‘On behalf of all the members of the management team may I, therefore, thank you all for showing such admirable passivity throughout the year. Your readiness to sit back in silence and take anything that was thrown at you is greatly appreciated.’ The Vice-Chancellor (signed in his absence by Mrs. G.W. Dobson)

(Taylor 2002: 36).

The Market Metanarrative

Corporatisation has induced a cultural shift in our understanding of the traditional idea of the university. In Chapter 1, I referred to the hybridity of the university, which is no longer either public or private, as government funding has been reduced and control increased. Corporatisation has induced substantial differences between universities: privileging the global over the local, research over teaching, the metropolitan over the regional and the Old over the New. The appearance of for-profit institutions, universitiesfor-industry and virtual universities are all variations of corporatisation (Blass 2001). While my interest has been in public universities, these new forms are hastening the transformation of the university, which no longer has a stable meaning, but refers to:

a network of knowledge-based institutions in a state of continual flux. The relationship of any particular university to its host society, at any given moment, may be adaptive, or catalytic, or parasitic, or symbiotic. It may be radically transformative, or radically conservative. And it may be all of these things at the same time: a heterotopia in which multiple purposes are pursued.

(Sharrock 2002: 178)

It is no longer clear what universities are for. Should they be primarily teaching/learning, research only or comprehensive teaching/research institutions? These choices have been disrupted by a third strand: entrepreneurialism, which was never envisaged by Humboldt or Newman, but which has insidiously inserted itself as a key aim of the contemporary university. There is uncertainty as to how this strand sits with teaching and research, but it cannot be ignored despite the dystopian effects of the market. What is clear is that the uni-versal has gone from uni-versities. They are now ‘poly-versities’ or ‘businessversities’ (Thomas 1997: 18).

The pressure on universities to be more productive and relevant has undoubtedly had positive effects in connecting universities with their communities. Access to higher education has also increased so that many people have opportunities denied to their parents’ generation. The downside is the deleterious impact of the market on the idea of the university as a public good, the corrosion of liberal education and academic freedom, and the way the personal experience of academic life has been diminished:

Although the pay was not so great, at least you had a reasonable amount of time. You’d have a reasonable holiday; you’d be able to spend that little bit more time with your family. But all of that has stopped; it’s all gone and we’re expected to perform very much as though we were working in city firms – but not for the same remuneration or status.

(Lecturer, male, Redbrick, UK)

The culture has changed with remarkable rapidity, interviewees noting a sense of academic impoverishment that crystallised in less than a decade. There is an undeniable tension between the traditional idea of the pursuit of knowledge motivated by a sense of curiosity and the pursuit of knowledge for its functional value to an identifiable end user. This is despite the fact that academics are more research active than ever before although, as suggested in Chapter 5, the primary aim is to publish to be counted rather than to be read.

The increased scrutiny of teaching has also had positive side-effects in exposing incompetence, although teaching audits tend to focus on form rather than substance. The imposition of the isomorphic template constrains creativity in favour of a middle-of-the-road conformity, underpinned by student evaluations and satisfaction surveys, which may amount to little more than a popularity contest. Lecturers who challenge students intellectually are likely to be rated less highly than those who merely summarise the textbook and regale the class with anecdotes. Auditing also fails to address the burdens of massification and administration. Indeed, as auditing emerged at the same time as the exponential increase in student numbers, a cynic might suggest that it was specifically designed to deflect attention away from the problems inhering within the shift from an élite to a mass system.

So powerful is the market metanarrative that it has effectively ruled out the possibility of doing things differently. Individual academics grumble about the state of affairs, but believe, for the most part, that they are powerless to resist. They aver that their deans and heads of school should have been more resistant; while the latter believe that their hands were tied, trying to pass responsibility up the line, arguing that VCs should have taken a stronger stance against the demands of the state. VCs argue in turn that it is not their fault, but that of the government or the electorate.1 Governments then claim that they were constrained because the public purse is finite. The attempt to slough off responsibility at each level reveals how the transformation of the idea of the university is enmeshed within a web of power that is impossible to disentangle. Neoliberal governments have been prepared to compromise their fiduciary role in relation to public education while struggling to attain a competitive edge in the global New Knowledge Economy.

The distinctive cultural and social mores associated with the traditional idea of the university helped to retard market creep initially, but it did not suffice, as government funding was incrementally reduced and ever-increasing numbers of students were admitted to generate income. The realisation that the commodification of higher education could generate billions of dollars ensured that old-fashioned scruples did not stand in the way of radical change. Spurred on by the lure of economic globalisation and encouraged by the OECD (1996; Connell 2004), government policy became progressively more interventionist in effecting the paradigm shift involved in transforming higher education from public good to private responsibility. Turning the screws a little tighter each year and subjecting parsimonious funding to competitive and rigorous conditions compelled compliance. Government is not just the driver of this marketised universe, but a major player: ‘governments increasingly regard themselves as the biggest and most powerful customer, buying student places and commissioning useful research’ (Gibbons et al. 1994: 81).

The interventionist policies adopted by governments to compel compliance are mirrored within the university hierarchy: by the central administration in its relationship with faculties, by faculties towards their constituent schools, by schools towards departments and by departments towards centres and individual academics. A web of subinfeudation ensures that every person is answerable to someone above while overseeing someone below. In this way, governmentality is entrenched and normalised.

Why haven’t concerned citizens outside the academy spoken out? The neoliberal market metanarrative, it would seem, is pervasive. Clive Hamilton and Richard Denniss’ book, Affluenza (2005), represents a biting critique of the way the market has come to dominate the lives of ordinary citizens in contemporary Western society. This study focuses on the prevailing passion for the acquisition of material goods and hedonistic lifestyles, rather than the protection of public goods such as education.

A significant conditioning factor associated with the commodification of higher education is the community acceptance of state funding of private schools, particularly at the secondary level, because these schools act as feeders into the tertiary sector.2 Many parents believe that their children will receive a superior education if they pay high fees to attend a private school. The neoliberal ideology that private is superior to public has created a mindset that is receptive to the privatisation of public institutions, including higher education. The market ideology has become so deeply embedded that public debate has been largely confined to the question of access, which is understood in terms of vocational training. The undervaluation of legal scholarship reflects the disregard for intellectual work within the wider society more generally.

A user-pays philosophy inevitably casts a shadow over higher education, particularly for those with a commitment to social justice. However, fees, or ‘higher education contributions’ as they are euphemistically known in Australia, are rationalised as a means of enabling the continuation of small-group teaching and administrative support, with the salve of increased salaries for academics and a few scholarships for needy students. For the most part, confronting and interrogating the effects of the transformation of higher education from public good to private commodity is just too hard. Indeed, the relentless supply/demand means/ends vectors of the market militate against reflexivity and an ethical sensibility: ‘[c]orporate culture lacks a vision beyond its own pragmatic interests and seldom provides a self-critical inventory about its own ideology and its effects on society’ (Giroux 2002: 440).

Despite the rhetoric encouraging for-profit corporations to be good corporate citizens, this is a gloss on their primary profit-making goal. When not-for-profit organisations enter the market, profit-making generally exercises a distorting effect on their core business. The US Ivy League universities uniquely manage to balance their competing public and private goals. Not only have they had centuries of experience, their marketing is subsumed into the billions of dollars they have in assets and reserves (despite the impact of the GFC), which continues to be supplemented by philanthropy and alumni loyalty. Cultures which lack such a tradition and which continue to regard education as a public responsibility cannot transform themselves overnight into trading corporations without disastrous side-effects.

The myth of the level playing field, or the principle of ‘competitive neutrality’ (McMahon 2001), occludes the vast differences between institutions in terms of age, prestige and resources. The market has thereby enabled me to consider the neoliberal law school as a distinct phenomenon. Although I have used the Australian example as a paradigm, marketised features of the neoliberal law school are clearly replicated elsewhere, as illustrated by my interviews in the UK, New Zealand and Canada.

Doughnuts in the Legal Academy

In this study, I have sought to show how the market has impoverished the law curriculum, commodified research, transformed students into customers, reduced academics to auditable performers and generally encouraged a lowest common denominator approach. Economic rationality has compelled the university to move to a plane where an entirely new constellation of values operate.

The neoliberal law school has produced what one Canadian legal academic described as the ‘doughnut approach’ to the curriculum: ‘You worry about all the fancy stuff on the outside, which is actually quite bad for you, but there is a big hole in the middle’ (Prof and former AsDean, male, Can). What this professor was alluding to was the way attention has been deflected away from basics like the core curriculum and class sizes (the big hole) to the periphery (the icing): ‘What they should be good at apparently are things like having six seminars in “Recent Trends in International Trade Law”. Nobody else has six; they only have two, so we are better than them’. The vacuousness of this only slightly exaggerated scenario brings us back to isomorphism or McDonaldisation – that the product needs to be essentially the same as that offered by competitors in the market but with an extra bit of fancy stuff to distinguish it. The substance is of little consequence so long as the brand possesses some identifiable difference that will give it a cachet to attract customers.

Students soon acquire an understanding of the market mentality, and their cynicism is underscored by the realisation that there is little concern on the part of the university for them, other than in terms of the dollars they bring in. The quality of the legal education that most are receiving has declined. The move away from small-group teaching to the anonymity of large lectures and the skewed nature of the curriculum are notable illustrations. Having imbibed the market message, students choose to spend as little time as possible on campus. Lectures can generally be bypassed altogether as they are likely to be available online, and tutorials, even when offered, are regarded as optional. Essentially, what they are paying for is credentialism: get the piece of paper as quickly as possible in order to start earning money.

Overflowing lecture theatres, scant opportunity for interaction and online delivery are typical of teaching in the contemporary academy. Although élite universities claim a monopoly on excellence, they have no compunction in cutting classes in order that academics might devote more time to research. Moreover, the student/customers rarely demur when a semester is reduced from 13 weeks to 10, tutorials disappear, written assignments are truncated, research essays are abolished and 1-week intensives replace semester-long subjects. This means less work for them, as well as the possibility of qualifying for their degree in a shorter time. Thus, both academics and students have become neoliberal subjects in a system orchestrated by the state and managed through auditing regimes. While Canada does not have national research and teaching quality regimes and the regulation of higher education is a provincial responsibility, universities have their own standards of productivity and performance like research-based US universities. National and international league tables also represent a powerful force for standardisation.

The end of the binary system and disciplinary deregulation led to an explosion in the number of Australian and UK law schools, but questions vital to the public good received short shrift. Absent have been questions such as: How many law schools should there be? How should they be funded? How many law graduates should there be? How should they be educated and for what purpose? These questions are ineffable in a system governed by consumer demand and ‘choice’. The proliferation of law schools all doing more or less the same thing in the absence of planning and cooperation has resulted in duplication and waste. While the Olds can expect to make up for shortfalls in government funding by attracting high-fee payers, the News are struggling, forced to take in ever weaker cohorts of students and to cut corners wherever they can.

The Olds have been able to capitalise on their positional goods, which provide them with a buffer against adversity. It is nevertheless paradoxical that those institutions which have benefited most from public support over a century or more have tended to embrace the privatising imperative most ardently and students still flock to them regardless of the quality of the education they offer. The parlous finances of the News has induced a focus on short-term goals, such as get-rich-quick schemes to reduce the deficit, rather than fostering a viable research culture that would pave the way for the development of esteem factors. Bringing the market to law school has resulted in a social Darwinist survival of the fittest milieu. Furthermore, it has had the indirect effect of reinscribing the binary divide between universities and the former colleges of advanced education or polytechnics in Australia and the UK.

Academic Morale

Interviewees spoke about the decline in morale and the depression induced by the relentless pressure to compete and be entrepreneurial: ‘You’ll get a Brownie point and money if you would just put in an application for a grant’ (Snr Lecturer, fem, New, Aus). Academic morale has been deleteriously affected by the perennial demands to do more with less – ever-increasing numbers of students and ever-decreasing resources. A study of British academics revealed that 69 per cent found their job stressful and 47 per cent considered leaving higher education (Kinman and Jones 2004). The global transformation of corporate workplaces, marked by downsizing and increased workloads, has resulted in heightened stress levels everywhere. The hypercompetitive ethos of the contemporary corporatised university is now comparable to that of any other for-profit corporation because of the same desperate desire for profit-making and cost-cutting:

I feel that there is obsessiveness within the university with trying to make money, which is obviously created by financial stress. Everything I hear, every pressure I hear, really comes mostly from the perspective of making money, not from the perspective of quality work … My whole working life has been influenced by not enough money, not enough money to go to conferences, not enough money really to do anything … trying to work out what we are going to cut from our library serials.

(Snr Lecturer, fem, Generation3, Aus)

Within an already unstable environment, staff are subjected to dramatic changes of policy, especially when an incoming dean has found that he or she has been offered a ‘poisoned chalice’. At one Australian school, there were four deans in eight years, each with a different modus operandi, which resulted in a ‘phenomenal amount of non-productive work’, such as rewriting course materials again and again to accommodate changes in delivery styles – from lecture/tutorial to seminar to lecture only. The lack of continuity inevitably affected morale and contributed to a loss of research focus. The fickleness of change in university policy and the need to respond quickly to the ever-changing demands of government has also contributed to the sense of instability:

I’ve been in this job for at least ten years and we’ve had about five long-term plans. It seems to be policy on the run, which is not necessarily a fault of the administrators involved but there seems to be this gradual squeezing of funds by government and the necessity to source them from elsewhere, which is why we seem to have seen blueprints and new visions every couple of years … this can be quite disruptive. If you are told, this is all the go now and we are all publishing, then the new blueprint suggests that we’ve got to teach more. We tend to get mixed messages constantly.

(Lecturer, male, Generation3, Aus)

As discussed in Chapter 4, the pressure of the market has corroded collegiality, which has significant ramifications for collaboration and the intellectual wellbeing of a school, as well as for the future of legal scholarship. Instead, decisions are made unilaterally by a dean, head or executive committee, because of the need for instantaneous responses. Since the rationale is financial and political, rather than academic or intellectual, academics feel that neither their expertise nor their experience is valued any more:

Collegiality and morale have been at an all time low for the last couple of years. There are a number of reasons particular to this institution – a budget thing but, generally in conversation with my colleagues, what they have all remarked on is that they don’t feel valued by the institution at all. It doesn’t really matter what they do in terms of research or teaching or administration; there is just a never ending expectation that they will do more and that whatever they do is not enough.

(AsPro, fem, Sandstone, Aus)

Unless scholarship can be shown to have some demonstrable use value within the market, it is discounted. ‘Blue sky’ research, which underpins most of the world’s great discoveries and insights, is treated dismissively because of the demand for ‘outputs’ or, better still, ‘inputs’ (the money to conduct the research). Those who were generating money for the institution felt that was the only reason they were tolerated. If a transfer within the university from law to either humanities or social sciences was possible, that is what some of them sought. There, they felt the culture was less single-mindedly directed towards profit-making, and scholarly ideals commanded more respect. Some law schools with a committed dean or group of senior staff have clung to the remnants of collegiality, while others have embraced corporatisation with zest. The adherents of a collegial way of doing things are less than appreciative of the makeover: ‘If you want to be corporate, you go and work in a big corporate law firm’ (Dean, male, NZ).