Research in the Corporatised University
I’m not convinced that great ideas come out of universities. I’d like to produce some interesting ideas, but the trade-off is that you have to have some sort of income, a way to pay the bills, but I don’t really see the university as a place to think up the most interesting ideas.
(Lecturer, male, Redbrick, UK)
Research is a relatively recent function of the university and was not an integral dimension of Newman’s idea of the university. However, it was associated with Wilhelm von Humboldt and the University of Berlin, which he founded in 1810 (Humboldt  1969: 54). Higher degrees by research also emerged from the Humboldtian tradition. Even then, research meant mainly empirical research associated with science and medicine. With the advent of the modern university, the understanding of research across disciplines has widened significantly, embracing a range of epistemologies and methods designed to contribute to the stock of knowledge in new ways.
Law was slow to become a research-active discipline. Provided that legal academics did their teaching and played the role of good university citizen, no one worried unduly about research (Cownie 2004a: 160–61; 2004b, Bradney 2003: 110–13). Training for the legal profession was the primary mission of the law school and if there were advertence to research at all, it was as a corollary of teaching or practice, although desultory publication occurred. The poor law collections still common in many university libraries attest to the marginality of research within the legal academy (e.g., CALD 2000: 18). When new law schools were established and LLB programmes formulated, their focus was similarly on teaching, not research
The conjunction of the New Knowledge Economy and the desire of the law discipline to be accepted as a legitimate member of the academic community have resulted in a scenario where virtually all academics are expected to be ‘research active’. The fundamental ambivalence about the nature of legal research nevertheless remains. The problem is an epistemological one, because of the way ‘the common law mind’ constrains how legal academics think about law (Sugarman 1986). Doctrinalism, inductive reasoning, exposition and precedent contribute to a culture of intellectual self-referentialism that is antipathetic towards the possibility that orthodox legal knowledge might be subverted.
Although the common law is far from being caught in a seventeenth-century time-warp, the adjudicative convention rarely traverses beyond stare decisis and the jurisprudential canon. Julius Stone (1968) addressed the conundrum as to how the common law simultaneously changes while essentially staying the same. He showed how judges are able to accommodate change, including criticism, through the leeways of choice and categories of illusory reference, which involve the selective use of precedent, analogistic reasoning and other hermeneutic devices.
Legal doctrinalism illustrates well what Gibbons et al. refer to as Mode 1 knowledge in their analysis of knowledge production (Gibbons et al. 1994). Mode 1 knowledge refers to traditional disciplinary knowledge, whereas Mode 2 calls into question the adequacy of orthodoxy. Mode 2 encapsulates the complexity of knowledge production in the context of contemporary social problems, thereby acknowledging that it is impossible for a single discipline to provide adequate solutions unaided. Mode 2 therefore adopts a holistic approach to social problems. Thus, to address an issue such as domestic violence, Mode 1 would rarely look beyond the traditional parameters of the criminal law, as appearing in codes, legislation and case law, whereas Mode 2 might look at the context of gender relations in light of feminist, criminological, sociological and public policy scholarship, which would include paying attention to the voices of the victims. It can readily be seen that the solutions and types of knowledge produced in each case are likely to be quite different and that a Mode 1 approach would offer little other than a short-term legalistic response. Rather than mono-disciplinary or even multi-disciplinary knowledge, Gibbons et al. suggest that the new incarnations of knowledge are better described as ‘transdisciplinary’ (Gibbons et al. 1994: 5). The descriptors associated with Mode 2 knowledge production – context, heterarchy, reflexivity, sociality, breadth and transience – all serve to corrode the certainty and stability associated with Mode I (Gibbons et al. 1994: 1).
Although there are many shades of legal positivism, the idea that law is a neutral body of rules that can be applied universally is central (e.g., Campbell 1996; Raz 1979; Hart 1961; Kelsen 1961). In claiming to be largely separate from politics, history, sociology and other social forces that animate it, the classic form of legal positivism endorses the idea that law is not only a closed system of knowledge but is also superior to other forms of knowledge. This defensiveness hints at the insecurity and fragility of the law discipline in the face of critique compared with the humanities and social sciences (cf. Arthurs Report 1983: 63; Twining 1994: xix). The fact that there has been conventionally little interrelationship between legal scholars and other disciplines attests to law’s isolationism. Law, nevertheless, can never be a truly autonomous discipline that is free of the social (Sullivan 2001–2: 1219). Its autonomy is a figment of the common law mind, which is dismissive, if not downright hostile, towards Mode 2 legal scholarship. The liberal law school has struggled to escape the thrall of the common law mind and secure acceptance within the wider academy. The conflict between academic and professional prescripts has induced a perpetual state of schizophrenia within the legal academy.
As suggested in Chapter 3, social liberalism was an important catalyst for modernisation. Wide-ranging inquiries were conducted into the discipline of law in the decade from the early 1980s in Canada (Arthurs Report 1983), Australia (Pearce Report 1987) and the UK (ACLEC Report 1996), which represented a watershed in terms of law as a scholarly discipline. All reports were critical of the way legal scholarship was diluted by the practical training of lawyers. The recent chronology of these reports underscores the fragility of the legal research culture and its tentative reaching out towards Mode 2 knowledge.
Spurred on by social liberalism, modernity and the desire by law schools to be accepted as fully-fledged members of the academic community, legal research and publishing burgeoned during the 1980s and 1990s in ways that were formerly unimaginable. A wealth of different perspectives, methodologies and theories animated a new generation of legal scholars, who were inspired by social liberalism and the correlative push towards modernisation.
In light of the struggle by the adherents of Mode 1 to hold onto traditional conceptualisations of legal knowledge in the face of exhortations by the adherents of Mode 2 to embark on new directions, new schools of thought emerged. There have been notable ideological rifts in university departments of economics, philosophy and English, as well as law, regarding the nature of knowledge. The control exerted by the legal profession in terms of the requirements for admission to legal practice has ensured the continued dominance of Mode 1 in law, despite the challenges produced by broader, reflexive and ethical approaches. If the legal literature moves too far away from the practical concerns of the legal profession, academics are quickly taken to task (e.g., Edwards 1992). The disciplining of the legal academy has been traditionally conducted by the profession, although students, university administrators and the media may all play a role.
Despite the contemporary ascendancy of Mode 1 legal knowledge, it too has a relatively short lineage. Andrew Vincent argues that law and politics were intricately interwoven for two millennia and were only decoupled at the turn of the nineteenth century (Vincent 1996: 122–23). Once professional law schools were established, the teaching of doctrine assumed centre-stage and the boundary between the legal and the social was vigorously policed, although the social sciences had begun to affect the ivory towered law school in the US by the time of World War I (Stevens 1983: 134–35). Of course, the ancient field of jurisprudence has always been concerned to interrogate and disturb the technocratic carapace of law by adroitly raising issues of justice and morality. As William Twining points out, it is the one area of law that is genuinely multi-disciplinary (Twining 1994:116).
A notable challenge to what had become a closed and formalistic system of knowledge was effected by the Legal Realists in the 1920s, 1930s and 1940s in the US, particularly at Columbia and Yale, but was strongly resisted (Kalman 1986; Stevens 1983: 136–56; Twining 1967; Llewellyn 1951). Subsequent progressive movements have been similarly attacked by traditionalists in other common law countries. In the UK, socio-legal scholars were marginalised from the early 1970s, until they came into their own in the late 1980s (Thomas 1996: 1; Harris 1983). In Australia, the resistance towards critical socio-legal scholarship at Macquarie Law School during the 1980s and 1990s (AJLS 1988–90)) and La Trobe during the 1990s and 2000s was intense, resulting in the marginalisation, segregation or redundancy of disfavoured scholars.1 The clear message for more than a century has been that law should be quarantined from the social.
William Twining suggested in Blackstone’s Tower (1994: xix) that the study of law was being reabsorbed into the mainstream of intellectual life. A decade or so later, I am somewhat sceptical in light of the narrowing of legal knowledge that has occurred as a result of the neoliberal turn. While there are manifestations of vibrancy in social research and popular culture, legal writing generally remains a largely arcane field to those outside the discipline.
Law represents a highly contested terrain because of the way the presuppositions of doctrinalism (Mode 1) favour vested interests and the dominant capitalist ideology, while a critical socio-legal approach challenges those interests. Hence, there is hesitancy about going too far. As Fitzpatrick notes (1995: 106), the ‘social’ in socio-legal studies has been remarkably under-examined; as well as highly contested (Wheeler and Thomas 2000). Provided that the knowledge transcends the ‘legal’ in the Mode 1 sense, almost anything would seem to be admissible. However, the containment of the ‘legal’ is itself highly problematic as the tendency of Mode 2 is to reject a clear line of demarcation. In any case, law is necessarily a social practice (Sullivan 2001–2: 1220), which means that doctrinalism can never be immunised entirely from the social.
While the socio-legal may be subtly influenced by the ideas and methods of the humanities and social sciences (Bradney 2003: 124), it may go much further and view a problem through the lens of a specific discipline, such as philosophy or history. However, Mode 1 legal knowledge is dismissive of interdisciplinary perspectives, as Ian Duncanson (1996: 80) points out: ‘To be authentic, an understanding of law must be from a lawyer’s point of view and that that privileged perspective can probably be achieved only by someone who has a lawyer’s credentials’. The resistance to external critiques of law means that interdisciplinarity is halting and uncertain, as with the embrace of the social generally. It may be tolerated in an instrumental sense, such as the idea that law and psychology would produce a better criminal lawyer, or law and economics would produce a better commercial lawyer, whereas the critical outsider position, to which Duncanson adverts, is viewed with suspicion.
Sociology of law, associated primarily with the continental theoretical tradition (Treviño 2001; Harris 1983), critical legal studies (e.g., Kairys 1982) and law and society (e.g., Garth 1998) with the US anti-formalist traditions, represent other cognate perspectives, which are designed to illuminate and advance an understanding of law. These approaches are all multiperspectival, and include Marxist, feminist, post-structural, as well as multi-disciplinary epistemologies and methods.2 Travers (1993) has nevertheless suggested that sociology of law is a long way behind developments in, say, the sociology of health or the sociology of education. This may be due to law’s resistance to external critique and the fact that internal critique by ‘authentic’ legal knowers is constrained by doctrinalism and instrumentalism. It is notable, however, that the leading nineteenth-century sociologists – Marx, Durkheim and Weber – all recognised the centrality of law and legal institutions to social ordering. In recent times, law and literature, law and economics, critical race theory, feminist jurisprudence and a host of ‘law and … ’ perspectives have enriched legal scholarship.
The indeterminacy of the socio-legal, emphasised by the multiplicity of perspectives that fall within its rubric, has induced Fiona Cownie to claim in respect of the UK legal academy that ‘We’re all socio-legal now’ (Cownie 2004c: 1), echoing earlier refrains, such as ‘We are all contextualists now’ (McAuslan 1989: 313) or ‘We are all Realists now’, but never ‘We are all crits now’ (Gava 1988–89). While only half the respondents in Cownie’s study described themselves as socio-legal, she felt that the proportion was in fact much larger but there was a hesitancy on the part of some respondents to describe themselves as such, as they equated socio-legal with empirical research (Cownie 2004a).3 Provided that one adheres to a basic principle of the recipe: ‘add a spoonful of social and stir’, it would seem that the socio-legal descriptor applies and the critical ingredients are incidental. Shanahan aptly questions the extent to which legal academics invoke social theory knowingly or whether they are mere dilettantes (Shanahan 2002: 23; cf. Kerruish 1988: 169).
The degree to which socio-legal necessarily entails both a theoretical and a critical stance remains contentious. The contributors to Philip Thomas’ edited collection of essays on the state of socio-legal research in the UK in 1997 were dismissive of the atheoretical, methodologically weak, empirical, bland and fund-driven phenomenon that passed for socio-legal, which is described as ‘a poor shadow of the possibilities’ (Bottomley 1997: 171). This add-the-social-and-stir approach also fails to address how the corporatisation of universities has induced a move away from disinterested knowledge towards the commodification and exploitation of knowledge, as Richard Collier suggests (2004: 517–19). In deploying socio-legal as the key marker of methodological and epistemological diversity, Collier, like the contributors to the Thomas collection, implies that Bradney and Cownie may not have paid sufficient attention to the critical dimension of socio-legal scholarship.
I nevertheless agree with Bradney and Cownie that most legal academics would acknowledge that black letter law no longer suffices, despite the rearguard action to save it and that advertence to the social, however minimal, is challenging if not changing the nature of Mode 1 legal knowledge. At odds with this trend is the favouring of a depoliticised non-critical approach to legal scholarship as a manifestation of the neoliberal turn, the impetus of which discourages a focus on the social, as discussed in Chapter 3. Empirical socio-legal research may comport with the applied orientation of the corporatised university (Collier 2004: 525–28), although the time-consuming nature of empirical research is at odds with the neoliberal imperative to produce articles quickly (Hillyard 2007: 270). It is notable that the pendulum swing has occurred just when law was experimenting with forays into critique, which has inhibited, if not stifled the new imperative altogether.
The move to deploy the law school as an enterprise facilitator, along with schools of business and management, has been marked. The hard jurisprudential and ethical questions about the nature of corporate practice are no longer welcome, as I have suggested in discussion of the law curriculum. They are discomfiting in an institution itself committed to entrepreneurialism.
The amalgamation of law and business schools within mega-faculties has also had the propensity to contract the space accorded the social. Business schools themselves are experiencing a similar phenomenon as the prudential is sloughed off, and social science academics are also being cast aside as their subjects are shed (Butler 2006: 25). Thus, while we might all appear to be socio-legal now, the propulsion away from the social with its disturbing questions and space for an ethical sensibility is a powerful imperative on the part of the neoliberal state, as played out through government research policies and the practices of the corporatised university.
The divisions between doctrinalism and the socio-legal, particularly in the case of radical critiques, regarding what should be taught and what should be valued have sometimes been acrimonious.4 While the liberal carapace of the academy occludes these tensions, they flare up at other times, such as in the process of curriculum review, the choice of research metrics in auditing schemes and the establishment of priority research areas.
The shift from social liberalism to neoliberalism illustrates the permeability of the dividing line between Modes 1 and 2 and its receptiveness to the prevailing political mood. In some institutions, the dominant doctrinal perspective continues to prevail. One Canadian interviewee found the lack of critical perspectives at the British university where she undertook post-graduate study to be dispiriting, as class analysis and criminology were not considered to be legitimate dimensions of legal analysis. She found it a relief to return to a Canadian law school with its acceptance of a broader approach. Within some institutions, there were complaints that only doctrinal research received approbation, and applications for grants for Mode 2 scholarship were ignored. In contrast, proponents of doctrinalism were critical of the ‘pointless articles’ that no one reads because of their theoretical orientation, but which were thought to be encouraged by auditing schemes (Cownie 2004a: 141).
Regardless of the prevailing imperatives in favour of enterprise and capital accumulation, comparatively few legal academics have responded enthusiastically to commercial and business law as areas of research In Canada, the areas that predominate overwhelmingly in terms of funded research are human rights, First Nations and aboriginal law, constitutional and international law. Commercial law and property were well down on the list. These areas have failed to excite the imagination of researchers to the same extent as contemporary affective and social problems. Perhaps, for this reason, not all law schools have placed pressure on staff to alter the direction of their research.
It is paradoxical that just as legal research has sought to be accepted within the academy as a bona fide site of knowledge production, neoliberalism has sought to return it to its Mode 1 box, particularly so far as teaching is concerned. It is assumed that doctrinal knowledge will best facilitate the market and that is what law firms want. It is assumed that independent critical scholarship can only destabilise the primary vocational role. Of course, the critical space has not disappeared altogether as the evidence reveals and it cannot do so while there is both public funding of ‘pure’ research (albeit declining) and a nucleus of curiosity-driven researchers with a commitment to pursuing hard questions untrammelled by the exigencies of the market. Scholars who are passionate about their research do not care whether they have funding or not. Some will be so committed to their research that they may opt to pursue it as an independent scholar by taking a redundancy package or early retirement and ‘living on bark’, as one UK interviewee said.
It was probably once true to say that traditional legal scholarship was primarily associated with the older universities, and the more innovative with the newer institutions (Weisbrot 1990: 125). The generalisation no longer holds true, as the former have made a concerted endeavour to bolster their research standing and enhance their rankings. Hiring policies are geared to appointing the best researchers, which includes dynamic young scholars who are making names for themselves by challenging orthodoxy. In contrast, some of the News have consciously pursued a more traditional path in the hope of winning the approbation of the legal profession and ensuring the conveyor belt to the corporate firms works for their graduates.
Generalisations about legal knowledge or the contemporary law school no longer hold. While the pressure to retain Mode 1 knowledge represents a powerful imperative in the teaching of law, as I have shown, research imperatives are simultaneously corroding it and contributing to diversification in Mode 2 terms. Although it is the applied end of socio-legal research that is favoured by the drivers of research policy, problem-solving requires much more than empiricism and doctrinalism. As one of Marginson and Considine’s interviewees noted, ‘Trying to harness the research effort is like trying to get butterflies to fly in formation’ (Marginson and Considine 2000: 133). The competing policies, passions and imperatives that underpin legal research produce ongoing creativity and contradictions in legal knowledge as legal academics pursue original lines of inquiry or subvert orthodoxy, while simultaneously paying lip service to the new corporatism.
Neoliberalism has transformed the character of research, which is now valued less for its contribution to scholarship than for its value to end users, which is assessed primarily by means of ‘knowledge transfer’. Rather than merely adding to the stock of knowledge, research is expected to solve a contemporary social problem, generate income or serve some other functional purpose. Realising the ‘use value’ of knowledge requires a high degree of control. As suggested, technoscience is favoured as the most lucrative source of academic capitalism (Slaughter and Rhoades 2004: 53; Slaughter and Leslie 1997), while the law discipline is generally valued less for its research effort than for bringing high-quality undergraduates into the university:
I constantly have to reinvent the wheel and explain to the university what the discipline of law is and what research in law means. The stereotypical perception that all we do is train people to learn rules by rote or look up answers in a book is completely wrong and it astonishes me that the stereotype exists because you only have to think for a microsecond about the role of law in society to equate it with any of the other social sciences or humanities. Why is it not an intellectual discipline in its own right like political science or sociology or history or philosophy, but there’s this stereotype of it being a practical trainer of people?
(Dean, male, Redbrick, Aus)
Legal academics are sensitive to the criticism of academics in the sciences and the humanities that they do not do ‘real’ research:
We do well with empirical research. A lot of our research feeds routine policy on legal education, advocates and their rights to high courts, and so on … and a lot feeds into the teaching, especially at the masters and PhD level. We’re in the process of producing the very knowledge we’re going to teach and that’s absolutely vital. Does the university understand that? No; it hasn’t quite grasped it yet.
(Prof, male, New, UK)
‘Publish or perish’ has long been the aphoristic injunction associated with life in the academy and an essential prerequisite for individual career advancement. Now, the institutional value of research productivity transcends individual good, as research funding and research training places are directly related to the cumulative research effort of a law school, despite the ramifications for quality that intensification has brought with it:
I think the volume of research has increased but, as one vice-chancellor advised me some years ago, if you have got an idea, a good set of data is like salami, you want to slice it as thin as you can to get lots of different articles out of it, but I think that meant that the quality in the sense of the originality and the kind of significance of individual articles has tended to drop.
(AsPro, fem, Generation3, Aus)
Formal mechanisms of audit and accountability designed to foster research entrepreneurialism and research outcomes have dramatically affected attitudes towards research. It can no longer remain at the margins of the everyday life of the typical legal academic where the immediacy of teaching and administration have traditionally taken priority. Having to do more with less has consequences for the calibre of the research that is produced. Schools have responded to the shortage of funds by attempting to transform themselves overnight into entrepreneurial units. As a result, academics may find themselves being directed to secure research grants and consultancies. The prevailing equation is that research productivity leads to grants and more grants, as well as increased outputs – publications and more publications – because these activities not only generate government money for the university but enhance its reputation in terms of brand name and league table rankings. Within the market paradigm, it is entrepreneurialism and quantification rather than original research or the gift of knowledge that are most highly valued.
Paradoxically, however, the increase in competition has accompanied an overall decline in state funding of research which is a corollary of the neoliberal withdrawal of support for public goods and is marked in the US (Tombs and Whyte 2003: 18–19), as well as the UK, Canada and Australasia. With government as the driver, the emphasis is on securing private funding and consultancies, which accentuates the trend towards the privatisation of knowledge. If the big corporations fund research, the expectation is that they will be more likely to take out patents and capitalise on the research. It is hoped that the overall effect of harnessing the total research effort will augment the GNP and enhance the position of the nation state as a New Knowledge Economy on the world stage. Research partnerships with industry are therefore highly desirable.
The orchestration of research by the state has been a notable characteristic of the neoliberal transformation of universities. Substantial funds have been injected into earmarked research as a stimulant. High-profile programmes have been established in nation states to encourage the best and brightest researchers, such as the Canada Research Chairs. The ‘excellent’ and ‘world-class’ descriptors associated with these programmes are designed to enhance the standing of nation states and deflect attention away from the dross that is all too often produced in the name of research within corporatised universities. High-profile initiatives also deflect attention away from the massive under-funding of the less glamorous everyday operations.
The role of research and publication accentuates the tension between managerial imperatives and academic norms in the neoliberal university, as discussed in Chapter 4. The rhetoric emphasises quality, but the reality emphasises quantity. The more frequently research data is collected, the greater is the pressure to produce more outputs for the sake of satisfying audit exercises. UK academics complain about a 5-year auditing cycle, New Zealanders a 3-year cycle and Australians a 2-year cycle. An annual data collection system, which operated in Australia prior to the Excellence in Research for Australia (ERA), has the effect of encouraging less taxing forms of legal writing, such as doctrinal exegesis and practice-oriented work, rather than time-consuming empirical and theoretical projects.
The overall effect of auditing regimes based on quantifiable outcomes has been to delimit the ambit of legal research at the very moment that the law discipline began to secure a modicum of acceptance within the university as a scholarly discipline. Despite the many downsides of performance-based research schemes, an emphasis on quality may restrain a rampant entrepreneurialism:
If you are looking for commercial contracts to bring in money, teaching suffers, you are not doing research and you are undermining the whole purpose of the university … The performance-based research funding is making the university say, ‘Oh, we have to focus on research now’. It is a good thing because it means there is a little bit less pressure to be doing those entrepreneurial things which aren’t necessarily research.
(Dean, male, NZ)
A duty to produce papers quickly, for the sake of a measurable outcome in a managed environment, can only stifle creativity, as Polanyi noted (1951: 43). A highly regulated system privileges the production of applied knowledge or, even worse, large ‘outputs’ that have no value other than the competitive funding that might attach to them:
Quality is hard to measure, but to measure it in terms of how many journal articles you have done can be counterproductive because it forces people into publishing for the sake of it. If there is something they really care about and really want to work on and they drop it because they think it’s going to take a couple of years, that is bad because the best researchers are the ones that have a passion and interest in something. Even if no one wants to publish their work for a while, as long as they’re writing and researching, even if it’s not united or on track, that is what a university is about.
(Dean, male NZ)
The phenomenon of publishing pedestrian work is a notable manifestation of the McDonaldisation of the university, as noted by Ritzer: ‘The overproduction of routine scholarship is one of the most egregious aspects of contemporary academic life. It tends to conceal really important work by sheer volume; it wastes time and valuable resources’ (Ritzer 2000: 70).
The science template is the research model for all disciplines but it has been a source of aggravation for law. Legal research and writing, as with the humanities generally, tends to be interpretative rather than empirical. There is little appreciation of this substantive difference by research administrators. The Australian Research Council’s nomenclature of ‘Discovery Grants’ for its primary large grants scheme illustrates the point. Legal research – both Mode 1 and Mode 2 – is not so much in the business of ‘discovering’ knowledge, but exploring, explicating and interrogating it. Law schools are nevertheless anxious to develop their research cultures in more conventional terms because the research reputation of a school is a key source of positional goods, which can be directly correlated with league table rankings. Research reputation attracts top scholars and postgraduate students, as well as boosting the chances of financial success in national competitive schemes.
Academics are conscious of the pressure to ‘churn out stuff’ regardless of whether they are ready to publish or not but feel compelled to conform to the edicts of line managers:
I find that research now is getting squashed into the corners. I don’t have the time any more to sit with a piece and go over it and think about it. I’ve just got to get them out; they are not as thoughtful as they might have been in the past … It’s very difficult to expect to get high-quality research because what they want now is quantity, not quality. They don’t want one good piece; they want ten crap pieces; any ten pieces, they don’t really care and I think, as a result, the standard of refereeing is going down.
(Snr Lecturer, fem, Generation3, Aus)
The pressure to be productive highlights the power of the audit culture that has effectively supplanted the traditional concepts of critical thinking and scholarly excellence. While called ‘research’, this is something of a misnomer if the aim is merely to produce an auditable output with scant regard for substance or intellectual worth. Nevertheless, if not produced on demand, appointments and promotions are jeopardised and even disciplinary proceedings or redundancy may result:
I found here there were so many demands with the bureaucracy and teaching that my research output went down substantially. In the end a stick was raised: ‘Where is the research ?’ I was engaged in a long-term project involving philosophy and psychology which I’d been thinking about and trying to build a foundation of something original. I had to suddenly leave that and get cracking on something short-term … I was essentially threatened for not having produced enough material and given some stark options between resigning or doing only teaching and the way I got out of it was to produce research … I think it’s disgraceful but I decided the only rational thing to preserve my position was to produce in a relatively short period a piece of research … Without that threat and intimidation, I would’ve carried on with what I thought was a serious intellectual endeavour.
(Lecturer, male, Redbrick, UK)
By a certain sleight of hand, the emphasis on productivity, the pre-eminent institutional focus of research is no longer so much on ‘outputs’, that is, publications, but on ‘inputs’, that is, money from grants and consultancies in order to conduct the research in the first place:
Every once in a while someone will express an interest in my research – not in the research itself but the funding – because obviously the university gets a pat on the back if I run around with this pot of money to do the research, but I don’t think there’s any interest in the research itself.
(Lecturer, male, Redbrick, Aus, UK)
In accordance with the market ideology, research is viewed as an investment opportunity rather than a social good. Although the money generated to conduct the research receives the most approbation, at the same time, institutions are keen to garner outputs in the form of ‘esteem factors’, such as prizes and fellowships, which enhance national and international rankings.
Although the mission of all universities is to be research active, the positional goods of the Olds inevitably skew the outcomes in their favour (Doherty and Leighton 2004). The status of the News is made more difficult by the fact that the absence of a research culture, coupled with scarce resources, has compelled them to increase undergraduate enrolments in lieu. The News then become caught up in an endless spiral: the more students they have to teach, the more elusive is the hope of establishing a research reputation.
The entrepreneurial research culture is subtly changing the manner in which legal research is undertaken. In order to attract international kudos and competitive funding, the ambit of projects has been expanded to justify applying for larger and larger grants. Instead of the modest project, in which academic researchers undertake the research themselves, proposals may now involve a team of investigators and cross-country comparisons, as well as multiple research and technical assistants. Academics then become project managers rather than researchers, with junior research assistants, who may be postgraduate students, making judgements about what is relevant. Many academics rue the passing of the hands-on researcher in favour of the research manager:
I think there is a change in the character of what is expected of research. There is a much stronger expectation that legal research should follow the science paradigm and be based on grants, fairly large grants. The research should be financially expensive so that there is almost a consumption index of research excellence. I am a researcher who has for the last 15 or 20 years not needed a great research budget, for I do most of the research myself. I use the research assistant to do some citation checking and other basic things but I have not needed a big budget. Now, if you are a researcher who is not seeking and obtaining grants then there is something wrong.
(AsPro, fem, Redbrick, Aus)
Most law schools now have a director of research, often aided by a bevy of support staff, whose role it is to encourage research activity and assist with grant applications. The possibility of the overnight transformation of someone who has never published or undertaken research into someone who is internationally competitive – preferably world-class – would seem to be fanciful, particularly as the success rate for major competitive grant schemes is very low. Nevertheless, a great deal of money and effort has been expended in the belief that such a transformation is feasible. As well as being expected to perform magic within an inchoate research culture, change agents may run workshops on research methods, play a supervisory role in cementing linkages with outside bodies and draft grant applications. Initiatives of this kind have considerably increased the actual cost of research, but are rarely factored into productivity audits.
Experienced academics who have managed to carry out modest research projects for years without funding resent being told to reinvent themselves as entrepreneurs, although the opportunity for students to work as research assistants to senior academics may be a valuable source of research training:
You know I think it’s a waste. A lot of time applying for a grant itself and it’s not worth it. I had half an altercation with the dean and he was apparently very disappointed in my attitude when I basically said I didn’t see the point because the research that I do tends to be kind of theoretical and it’s fairly important for me to have this feel of the literature and what the scope of the literature is, which means I need to do my own research. I don’t have anything for a research assistant to do, so I don’t use them and don’t apply for grants. I just need time … I was completely chewed out over that.
(Snr Lecturer, fem, Sandstone, Aus)
The dominance of the market means that unfunded research is now held in low esteem even though, as one interviewee put it, ‘you might do the most important research rather than the most funded research’ (Snr Lecturer, fem, Generation3, Aus). The market imperative demands that all legal academics become entrepreneurs, regardless of what else they might do. They resent ‘the tragedy’ of being pushed into an area because it is financially rewarding, rather than because it is where their passion lies:
It’s not the way my brain thinks; it’s not the way my curiosity responds – by offers of money. But you talk to more junior members of faculty and they know from the first day they walk in the door what the name of the game is – building the research profile as an attractor of grants.
(Prof and former Dean, fem, Can)