The market comes to law school

The Market Comes to Law School

Once upon a time, we would never ever have described ourselves as a business but I think we do now. We advertise for students, we see them as consumers rather than students so the whole ethos of the university is significantly changed and the corporate model seems to be the dominant model.

(HoS, fem, New, Aus)

From Élite to Mass

Within the New Knowledge Economy, law schools are key sites of ‘knowledge capitalism’ (Olssen and Peters 2005: 331). Lawyers are the paradigmatic new knowledge workers who are playing a critical role in the New Knowledge Economy. They are the ‘par excellence institutional inventors’ (Cain 1994: 31) – preparing contracts for billion-dollar takeovers, mergers and acquisitions, as well as negotiating cross-border conflicts and protecting intellectual property. University law schools can be relied upon to mass-produce lawyers cheaply while generating a profit and enhancing the prestige of the institution.

The multi-faceted role of law helps to explain the dramatic rise in numbers of law schools in preference to, say, science schools, even though technoscience is supposedly the most lucrative source of academic capitalism (Slaughter and Leslie 1997). For years, law deans and others attacked the commonly held view that resources were unnecessary for law schools because ‘law could be taught under a gum tree’ (Martin Report 1964: II, 57),1 that is, all that was needed was a few lecturers and a few statute books; a high staff/student ratio was of no consequence. Law schools were regarded as milch cows by their universities as the income law generated was commonly deployed to subsidise other parts of the university. Paradoxically, by the time the inequity was acknowledged, the market turn had occurred.2 The entry of universities into the market has given the myth of teaching law under a gum tree a new lease of life:

The university clearly sees that at present the main way to make money out of the law school is to have the maximum number of students with the minimum cost … In research dollars, we are never going to be as brilliant as science faculties, but we can attract high-quality students and we can teach them cheaply.

(Snr Lecturer, fem, Sandstone, Aus)

The expansion in the Australian legal education landscape is illustrative of the revolution that has occurred within higher education more generally. As mentioned in Chapter 1, the Dawkins reforms of 1988, which converted colleges of advanced education into universities overnight, led to 12 law schools expanding to 32 in two decades, with a corresponding increase in the number of students,3 a growth that has been described as unparalleled in the Western world (Weisbrot 2004: 268).

Like Australia, the UK ended its binary system when the former polytechnics became universities in 1992 and the number of law schools almost doubled as a result. By 2004, there were 99 legal education providers, which included 45 pre-1992 and 41 post-1992 university law schools (Harris and Beinart 2006). The increase in the number of law students has also been dramatic.4 New Zealand increased the number of law schools from five to six in 2009, which is not spectacular until one considers that there was a 28 per cent increase in the number of graduates between 2002 and 2006 (Scott 2009: 13). Canada’s expansion has been the least dramatic of the four countries under consideration, with an increase from 19 to 22 law schools. The number of law students also appears to have remained relatively stable, suggesting if anything, a trend in the other direction. Data for Ontario, the most populous Canadian province, actually experienced a decline in the number of law degrees awarded between 1999 and 2001 (Council of Ontario Universities 2005).5 The number of law students in the US doubled between 1970 and 1991, after which the number of applicants for law places plummeted (Ariens 2003: 315–16). The US experience suggests that the market for law places may not be infinite.

The establishment of law schools in Australia was a popular choice by VCs as it suited the aims of the broader political economy. Vocationalism has become the linchpin of marketing in law schools everywhere, with law being advertised as a pathway to high income and security in an uncertain world. A key message of neo-liberalism is that all individuals must take personal responsibility for their lives, a message that school leavers have quickly absorbed.

Consumer demand, not community need or social good, was therefore the attraction for universities, in conjunction with high tertiary entry scores and high status, together with the perceived low cost (CALD 2000: 4). After a few universities had gone down the law route, competition policy dictated that others should follow. However, these market mimickers can only ever be pale copies of the original; they can never be true simulacra in which the differences disappear altogether (Marginson and Considine 2000: 220). While there were minor variations between the older Australian law schools and the second and third generation in respect of curriculum, pedagogy and research, the overall system was remarkably flat. I will suggest that an unbridgeable gulf has emerged between the established law schools and the News, a scenario also replicated in the UK.

The establishment of new metropolitan schools in the 1960s and 1970s inevitably caused some resentment on the part of the established universities when the interlopers began to vie for the best students. While the Sandstones (the original Australian state universities) were the beneficiaries of occasional bequests and endowments, they were not better resourced so far as recurrent government funding was concerned. Indeed, the Pearce Committee found in 1987 that the Universities of Sydney and Melbourne, Australia’s oldest law schools, both suffered from a number of deficiencies, including an exceptionally high staff/student ratio (Pearce Report 1987: Vol. 1, 5.23–26; 5.49–52). The suggestion was that the discipline of law was underwriting the more expensive parts of the university, a phenomenon that proved to be widespread. Some of the second generation law schools, such as the University of New South Wales, were better off from the outset because their foundation deans insisted on proper resources as a condition of establishment. Discipline reports, such as the Pearce Report, caused law schools to be more aware of the cost of legal education (e.g., Centre for Legal Education 1994).

The assumption that law schools were the primary responsibility of the legal profession, together with a downtown location, contributed to the historic isolation, neglect and under-funding of law schools by universities. Nevertheless, there is no evidence that the legal profession took an interest in such matters or that it protested about the way income generated by the law discipline was deployed to subsidise the research intensive parts of the university. So long as the profession was the recipient of competent well credentialed graduates schooled in legal doctrine, its concern for the material wellbeing of law schools remained minimal. The profession has demurred from time to time about the increasing number of graduates detracting from its exclusivity, but has not otherwise challenged government policy. The proliferation of law schools is starkly revealed in the case of Perth. The University of Western Australia Law School was the first, established in 1927; Murdoch was established in 1990; Notre Dame, a private university law school (supported by government funding) in 1997; Edith Cowan School of Law and Justice in 2005, and Curtin University, which presently has a School of Business Law and Taxation, is waiting in the wings. This would mean five university law schools all competing for students in a state with a population of less than two million.

‘Massification’ inevitably raises questions about quality. It is not possible to maintain consistency in quality when some institutions possess the wherewithal to generate funds and others do not. The relative funding model which was introduced in 1991 by the Australian Government saw law places funded at the base rate because of the pervasiveness of the gum tree myth – that lecturing to large groups was an acceptable form of pedagogy. As a result, law school impoverishment became endemic. Indeed, it could be said to be a foundational feature of the News in both Australia and the UK. The lack of adequate library resources is a dramatic manifestation of establishing ‘law on the cheap’ (Arthurs 1998: 29):

The library is really bad and there is absolutely no way that we can get them to improve it. We don’t have a law library; we have a law section in the central library. They keep on wanting to reduce the space and make us throw out old books if we want to buy new books. We actually have got this faculty librarian who makes old guys donate their books to the library but then the central library will go bananas because they don’t want donations as they don’t have enough space to put them in … The library support is just abominable.

(Dean, fem, Generation3, Aus)

The typical university response to the growth in law school deficits has been to take in more students in the belief that this would produce greater economies of scale. Initially, the main focus of expansion was the undergraduate LLB programme, but some schools also admitted large numbers of students into legal studies and paralegal courses designed to qualify students for career paths other than legal practice. There has also been an explosion of master’s courses, on which I elaborate in Chapter 5. Anything with ‘law’ in the title of a course was believed by VCs to enhance its marketability. The fiction that law could be taught with minimal resources has continued to prevail,6 although the older law schools have been conscious of the need to be circumspect in order to safeguard their brand names. In the absence of an established reputation, the News are prepared to take greater risks in attaching their colours to the mast of the market, but the positional goods of established law schools has enabled them to be more successful as market players. This factor perennially underscores the parlous position of the News:

To find money is probably the biggest problem that we’ve got. Someone walks in and says, ‘Now, I want you to do the same amount of teaching you have done, the same amount of research, but I also want you to find X amount of dollars and everything that flows from that’. There is a heap of administration, a heap of marketing, a heap of teaching and no funding, no nothing.

(HoS, male, New, Aus)

Starved of funds and with weak infrastructures, the News have been compelled to be the most aggressive and opportunistic of market players, milking local and global business connections for all they are worth and reinventing the institutional self as contemporary exigencies dictate. Their appeal does not rest on their brand names, but on convenience and flexibility in the way that they set out to accommodate student needs (Keohane 1999: 62–63). They are prepared to take risks by offering entire courses on line or at weekends. As a result, they are the major providers of part-time courses for mature-age students (Harris and Beinart 2005: 335). Furthermore, they make no bones about their vocational and applied focus within a marketised setting.

The Market Embrace

With the state as the driver, encouraged by the OECD (1996), universities have been compelled to enter the market, and some have done so more aggressively than others. In the early 1980s, Australian public universities received approximately 90 per cent of funding from government compared with 20 years later when, on average, they received approximately 38 per cent of their operating costs from the public purse (AVCC 2004), with strikingly similar figures in New Zealand (NZ Ministry of Education: 2005: 39) and the UK, which has declined further to 34.9 per cent in 2008–09 (HESA 2010). In contrast, the Canadian fall in the public funding of operating grants was less dramatic, albeit still significant – from 80 to 59 per cent (CAUT 2005a).

Because of the acceptance of the Friedmanite model for law schools under which students assume responsibility for the cost of their education, the proportion of government funding received by Australian law schools is much lower than the overall figures quoted, and may be as low as 5 or 10 per cent of total income.7 A government grant based on pre-determined student enrolments is made to a university, which will deduct a percentage before making an allocation to schools. When law is a constituent of a mega-faculty, a further impost is likely. The pressure on schools to generate alternative sources of funding is therefore intense.8 Commercial and consumerist discourse has come to infuse every aspect of life in the neoliberal law school as it seeks out new money-making ventures:

I have seen a huge change in emphasis in our law school on the role of money and the bottom line and the economics of the law school and that’s affecting every discussion that we have. Every committee, teaching and learning issue has somehow been reduced to money issues. Research is reduced to how much money we are bringing in, so everything suddenly becomes governed by dollar signs.

(AsPro, fem, Sandstone, Aus)

Entrepreneurialism has also subtly inserted itself into the construction of merit for appointment and promotion:

It can involve less teaching; it can involve promotion; it seems to be becoming more accepted that a pathway to promotion is through fields of achievement which tend to relate more to the profile of the institution rather than to scholarly writing … to make sure that the school name is being exposed on the radio and TV.

(AsPro, fem, Redbrick, Aus)

In the UK, ‘enterprise’ is encapsulated within the new discourse as ‘third strand activity’, taking its place, along with teaching and research, as a vital new element of the academic job description.

The picture in Canada is more variable as universities are provincially funded, albeit through unconditional transfers from the federal government. While the Canadian Government has been prepared to invest more money in research, there has been a move away from the freezing of tuition fees towards deregulation. In accordance with the neoliberal imperative prevailing elsewhere, student numbers have increased but there is no more government money to fund them. Law schools are expected to cover the shortfalls themselves through increased tuition and fund-raising drives. The setting of high fees by the University of Toronto, together with a consequent increase in staff salaries, compelled other Canadian law schools to ratchet up their fees so as to match the salary increases, which has destabilised the sector:

The University of Toronto has decided that it really wasn’t a Canadian law school, but a US law school, which in turn is traced to a certain global consciousness. They thought they should pay professors a lot more than what they were doing previously so that they wouldn’t flee to the US. I don’t think many were fleeing but they were collectively concerned enough to pay themselves a whacking great wage out of increased tuition fees and that, in turn, has made it much more difficult for us to recruit entry level candidates without increasing our pay and that, in turn, means that the cost of providing the same education goes up if you want to improve the value of that education – unless the university gives you buckets more money or you go and fund-raise.

(Dean, male, Can)

New Zealand wholeheartedly embraced the unmediated higher education market model 1990–99, but then shifted to a controlled model.9 However, course control is still minimal with funding depending on demand as in Australia and the UK. Funding is competitive, which is claimed to improve quality, efficiency and productivity (Kingsbury 2000: 44). In the hope of securing funding ‘carrots’, universities have responded to the government call and become increasingly entrepreneurial. Legal academics are expected to come up with instantaneous blueprints as to how to raise money. Responses tend to be ad hoc and uncoordinated, with deans, administrators and academics all responding differently, which contributes to a climate of confusion and distrust:

We’ve got a fund-raiser but most people are quite sceptical of her role and the actual expenditure for that position. Some people think it is a complete waste of money. In fact, this particular person hasn’t actually generated any income. The position is partly funded by the law school, partly by central administration, and she is supposed to generate a portion of her income out of fundraising, but it doesn’t seem to happen. At the same time, she comes from a corporate background and has no understanding of academic institutions, education, legal education … I’m sure she might be quite good in a corporate environment but nobody trusts her because she’s got no idea where we’re coming from.

(Snr Lecturer, fem, Redbrick, Aus)

The uncertainty surrounding academic capitalism is exacerbated by ever-changing government policies, although law schools accept that they must do what they can. As one Canadian law dean explained, ‘Entrepreneurialism is not so much about going out and generating funds but creatively using and harnessing resources the school already possesses’. Some deans advocate more national competitive research grant applications, which comport with scholarly norms but worries the profession: ‘People downtown are saying, “What is happening? Are you going to turn into ivory towers?”’ (Prof, fem, Sandstone, Aus). To counteract this impression, others are advocating a more applied approach in the form of consultancies and short courses. What is clear from the desperate scramble to generate income is that there is no overall coordinating strategy and no thoroughgoing scrutiny of new ventures or courses.

The profession would seem to have little understanding of how grim the state of legal education really is because the market demands that deans always put their best foot forward. There is fear that public questioning or criticism could bring the ‘brand name’ of the institution into disrepute. Marginalisation, reprimands, disciplinary proceedings or even dismissal is the likely fate of any academic who is critical of his or her institution’s captivation by market magic, regardless of the academic expertise they might possess.10

Law schools particularly resent the fact that they are unlikely to be given infrastructural support, seeding money or time to develop strategies. Academics are concerned that the relentless pressure to generate income is causing deterioration in the quality of their programmes.

My big frustration here, particularly over the last 12 months when we have been going through a period of review and trying to come up with these great new ideas of what we can sell is that we haven’t been given any extra time to do it in, so we have been trying to do it on top of all of our other work. The big thing is, how can we make money, and how can we make this attractive?

(Snr Lecturer, fem, Generation3, Aus)

The key question being asked everywhere is what gaps are there in the market? Opportunities for full fee-paying domestic undergraduate places in Australia have been limited, while the market for international students is more flexible, albeit volatile. Because of the municipal nature of law, comparatively few international students enrol in an Australian LLB, although jurisdictions such as Singapore, Malaysia, Brunei, India and Pakistan recognise the law degrees of some law schools for the purpose of admission to practise (Coper 2006). However, canny market players are prepared to adapt their ‘product’ and seek out niches that they can monopolise. Bond University in Queensland, for example, has developed a market that provides legal education programmes for Canadian students unable to gain entry to a Canadian law school.

Spending six months or a year at an Australian or New Zealand law school is an increasingly popular option for US and continental European students, especially for those from Scandinavian countries. The New Zealand Government has entered into agreements with the French and German Governments whereby students pay domestic rather than international fees in New Zealand, causing some deans to be rueful about an arrangement that is not economically profitable for them. The European students possess excellent English language skills so that more students tend to come to Australia and New Zealand from Europe than vice versa. At least one New Zealand law school is looking to Australia in the hope of attracting full-fee undergraduates who have missed out on a place at an Australian law school, while at least one UK New is also looking to Australia as a source of revenue for its online law degree (foreign students are worth more than three times domestic students in the UK).

Higher education policy scholars have commented on the disproportionate percentage of the university budget that is devoted to marketing both at home and abroad (Marginson 2004). Paradoxically, more attention is likely to be paid to marketing the product than to the educational product being marketed:

It is not necessarily unique to universities. I think it’s pervasive within our system, but a lot more money goes into marketing than goes into the actual development of particular products … A lack of resources is driving corporatisation which means that, increasingly, whatever resources are available tend to go to the Centre which is busy developing ideas to market what it already has or doesn’t have in a way that brings students or consumers into the institution … Rather than putting on a coherent programme of study to attract students, and to educate, which is what a coherent university programme is all about, they have fallen prey to the market which says you have got to have all these things. You have to have bells, you have to have whistles, and your bells and whistles have to be computerised, which links up with a cam recorder, which links up with a DVD player, which links up with a mobile phone that can brush your teeth … They are reacting to the pressures rather than holding the pressures at bay.

(Prof, male, Generation3, Aus)

As a corollary of marketing, a great deal of effort also goes into ‘branding’, a concept unheard of a few years ago in the university context. As with breakfast cereals, the educational product has to be the same as its competitors, yet different, so that its ‘brand’ is instantaneously recognisable and desirable: ‘Branding is an attempt to create a desire in targeted prospective students to join the branded law school’ (Ariens 2003: 307). As Ariens (2003) points out, ‘branding’ is about distinctiveness, not quality. Within market discourse, the focus is on the institution being ‘excellent’, ‘first-class’ or, better still, ‘world-class’. Of course, universities immediately become indistinguishable once they all claim such descriptors for themselves.

Websites allow the claimed distinctiveness to be illustrated with eyecatching graphics and newsworthy information. To attract overseas students, golden beaches and swaying palms adorn some of the Australian Internet sites, even though the campus may be nowhere near a beach. The School of Law and Justice at Southern Cross University at Lismore in Northern New South Wales (about 30 kilometres inland from several well-known beach resorts), not only featured such a scene on its website at one stage, but added the by-line ‘Come study law in Paradise’. I am not sure whether the potential customers really believed that studying law would be a divine experience, but the website displaying spectacular scenery and a relaxed lifestyle was enticing. This law school was a new school in a new university in a regional area, which meant that the potential pool of local students was limited and the school had to compete with metropolitan universities.

Full-fee income is seen as the ideal quick-fix solution to skewed bank balances by resource-starved deans. Full fees have allowed teaching hours and class sizes to be reduced, as well as providing money to be ploughed back into marketing. With 62 per cent of its revenue obtained from full fees, mainly postgraduate coursework programmes, one Australian law school was able to maintain small group teaching in its undergraduate programme. Some schools go against the grain and dedicate a percentage of full-fee income to the provision of scholarships for needy students from remote areas. Such initiatives cause academics to accept the trade-off as a salve to their consciences. Furthermore, this compact allows the real cost to be sloughed off: the sacrifice of higher education as a public good.

Miscellaneous subjects and short courses, such as certificate courses to license migration agents or conveyancers, are a popular means of generating revenue, particularly if the same course can be offered by a specialist academic ‘on circuit’ around the country and off-shore. ‘Intensives’, LLB and LLM (Master of Laws) electives offered over a few days, on which I elaborate in Chapter 3 and 5, may also be a useful source of income, albeit at the expense of academic depth. Nevertheless, law schools resent having to pay a 40 or 50 per cent tax to the central university, as well as another 10 or 20 per cent to a mega-faculty in generating this income.

The commodification of higher education and the application of competition policy induced a change in the legal status of universities. The modern university has been expected to transmute itself from being a not-for-profit corporation of a public nature formed for some good purpose into a for-profit corporation, which means that it can now be characterised as a trading corporation – a total subversion of Newman’s idea.

In Quickenden v O’Connor, a university was held to be a trading corporation for the purposes of the Australian Constitution, s 51(xx), ‘if it engages in substantial or significant trading activities notwithstanding that trading is not its primary purpose’.11 The trading activities in which the University of Western Australia engaged, included the buying, selling and renting of property, as well as investing moneys, substantially boosted the university’s operating revenue. The majority judges of the Federal Court, Black C.J. and French J., adverted to but did not deal in detail with the question of whether the provision of educational services constituted trading. They doubted whether trading extended to statutorily fixed fees (HECS) but Carr J. in dissent thought otherwise. His view could well be picked up in future litigation, as it reflects the reality of the contemporary university: ‘Judicial notice can, I think, be taken of the fact that these days universities compete for students. The competition may be more intense within a particular State, but it certainly extends overseas and probably extends interstate’ (Quickendon v O’Connor, §106).

The legal significance of the shift from the older not-for-profit or charitable corporation to the for-profit corporation is that universities may also be subject to the Trade Practices Act 1974 (Cth) in respect of a range of questionable behaviours associated with trade, such as deceptive or misleading conduct in the recruitment of students (Griggs 2004). It would seem that international education is particularly vulnerable because of the desire by institutions to maximise enrolments through representations made about the calibre of their courses in their marketing literature and on websites. Proceedings have already been successfully instituted by overseas students in Australia (Griggs 2004: 6). It has also been suggested that benign practices, such as collaboration between providers could constitute a restrictive trade practice (Kingsbury 2000: 51). In New Zealand, the Commerce Act 1986 (NZ) applies to public tertiary institutions and private providers, to the extent that they engage in trade, although the provision has received little attention (Kinsbury 2000: 48).

In the UK, in London College of Science and Technology v London Borough of Islington,12 the appellant was a private university. Although incorporated in Utah as a non-profit corporation, it ran its affairs in London to make a profit and was therefore accepted to be a regularly conducted commercial enterprise. The decision included no discussion of the idea of the university in the provision of educational services or what the position might have been in the case of a public university.

The issue of the commercialisation of a public university’s core business does not appear to have been addressed in Canada, although there are numerous cases dealing with incidental issues, such as the provision of commercial food services.13 Nevertheless, the path was paved for a new way of thinking about educational services when a majority of the Supreme Court of Canada determined that the functions of a university are non-governmental and therefore not constitutionally subject to the Charter of Rights and Freedoms,14 although the public characterisation of Wilson and L’Heureux-Dubé J.J. (dissenting) would have framed the issue of educational services differently.

Sameness and Difference

While diversity is stressed as a strength in order to encourage more choice for students, it is not easy to identify marked differences between law schools in terms of curricular specialisation within the primary law degree. A high degree of homogeneity is induced by the admitting authorities so that the same core subjects are found in law courses in common law jurisdictions everywhere – crime, torts, contract, property, commercial law, civil procedure and public law – often using the same textbooks and teaching methods. The intractable assumption seems to be that the role of law schools is to prepare students for traditional legal practice, rather than for the diverse careers they are likely to pursue (Stevens 1983: 199).

In Australia, the subjects specified for admission are known as the ‘Priestley Eleven’,15

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