James, N --- "Power-knowledge in Australian Legal Education: Corporatism's Reign" [2005] LegEdDig 20; (2005) 13(4) Legal Education Digest 4

Power-knowledge in Australian Legal Education: Corporatism’s Reign

N James

[2005] LegEdDig 20; (2005) 13(4) Legal Education Digest 4

26 Sydney L Rev 4, 2004, pp 587–612

The ways in which individual law teachers and law schools approach the teaching of law depend largely upon their answers to certain questions: What is it that we should be teaching? How can it best be taught? What are our objectives in the teaching of law? To these questions in recent years have been added a new set of questions: Is the law school providing a quality product? Are students receiving value for money? How can the cost of legal education be reduced? These latter questions are characteristic of a recently emergent and increasingly widespread legal education discourse referred to here and elsewhere as ‘corporatism’. Corporatism’s infiltration of Australia’s law schools has been remarkably successful. Decisions about what is to be taught, by whom and to whom are increasingly likely to be based upon what is perceived by law school decision makers to be the most economically advantageous course of action. This paper seeks to determine how and why corporatism exists and persists within Australian law schools.

The definition of corporatism employed in this paper is the set of statements about legal education produced by law schools, law teachers and legal scholars which emphasise and prioritise the accountability of teachers and students, the efficiency of the teaching process, and the marketability of the law school. Corporatist statements are those which emphasis accountability, efficiency and marketability ahead of objectives such as the transmission of doctrinal knowledge, the inculcation of legal skills and the achievement of liberal ideals, pedagogical innovation and social reform. It is not the case that these other objectives are disregarded completely. Rather, they are permitted only to the extent that they are consistent with the satisfaction of corporatist objectives.

Law school policies have a significant impact upon the teaching of law. Administrative policies address and seek to regulate all aspects of the legal education process in the names of efficiency, accountability and marketability. Promotional texts produced by and within law schools are mostly concerned with the explicit marketing and selling of the law school’s products to potential customers. Legal education scholarship seldom advocates an explicitly corporatist approach to the teaching of law. Legal education is a quantifiable process which can and should be managed and controlled by a central authority in such a way that costs are minimised and quality, profitability and customer satisfaction are maximised. The success of a law school is determined by the extent to which these objectives are achieved. Law schools compete with each other to attract the highest quality students and enhance their reputation and to attract the most students and enhance their income.

For most of its history, legal education in Australia has been dominated by doctrinalism. As corporatism has increasingly influenced and shaped government policy and decision making, so too has legal education been shaped by corporatism. Corporatism in Australian legal education is also a consequence of another form of state intervention, the public funding of universities. Government administrators insisted upon detailed information about the structure of university management and about the systems that universities had in place to measure performance. Law schools were compelled to implement improved budgetary controls calling for much more sophisticated accounting practices and the introduction of complex annual reporting procedures.

In recent years, economic reforms have dramatically altered the level of Commonwealth funding to universities. Despite increases in student enrolments, the Commonwealth government’s contribution to university funding has declined. Law students are increasingly obliged to bear the costs of their own education and a fundamental shift in the attitude of law schools towards students and of students towards law teachers has flowed from this change in relative funding. Students appear to expect more and more from their legal education as each year passes and to be increasingly willing to insist that these expectations be met. The expectations of students and the demands of the profession combine to exert significant pressure upon the law school to offer vocationally orientated courses.

The propagation of corporatist discourse within the discursive field of Australian legal education is also a consequence of the growth of a body of knowledge, theory and scholarship within the disciplines of accounting, economics, management and marketing. Corporatism privileges government agencies concerned with the efficient management of the education sector; universities concerned with the marketability and profitability of its faculties and departments; and employers concerned with the supply of employable graduates. Within the law school itself, however, corporatism privileges the administrators and is an exercise of power which favours them but is not a deliberate machination by those administrators.

The following analysis of corporatism as power is conducted in three steps. The first step is the identification of the systems of differentiation established by corporatism which create the space within which power is exercised. The second step is the identification of the objectives pursued by corporatism once power relations are brought into existence. The third and final step is the identification of the strategies employed by corporatism in the achievement of its objectives.

Law school policies, promotional texts and corporatist scholarship are strategies for the propagation of corporatism, the enhancement of the status of the administrator and the universalisation of the corporatist ideology. The second type of strategy employed by corporatism in the achievement of its explicit objectives is hierarchical observation: the monitoring and review of teacher behaviour. The third type of strategy employed by corporatism-as-power is the imposition and enforcement of a system of micro-rewards and micro-penalties. The desired corporatist behaviour results in positive consequences and failure to engage in the desired corporatist behaviour leads to punishment.

Administrators seek to enhance accountability, efficiency and marketability in order to maximise the returns, both financial and otherwise, to all of the participants in the legal education process, including the students and the teachers. By making law teachers more accountable, administrators ensure both the consistency and the quality of the teaching process.

The opponents of corporatism seek to remind law school subjects of the existence and the validity of alternative objectives: doctrinal rigour, social justice, interdisciplinarity, effective learning and legal reform. They point out that some approaches to the teaching of law are not ‘profitable’ and may not contribute to the marketability of law school products to potential customers; they may even disrupt the efficient working of the law school as a commercial institution or be inconsistent with student or employer demand.

Resistance to corporatism has taken the form of scholarship explicitly critical of the corporatist worldview. The law school is a complex disciplinary structure. The school regulates its subjects — legal scholars, law teachers, law students and administrators — sometimes through the explicit exercise of sovereign power but more often through the subtle exercise of disciplinary power.

In the dynamic clash and competition between discourses, corporatism often prevails over competing approaches such as doctrinalism, liberalism, and feminist and critical discourses. This is because of the range of historical, social and political contingencies which support corporatism and the range and efficacy of the strategies employed by corporatism in the achievement of its objectives. When a broader, discipline-wide perspective is taken, however, it becomes possible to see that the conception of legal education produced and propagated by corporatism generally prevails and that the wider, deeper, more complex, more self-reflective or more socially consequential possibilities for legal education are made conditional upon their consistency with corporatist objectives, if not abandoned altogether.