AustLII Home | Databases | WorldLII | Search | Feedback

Sydney Law Review

Faculty of Law, University of Sydney
You are here:  AustLII >> Databases >> Sydney Law Review >> 2004 >> [2004] SydLawRw 28

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

James, Nickolas --- "Power-Knowledge in Australian Legal Education: Corporatism's Reign" [2004] SydLawRw 28; (2004) 26(4) Sydney Law Review 587

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



“Corporatism” is the name commonly given to the approach to legal education which prioritises the accountability of staff and students, the efficiency of the teaching process and the marketability of the law school. It is an approach which is frequently questioned and criticised by legal scholars but which is nevertheless increasingly widespread. This paper seeks to determine how and why corporatism exists and persists within Australian law schools. It does so not by proving or disproving corporatism’s claims to truth, but by conducting an analysis of corporatism as a vector of power-knowledge. As a form of knowledge, corporatism’s success is attributable to the convergence of a range of historical, social and political contingencies. As an expression of power, corporatism deploys a range of compelling disciplinary strategies — including normalisation, hierarchical observation and the enforcement of micro-rewards and micro-penalties — in the achievement of its objectives.

* Dr Nickolas John James, BCom LLB(Hons) LLM PhD, Lecturer, T C Beirne School of Law, University of Queensland. This paper is part of a larger project analysing power-knowledge in Australian legal education. I am grateful to the following colleagues for their feedback regarding this project: Dr Helen Stacy at Stanford University; Dr Barbara Hocking and Dr Sally Sheldon at Queensland University of Technology; and Dr Bill McNeill at Griffith University. I am also grateful for the comprehensive feedback and useful suggestions provided by the three anonymous referees of this article.

1. Introduction

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.[1] The notions of accountability, efficiency and marketability dictate the form and content of many law courses. The relationship between law teachers and their students has subsequently evolved into one which bears many similarities to that between service provider and customer, or even that between manufacturer and product.

This paper seeks to determine how and why corporatism exists and persists within Australian law schools. In doing so, this paper does not seek to either prove or disprove corporatism’s claims. Nor does it suggest that law school administrators are wrong to be concerned about the cost of delivering legal education or with the quality of that education. It provides, instead, an analysis of corporatism as a Foucauldian discourse and as a particular vector of power-knowledge within the discursive field of Australian legal education.

What is a ‘Foucauldian discourse’? When Michel Foucault wrote about madness or medicine or sexuality, he was not interested in the truth or fallacy of statements made about these topics. Rather, he sought to understand how what was said and what was known about his topics had been produced. While he denied the universality of truth, he did not deny that truths were real and had real effects and his project was to discover how these truths emerged. Foucault would ask how it came about that a particular way of organising thinking, talking and doing about a selected topic took the form and content that it did. He sought to answer this question by studying the formation and emergence of discourses.[2] A discourse, according to Foucault, is a regular and systematic set of statements[3] by institutionally privileged speakers,[4] with no prior subject[5] and in perpetual conflict with other discourses.[6] Discourses designate the conjunction of power and knowledge; it is through discourses that the production of knowledge takes place and through which power is exercised and power relations are maintained.[7] Discourses seek to both inform and influence, to both educate and dominate. Discourses tell subjects about themselves and about the world; they also construct that world and determine who the subjects are. Foucault coined the term ‘power-knowledge’ to indicate the close relationship between knowledge and power. He insisted that the production and dissemination of knowledge is always an expression of power and that the expression of power always involves the production and dissemination of knowledge.[8] Discourses are more than the expression of particular truths, they actually produce those truths; they are ‘practices that systematically form the objects of which they speak.’[9] It is discourses that determine what is allowed to be said and thought within a discipline and ‘who can speak and when and with what authority’.[10] A legal education discourse such as corporatism, then, is both a body of knowledge about the teaching of law and an expression of power seeking to regulate the behaviour of law teachers, law students and others. In analysing corporatism as a Foucauldian discourse, this paper is concerned not with the validity of corporatism’s claims but with the conditions of corporatism’s emergence and the consequences of its persistence.

The first part of this paper is an analysis of corporatism as a body of knowledge. Corporatism is identified as a set of thematically similar statements about legal education located within works of legal education scholarship and law school texts. The success of corporatism within the discursive field of Australian legal education is shown to be a consequence of various social and historical contingencies. These include the history of intervention by the Australian government into legal education; the obligations imposed upon law schools in order to qualify for both public and private funding; the charging of student fees; the influence of management theory and scholarship; and the marketability of ‘law’ as an educational product.

The second part of this paper is an analysis of corporatism as an expression of power within the law school. Corporatism, more than any other legal education discourse, seeks to control, to govern and to discipline subjects within the law school in order to achieve its explicit objectives of accountability, efficiency and marketability. Corporatism employs certain disciplinary strategies by which it seeks to achieve these objectives, including the classically Foucauldian strategies of hierarchical observation, of normalisation and of systems of micro-rewards and micro-penalties.

The third and final part of this paper is a description of the resistance to corporatism within the law school. Foucault insisted that every expression of power inevitably prompts multiple resistances. While resistance, like power itself, is neither good nor bad, Foucault did suggest that close attention be paid to those who resist.[11] This paper seeks, inter alia, to promote an awareness of the possible resistances to corporatism and hence to contribute to the ongoing dynamic interplay of truths and micro-powers within the law school.

Corporatism is certainly not the only legal education discourse: corporatism variously cooperates with, competes with or ignores alternative discourses such as doctrinalism, vocationalism, liberalism and critical and feminist discourses. Each of these discourses has something different to say about the nature, purpose and scope of legal education and knowledge within the discipline is consequently inconsistent, discontinuous and unstable. In this regard legal education is not unique. There are multiple discourses within every discipline and disciplines are characterised not by a simple, consistent world view but by the tension which exists between various perspectives, politics and positions.

Two important limitations are imposed upon the scope of the analysis conducted in this paper. The first limitation relates to the definition of ‘legal education’. As William Twining has pointed out, legal education takes place in many contexts besides specialised law schools: ‘It occurs in law offices, government departments, plush hotels, schools, factories, villages and the home’ and law is taught ‘by non-lawyers and the media as well as by those who call themselves law teachers’.[12] In this paper, however, the scope of analysis is limited to the teaching of law within the law school to those typically described as law students. Specifically, it is limited to coursework within the Bachelor of Laws (‘LLB’), Juris Doctor (‘JD’) and Master of Laws (‘LLM’) programs. The analysis does not include statements produced by and about postgraduate research students.

Secondly, the focus of the analysis is upon Australian texts and practices. This focus is justified by the direct relevance of Australian legal education to both the author and most readers of this paper and the fact that the uniquely Australian historical, social and political contexts which shape Australian legal education render direct comparisons with legal education in other jurisdictions such as the UK[13] or the US[14] difficult and potentially problematic.

2. Corporatism as Knowledge

Most authors who write about corporatism and its impact identify corporatism as either an ideology or a practice whereby the dominant values of private enterprise — such as profitability, efficiency, accountability and quality control — are adopted by governments and by public and non-profit institutions such as the academy. Simon Marginson, in Education and Public Policy in Australia, described corporatism generally as,

strong central control associated with devolved responsibility for operations; separation of policy determination from the sphere of devolution; focus on outputs within input-output models of production; emphasis on selling the product. Other features are market-style competition, distribution and exchange; and closer management and measurement of outputs and performances.[15]

Christopher Blake identified corporatism as the adoption by universities of the private sector business model:

It is required thinking in the administrative culture of today’s ... university that we supplicate ourselves at the altar of modern corporate practices and values. The litany of customer-service, strategic planning, value-added and other economy-bound ideas provides the rhetorical framework for academic self-worth.[16]

Richard Collier specifically described the consequences of corporatism for the teaching of law and in doing so identified its key features. First, it is associated with the ‘privatisation of process’ within the law school: a higher interconnection between the practices and goals of the corporate world and the university facilitated by partnerships between the law school and private practice; the ‘branding’ of the university and the packaging of the law school as a product. Secondly, it constructs the legal academic as the new, useful knowledge-worker. Thirdly, it emphasises the down-sizing of the law school; the streamlining and standardisation of internal processes; and the empowerment of a senior management elite.[17] Finally, it is associated with a culture of audit-accountability and academic scrutiny.[18]

Margaret Thornton equated corporatism with managerialism and increased accountability and criticised the impact of corporatism within the university:

[U]niversity governance practices have changed so as to comport more closely with those of corporatisation. Just as we see little in the way of consultation and collegiality within the typical company, these characteristics, long distinguishing features of the academy, have been significantly eroded. The collegiate model has been largely replaced with a new style of top-down managerialism, which allows little space for the voices of academics to be heard. Academics, like general staff, are now treated in the same way as workers within private corporations and subject to ever-increasing controls, surveillance and mechanisms of accountability.[19]

Most writers about corporatism seek to discredit its assumptions, objectives and claims and to contrast them, either explicitly or implicitly, with a truer or a worthier set of values. Consistent with Foucault’s approach, however, this paper does not seek to uncover any universal truths about legal education. The question asked is not ‘Is corporatism right or wrong?’ but ‘How did it come about that this particular construction of legal education took the form that it did?’ The question is answered by analysing corporatism as a Foucauldian discourse.

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.[20]

Corporatist statements are those which emphasise accountability, efficiency and marketability ahead of objectives such as the transmission of doctrinal knowledge; the inculcation of legal skills; the achievement of liberal ideals, pedagogical innovation or 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.

The specific texts within which corporatist statements are primarily located are law school policy documents and promotional texts. To a much lesser degree, corporatist statements are also located within works of legal education scholarship.

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. At the University of Queensland Law School, for example, law school policies address such matters as: the induction of new teaching staff; the setting of teaching objectives; the drafting of course materials, including course profiles and study guides; the development of course websites; the conducting of teaching surveys; the allocation of teaching hours; assessment procedures and grading; the addressing of student concerns and reviewing of assessment, assignment requirements and submissions; student enrolment and withdrawal; the conducting of examinations, exclusions and appeals; the appointment of casual tutors and the administration of tutorials; the development of new courses; the prescription of textbooks; and annual reviews of teaching performance.[21] The day-to-day working lives of most Australian law teachers and law students are regulated not by legal scholarship or law textbooks but by the administrative requirements with which all within the law school are obliged to comply.

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. Some statements within these texts point to evidence of customer satisfaction. The Bond University School of Law, for example, emphasises the fact that it ‘received the No 1 ranking of law schools for the overall satisfaction of its graduates in the Course Experience Questionnaires published by the Graduate Careers Council of Australia in 1996, 1997, 1998, 1999 and 2000.’[22] Griffith University Faculty of Law describes how student surveys show that its graduates ‘rate their educational experience more highly than those of any other law school in Australia.’[23] Monash Law School insists that it aims ‘to provide high quality service to students, who are the primary focus of our endeavours.’[24] Other promotional statements emphasise the uniqueness of the law degree offered by the school.[25] That ‘uniqueness’, however, is typically a practical, commercial focus. At the University of Canberra Law School, for example, ‘there is one respect in which our curriculum is different from most other law programs in Australia — our Commercial Law focus.’[26] The School of Law at Deakin University seeks ‘to provide innovative and distinctive legal education rather than replicating the courses and approaches of other law schools across the country. The programs at Deakin have a distinctive orientation towards Commercial Law.’[27] At the University of Notre Dame College of Law:

[i]t is a matter of real pride to us ... that we are genuinely different. Essentially, we do not just aim to give you a degree in Law. We aim to produce lawyers, in the sense of people who will enter the legal profession, or people who will be fully qualified to do so, but choose to utilise their lawyer’s skills in another context.[28]

These and other such statements demonstrate the concern by law school administrators to offer a degree which is appealing to the customers of the law school: the students and the employers.

Legal education scholarship seldom advocates an explicitly corporatist approach to the teaching of law.[29] There are, however, many works which contain corporatist statements and which implicitly advocate the achievement of corporatist objectives. In ‘Alternative Learning Strategies for Legal Skills and Vocational Training’, for example, David Spencer and Geoff Monahan explore the notion that minimising and more efficiently using resources could achieve quality pre-admission legal skills and vocational training:

It is possible to produce high quality law graduates using alternative methods of educational delivery. Potentially, this learning can be achieved in the same time, or even in less time, than traditional face to face methods and with arguably fewer resources than are currently being expended.[30]

What are the assumptions about legal education which characterise the various corporatist statements located within these policies, promotional texts and works of scholarship? 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. As one head of school explained:

There’s the local market and then there’s the broader Australian market. Now frankly one’s not concerned with the broader Australian market here, save in so far as an institution we try to maintain standards and put ourselves academically, in terms of general teaching and research, in the forefront of the group of Australian law schools. Everyone’s trying to do as well as they can. Everyone’s trying to have as high a reputation as one can. That’s the context in which one competes nationally it seems to me. You’re simply trying to develop a reputation and that might involve developing certain research strengths and, of course, winning a reputation in terms of teaching.[31]

Corporatist statements go further than suggesting that legal education can be treated as if it is a commercial enterprise; they insist that legal education is a commercial enterprise. Administrators justify the application of principles and practises developed for profit-making organisations to non-profit institutions by arguing that regardless of whether the organisation is profit or non-profit, the goal of the manager is always to minimise costs and maximise results.[32] Institutions such as the law school may not always have a ‘bottom line’ as such, but other performance measures, such as quality of services, are possible.[33] Quality of services is defined in terms of customer satisfaction, the customers of the law school being perceived as either the law students or the employers.

For most of its history, legal education in Australia has been dominated by doctrinalism (the approach to the teaching of law which emphasises the transmission of legal doctrine) or vocationalism (the approach to the teaching of law which emphasises employability and the inculcation of legal skills). What historical, social and political contingencies have now facilitated the emergence and growth of corporatism within Australian law schools?[34] One such contingency is the rising level of state intervention into legal education in Australia. As corporatism has increasingly influenced and shaped government policy and decision making,[35] so too has legal education been shaped by corporatism. Many of the most significant changes in the nature and character of legal education in Australia have been the consequence of deliberate government action and this action is often justified in terms of the government’s perceived need for ‘improved budgetary and corporate management processes’.[36] Judith Lancaster suggested, for example, that the change from part-time to professional law teacher after World War II was a result of state intervention. The approaches and practices of the Australian legal profession at the time were perceived as lagging behind those in comparable countries and the changes to university legal education were seen as a means of ‘modernising’ the legal profession.[37] Lancaster also described how, in the early 1960s, the Commonwealth government sought to ensure the existence of skilled legal professionals capable of seizing the opportunities afforded by technological advances and thereby increasing the nation’s productive capacity.[38] The Committee on the Future of Tertiary Education in Australia (the Martin Committee) regarded legal education ‘as a form of national investment in human capital’ and the goal of efficiency justified the phasing out of the apprenticeship system and centralising the training of lawyers within university law schools.[39]

The publication of the Pearce Report in 1987 was another important state intervention. The Pearce Report was, according to Lancaster, an ‘attempt by the state to harness the higher education sector in the national interest’.[40] It was an explicitly corporatist text, evidenced by the range of legal education issues it sought to address: the quality and economic efficiency of each institution providing legal education; the suitability and feasibility of the aims set and followed; the nature and quality of both undergraduate and postgraduate courses; the standards of teaching and research; the effectiveness of resource utilisation and the extent of unnecessary duplication; the community requirement for graduates; and selection and admission processes for law schools. The Report began with the following introduction:

The Commonwealth Tertiary Education Commission believes that the justification of appropriate levels of public funding for higher education carries with it an obligation on higher education institutions to demonstrate that their teaching and research is being carried out at suitable standards, avoiding waste and unnecessary duplication and in a manner that is responsive to community needs ... In terms of effectiveness of resource utilisation, [the Pearce committee] will view their task not only as a matter of addressing inadequacies but also as a means of accounting for how savings could be made through redistribution of current resources.[41]

Despite frequent use of liberal terminology, the Pearce Report was concerned primarily with the achievement of corporatist objectives: efficiency, accountability and marketability. Even though the Pearce Report explicitly criticised Australian law schools for neglecting the critical and theoretical dimensions of law, the Report:

...  contradicted itself by seeing the legal curriculum as predicated solely upon satisfying professional admission requirements. The critical and theoretical dimensions of legal education would have to remain conditioned by the higher demands of a vocationalism defined by the practising profession and business consumers of legal services.[42]

Vivienne Brand argued that the Pearce Report evidenced a shift in the relationship between legal education and government: law schools were no longer to be left largely to self-regulation but were to be viewed as instruments of economic policy, to be assessed against benchmarks of community expectation and fiscal responsibility.[43] The Pearce Committee consulted with the ‘consumers’ of law school services, including graduates and employers of those graduates.[44] According to Brand, this move to a consumer-focussed review evidenced an underlying policy shift to a more economically rationalist framework within tertiary education in general and within law schools in particular.[45]

Corporatism in Australian legal education is also a consequence of another form of state intervention, the public funding of universities. Following World War II, the Commonwealth government assumed complete responsibility for the higher education sector. Student fees were abolished and universities relied entirely upon Commonwealth funds for income.[46] This lead to increased accountability to the government in relation to the ways in which these funds were used by 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. This in turn motivated the university administrators to themselves pay attention to these things. The threat of funding being withheld was a significant contributor to the adoption by university administrators of corporatist systems and practices. One such system was the recognition of each faculty or school within the university as a separate accounting unit with decentralised budgetary authority. Law schools were compelled to implement improved budgetary controls calling for much more sophisticated accounting practices and the introduction of complex annual reporting procedures.[47]

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.[48] The adoption of corporatist knowledge and practices consequently persists as law schools become more entrepreneurial in order to attract corporate sponsorship, compete for research funds and attract fee-paying students. Law schools are forced to an ever greater degree to seek funding from private organisations and these organisations are unlikely to be willing to risk investing in the law school unless the school has implemented the kinds of corporate governance practices commonly adopted in the private sector and in other bodies seeking funds. As law schools increasingly look to the generation of fee income from postgraduate coursework programs, international student recruitment and enrolment of full fee paying students to supplement the funding of their LLB courses, the marketability of their programs becomes a dominant concern, encouraging ever greater levels of corporatism.[49]

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. As student fees increase, students are more likely to be perceived by administrators as consumers of law school services and consequently accorded increased power in the debate about what law schools should teach.[50] 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. This shift in the attitude of law students has been exacerbated by the placement of law at the top of the HECS payments bands.[51] Because they are paying substantial fees for their education, either directly or indirectly, many law students have an expectation that they should receive value for money.[52] From the point of view of many students, the law degree is no more than an asset to be acquired and to be acquired quickly, cheaply and with a minimum of effort. This expectation has resulted in the movement by some schools towards offering a two-year LLB and the increasing emphasis by most schools upon the marketing of LLM courses to legal professionals and JD courses to non-legal professionals. It is an expectation exacerbated by the increasing tendency by many students to work while studying. As one law teacher quoted in the Johnstone Report explained:

University education used to be a thing students undertook on full time basis. Over the years, however, there has been an extraordinary increase in students working so that now the balance has shifted. Students do their jobs and fit in university education around their jobs. As a consequence students’ expectations in the classroom have changed. They want fast delivery and want to find out quickly what they have to do to get through. This is far removed from the idea that this is an opportunity to explore and have an intellectual experience in what we are doing. This new attitude to study comes through in the classroom in intangibles. For example, they have a less relaxed attitude. Every minute has to count; what used to occur over a long period of time now has to take place quickly.[53]

Andrew Goldsmith described how universities have become mass institutions and that the proliferation of universities and university places has resulted in a ‘crowded marketplace mentality’. He quoted Mackay, who wrote:

If [the universities’] constant challenge is to attract enough fee paying students to justify their existence, then universities will inevitably retreat from their twin ideals — encouraging the life of the mind and the life of service — and yield to the pragmatism that offers all qualifications as a passport to employment.[54]

The propagation of corporatism is also contingent upon the ongoing pressure exerted upon law schools by the practising profession to ensure that the law degree satisfies their requirements. Pressure by the profession is facilitated by the close relations between the law school and local law firms. Practitioners contribute to course planning; judges and senior practitioners contribute to academic teaching and writing; and an increasing proportion of full-time academics have recent or current professional experience.[55] Law firms are regularly invited to sponsor events such as mooting competitions, academic prizes, scholarships and law school functions. The employers thereby occupy positions where they are able to influence the general direction if not the specific content of the law school curriculum. Pressure from the profession also manifests in the form of admission requirements. The ‘Priestly 11’ — the 11 areas of knowledge that law students are required to have studied successfully before they can be admitted to the legal profession[56] — influence significantly the nature and characteristics of Australian legal education. While law schools are not compelled to offer all 11 areas of knowledge in their core curriculum, most schools nevertheless do so[57] and most students prefer to take the 11 areas of knowledge during their university education. The shift away from public funding and towards private funding of law schools has given the practising profession an opportunity to exercise even more influence upon the law school and its curriculum. The fact that law firms are providing the money to fund some of the law schools’ activities obliges law school administrators to take heed of the profession’s demands.

The expectations of students and the demands of the profession combine to exert significant pressure upon the law school to offer vocationally orientated courses. This pressure, together with the law schools’ apparent willingness to concede to that pressure, encourages the perception that the law school exists primarily to serve its customers by being a source of employment training and of future legal workers.

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.[58] This scholarship influences legal education by a number of means: many law teachers have qualifications in both law and one of these other disciplines and many Australian law schools have in recent years been relocated within the university structure to business faculties. As Toddington noted:

Most of us have been aware for some years of the growing influence of managerial theories, techniques and procedures in further and higher education. This is to be expected: for in speaking of educational policy (or indeed any policy) no reasonable person can avoid issues of quality, organisational rationality, or economic efficiency. Contemporary Management Theory presents itself as the natural language of this debate and it has been received with enthusiasm as such.[59]

The final contingency considered in this paper is the attractiveness of the law degree to university administrators as a marketable product. Andrew Goldsmith pointed to the appeal of law schools as a consequence of their ‘already providing strongly professional and vocational programs, operating with high student-staff ratios and being attractive in the student “market-place.” ’[60] Law schools are prestigious faculties which attract relatively bright students for comparatively low investment.[61] In market terms, according to Goldsmith, law is ‘efficient’ and a ‘performer’.[62] Law schools have even been described as offering a ‘cash-cow’ opportunity to vice-chancellors.[63] University management structures, already dominated by corporatism, thus turn their attention to the marketing and management of law and impose corporatist procedures and practices upon the law school in order to maximise their returns. In fact, one of the most significant changes to Australian legal education was a consequence of this particular perception on the part of university management. The Pearce Report had recommended that no new law schools be opened, but this recommendation was not followed.[64] In 1987, there were six ‘first-wave’ law schools and six post-war ‘second-wave’ law schools. Today, the existing law schools has massively increased their numbers and a ‘third wave’ of 16 new law schools have been established. As David Weisbrot wryly observed in 1991:

The central message of the Pearce Report on Australian Law Schools was that legal education in Australia is being run on the cheap and this is a Bad Thing. The moral for Vice Chancellors, University Councils and Governments, however, is that legal education in Australia can be run on the cheap and this is an Absolutely Splendid Thing.[65]

It is likely that in the coming years universities will increasingly rely upon non-government sources of funding. It is also likely that law schools will continue to attract students willing to pay substantial fees for a legal qualification. Given these two contingencies, the ongoing presence of corporatism within the discursive field of legal education appears assured.

3. Corporatism as Power

The historical, social and political contingencies described above facilitate the propagation of corporatism, but the success of corporatism in recent years would not have been possible without willing propagators within the law school. 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 it is these law school subjects who willingly collaborate in the exercise of corporatism as power.

The notion of power adopted in this paper is a Foucauldian one. The first point to note about Foucault’s notion of power is that it is non-judgmental. The word ‘power’ often has a negative connotation: it is something possessed and used by the powerful at the expense of the powerless; it is used to repress and control; and it distorts truth and knowledge. According to Foucault, however, power is not only negative, it is also productive. Power produces subjects and determines what they do; it determines how subjects see themselves and the world; and it produces resistance to itself. Power leads to dominance and hegemony, but power also undermines dominance and hegemony.[66] Legal education texts, including the books and articles written by legal scholars; the papers that they present; law school websites and course descriptions; administrative policies; and even classroom and meeting-room dialogues are all expressions of power seeking to achieve particular objectives. This need not be viewed as a controversial assertion if it is understood that designating something as an exercise or as a technology of power is not a criticism. Power exists and is exercised within the law school but it is not necessarily exercised repressively or unjustly. Power is what keeps the engine of legal education functioning.

The second point to note about the Foucauldian notion of power is that it is non-subjective. A discourse may privilege or favour certain subjects[67] and those subjects may appear to cooperate willingly in the achievement of the discourse’s objectives, but it is not an exercise of power by those subjects. As explained earlier,[68] subjects are not the initiators of discourse, they are the products of discourse and the means by which discourses are propagated. Corporatism, then, is an exercise of power which favours administrators but is not a deliberate machination by those administrators.

The following analysis of corporatism as power is conducted in three steps.[69] The first step is the identification of the systems of differentiations 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.

Two primary distinctions are established by corporatism which create the space within which power is exercised. The first distinction is between the administrator, responsible for monitoring and ensuring compliance and the administrated, that which is controlled or regulated. The administrator may be a person — such as a dean, a head of school, a law school manager, a senior member of general staff, a program director, a committee chair, or a course coordinator — but it may also be a rule, a regulation, a policy, a guideline or a standard practice. The administrated may be a person — anyone in the school subjected to administrative requirements or obligations — but it may also be a text, a practice, space or time. The undifferentiated mass of bodies, knowledge and practices within the law school is divided by corporatism into administrators and administrated and the former is then privileged over the latter. ‘Privilege’ here refers to the level of authority, prestige or recognition accorded to the administrator. The head of school is privileged over the legal scholar under their supervision; the course coordinator is privileged over the tutor; the program director is privileged over the program; and the curriculum committee is privileged over the curriculum.[70]

Secondly, corporatism divides the administrated persons and practices into two categories: compliant and non-compliant. The compliant exist and behave in accordance with the rules and expectations of the administrators, the non-compliant deviate from those rules and expectations, and the compliant are favoured over the non-compliant. Corporatism judges everybody and everything: the compliant are rewarded for their loyalty and the non-compliant are punished for their betrayal.

Once these differentiations and spaces are established, what is it that corporatism-as-power seeks to achieve? The explicit objectives of corporatism are the enhanced accountability of teachers and students; the enhanced efficiency of the teaching process; and the enhanced marketability of the law school product.

The corporatist desire for accountability stems from the direct relationship between knowledge and power: by knowing what the administrated are doing — through the mechanisms of observation described below — the administrator is able to control the administrated. By compelling the administrated to continuously and rigorously disclose themselves to the administrator, the administrator is able to monitor the levels of cooperation and compliance practiced by the administrated and the administrated, conscious of their burden of accountability, learn eventually to regulate themselves.

An efficient person or practice satisfies the desires and expectations of the administrators without unnecessary cost, effort or excess. An inefficient person or practice either fails to satisfy the desires and expectations of the administrator or does so at a cost — financial or otherwise — unacceptable to the administrator. Efficiency is a status to which all within the law school must aspire and inefficiency must be identified, discouraged and eradicated. These categories change with time: once that which is inefficient has been abolished, that which remains is once again divided into efficient and inefficient and a new culprit is created.

The third explicit objective of corporatism-as-power is marketability. The discourse categorises courses, teachers, knowledge, texts, teaching spaces and reputations as either appealing or unattractive to prospective students and customers. The perceived desires of the consumer of the law school’s products are paramount and everything is judged as either consistent with those desires or as inconsistent and undesirable.

Enhanced accountability, efficiency and marketability lead to growth. Success for administrators, Heads, Deans and Vice-Chancellors is measured in terms of increases over time: increases in staff and student numbers; increases in private grants and public funding; and increases in courses offered and degrees awarded. The emphasis upon ceaseless growth is a feature of corporatist discourses in all discursive fields, not just legal education. Growth, for corporatism, is life and success; reduction is failure and death.

In addition to these explicit objectives, corporatism also seeks to achieve certain implicit objectives. Corporatism, like all discourses, seeks its own propagation; it strives to dominate the discursive field of legal education. In order to facilitate this propagation, corporatism-as-power seeks not only the growth and replication of the corporate law school but also the enhanced status of the administrator within the law school and within the community. The administrator achieves status by being obeyed and by being associated with the success — the efficient performance — of that which is administrated and the status accorded the successful administrator encourages the propagation of corporatism itself.

Finally, corporatism-as-power seeks not only the achievement of the goals of accountability, efficiency, quality and marketability but also their acceptance. While the achievement of these goals may still be possible without their acceptance by the administered, it is certainly facilitated by acceptance and corporatism-as-power therefore seeks the universalisation of corporatism-as-knowledge and the establishment of a regime of truth. It seeks to ensure that notions that the law school is a manageable system and that legal education is a marketable product are accepted as incontestable and absolute rather than contingent and arbitrary.

Each of the forms of corporatism-as-knowledge identified in the first part of this paper is a strategy by which the discourse seeks to achieve these implicit 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. Corporatism also seeks to regulate and control the personnel and resources of the law school using classically Foucauldian means: normalisation, hierarchical observation and systems of micro-rewards and micro-penalties. The achievement of corporatism’s explicit objectives depend upon compliance by most, if not all, of the subjects within the law school. Since the advocates of corporatism are more likely already to be located in positions of institutional authority, the strategies of corporatism are persuasive and powerful, backed by the threat of coercive sanctions.

Normalisation is the practice of ensuring that particular and subjective truths are accepted as universal and hence incontestable. Subjects accept these truths not because they are compelled but because it is normal to do so and to fail to do so would be abnormal. Corporatism has successfully normalised the notions of accountability, efficiency and marketability within many Australian law schools. It has become virtually unthinkable for legal education to be managed and regulated in a manner other than a corporatist manner. New academic appointees are indoctrinated to comply with existing administrative procedures and practices; they find it impossible to get valuable assistance from administrative staff unless they do so. Expressing desires in corporatist terms and carrying out practices in accordance with corporatist guidelines is normal and any alternative language or approach is abnormal and consequently misinterpreted or ignored. Non-compliance with administrative obligations is categorised as deviant behaviour and penalised (a point explained further below). The connections between the perceived quality of legal education; the marketability of the law school; the cost of delivering its programs; and the stability of subjects’ ongoing employment are reinforced constantly and it has become inconceivable for customer — student and employer — satisfaction not to be a dominant concern of all law school subjects.[71] As Toddington noted:

[T]he central strategy of [corporatism] is to claim universal application by exploiting the natural and wholly rational consensus which does not question the general desirability of securing effective and efficient employment of human and financial resources in pursuit of productive goals.[72]

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.[73] Law school administrative requirements are enforced by way of continual observation of teachers and students. The enrolment process, the typical classroom layout, the law examination and other assessment procedures are all obvious examples of the surveillance of law students. Specific instances of surveillance of law teachers include: compelling law teachers to regularly seek student feedback;[74] requiring law teachers to seek peer assessment; scrutinising law teachers during the process of applying for teaching awards; compelling law teachers to complete teaching portfolios in minute detail on a regular basis; placing teaching materials online and accessible to all; and recording and video-taping lectures and tutorials. Individual law teachers typically prefer that this scrutiny be favourable, as the outcome of these reviews impacts upon the decision of the university to appoint, reappoint or promote the law teacher. Law teachers thus willingly comply with corporatist administrative obligations.

According to Foucault, hierarchical observation leads eventually to self-monitoring and self-discipline. Members of the law school, after feeling endlessly scrutinised, internalise the corporatist agenda and behave in accordance with its objectives without the need for external prompting. The metaphor for modern surveillance used by Foucault in his book Discipline and Punish was Bentham’s panopticon, the prison constructed in the shape of a wheel around the hub of an observing warden who at any moment might have the prisoner under observation.[75] Unsure of when authority might in fact be watching, the prisoners strive to conform their behaviour to its presumed desires. The corporatist law school is panoptic because law teachers are constantly watched and monitored by the administrators, by each other and by themselves. Every movement might be seen, every statement might be recorded. There is no need for an all-seeing external authority; because they feel watched, they internalise authority and regulate their own behaviour. Panoptic power achieves what overt power cannot: the transformation of members of the law school into self-regulating, self-disciplining and self-monitoring docile bodies.

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. The emphasis upon ‘micro’ rewards and punishments is consistent with Foucault’s insistence that the most important examples and exercises of power are local and capillary: the fact that assaulting a colleague might lead to imprisonment does not have as important an influence upon the disciplining of a subject as the fact that showing up late for a meeting might lead to a supervisor’s disapproval.[76] As many of corporatism’s privileged advocates — the administrators — are already in positions of institutional authority, they are able to establish systems which explicitly and implicitly compel law school subjects to comply with corporatist policies and work towards the achievement of corporatism’s objectives.

Examples of micro-rewards to which obedient law students are subjected include successful enrolment; praise from teachers; good results for assessment; good grades for courses; and ultimately graduation. Examples of micro-penalties imposed upon students who fail or refuse to comply with administrative requirements include rejection of their enrolment application; criticism from teachers; poor or failing results and grades; and, ultimately, expulsion from the university.

The system of micro-rewards and micro-penalties imposed upon teaching staff is more subtle but no less compelling. The law teacher who obediently complies with law school policy is rewarded with the praise of their supervisors and the cooperation of general staff. The teacher who dutifully arranges for their teaching to be regularly reviewed and assessed by students is rewarded with the possibility of positive student feedback and, more importantly, with the enhanced likelihood of success in their application for a teaching award, a pay increment, tenure or promotion. The teacher who satisfies the onerously detailed demands of funding agencies is more likely to have their grant application accepted. As Margaret Thornton observed: ‘The corporatised university is one that favours and rewards those who are docile, that is, the head-nodders and the forelock-tuggers.’[77] Corresponding examples of the micro-penalties imposed upon teachers for refusing to comply with the requirements of the administrators include criticism by supervisors; uncooperative general staff; negative student feedback; being passed over for pay rises and promotion; failing to receive awards; failing to receive funding and grants; and, ultimately, dismissal.

4. Corporatism and Resistance

In all probability, many advocates of corporatism genuinely and earnestly believe that the corporatist approach is one which results in benefits for all concerned. 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. By minimising the cost of legal education, by making the teaching process more efficient and by emphasising the impact of decisions and practices upon the marketability of the law school, administrators enhance the likelihood that the law school will continue to exist and that school staff will remain employed.

While this paper has not sought to undermine these assertions, it is important to note that the rise of corporatism in Australian law schools has not been unopposed. It has been challenged by those teachers and scholars who value criticism, immeasurability and doubt, who question the escalating levels of accountability, who resent the perceived infringements upon their academic freedom, or who prefer to emphasise liberal, feminist or critical ideals in their teaching. Foucault insisted that every exercise of power engenders resistance.[78] Corporatism is always and inevitably contested.

Reference was made earlier to corporatism’s efforts to normalise and universalise the notions of accountability, efficiency and marketability. The ongoing success of corporatism is largely contingent upon the acceptance by the administered of the importance, the inevitability and the necessity of these objectives. One of the most effective strategies of resistance, then, is the effort to de-normalise and de-universalise these notions. 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.[79] Some approaches are time-consuming and require substantial effort on the part of both the teacher and the student; the rewards earned as a result of expenditure of this time and effort cannot always be measured in terms of cost and profit and corporatism may not recognise its value. These consequences should not necessarily make alternative approaches to the teaching of law less important or less desirable.

Resistance to corporatism has taken the form of scholarship explicitly critical of the corporatist worldview. Examples include Gil Boehringer’s ‘Resisting Pearce’;[80] Andrew Goldsmith’s ‘Standing at the Crossroads’;[81] Judith Lancaster’s The Modernisation of Legal Education;[82] Richard Morgan’s ‘Pearce Report on Legal Education: Corporatist Strategy’;[83] and Margaret Thornton’s ‘Law as Business in the Corporatised University’[84] and ‘Governing the Corporatised Academy’.[85] Resistance also takes the form of anti-corporatist attitudes and behaviours within the law school. Andrew Goldsmith referred to the ‘disenchantment among university academics about the perceived deterioration in their conditions of work, linked to the new talk of students as consumers and the view of education as a product, rather than as a process.’[86] One law teacher quoted in the Johnstone Report complained that:

[t]he life of the average academic has been made more stressful. When I started as an academic it was a relatively leisurely life, as compared with being in practice, because there was time and space for research and reflection. These days I think because of the lack of resources — and that’s a key thing — the classes are larger, the assessment burden is greater, the accountability expectations are higher, so there’s more reporting, surveying, evaluating. Where students are paying fees there are expectations on the part of the students for professional service, as they see it. All of those things have put extra pressure on the teaching side.[87]

Despite the ceaseless observation by administrators, the attempted normalisation of the corporatist ideology and the micro-penalties imposed for non-compliance, many law teachers continue to stubbornly, even angrily, resist the call to be more accountable, more efficient and more consumer-focused.[88]

5. Conclusion

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. Norms, beliefs, texts and practices constitute a disciplinary framework which limits not only what subjects within the law school can do, but also what they can know. This disciplinary framework is not monolithic with consistent and stable conceptualisations of the nature of legality and of legal education. The discipline of law, like all disciplines within the university, is characterised by conflicts and tensions between discourses, each of which competes for status and dominance by propagating different knowledge and utilising different strategies of power.[89] These multiple vectors of power-knowledge compete and collide within the discursive field of legal education.

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. This is not to say that the competing discourses always fail. There are locations where they dominate: legal education scholarship, for example, is dominated by liberalism. 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.

‘Corporatism’ is one of the many stories told within the law school and like all such stories, it needs to be told repeatedly, remembered clearly and believed enthusiastically. It is a story which will continue to be simultaneously propagated and opposed within the law school. The efforts to achieve and to normalise the goals of efficiency, accountability and marketability will persist, as will the efforts to de-universalise and destabilise these notions. This paper ultimately seeks to offer benefits to both the advocates and the opponents of corporatism: the advocates will better understand their choices and the opponents will better understand their adversary.

[1]Lawrence McNamara suggested that the increasing use of ‘flexible delivery’ and online teaching, for example, is driven primarily by concerns about efficiency and market share. Lawrence McNamara, ‘Flexible Delivery, Educational Objectives and the (Political) Importance of Teaching’ (2001) 35 Law Teacher 198.

[2]Foucault studied medical and psychiatric discourses, particularly those which addressed the relationship between madness and reason: Michel Foucault, Madness and Civilisation (2001). He studied biological, linguistic and economic discourses: Michel Foucault, The Order of Things (2002). He explored the transformations in medical discourses: Michel Foucault, The Birth of the Clinic: An Archaeology of Medical Perception (1973). And he studied theological and medical discourses of sexuality and the role of sexual discourses in everyday life: Michel Foucault, The Will to Knowledge: The History of Sexuality 1 (1998); Michel Foucault, The Use of Pleasure: The History of Sexuality 2 (1992); Michel Foucault, The Care of the Self: The History of Sexuality 3 (1990).

[3]Statements include sentences, phrases, exclamations, non-verbal physical acts, practices and visual symbols. Legal education statements include: the written statements produced by legal education scholars and by law schools; the verbal statements produced by law teachers and by law students; the practices which take place within law classrooms; and even the physical structure of law schools and law libraries.

[4]A discourse is the talk of a specific academic and professional discipline, issued from specific institutional sites by authorised speakers and distributed through specific institutional channels. A legal education discourse such as corporatism is a regular and systematic set of statements produced by law teachers, legal scholars, law school managers and legal professionals within their respective institutional contexts. A statement about legal education does not form part of a legal education discourse unless the person who made the statement has an institutional location; if the person has no institutional location it is merely an opinion.

[5]A discourse is not merely the product of human endeavour, it is an autonomous entity. Subjects are not the initiators of discourse, they are simultaneously the products of discourse and a means by which discourses are propagated. The idea that the subject is created by discourse, rather than the other way around, is central to the Foucauldian theoretical framework. According to Foucault, the notion of a subject who exists prior to language and is the origin of all meaning is an illusion. Foucault wrote: ‘If there is one approach that I do reject [it is the one] which gives absolute priority to the observing subject, which attributes a constituent role to an act, which places its own point of view at the origin of all historicity — which, in short, leads to a transcendental consciousness. It seems to me that the historical analysis of ... discourse, in the last resort, be subject, not to a theory of the knowing subject, but rather to a theory of discursive practice.’ Foucault, The Birth of the Clinic, above n2 at 172.

[6]There are multiple discourses within any discipline; there is no single, consistent discourse. As Foucault insisted, knowledge within a discipline is always discontinuous. Each discourse is in conflict with other possibilities of meaning. Discourses ‘must be treated as discontinuous practices, which cross each other, are sometimes juxtaposed with one another, but can just as well exclude or be aware of each other’. Foucault, The Will to Knowledge, above n2 at 67.

[7]Id at 101.

[8]He did not suggest, however, that power and knowledge are the same thing. Many believe that Foucault insisted that ‘power is knowledge’ or that ‘knowledge is power’ but, as Foucault remarked, if they were the same thing it would have been a waste of most of his scholarly life to analyse their relation. Gavin Kendall & Gary Wickham, Using Foucault’s Methods (1999) at 51.

[9]Michel Foucault, The Archaeology of Knowledge (2002) at 54.

[10]Stephen J Ball, ‘Introducing Monsieur Foucault’ in Stephen J Ball (ed), Foucault and Education: Disciplines and Knowledge (1990) at 2.

[11]Alan Hunt & Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (1994) at 13.

[12]William Twining, ‘Developments in Legal Education: Beyond the Primary School Model’ [1991] LegEdRev 2; (1990) 2 Legal Education Review 35 at 36–37.

[13]Australian legal education differs from UK legal education in that UK law schools have never had as vocational an orientation as those in Australia. Generally, they have not accepted to the same extent responsibility for training people for the profession and do not seek to provide a range of subjects adequate for that purpose. Qualification to practise is obtained by passing final qualifying examinations set and controlled by the governing bodies of the profession.

[14]Australian legal education differs from US legal education in a number of important ways. United States law schools never adopted the English model of apprenticeship training and law students normally proceed from university to practice without having to fulfil formal practical training requirements. Law is generally a graduate course in the United States, taken through a full-time course of three years after graduation in Arts or a similar discipline. US law graduates are still often required to take a separate set of professionally administered ‘bar’ examinations in each State before being admitted. For much of the last century, Australian legal education has been uniformly publicly funded whereas US legal education has seen a combination of private and public funding. Finally, doctrinalism and vocationalism were largely unquestioned in Australia while the Legal Realism movement was taking place in the US.

[15]Simon Marginson, Education and Public Policy in Australia (1993) at 57.

[16]Christopher R L Blake, ‘Beyond Corporatism: Why the Business Model Is Wrong for the Academy,’ Matrix: The Magazine for Leaders in Education (June 2000).

[17]Referred to by Collier as the ‘McDonaldisation’ of the law school.

[18]Richard Collier, ‘Once in a Lifetime? The Uncertain Future of (Critical) Socio-Legal Studies’, paper presented at the Australian Law Teachers Association Conference, Brisbane, Australia, 7 July 2003 also published in this issue: Richard Collier, ‘ “We’re All Socio-Legal Now?” Legal Education, Scholarship and the “Global Knowledge Economy” – Reflections on the UK Experience’ (2004) 4 Syd LR 503.

[19]Margaret Thornton, ‘Governing the Corporatised Academy’ (2004) 1 The Journal for the Public University 1 at 1.

[20]Corporatism shares many of the characteristics of vocationalism and, as vectors of power, these two discourses often coincide. Vocationalism is the insistence that the law school exists as an adjunct to the profession or at least as a training school for future workers; corporatism is the insistence that the law school is, or should be, an efficient and profitable institution in its own right. Like vocationalism, corporatism is concerned primarily with utility but, instead of focusing solely upon the utility of the legal education, it is concerned with the utility of the law school itself.

[21]University of Queensland, T C Beirne School of Law Homepage: <> (8 May 2004).

[22]Bond University, School of Law Homepage: <> (14 May 2003).

[23]Griffith University, Faculty of Law Homepage: <> (19 March 2003).

[24]Monash University, Law School Homepage: <> (13 May 2003).

[25]The Johnstone Report noted that over the last ten years, most law schools have increasingly emphasised their distinctiveness and sought to differentiate themselves, particularly in relation to their local competitors. Most first- and second-wave Australian law schools have ‘reinvented’ themselves (partly in response to the recommendations and suggestions in the Pearce Report and partly in response to the emergence of more law schools); and third-wave law schools have been set up to offer a different model of legal education than what they thought was offered by the ‘traditional’ model. Richard Johnstone & Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (2003) at 454.

[26]University of Canberra, School of Law Homepage: <> (15 May 2003).

[27]Deakin University, School of Law Homepage: <> (15 May 2003).

[28]University of Notre Dame, College of Law Homepage: <> (9 May 2003).

[29]There are many works of scholarship, which explicitly oppose a corporatist approach: see the third part of this paper.

[30]David Spencer & Geoff Monahan, ‘Alternative Learning Strategies for Legal Skills and Vocational Training’ [2001] UTSLawRw 15; (2001) 3 UTS Law Review 210 at 210–211. See also Tony Tarr, ‘The Funding and Sponsorship of Legal Education’ (1994) 12 Journal of Professional Legal Education 17; Maria Tzannes, ‘Quality Assurance in Practical and Clinical Legal Education: A Brave New World’ (1994) 12 Journal of Professional Legal Education 57.

[31]Johnstone & Vignaendra, above n25 at 31.

[32]In 400 BC, Socrates said about management during his discourse with Nichomachides: ‘... one should not despise a man skilful in managing a household; for the conduct of private affairs differs from that of public concerns only in magnitude; in other respects they are similar.’ This quote is from Lewis M Cyert, The Management of Nonprofit Organisations (1977) at 60–61 cited in Stuart Toddington, ‘Skills, “Quality” and the Ideologies of Managerialism’ (1994) 28 Law Teacher 243 at 248.


[34]Foucault referred to this type of work as uncovering the ‘conditions of possibility’. Drawing up such a list of contingencies involves some historical investigation, but it does not require an exercise in causal logic and the artificial designation of some items on the list as primary and others as secondary; or the placement of the contingencies into a scale of ascending or descending importance. Nor does it require the designation of those contingencies on the list to be in some subordinate relation to an item not on the list but which is assumed to be the primary cause, such as modernism, capitalism or patriarchy. Each contingency is in a contingent relationship with every other contingency. They may or may not relate in any way and if they do relate, the form of their relationships to one another is not dictated by any pattern or any outside force. Kendall & Wickham, above n8 at 8–9.

[35]See Michael Pusey, Economic Rationalism in Canberra: A Nation-Building State Changes its Mind (1991).

[36]Id at 146.

[37]Judith Lancaster, The Modernisation of Legal Education: A Critique of the Martin, Bowen and Pearce Reports (1993) at 2.

[38]Id at 6.

[39]Committee on the Future of Tertiary Education in Australia, Report of the Committee on the Future of Tertiary Education in Australia to the Australian Universities Commission (1964) at ch 11.

[40]Lancaster, above n37 at 51. See also John Goldring, ‘Babies and Bathwater: Tradition or Progress in Legal Scholarship and Legal Education’ (1987) 17 University of Western Australia Law Review 216; Richard Morgan, ‘Pearce Report on Legal Education: Corporatist Strategy’ (1987) 12 Legal Service Bulletin 260. The Pearce Report was seen by Morgan as part of the agenda of rationalising education to make it more relevant in an Australia dominated by multi-national corporate capital.

[41]Dennis Pearce et al, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) at 3.

[42]Christine Parker & Andrew Goldsmith, ‘ “Failed Sociologists” in the Market Place: Law Schools in Australia’ (1998) 25 Journal of Law and Society 33 at 35.

[43]Vivienne Brand, ‘Decline in the Reform of Law Teaching? The Impact of Policy Reforms in Tertiary Education’ (1999) 10 Legal Education Review 109 at 115.

[44]Lancaster, above n37 at 48. An entire chapter was devoted to ‘Legal Education: The Consumer’s Perspective’: Pearce et al, above n41 at Ch 4.

[45]Brand, above n43 at 115–116. State intervention into legal education has continued in the form of a range of corporatist documents and reports produced by government, quasi-government and government-funded bodies which seek to investigate and regulate Australian legal education and to impose corporatist practices and procedures upon law schools. These texts include, inter alia, Consultative Committee of State and Territorial Law Admitting Authorities, Uniform Admission Requirements: Discussion Paper and Recommendations (1992); Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking Legal Education and Training (Issues Paper No 21) (1997); Department of Justice, Legal Education, Training and Admission Requirements – Discussion Paper (1998); Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report No 89) (2000) at Centre for Legal Education, The Cost of Legal Education in Australia: The Achievement of Quality Legal Education: A Framework for Analysis (1994).

[46]Brand, above n43 at 118.

[47]Ralph Simmonds, ‘Growth, Diversity and Accountability’ in John Goldring, Charles Sampford and Ralph Simmonds (eds), New Foundations in Legal Education (1998) at 64–65. According to Brand: ‘In addition to exercising its power over funding (the federal government’s key tool of economic reform in the university sector), the Commonwealth strengthened its policy reach in education in other ways. Growing cooperation between the States and Commonwealth in the early 1990s, through the auspices of organisations such as the Australian Education Council (AEC) and the Ministers of Vocational Employment, Education and Training (MOVEET), had the effect of raising the Commonwealth’s role in education policy and hence its ability to increase the influence of economic perspectives. The presence of economists at senior levels within the Department of Employment, Education and Training (as it then was) facilitated the economic imperatives driving the policy reforms. These reforms survived subsequent transitions of power within federal government, being generally supported by both the federal Coalition and Labour parties.’ Brand, above n43 at 117.

[48]The decline in absolute terms (ie, unadjusted for inflation) from 1994 to 2000 was from $4772 million to $4461 million. Anthony H Winefield et al, Occupational Stress in Australian Universities: A National Survey 2002 (2002) at 15.

[49]Johnstone & Vignaendra, above n25 at 4.

[50]Brand, above n43 at 121.

[51]As one law teacher quoted in the Johnstone Report explained: ‘I think student demands have changed very significantly since the differential HECS was introduced. I think that’s probably the biggest factor and students, no matter how you try to tell them, do not understand that we don’t get their HECS funds or anything that approximates them or is proportionate to them. The demands are mainly about resources – timetabling that suits them, which of course is increasingly difficult with combined degrees. They are all working. They don’t want classes at night, which is perfectly understandable. They will have significant demands for after-hours classes though, so in each core subject we offered a seminar group from 5.00–7.00 pm. But it was almost never full, you know, so there will be a demand but it will be from about five or six students and we can’t manage them around five or six students because we can’t afford it. So you end up not doing it. And it causes no end of trouble because students think they have a right to it and it’s really difficult to accommodate that demand.’ Johnstone & Vignaendra, above n25 at 317.

[52]Including, apparently, an entitlement to unlimited access to teaching staff and a passing grade regardless of their actual performance.

[53]Johnstone & Vignaendra, above n25 at 315.

[54]Hugh Mackay, quoted in Andrew Goldsmith, ‘Standing at the Crossroads: Law Schools, Universities, Markets and the Future of Legal Scholarship’ in Fiona Cownie (ed), The Law School – Global Issues, Local Questions (1999) at 66. Similarly, Paul Havemann and Jacquelin Mackinnon describe how universities once aspired to pursue scholarship and education for their intrinsic worth and valued pure research and the development of moral character. But such universities have long since been displaced in most OECD countries by under-funded mass higher education systems. Although many universities aspired to offer greater equality of access; to provide education adapted to a great diversity of individual qualifications, motivations, expectations and career aspirations; to facilitate the process of lifelong learning; and to serve their local communities and the economy, these values and aspirations had been eroded by corporatism and the immediate need for market relevance: ‘While the 21st century student body is heterogenous as to qualifications, motivations, expectations and career aspirations, most these days come to university to get ahead, to become the ‘clever people’ and ‘wired workers’ of the information age.’ Paul Havemann & Jacquelin Mackinnon, ‘Synergistic Literacies: Fostering Critical and Technological Literacies in Teaching a Legal Research Methods Course’ [2002] LegEdRev 4; (2002) 13 Legal Education Review 65 at 66–67.

[55]Charles Sampford & Suzanne Condlln, ‘Educating Lawyers for Changing Process’ in Charles Sampford, Sophie Blencowe & Suzanne Condlln (eds), Educating Lawyers for a Less Adversarial System (1999) at 173; Andrew Stewart, ‘Educating Australian Lawyers’ in Charles Sampford, Sophie Blencowe & Suzanne Condlln (eds), Educating Lawyers for a Less Adversarial System (1999) at 132.

[56]Contract law, tort law, real and personal property law, equity (including trusts), criminal law and procedure, civil procedure, evidence, professional conduct (including basic trust accounting), administrative law, federal and state constitutional law and company law.

[57]This is most apparent in the ‘third-wave’ law schools (the 16 law schools established subsequent to the 1987 Pearce Report): given their need to maximise the employability of their graduates, most ensure that their compulsory curriculum includes the requisite areas of knowledge. Although the ‘first-’ and ‘second-wave’ law schools are less likely to include the 11 areas as part of their core curriculum, the elective law subjects that are required for admission effectively become compulsory law subjects because the students who do not intend to practise law are usually aware that, should they later decide to practise, they would otherwise be required to pass additional courses. Sam Garkawe, ‘Admission Rules’ (1996) 21 Alternative Law Journal 109 at 110.

[58]Marginson, above n15 at 57.

[59]Toddington, above n32 at 243.

[60]Goldsmith, above n54 at 71.

[61]Craig McInnis & Simon Marginson, Australian Law Schools After the 1987 Pearce Report (1994) at 16. Law schools are cheap institutions to fund compared with other faculties within the university; staff-student ratios in law schools are typically high due to the traditional teaching model of large lecture classes supported by tutorials: Brand, above n43 at 119.

[62]Goldsmith, above n54 at 73. By 1995, law had become the third-fastest growing discipline after health and business: Sumitra Vignaendra, Australian Law Graduates’ Career Destinations (1998). In a peak growth period between 1988 and 1992, growth in law and legal studies places (60.7 per cent) exceeded both business (50.4 per cent) and health (49.3 per cent), against a base in all disciplines of 33.9 per cent: McInnis & Marginson, above n61 at 15.

[63]Brand, above n43 at 119–120.

[64]McInnis & Marginson, above n61 at vii.

[65]David Weisbrot, ‘Recent Statistical Trends in Australian Legal Education’ (1990–[1991] LegEdRev 11; 1991) 2 Legal Education Review 219 at 219.

[66]In ‘Truth and Power’ Foucault wrote: ‘But it seems to me now that the notion of repression is quite inadequate for capturing what is precisely the productive aspect of power. In defining the effects of power as repression, one adopts a purely juridical conception of such power; one identifies power with a law which says no – power is taken, above all, as carrying the force of a prohibition. Now I believe that this is a wholly negative, narrow, skeletal conception of power, one which has been curiously widespread. If power were never anything but repressive, if it never did anything but to say no, do you really think one would be brought to obey it? What makes power hold good, what makes it accepted, is simply the fact that it doesn’t only weigh on us as a force that says no, but that it traverses and produces things, it induces pleasure, forms knowledge, produces discourse. It needs to be considered as a productive network which runs through the whole social body, much more than as a negative instance whose function is repression.’ Michel Foucault, ‘Truth and Power’ in James D Faubion (ed), Power: Essential Works of Foucault 1954–1984 Volume 3 (2002) at 120. Foucault wrote: ‘We must cease once and for all to describe the effects of power in negative terms: it “excludes”, it “represses”, it “censors”, it “abstracts”, it “masks”, it “conceals”. In fact, power produces; it produces reality; it produces domains of objects and rituals of truth. The individual and the knowledge that may be gained of him belong to this production’: Michel Foucault, Discipline and Punish: The Birth of the Prison (1991) at 194.

[67]The word ‘subject’ as used by Foucault has two senses: people are both subjects (self-conscious beings) but they are also subjected (power acts produce subjection). Hunt & Wickham, above n11 at 29.

[68]See Foucault, above n5.

[69]See Michel Foucault, ‘The Subject and Power’ in Faubion above, n66.

[70]Margaret Thornton described these hierarchical arrangements as follows: ‘In accordance with the corporatised script, the Vice-Chancellor has become the CEO of the university. He – and the corporatist culture is one that remains antipathetic towards the feminine – sits at the apex of what has become a rigid pyramidal structure. [He] is supported by one or more deputy vice-chancellors and a bevy of pro-vice-chancellors. This group of senior managers, rarely seen by the rank and file, is nevertheless able to induce a sense of domination of the entire organisation. At middle management level, a new layer of control has appeared in the form of mega-deans, who manage mega-faculties, then deans of faculties or schools, heads of departments, as well as heads of disciplines and sub-disciplines. There are also senior academics, who act as supervisors/appraisers of individual staff and whose role is to effect greater productivity, particularly in terms of research output and grant income. The network of relationships that criss-crosses the university is reminiscent of feudalism for every person owes fealty to someone above who, in turn, has a supervisory duty towards those below.’ Thornton, above n19 at 2.

[71]Reinforcement which is typically verbal rather than textual, implied rather than explicit and conducted not only by administrators but by and amongst the administrated themselves.

[72]Toddington, above n32 at 244.

[73]See Brand, above n43 at 124.

[74]From the Johnstone Report: ‘Many interviewees and focus group participants thought that student teaching evaluations are used as a stick to manage teaching quality in law schools. Some thought that staff’s attempts to be creative, innovative and experimental in their teaching were inhibited in order to obtain good evaluations from students. Some reported that under these conditions, this just encouraged teachers to stick to tried and trusted methods such as straight lecturing and other forms of spoon feeding in order to ensure that their student ratings were high enough to ensure their tenure or promotion.’ Johnstone & Vignaendra, above n25 at 335.

[75]Foucault, Discipline and Punish: The Birth of the Prison, above n66.

[76]Foucault wrote: ‘The analysis ... should not concern itself with the regulated and legitimate forms of power in their central locations ... On the contrary, it should be concerned with power at its extremities ... with those points where it become capillary ... one should try to locate power at the extreme points of its exercise, where it is always less legal in character.’ Foucault, The Will to Knowledge: The History of Sexuality 1, above n2 at 96–97.

[77]Thornton, above n19 at 3. Thornton also observed that University codes of conduct ‘may be used to inhibit dissent. On their face, such codes appear benign with their references to fairness, rights and the non-discrimination principle, but the threat of initiating disciplinary proceedings against those who question university policy illustrates how such codes can be used as a sword rather than a shield. Codes of conduct, furthermore, are designed to deal with the conduct of employees rather than the broader institutional and ethical issues of governance. That is, their focus is directed downwards to the conduct of the managed, never upwards to that of the managers.’ Id at 3.

[78]Foucault wrote: ‘Where there is power there is resistance and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power ... These points of resistance are present everywhere in the power network. Hence there is no single locus of great Refusal, no soul of revolt, source of all rebellions, or pure law of the revolutionary. Instead there is a plurality of resistances, each of them a special case; resistances that are possible, necessary, improbable; others that are spontaneous, savage, solitary, concerted, rampant or violent; still others that are quick to compromise, interested, or sacrificial; by definition they can only exist in the strategic field of power relations.’ Foucault, The Will to Knowledge: The History of Sexuality 1, above n2 at 96.

[79]As Andrew Goldsmith wrote in ‘Standing at the Crossroads’: ‘In terms of the consequences of new directions in law teaching and support for non-traditional forms of scholarship, there are signs that those committed to innovation or diversity will be hindered, rather than unleashed, by this ideological shift ... It is crucial we do not lose sight of intellectual debates and especially the role of critical reflection in university education, among the demands for relevance, vocationalism and efficiency in the delivery of legal education.’ Goldsmith, above n54 at 63–64.

[80]Gil Boehringer, ‘Resisting Pearce: The Significance of the Review of Macquarie Law School – the Role of Macquarie’s Progressives’ (1988– 1989) 5 Australian Journal of Law and Society 93.

[81]Goldsmith, above n54.

[82]Lancaster, above n37.

[83]Morgan, above n40.

[84]Margaret Thornton, ‘Law as Business in the Corporatised University’ (2000) 25 Alternative Law Journal 269.

[85]Thornton, above n19.

[86] Goldsmith, above n54 at 62.

[87] Johnstone & Vignaendra, above n25 at 322.

[88]Dissatisfaction with and opposition to the rise of corporatism is certainly not limited to the law school. The National Tertiary Education Union’s Occupational Stress in Australian Universities: A National Survey 2002 concluded that the overall level of strain reported by Australian university staff generally was very high by comparison with national and occupational norms. Half of the university staff surveyed were identified as being at risk of developing a psychological illness such as anxiety or depression. This is compared with a corresponding rate of 19 per cent amongst the general adult population: Winefield et al, above n48 at 10. The overall job satisfaction reported by academic staff was low. Only 61 per cent of academic staff were satisfied with their job as a whole, while 33 per cent were dissatisfied: Id at 10. Features of the job that staff were most dissatisfied with were the way their university is managed; their chance of promotion; their rate of pay; and industrial relations between managers and staff. A significant proportion of staff were also dissatisfied with their working hours; recognition for good work; and attention paid to their suggestions. Nearly a third of staff were dissatisfied with their immediate boss; their opportunity to use their abilities; their job security; and their physical working conditions. Id at 37.

[89]It is not suggested, however, that the law school is cleanly divided into warring tribes of teachers and students, each allied to a distinct discourse. An individual may sometimes be influenced by a single discourse but more often individual law teachers and law students are influenced by more than one legal education discourse and these discourses either compete or cooperate within the individual’s subjective experience and actions.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback