Am back in Northumbria Law School for this event organised by Northumbria School of Law and Nottingham Law School, funded by the Modern Law Review. Was late because I thought I knew my way round Newcastle – so like Glasgow in so many ways – but stopped to re-orient (sea is on the wrong side, for a Glaswegian) appropriately enough outside a restaurant called Perdu.
Which some might take to be a metaphor for where law schools are, at present. Elaine Hall started us off with questions such as ‘what is law school for’. She asked what are the essential features of law schools, what the accidents, what’s driven by markets &/or regulators, what’s the balance between identity and ecology in our decision-making. Last point is interesting – I’ve always fretted at the rate of decision cycles in law schools. Samantha Rasiah, Elaine’s PhD student and jointly presenting with Elaine, gave us an indication of student responses to their experiences. No surprises – students really liked experiential learning and clinic, disliked closed-book exams and lectures. Students also commented on the integration of experiential learning within the more conventional academic curriculum framework; and their ideas, as presented by Samantha, were impressive.
Margaret Thornton’s keynote was entitled ‘What are law schools for in a neoliberal milieu?’ She began by observing of the nineteenth century origins of law schools (in England – situation was quite different in Scotland) that they were not treated as part of the university disciplinary establishment. She noted how things had changed since Birks’ collection. She focused on neoliberalism (especially in Australia, but her points remain true for every jurisdiction) as a practice rather than an ideology that resists the idea of legal education as a public good. The same applies to education generally of course – such areas of the economy have been culturally and economically removed from a full market economy. Neoliberalism brings in auditing, accounting, managerialism (manageria – those who practise managerialism), policymaking – Krugman’s zombie activities. These practices thrive because HE in Australia, as elsewhere, is big business. She drew on Foucaultian analysis – the ‘conception of the self as a form of enterprise’. Capital accumulation became a new product – eg the training of workforces for new economies. Through chalk & talk pedagogies law became one of the disciplines facing a rapid proliferation. Compare Australian law school numbers with the number of law schools in Canada, eg (something I noted, being at Osgoode).
She described the fee hike in 2013 in England, and the corollary situation in Australia, comparing the deregulated situation in the US. Governments pressure universities to take more students, and cut budgets, thus forcing universities to become more entrepreneurial eg through masters programmes. In Australia the JD was also introduced for graduates as a full-fee programme; and was seen to be attractive because of its international, Americanised currency. She cited Bond U Law School’s assiduous marketing of Canadian law students. She mentioned here her excellent study of law school marketing via their websites; and noted the numbers actually entering the profession.
She turned to the idea of human capital and Foucault’s idea of the essentialisation of the self as a form of capital. Which in turn is seen to enhance the university capital, and the national capital. The consumerist aura of neoliberalism is embedded in the curriculum – trips abroad, media devices, clothes, cars, types of jobs available, flexibility of the degree, to attract students as customers. But those customers need to combine with work beyond the university. Neoliberalism strongly advocates all these features. As a result work, sporting & leisure commitments made them unwilling to devote the time to understand legal substantive issues – she quoted an example.
The consumer power of students gives them power over lectures via satisfaction rates, which are used as forms of promotion of the school and institution. Appeals, especially public appeals, damage the brand name, much as it does for consumer goods in the consumer market. It stops innovation too. Rote learning is preferred over deep learning; the focus shifts from theoretical to applied knowledge; and students generally are uninterested in a critical liberal education.
On the positive side the neoliberalist advance has democratised entry to law schools, and to some degree to the profession. But these issues may actually be a front for the negative features of control on gender, race, professional entry that neoliberalism actually promotes.
At questions Richard Collier raised the issue of the massive increase in student distress and loss of wellbeing. Margaret agreed that neoliberalist practices and contexts contributed to that. Having been a colleague of Margaret’s at ANU, I can attest to the fine work done by my colleagues there – including Stephen Tang, Anneka Ferguson, Vivien Holmes and others. In our Emerging Legal Education series Rachael Field published an excellent volume based upon the work of the wellbeing network in Australian law schools; and there is a subsequent volume coming out, edited by Caroline Strevens and Rachael. Stephen Vaughan noted that we are all complicit in the neoliberalist enterprise – we owe our jobs to it, more often than not. Margaret agreed. Stephen Levitt raised the issue that law schools were doing interesting things in legal education, eg at York with PBL – it’s not pure profit, pack ’em in. Margaret replied that that is really part of branding, which is part of the neoliberalist enterprise.
I have to say that, as always, I agree with Margaret’s critique, but I find it doesn’t account for much of the good work that’s done to improve legal education, and which is often motivated less by neoliberalist drives and pressures and more by the urge to resist it, to make things better, to improve education, and is based upon a belief, often, that neoliberalism should be rigorously opposed and can be, even if only in guerilla-like campaigns. Of course her answer would be that such campaigns are guerilla operations for the most part precisely because of the neoliberalist pressure she has described. Again, who could disagree. But such efforts can be surprisingly successful, and I guess that the parallel papers sessions, may be giving us examples of that.