Bigo, Engin Isin, and Evelyn Ruppert (eds), Data Politics (Routledge, 2019) 64.

[23] James Scott, Seeing Like A State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1999).

[24] Kanishka Jayasuriya, ‘Transforming the Public University: Market Citizenship and Higher Education Regulatory Projects’ in Margaret Thornton (ed), Through a Glass Darkly: The Social Sciences Look at the Neoliberal University (Australian National University Press, 2015) 89. See also Nigel Palmer, ‘The Modern University and its Transaction with Students’ at 121 in the same volume; and Stella Jones Devitt and Catherine Samiei, ‘From Accrington Stanley to academia? The use of league tables and student surveys to determine ‘quality’ in higher education’ in Mike Molesworth, Richard Scullion and Elizabeth Nixon (eds), The Marketisation of Higher Education and the Student as Consumer (Routledge, 2011) 86.

[25] Roxana Marachi and Lawrence Quill, ‘The case of Canvas: Longitudinal datafication through learning management systems’ (2020) 25(4) Teaching in Higher Education 418.

[26] Melvin Kranzberg, ‘Technology and History: "Kranzberg's Laws”’ (1986) 27(3) Technology and Culture 544; and Lizzie O’Shea, Future Histories, Verso, 2019).

[27] Carl Schmitt, The Concept of the Political (University of Chicago Press, 1997) 27.

[28] Jeremy Roschelle, James Lester and Judi Fusco, AI and the Future of Learning: Expert Panel Report (Center for Integrative Research in Computing and Learning Sciences, 2020) 13

[29] Richard Abel, ‘Legal pedagogy and its discontents’ (2020) 16(1) International Journal of Law in Context 77.

[30] Neil Selwyn, ‘What’s the Problem with Learning Analytics? (2019) 6(3) Journal of Learning Analytics.

[31] Competition regulators such as the Australian competition and Consumer Commission have been permissive of expansion by Turnitin, the dominant text matching service, as part of ongoing consolidation within the sector that for example saw Urkund acquire Plagscan to form Ouriginal and Turnitin subsequently acquire Ouriginal. Among the literature about online integrity mechanisms see Shane J Ralston, ‘Ghosting Inside the Machine: Student Cheating, Online Education, and the Omertà of Institutional Liars’ in Alison MacKenzie, Jennifer Rose and Ibrar Bhatt (eds), The Epistemology of Deceit in a Postdigital Era (Springer, 2021) 251; James M Lang, Cheating Lessons (Harvard University Press, 2013); and Lindsey Barrett, ‘Rejecting Test Surveillance in Higher Education’ (2023) Michigan State Law Review.

[32] Sarah Silverman, Autumm Caines, Christopher Casey, Belen Garcia de Hurtado, Jessica Riviere, Alfonso Sintjago and Carla Vecchiola, ‘What Happens When You Close the Door on Remote Proctoring? Moving Toward Authentic Assessments with a People-Centered Approach’ (2021) 39(3) To Improve the Academy: A Journal of Educational Development (2021); and Drew Harwell, ‘Cheating-detection companies made millions during the pandemic. Now students are fighting back’ The Washington Post 12 November (2020). See also Phillip Dawson, Defending Assessment Security in a Digital World: Preventing E-Cheating and Supporting Academic Integrity in Higher Education (Routledge, 2020).

[33] Simon Coghlan, Tim Miller and Jeannie Paterson, ‘Good Proctor or “Big Brother”? Ethics of Online Exam Supervision Technologies’ (2021) 34 Philosophy & Technology 1581.

[34] Neil Selwyn, Should Robots Replace Teachers (Polity, 2019); and Hall (n 17).

[35] Joel Reidenberg and Florian Schaub, ‘Achieving big data privacy in education’ (2018) 16(3) Theory and Research in Education 263

[36] James Scott, Seeing Like A State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1999).

[37] Andreas Exenberger, ‘One Death is a Tragedy, One Million is a Statistic’ in Christopher Hamilton et al (eds), Facing Tragedies (Lit, 2009) 163.

[38] Bob Bender, Learner Engagement and Success in CMS’ in Colleen Carmean and Ali Jafari (eds), Course Management Systems for Learning: Beyond Accidental Pedagogy (Idea, 2005) 107, 109; and Marko Teräs, Juha Suoranta, Hanna Teräs, and Mark Curcher, ‘Post-Covid-19 Education and Education Technology ‘Solutionism’: a Seller’s Market’ (2020) 2(3) Postdigital Science and Education 863.

[39] Benjamin Ginsburg, The Fall of the University: The Rise of the All Administrative University and Why It Matters (Oxford University Press, 2011); and Gaye Tuchman, Wannabe U: Inside the Corporate University (University of Chicago Press, 2009).

[40] Among critiques see Brendon Murphy, ‘Against wellbeing: The problem of resources, metrics and care of the self’ (2021) 46(2) Alternative Law Journal 108. See also Barbara Ehrenreich, Smile or Die: How Positive Thinking Fooled America and the World (Granta, 2010). The legal academy awaits its Jessica Mitford.

[41] Raffaghelli and Stewart (n 13); and Stephanie Hall, ‘Getting Online Higher Education Right’ in Huili Han, James H Williams and Shasha Cui (eds), Tackling Online Education: Implications of Responses to COVID-19 in Higher Education Globally (Cambridge Scholars, 2021) 77.

[42] Antonette Shibania, Simon Knight, and Simon Buckingham Shum, ‘Educator perspectives on learning analytics in classroom practice’ (2020) 46 The Internet and Higher Education 100730; Marko Teräs, Juha Suoranta, Hanna Teräs and Mark Curcher, ‘Post-Covid-19 Education and Education Technology ‘Solutionism’: a Seller’s Market’ (2020) 2 Postdigital Science and Education 863.

[43] Alfred Essa, ‘Is Data Dark? Lessons from Borges’s “Funes the Memorius”’ (2019) 6(3) Journal of Learning Analytics 35.

[44] Michael Brown, ‘Seeing students at scale: how faculty in large lecture courses act upon learning analytics dashboard data’ (2020) 25(4) Teaching in Higher Education 384.

[45] Kaiwen Sun, Abraham H. Mhaidli, Sonakshi Watel, Christopher A Brooks, and Florian Schaub, ‘It’s My Data! Tensions Among Stakeholders of a Learning Analytics Dashboard’ CHI 2019, May 4–9, 2019, Glasgow, Scotland (2019).

[46] Bonnie Stewart and Erica Lyons, ‘When the classroom becomes datafied’ (2021) 29(2) Italian Journal of Educational Technology 54.

[47] Martha Nussbaum, ‘Objectification’ (1995) 24(4) Philosophy & Public Affairs 249.

[48] Carl Schmitt, The Concept of the Political (University of Chicago Press, 1997); Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998); and Claire Blencowe, ‘Foucault’s and Arendt’s ‘insider view’ of biopolitics: a critique of Agamben’ (2010) 23(5) History of the Human Sciences 113.

[49] Michel Foucault, The History of Sexuality. Vol 1 (Vintage, 1980) 144.

[50] Daniel Markovits, The Meritocracy Trap (Penguin, 2019).

[51] Robert Granfield, Making elite lawyers: Visions of law at Harvard and beyond (Routledge, 1992); Elizabeth Mertz, The language of law school: learning to "think like a lawyer" (Oxford University Press, 2007); and Stephen Wizner, ‘Is Learning to "Think Like a Lawyer" Enough?’ (1998) 17(1) Yale Law & Policy Review 583. See also Ben Sheehy, Juan Diaz-Granados and Tomas Fitzgerald, ‘What To Teach When Teaching Law: The Categories, Rights, Duties And Test (‘CRDT’) Framework’ in this issue of Canberra Law Review.

[52] Kaiwen Sun, Abraham H. Mhaidli, Sonakshi Watel, Christopher A Brooks and Florian Schaub, ‘It’s My Data! Tensions Among Stakeholders of a Learning Analytics Dashboard’ CHI 2019, May 4–9, 2019, Glasgow, Scotland (2019).

[53] Ben Williamson, ‘Digital education governance: data visualization, predictive analytics, and ‘real-time’ policy instruments’ (2016) 31(2) Journal of Education Policy 123; and Ben Williamson, Sian Bayne and Suellen Shay, ‘The datafication of teaching in Higher Education: critical issues and perspectives’ (2020) 25(4) Teaching in Higher Education 351.

[54] Dennis Hayes, Beyond McDonaldization: visions of higher education (Routledge, 2017).

[55] Thomas Leitch, Wikipedia U: Knowledge, Authority and Liberal Education in the Digital Age (Johns Hopkins University Press, 2011).

[56] HLA Hart, Law, Liberty, and Morality (Stanford University Press, 1963).

[57] Richard Hil, Selling Students Short (Allen & Unwin, 2015) 54.

[58] Beatrice Tucker, ‘Student evaluation surveys: anonymous comments that offend or are unprofessional’ (2014) 68 Higher Education 347; Richard Lakeman, Rosanne Coutts, Marie Hutchinson, Megan Lee, Debbie Massey, Dima Nasrawi, and Jann Fielden, ‘Appearance, insults, allegations, blame and threats: an analysis of anonymous non-constructive student evaluation of teaching in Australia’ (2021) Assessment & Evaluation in Higher Education 1; and Katharine Gelber, Katie Brennan, David Duriesmith, and Ellyse Fenton, ‘Gendered mundanities: gender bias in student evaluations of teaching in political science’ (2022) Australian Journal of Political Science 1.

[59] Loraleigh Keashly, ‘Workplace bullying, mobbing and harassment in academe: Faculty experience’ in Premilla D'Cruz, Ernesto Noronha, Loraleigh Keashly and Stacy Tye-Williams (eds), Special topics and particular occupations, professions and sectors (Springer, 2021) 221.

[60] Iain Coyne, ‘What universities can learn from workplace bullying research’ in Helen Cowie and Carrie Anne Myers (eds), Bullying Among University Students: Cross‐national Perspectives (Routledge, 2016) 203; Beatrice Tucker, ‘Disruptive Trends in Student Experience Evaluations and Implications for Academic Staff Wellbeing’ in Mahsood Shah, John T Richardson, Anja Pabel and Beverley Oliver (eds), Assessing and Enhancing Student Experience in Higher Education (Palgrave Macmillan, 2021) 261; Gelber et al (n 58); and James Williams and Gill Cappuccini‐Ansfield, ‘Fitness for purpose? National and institutional approaches to publicising the student voice’ (2007) 13(2) Quality in Higher Education 159.

[61] Henry Hornstein, ‘Student evaluations of teaching are an inadequate assessment tool for evaluating faculty performance’ (2017) 4(1) Cogent Education 1304016; and Joanna Jones, Ruth Gaffney-Rhys and Edward Jones, ‘Handle with Care! an Exploration of the Potential Risks Associated with the Publication and Summative Usage of Student Evaluation of Teaching (SET) Results’ (2014) 38(1) Journal of Further and Higher Education 37.

[62] Megan Lee, Rosanne Coutts, Jann Fielden, Marie Hutchinson, Richard Lakeman, Bernice Mathisen, Dima Nasrawi and Nichole Phillips, ‘Occupational Stress in University Academics in Australia and New Zealand’ (2021) 44(1) Journal of Higher Education Policy and Management 57.

[63] Mark Shevlin, Philip Banyard, Mark Davies and Mark Griffiths, ‘The Validity of Student Evaluation of Teaching in Higher Education: Love Me, Love my Lectures?” (2020) 25(4) Assessment & Evaluation in Higher Education 397; Wolfgang Stroebe, ‘Student Evaluations of Teaching Encourages Poor Teaching and Contributes to Grade Inflation: A Theoretical and Empirical Analysis’ (2020) 42(4) Basic and Applied Social Psychology 276; Zombor Berezvai, Gergely Dániel Lukáts and Roland Molontay, ‘Can Professors Buy Better Evaluation with Lenient Grading? The Effect of Grade Inflation on Student Evaluation of Teaching’ (2021) 46(5) Assessment & Evaluation in Higher Education 793; and Bob Uttl, Carmela A White, and Daniela Wong Gonzalez, ‘Meta-Analysis of Faculty’s Teaching Effectiveness: Student Evaluation of Teaching Ratings and Student Learning Are Not Related’ (2017) 54 Studies in Educational Evaluation 22.

[64] Suzanne Lazaroo, ‘UC’s InterFace app scores top marks’ (28 September 2018)

[65] Thomas Lemke, Bio-politics: An Advanced Introduction (New York University Press, 2011) 119.

[66] Daniel Goldsworthy, ‘The Future of Legal Education in the 21st Century’ [2020] AdelLawRw 8; (2020) 41(1) Adelaide Law Review 243; and Michael Kwet and Paul Prinsloo, ‘The ‘smart’ classroom: a new frontier in the age of the smart university’ (2020) 25(4) Teaching in Higher Education 510

[67] Harold Wechsler, The Qualified Student: A History of Selective College Admission in America (Wiley, 1977); and Jerome Karabel, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton (Houghton Mifflin, 2005).

[68] William Deresiewicz, Excellent sheep: The miseducation of the American elite and the way to a meaningful life (Simon and Schuster, 2015).

[69] Suzanne Mettler, Degrees of Inequality (Basic Books, 2014).

[70] Brian Pusser and Simon Marginson, ‘University rankings in critical perspective’ (2013) 84(4) The Journal of Higher Education 544; and more broadly Ellen Hazelkorn and Georgiana Mihut (eds), Research Handbook on University Rankings: Theory, Methodology, Influence and Impact (Edward Elgar, 2021).

[71] Nick Couldry and Alison Powell, ‘Big Data from the Bottom up’ (2014) 1(2) Big Data & Society 1. See also Stefania Milan and Lonneke Van der Velden, ‘The Alternative Epistemologies of Data Activism’ (2016) 2(2) Digital Culture & Society 57.

[72] Martha Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Harvard University Press, 1997); ‘Hannah Forsyth, ‘Disinterested Scholars or Interested Parties? The Public’s Investment in Self-Interested Universities’ in Margaret Thornton (ed), Through a Glass Darkly: The Social Sciences Look at the Neoliberal University (Australian National University Press, 2015) 19; Richard C Levin, The Worth of the University (Yale University Press, 2013); and Anthony T Kronman, Education’s End: Why our Colleges and Universities having given up on the meaning of life (Yale University Press, 2007).

[73] François Cusset, French Theory: How Foucault, Derrida and Co. Transformed the Intellectual Life of the United States (University of Minnesota Press, 2008); Anthony T Kronman, Education’s End: Why our Colleges and Universities having given up on the meaning of life (Yale University Press, 2007) 137; and the polemical Robert Boyers, The Tyranny of Virtue: Identity, the Academy, and the Hunt for Political Heresies (Scribner, 2019).

[74] Philip Mirowski, Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown (Verso, 2013).

[75] Terry Maley, ‘Max Weber and the iron cage of technology’ (2004) 24(1) Bulletin of Science, Technology & Society 69. See also Christian Parenti, The Soft Cage: Surveillance in America from Slavery to the War on Terror (Basic Books, 2003).

[76] Dubravka Cecez-Kecmanovic, ‘The resistible rise of the digital surveillance economy: A call for action’ (2019) 34(1) Journal of Information Technology 81; Peter Ullrich, ‘In Itself But Not Yet For Itself – Organising The New Academic Precariat’ in Walter Baier, Eric Canepa and Haris Golemis (eds), The radical left in Europe: rediscovering hope (Merlin Press, 2019) 155; and Sarah Silverman, Autumm Caines, Christopher Casey, Belen Garcia de Hurtado, Jessica Riviere, Alfonso Sintjago and Carla Vecchiola, ‘What Happens When You Close the Door on Remote Proctoring? Moving Toward Authentic Assessments with a People-Centered Approach’ (2021) 39(3) To Improve the Academy: A Journal of Educational Development

[77] Zuboff (n 3).

[78] Shaanan Cohney, Ross Teixeira, Anne Kohlbrenner, Arvind Narayanan, Mihir Kshirsagar, Yan Shvartzshnaider and Madelyn Sanfilippo, ‘Virtual Classrooms and Real Harms’ arXiv:2012.05867 (2020).

[79] Martha Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press, 2011).

[80] Kara Grant, ‘College Students Are Learning Hard Lessons About Anti-Cheating Software’ (2020); Drew Harwell, ‘Cheating-detection companies made millions during the pandemic. Now students are fighting back’ The Washington Post 12 November (2020). See more broadly David G Balash, Dongkun Kim, Darika Shaibekova, Rahel A Fainchtein, Micah Sherr and Adam J Aviv, ‘Examining the Examiners: Students' Privacy and Security Perceptions of Online Proctoring Services’ in Proceedings of the Seventeenth Symposium on Usable Privacy and Security, (Usenix, 2021); Simon Coghlan, Tim Miller, and Jeannie Paterson, ‘Good proctor or “big brother”? Ethics of online exam supervision technologies’ (2021) 34(4) Philosophy & Technology 1581; and Jade Vu Henry and Martin Oliver, ‘Who Will Watch the Watchmen? The Ethico-political Arrangements of Algorithmic Proctoring for Academic Integrity’ (2021) 4 Postdigital Science and Education 1.

[81] US civil society advocate Public Citizen ( notes ProctorU’s response to criticism by University of California Santa Barbara faculty members: a letter to the University and state and federal prosecutors that refers to defamation, copyright, trade mark, the of undermining ‘emergency efforts to mitigate civil disruption’ and other matters.

[82] The July 2020 ProctorU data breach for example involved 444,000 users, including the University of Sydney, University of NSW, University of Queensland, University of Melbourne, University of Western Australia, University of Adelaide, Swinburne University, James Cook University, and Curtin University.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback