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Legal Education, Privatization and the Market: The Decline of Justice, Fairness and Morality in Australian Law Schools

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Chapter 1:

The Problem

Since the early 2000s there have been warning signs of the ‘health of [Australia’s] democracy’ being threatened by the abandonment of universities as communities of intellectuals, in favour of a new model driven by ‘market forces’ and a ‘user pays’ mentality.[i] Prolonged funding cuts in the 2000s and the dominance of neoliberal policies at the time destroyed the old university system and replaced it with a newly commercialised university ‘industry’.[ii] Forced to compete in the open market, universities shifted their internal practices away from knowledge accumulation, towards profit and research. Students were no longer viewed as students but as customers; tutors were no longer viewed as tutors but as employees; research was no longer viewed as an end in itself, but as a means to an end.[iii] This had a flow on effect of affecting internal decisions concerning the content of the internal curriculum.[iv] The curriculum in most major Australian universities began to reflect the desires of employers rather than the desires of students. As a result of this shift, students began to learn, implicitly, that the market and financial incentives were the key determinants of their future success.

 

Law schools were not immune to these changes. The 1994 Pearce Report found that ‘all [Australian] law school[s] surveyed’ were following the broader ‘increased focus on skills acquisition across universities [generally]’.[v] Where previously law schools focused on content delivery, now they were pressurised into introducing new practical courses, ‘international’ courses and legal clinics to help students compete in the ‘global marketplace’.[vi] Their student ‘customers’ began demanding more and more corporate law electives over time, primarily because they hoped these electives would boost their chances of employment at graduation.[vii] At the same time, graduate intake at the major Australian law firms was, and continues, to decline.[viii] An odd paradox is created where law students keep demanding more and more corporate law electives while there are less and less corporate law jobs. Responding to student demand, law schools abdicated their social responsibility, declaring defensively: ‘the customer is always right’.[ix]

 

In this article I discuss the challenges that the increasing neoliberalism of law school poses to Australian students, the curriculum and society at large. First, I conduct a broad overview of how commercialisation occurred in Australia over time, following the global rise of neoliberalism in the context of university education. Secondly, I consider the evidence of neoliberalism at play in Australia’s major law schools, and the effect this has had on the internal curriculum. Thirdly, I track the effect of neoliberal education on students and society. In particular, I argue that Australian law students have lost their sense of moral inquisitiveness, creative thinking and critical insight. Where once, law schools produced lawyers that were bastions of honourable and ethical practices, today’s law schools are producing bland, politically neutral enforcers of the law, who cannot critique the law’s faults or virtues and who blindly accept the law’s authority at face value.

 

1) How Did Commercialisation Occur:

In 1972, Prime Minister Gough Whitlam was elected with a policy of making tertiary education free for all Australian citizens. The implicit idea behind free education was the creation of an educated, intellectual Australian citizenry across the country.

 

Where once Australia prided itself in providing free tertiary education, now it prides itself in creating ‘competitive’ universities able to compete for a place in the global university rankings. The privatization of public universities has been gradual, but persistent over the last four decades, ever since the end of Whitlam’s government. Since Whitlam, successive governments have massively cut funding for universities. In 1989, Labor reintroduced student fees under the HECS model, effectively abolishing the Whitlam ‘free education’ reforms. In the Howard years, universities received further funding cuts, including the single biggest cut in Howard’s1996 budget.[x] The Abbott government tried a further round of cuts in the 2014 budget, but buckled under a backlash from the Australian public.[xi] The latest proposals to deregulate the sector, however, came about with a sense of inevitability, given the string of prior government proposals that inched in that direction.

 

Indeed, the trend of all federal governments since Whitlam has been a shift towards a decrease in public funding for universities generally, under the philosophical framework of neoliberalism. Neoliberalism as a political philosophy came to the fore in the 1980 and 1990s, as an ideology promoting ‘deregulation, privatization and the withdrawal of the state from many areas of social provision’.[xii] At the heart of neoliberalism is the idea that the market should determine the course of human society. If a service or institution is not a market then it should become a market.[xiii] Under this model, Universities are increasingly expected to compete to gain a market share of prospective students. Funding cuts are supposed to ensure the efficiency of university services. Under the pressure of increased competition, universities are expected to produce more research and create more market-orientated student graduates.

 

Individuals, including students, are said to gain a great deal of freedom under this brand of neoliberal tertiary education.[xiv] In particular, they are said to be free from the ‘bureaucratic restraint’ of government and thereby free to pursue ‘whatever work [they wish], and to sell [their] own labour… for a wage that reflects’ the value of their work.[xv] In particular, individuals are encouraged to follow financial incentives to generate their own spontaneous efforts.[xvi] Financial incentives, coming from the market itself, are not explicitly used to control people’s lives necessarily, but are said to be a guiding hand in shaping how a student makes a career decision.[xvii] Unsurprisingly, students under a neoliberal system become obsessed with financial incentives, to the detriment of pursuing other activities of a non-wealth generating character. They become ‘entrepreneurs and consumers,’ ultimately motivated by the prospect of attaining lifelong employment in an upward transcendence towards the richest positions in society.[xviii]

 

a) Students Gaining Neoliberal Values:

There is a lot to criticise about neoliberalism as an ideology, but in this particular context, the idea that neoliberalism leads to ‘freedom of choice’ is particularly contentious. With regards to Australian law schools, this article will show that the focus on financial incentives drives students to become more self-centred and narrow-minded, insular and risk-averse over time, rather than ‘freethinking’ or ‘free to do what they want’ with their lives, as proponents of neoliberalism claim.

 

i) Effect on Law Students:

The culture of neoliberalism regards the workplace as the heart of all authentic knowledge, and so anything that cannot be turned into a job-related skill or job-related knowledge is deemed suspect.[xix] The humanities in particular are decried as functionally useless. Students studying law consider irrelevant and impractical subjects, boring.[xx] Law students are quoted as asking, ‘What’s the relevance of this?’ when studying morality and legal ethics, as if this kind of holistic knowledge of morality, philosophy, ethics and so on, is simply irrelevant to their future working lives.[xxi] In some cases, this may be true, but in most cases, one would hope not.

 

What this reflects is a massive disconnect between the way in which law is represented in the popular media, revolving around justice, fairness and equality and the way in which law students have come to internalise the opposing culture of neoliberalism, coming to see law school as a matter of practicality and wealth-accumulation, bored by the ‘irrelevant’ topics of morality and justice, unaware of how fairness ‘fits in’ with coldly applying law to a set of facts.

 

In a more meaningful sense, students are no longer connected to the larger purpose of what universities are actually for.[xxii] Ivy League educator William Deresiwicz suggests that, ‘specialization is the only part of the curriculum that makes sense to students anymore’.[xxiii] Students have lost touch with the idea that universities can offer them anything other than a certification or a degree in law. In other words, they have lost touch with the idea that universities can offer something else; an opportunity prior to work and other commitments to develop a fuller understanding of the self, to help students develop a ‘soul’ or, crucially absent of parental oversight, to help them develop independence.[xxiv] In the absence of this goal, the average law student will invariably start demanding as many specialized, vocational courses as possible. They are grasping at the only thing that they have been taught to grasp at. They are reaching for the only thing they know how to reach. They come to view the study of law as a practical matter, more akin to becoming ‘an auto mechanic [than] an intellectual’.[xxv] Law is seen as a technical skills training course, and in this context it makes sense to acquire as many technical skills, in as many technical subjects as possible. The more esoteric, intellectual subjects bear no interest to most students, and the average law student turns their mind away from ethics, morality and social justice, towards external, functional and practical aspects of life: to work, to careers, and to the potential for future success. Core internal processes of self-reflection, growth and dynamism (the ability to move beyond the strict confines of a single subject area), are sacrificed at the altar of practicality. Students become narrow-minded, robotic, self-centred careerists.

‘Mainstream students… are preoccupied with their careers, with getting a job, making money, getting married, deciding where to live – getting through law school as trade school, with no intellectual, political, cultural agenda of any kind… on the way to life in the mainstream.’[xxvi]

 

The changes to the student body have arisen out of changes to law schools themselves. Increasingly, law schools have come to serve external market interests over and above the interests of the student body. Students are indoctrinated from the very beginning of their studies into believing that law is a passive, neutral force in society. This produces, at worst, a neutral effect, and at best, a singularly positive one. The indoctrination into an unquestioning attitude is best evidenced in the internal assessment structure, where problem questions and the like intrinsically reject critical and ethical thinking, in favour of the predominance of what is called black letter law.

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2) Evidence of Commercialisation at Play

Law schools have propagated neoliberal values in three distinct ways in the internal curriculum. Firstly, they have adopted an assessment structure that intrinsically celebrates corporate values by presenting law as passive, neutral and objective, rather than active, ideological and subjective. Secondly, they have succumbed to the influence of the ‘employers’ voice’ in curriculum reform, allowing employers unfettered access to influence both the internal graduate attributes and direction of law schools. Thirdly, they have allowed major corporate employers the opportunity to dominate career fairs, advertising and marketing directed towards students, at a time when the legal profession itself is experiencing a decline in the number of graduate jobs.

 

Law schools are justifying the shift towards commercialisation using the clichés of it being a ‘technological age’ with greater ‘globalisation’ and ‘global’ challenges than ever before. It is unclear why this justification is being used, other than as a matter of convenience and expediency.

 

a) Law as ‘Passive’ and the Assessment Structure:

An essential part of the legal education process is the conversion of students from actively engaged citizens, into passively observant judges whom accept law’s authority at face value.

 

In general society the common everyday phrase ‘the law is the law’ reinforces what the law ‘is’ without questioning what the law ‘ought’ to be.[xxvii] Continually used by politicians to justify controversial, often immoral or morally questionable judicial decisions, the banal phrase ‘the law is the law’, summarizes the uncritical view of law as a final or ultimate conclusion to a problem, as opposed to the start of a continued debate on possible solutions.[xxviii]  Instead of questioning whether an outcome is just or fair, a final outcome is viewed as ‘just’ simply ‘because it derives from a legal authority’.[xxix] The law is viewed as just simply because it is law, simply because law is law. In this way an ought (justice), is derived from an is (the law). Deriving an ought from an is is a logical fallacy. David Hume originally elucidated as much in his Treatise on Human Nature, in which he stated: ‘a reason should be given… how this new relation (the ought) can be a deduction from the (is)’. The laws of slavery in the United States, apartheid in South Africa, discriminatory voting rights in Western States prior to the 1980s, and so on, were all principally unjust and are widely viewed as such today, but were nevertheless ‘law’ at the time. If ‘the law is the law’ is an ethical justification for just laws, then the laws of slavery in America were just. This is clearly an untrue statement, hence the idea of ‘the law is the law’ being an ethical justification for law itself, is an untrue statement, and furthermore a logical fallacy.

 

It is disturbing then to see the glorification of past precedent in Australian law schools. Students are expected to derive just outcomes simply by reference to past legal authority alone. The most common assessment task is the problem question, where students apply legal precedent to a new set of facts.[xxx] Students are given new facts and are expected to act like appellate court judges in applying previously found legal principles to those facts, without any regard to extrinsic justificatory materials.[xxxi] This analysis is circular, in that the conclusions students reach are justified by past legal precedent alone, which are, as case law, themselves justified by past legal precedent. Never is the ‘end point’ or the original conception of law questioned, in terms of its derivation from politics, society, morality, moral philosophy, sociology, anthropology and so on.[xxxii] In this sense, law is justified in law school simply by reference to it being the law. This mirrors the broader societal view that ‘the law is the law,’ and that any ethical justification of law is self-evident upon its own authority. Again, this is a logical fallacy according to Hume, and again, there is no external justification given, even though one is patently needed.

 

In appearing to be morally neutral, but intrinsically just, the case law method equips students with the tools to ‘draw boundaries between the spheres of legal, moral and political consideration’.[xxxiii] This allows them to normalize law as objective, neutral and passive, while ignoring contrary evidence. Morality, politics and justice are subjective irrelevancies outside the scope of the curriculum.[xxxiv] To be a law student is to have an ‘encyclopaedic grasp of law’s terms, precepts, rules and decisions’.[xxxv] In this way, law students become walking encyclopaedias, just as law schools pretend that law is not a game of ‘memorisation’.[xxxvi] Students entering law school are transformed from lay, interested citizens into apolitical social constructs. A student with a fast-reasoning intellect will likely have to ‘deconstruct law starting from scratch,’ after their law course is over, or otherwise be entrenched into a hegemonic culture where law is self-justifying, self-verifying and self-perpetuating, under a ‘law is law’ mindset.[xxxvii] Neuhaus goes as far as suggesting that lawyers who follow ‘mechanical precedent’ alone, are losing their sense of morality, in that they are artificially ignoring the ‘moral meaning’ behind each case decision.[xxxviii] By following precedent rulings blindly, students are implicitly rejecting the moral basis upon which the law was made and turning away from the law’s original public conception, as a derivation from society, morality or God. This would not be worrying if some other justification for law was offered in the internal curriculum. It is worrying because no such justification is given.

 

A large-scale study of 29 Australian law schools in 2003 found that the typical mode of assessment remains ‘examinations, written reports and problem-based’ questions.[xxxix]  Unsurprisingly, this reflects the kind of assessment task that best serves the market, and the kind of skills most desired by employers. In a small-scale, pilot survey of 16 employer organizations, the traditional skills of ‘reading and analyzing case law, applying and distinguishing cases [and] familiarity with legal principles – scored most highly’ across the board.[xl] Employers do not have a vested interest in law students gaining a moral or justice-orientated education. They have a vested interest in students becoming highly capable at their job. Problem questions are routinely defended as reflecting ‘real world’ knowledge, or ‘so called ‘authentic’ situations’ in legal jobs.[xli] Law firms are typically time-pressed, and need law graduates who can quickly apply legal principles to a new set of facts. The university creates a ‘value proposition’ by selling this kind of skill and by assessing the ability of students to successfully learn this skill ‘that individuals, employers and ultimately society pay for’.[xlii] Bentley and Squelch cite that law students need the graduate skill of ‘thinking’ for work, but only cite the example of ‘problem solving’ as a thinking skill.[xliii] In other words, problem solving is the only kind of thought. This reflects the expediencies of the market, but does not lend itself to the growth of the individual student.

 

Although the above analysis offers a robust market defense of case analysis, nowhere does it justify the lack of consideration of morality, policy or extrinsic materials in the current curriculum. Instead of justifying how case law derives an ought from an is (and is thereby a self-perpetuating logical fallacy), the market ‘justification’ simply views it as a convenient skill for law students to possess. In the words of Margaret Thornton, any other assessments like ‘research essays, with their creative and critical edginess do not comport with market orthodoxy’.[xliv] Other types of assessments are simply too difficult to mark, write or structure.[xlv] Other assessments tend to challenge the status quo. Even worse, creative or intellectual thinking is simply less beneficial to employers in not giving students enough marketable, transferable skills. Here, the convenience of the market, the major firms and the law schools trump the morality or critical engagement or intellectual insight of the student body.

 

Duncan Kennedy suggests that ‘the actual intellectual content of the law seems to consist of learning the rules, what they are and why they have to be the way they are, while rooting for the occasional judge who seems willing to make them marginally more humane’.[xlvi] This is particularly true in Australia, with the almost celebrity-like status of former High Court Chief Justice Michael Kirby, celebrated by law students as a great dissenter on issues of human rights, justice and morality.[xlvii] Justice Kirby’s popularity extends to an appreciation group on Facebook, where Australian law students say things like Kirby for PM or Kirby for Governor-General, presumably serious in such hopes.[xlviii] The fact that students are allowed to celebrate human rights, morality and so on only through the lens of a former High Court Chief Justice (within the limits of case law analysis), is a major problem, bespeaking the worst aspects of the curriculum. The celebration of such issues should not be limited to a judge’s dissenting opinions, or any ‘authority’ figure in case law for that matter, but come down to a student’s own sense of morality, and their own independent moral judgment, their own ‘dissent’ against the norm, if you will. Support for human rights often requires the rejection of the dominant stream of public thought at a particular point in time and with that, a student’s own acclimatized culture (in this case the ‘business-like’ culture of law school) in favour of pursuing a moral objective to its rightful end.

 

Justice Kirby himself fought against the dominant culture of homophobia in the 1980s, and his dissenting approach in legal cases often valorised human rights and morality at a time when such principles were unpopular. It is difficult to reconcile the way in which law students celebrate this ‘great dissenter,’ with the way in which they have been indoctrinated into the mainstream corporate law culture of law school. Students are celebrating a rebel while they themselves are becoming conformists. The regurgitation of judicial rulings by rote, problem-based questions and so on, hardly allows for a ‘dissenting’ voice to arise in the legal classroom. Instead, law students become intellectuals by proxy, through their hero Michael Kirby, while hiding behind their doctrines, their rules, their black-letter law.

 

The fictional lawyer Alan Shore puts it succinctly when he says: ‘Every first year law student is taught don’t ever, ever equate legal ethic with morality. They’re almost always mutually exclusive!’[xlix] William Sullivan et al. mimic the idea as follows:

 

‘In their all-consuming first year, students are told to set aside their desire for justice. They are warned not to let their moral concerns or compassion for the people in the cases they discuss cloud their legal analysis’.[l]

 

Instead, the case method teaches students to become post-emotional, so to speak, one might even say, neoliberal. Effectively, the case method teaches students to become automatons: applying legal principles that they never morally justify or rationally criticize, beyond the very limited criticisms available within case law itself, specifically by reference to past ‘dissenting judgments’ of aforementioned Justices.[li] Students do this simply because they are told that that’s the way law school works.[lii] That’s the way the world works. Or, to put it even more bluntly: the law is the law is the law is the law.

 

Defenders of the case method point to its original conception under Christopher Langdell at Harvard. Under the reforms that began in 1896, Langdell taught students at Harvard for the first time using the Socratic method.[liii] By 1914, the Socratic method and the accompanying case law problem question format came to dominate law schools worldwide.[liv]  The case method ‘was copied in Australia as the new Law Schools were established, first at Melbourne and then at Sydney in the last years of the nineteenth century’.[lv] Problem questions were seen to be an escape from the dry rote memorization of legal principles.[lvi] Instead of being lectured to, students were given judicial opinions on related cases and asked to ‘replicate or improve on the judge’s reasoning and the arguments of the lawyers on each side’.[lvii] This contrasted against the older model where students were read to from a textbook and expected to explicitly memorize case principles. Students in this prior period were given the ‘right’ answers but under Langdell they were told that there were no ‘right’ answers, only competing opinions.[lviii] To this day, there are those who see the Langdell’s case method as the best way of allowing students to see ‘how open is the future of the law’.[lix] By considering the different perspectives of appellate court judges, the law is supposedly unearthed as fluid and dynamic, open to change or reform at the whim of a new judge. Critics of Langdell however, both in his time and now, suggest that a focus on case law actually narrows the scope of a student’s thoughts, as it ignores how law relates to everyday life.[lx] A true consideration of ‘how open is the future of the law’ would consider substantive issues like politics, sociology, anthropology and other areas that actually reveal the true scope of law.[lxi] At the least, politics and activism would become a central part of the curriculum, since appellate court judges actually very rarely change the law in their own right.[lxii] Instead, changes in the law tend to come down to persistent debate, activism and the work of politicians in drafting new statutes.

 

Even more fundamentally, a true consideration of ‘how open is the future of the law,’ would have a greater emphasis on statute law itself. Critics often point out that Langdell’s method prioritises case law over statute in an age where statute has come to dominant law reform.[lxiii] Ironically, Harvard itself has shifted in focus towards statute law since 2006, after a century of Langdell’s method.[lxiv] First year Harvard students now consider statute law analysis, international law and a broader understanding of law as a field in general, ‘rather than… focusing entirely on interpreting legal doctrines’.[lxv] New Harvard tutors, teaching a newly formed elective ‘Systematic Justice,’ say that the case method simply ‘puts too much emphasis on what the law already is, rather than [on] what it should be’.[lxvi] Tutor Jacob Lipton says that it ‘tends to assume that decisions of the past are fair and appropriate,’ whereas legal education should begin by considering ‘what the problems are in the world,’ and how to effectively address them.[lxvii] Justice Kirby points to an obvious discrepancy when he says that it is ‘astonishing that, in Australia (with a few notable exceptions) law courses continue to persist with the illusion that the common law is the centerpiece of our legal system’.[lxviii] One is left wondering why Australian law schools have been so slow in shifting their focus. Where once they were quick to follow the dictates of Harvard, now they are lagging behind.

 

A rare exception is the University of Wollongong Law School, which posits in its first year law student manual:

We do not spoon-feed students at the Faculty of Law. We discourage passive listening. We do not simply pass on an acceptance of the way the Law has always been. If we were to teach Law in that way you would be most unlikely to gain the independence, judgment and flexibility you expect from a University education’.[lxix]

Along with this guideline, the university mandates a legal drafting course and four theoretical courses as a part of its core curriculum.[lxx] Other universities, including UNSW, have responded to the rise of statute law by introducing a new elective course in statutory interpretation.[lxxi]  This is not as proactive as Harvard.[lxxii] Indeed, Australian law schools have remained slow in adapting to the new realities of law, while focusing on the old, narrow case law method. The criticism Eugene Clark made of Australian law schools a decade ago still applies: ‘few law schools, if any have had the time or resources to be proactive, to plan for change in an orderly, coherent and strategic way’.[lxxiii] It can be admitted that Langdell in his time caused a revolution in legal education across the world. One hundred years later, it may be time for another one.

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i) The Priestley Eleven:

Fundamental to the dominance of the case law method and the ‘law is the law’ mindset in Australia are the national legal admission requirements, known as the ‘Priestley Eleven.’ The Priestley Eleven are a list of subjects which all law schools must teach, which narrowly focus on ‘substantive law’ over extrinsic lessons in ethics, morality or politics, aside from the ‘Legal Ethics’ subject itself.[lxxiv] These subjects include core, black letter law units such as torts, equity, contracts, administrative law, evidence, corporations law, property, constitutional law and civil and criminal procedure. Black letter law subjects tend to focus on what the law is, rather than what it should be, and tend to normalize the idea of law being an objective, neutral and passive force. They tend to be ‘saturated with scenario-based learning through problem solving’ questions, instead of learning through essays or other critical engagement tools.[lxxv] In this way, they tend to justify the ‘law is law’ mindset, by never giving students the chance to criticise what the law is and thus implicitly endorsing its current form.

 

Most Australian law schools tend to adopt the approach of teaching every Priestley Eleven subject individually, in its own unit, meaning that there is a predominance of black letter law throughout the core curriculum.[lxxvi] The Priestley Eleven content has been criticised as ‘outmoded’ by the Australian Law Reform Commission, as it tends to prioritise ‘what lawyers need to know’ over what lawyers ‘ought to do’.[lxxvii] In the United States, by contrast, law students are expected to study how to ‘improve the profession’, gain ‘professional self-development’ and learn lessons in ‘morality’ in all core law subjects.[lxxviii] In Australia, the focus is narrowly on legal principles. Indeed, the Priestley Eleven tend to focus on teaching law through cases, rather than through critical or ethical thinking. It is common for students to be told to ‘set aside their desire for justice’ and not let ‘moral compassion’ cloud their judgment in Priestley Eleven subjects in particular.[lxxix] However, when Priestley Eleven subjects include topics on sexual assault, politics and business transactions it becomes artificial to separate all moral considerations from a student’s problem solving analysis. Students take away the message that advising a client is a robotic function of applying law to the circumstances, drawing lines between precedents and facts, and distinguishing competing cases.[lxxx] Worse still, students gain the false impression that law is neutral, passive or impartial, when in reality, it has a significant impact on people’s everyday lives.

 

Where students are eventually allowed to consider ethics at the end of their degree (or merely at the start), they may find it confusing, or gain a cynical impression of the dismissive treatment of ethical teaching in the curriculum.[lxxxi] Some authors have suggested that by the time students are given a chance to expand into electives, and subjects like ethics, it is already too late. By the time they reach the one or two ethics courses in law school, they may have already acclimatized to ‘thinking like a lawyer’.[lxxxii] If so, they may come to see ethics as a game to be played.[lxxxiii] Many academics have suggested integrating ethics ‘throughout the curriculum’ to prevent this mindset.[lxxxiv] Others have suggested that a greater focus should be placed on ethics and morality at the start of the degree, to work as a backdrop for law students throughout their entire course. This misses a larger point however, of how legal ethics itself is just another vocational sphere of the law for law students to master. To truly broaden the minds of law students would require courses that teach the basics of moral philosophy, sociology and anthropology, and let students question the cultural, theoretical and moral underpinnings of legal institutions and principles. The Council of Australian Law Deans (CALD) and Australian Learning and Teaching Council (ALTC) recently said that law graduates should ‘understand the ‘broader context’ [of law] including… the political, social, historical, philosophical and economic context’ it comes from.[lxxxv] However, implementing this model would appear impossible under the current Priestley Eleven requirements. Chief Justice French recently panned the Priestley Eleven for this reason, pronouncing that they are a ‘dead hand’ constraining legal education reform.[lxxxvi] The Productivity Commission has likewise said that the Priestley Eleven provide a ‘strong base knowledge of the law [but] limit the flexibility of universities to compete and innovate’.[lxxxvii]  It would appear that universities need to move beyond the Priestley Eleven requirements if they wish to sufficiently educate law students about where law comes from and how to behave in an ethical manner.

 

It is not surprising then to see a new review of the Priestley Eleven requirements currently underway. In 2015, the Law Admissions Consultative Committee (LACC) asked whether the subjects of civil procedure, company law, evidence and ethics and professional responsibility should remain a core part of the curriculum, or whether they are no longer considered to be necessary for new lawyers.[lxxxviii] These subjects in particular are viewed as unnecessary in the current curriculum, as they may not be required for ‘all entry-level lawyers,’ and in part these subjects are already being taught in practical legal training (PLT) courses.[lxxxix] The LACC has quoted from Chief Justices, in arguing for a new focus on statutory interpretation instead. This mirrors the argument I made above, about the changing focus of law towards statute law, and the shift in the Harvard curriculum to follow. Yet despite the robustness of such an argument, the Council of Australian Law Deans (CALD), has made it clear that they find it ‘unclear’ why ‘statutory interpretation… [has been] singled out’ in the review process.[xc] They oppose all changes to the curriculum, but heavily qualify that they would be more willing to consider change as part of a wider, all-encompassing review process.[xci] It is unclear how this process will unfold over time, but the snail-pace of change is worth noting here.

 

ii) Clinical Legal Education:

New proposals of ‘clinical legal education,’ which, although called new, date back to at least the late 1800s, simply reinforce the dogmatic vocationalization that is already taking place in law schools.[xcii] Many legal educators have suggested that the way to fix the current curriculum is simply to include more clinical legal education to make legal education more ‘practical’ in nature.[xciii] Clinical legal education involves placing students into real world settings, allowing them to take on real (rather than hypothetical) clients, and thereby confront the ‘reality’ of the law.[xciv] Although often framed around broadening the knowledge acquired inside law school, it is unclear how bringing students in touch with the ‘real world’ of case law will make them well-rounded, instead of just adding another graduate attribute to tick off the long, long list.[xcv] Again these programs presume that all law students will graduate on to become ‘lawyers,’ as opposed to the vast array of professions that law students actually enter into.[xcvi] They also implicitly endorse the view that work is the ‘authentic center of knowledge,’ and further move students away from critical and theoretical understandings of the law in their studies. In this way, they reinforce the status quo rather than challenging it.

 

 

This is an extract from my book: Legal Education, Privatization and the Market.

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@JoshKrook

 

Bibliography:

Chapter 1:

The Problem:

[i] John Smyth and Robert Hattam, ‘Intellectual as Hustler: Researching Against the Grain of the Market’ (2000) 26 British Educational Research Journal 2, 157-158.

[ii] Colin Symes, David Boud, John McIntyre, Nicky Solomon and Mark Tennant, ‘Australian Universities and ‘Real World’ Education’ (2000) 46 International Review of Education 6, 566; Terry Hyland, ‘Vocationalism, Work and the Future of Higher Education’ (2001) 53 Journal of Vocational Education and Training 4, 677.

[iii] Chris Duke, ‘Is There an Australian Idea of a University’ (2004) 26 Journal of Higher Education Policy and Management 3, 307-308.

[iv] Hyland, (n, 2).

[v]  R Johnstone and S Vignaendra, ‘Learning outcomes and curriculum developments in law’ (2003) Department of Education, Science and Training <http://www.cald.asn.au/docs/autc_2003_johnstone-vignaendra.pdf&gt; 15.

[vi] Duncan Bentley and Joan Squelch, ‘Employer Perspectives on Essential Knowledge, Skills and Attributes for Law Graduates to Work in a Global Context’ (2014) 24 Legal Education Review 1, 96; Charles J.G. Sampford, Sophie Blencowe and Suzanne Condlin (eds.) Educating Lawyers for a Less Adversarial System (The Federation Press, 1999) 132, 146.

[vii] Stephen C. Halpern, ‘On the Politics and Pathology of Legal Education (or Whatever Happened to the Blind-Folded Lady with the Scales?)’ (1982) 32 Journal of Legal Education 383, 385.

[viii] Felicity Nelson, ‘Law Graduate Unemployment Hits Record High’ (Lawyers Weekly, 9 January 2015) <http://www.lawyersweekly.com.au/news/16023-law-graduate-unemployment-hits-record-high&gt; accessed 25 September 2015.

[ix] Halpern, (n, 7); Smyth and Hattam, (n, 1) 158.

[x] Perla Astudillo, ‘More plans to deregulate and privatize tertiary education in Australia’ (ICFI, 13 November 1999) <https://www.wsws.org/en/articles/1999/11/edu-n13.html&gt; accessed 25 September 2015.

[xi] Matthew Knott, ‘Whitlam’s Free University Education Reforms Led to Legacy of No Upfront Fees’ (The Sydney Morning Herald, October 21 2014) <http://www.smh.com.au/federal-politics/political-news/gough-whitlams-free-university-education-reforms-led-to-legacy-of-no-upfront-fees-20141021-119bws.html&gt;, accessed 25 September 2015.

[xii] Mohan J. Dutta, Communicating Social Change: Structure, Culture and Agency (Taylor & Francis, 2011) 48.

[xiii] Meg Luxton and Susan Braedley, Neoliberalism and Everyday Life (McGill-Queen’s Press, 2010) 10.

[xiv] Brian Howe, Weighing Up Australian Values: Balancing Transitions and Risks to Work and Family in Modern Australia (UNSW Press, 2007) 60.

[xv] Luxton and Braedley, (n, 13); Helga Leitner, Jamie Peck and Eric S Sheppard (eds.) Contesting Neoliberalism: Urban Frontiers (The Guilford Press, 2007) 4; Howe, (n, 12).

[xvi] Ibid.

[xvii] Luxton and Braedley, (n, 13) 9.

[xviii] Margaret Thornton, Privatising the Public University (Routledge, 2011) 2-4.

[xix] Lyn Yates, ‘My School, My University, My Country, My World, My Google, Myself… What is education for now?’ (2012) 39 Australian Education Research 265.

[xx] Thornton (n, 18) 64.

[xxi] Yates (n, 19).

[xxii] William Deresiwicz, Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life (Simon & Schuster, 2014) 62-64.

[xxiii] Ibid, 62.

[xxiv] Ibid.

[xxv] Ralph Shain, ‘Legal Education and Hierarchy: A Reply to Duncan Kennedy’ <https://www.missouristate.edu/assets/phi/Legal_Education_and_Heiracrchy.pdf&gt; 10, accessed 20 September 2015.

[xxvi] Duncan Kennedy and Paul Carrington, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York University Press, 2004) 5.

[xxvii] Robert John Araujo and John Courtney Murray,‘The Law as a Moral Enterprise’, Fifth Annual Courtney Murray Lecture (November 14, 2013) 5 <https://walshslaw.files.wordpress.com/2014/07/araujo-fifth-annual-john-courtney-murray-lecture-2013.pdf&gt; accessed 20 September 2015; Richard John Neuhaus, ‘Law and the Rightness of Things’ (1979) 14 Valparaiso University Law Review 1, 8.

[xxviii] Letitia Summerford, ‘Residents think “the law is the law” when it comes to Bali 9’ (Daily Mercury 24 February 2015) <http://www.dailymercury.com.au/news/residents-think-law-law-when-it-comes-bali-9/2554362/&gt; accessed 25 September 2015; Anapat Deeechuay and Kasamakorn Chanwanpen, ‘The Law is the Law: PM’ (July 1 2015) <http://www.nationmultimedia.com/politics/The-law-is-the-law-PM-30263485.html&gt; accessed 25 September 2015.

[xxix] Roberto Gargarella, ‘Human Rights, International Couts and Deliberative Democracy’ 2 <http://lanic.utexas.edu/project/etext/llilas/vrp/gargarella.pdf&gt; accessed 25 September 2015.

[xxx] Tamara Walsh, ‘Putting Justice Back Into Legal Education’, (2008) 17 Legal Education Review 1, 127-128; Michael Robertson, Lillian Corbin, Kieran Tranter and Francesca Bartlett (eds.) The Ethics Project in Legal Education (Routledge, 2011) [8.3.3].

[xxxi] Edward J. Phelps, ‘Methods of Legal Education’ (1892) in Steve Sheppard (ed) The History of Legal Education in the United States: Commentaries (Salem Press, 1888) 532.

[xxxii] John D. Whyte, ‘Finding Reality in Legal Education’ (2013) 76 Saskatchewan Law Review 99.

[xxxiii] Vanessa E Munro, ‘Legal Education at the Intersection of the Judicial and the Disciplinary’ (2003) 2 Journal of Commonwealth Law & Legal Education 1, 39; Gonzalo Vilalta Puig, ‘Legal ethics in Australian law schools’ (2008) 42(1) The Law Teacher 34.

[xxxiv] Ibid.

[xxxv] Ibid.

[xxxvi] Ibid.

[xxxvii] Kennedy and Carrington (n, 26) 3.

[xxxviii] Neuhaus, (n, 27) 8, 10.

[xxxix] Johnstone and Vignaendra (n, 5) 16.

[xl] Elisabeth Peden and Joellen Riley, ‘Law Graduates’ Skills – A Pilot Study into Employers’ Perspectives’ (2005) 15 Legal Education Review 1/2, 94.

[xli] Yates (n, 19) 265.

[xlii] Simon Roodhouse, ‘Revisiting ‘Technical’ Education’ (2008) 50 Education + Training 1, 56.

[xliii] Bentley and Squelch (n, 6) 101.

[xliv] Margaret Thornton, ‘The Market Comes to Law School’ (September 13 2011) The Australian <http://www.theaustralian.com.au/higher-education/opinion/the-market-comes-to-law-school/story-e6frgcko-1226134877209&gt;.

[xlv] Ibid.

[xlvi] Kennedy and Carrington (n, 26) 22.

[xlvii] ‘Now History Will be the Judge’ (Sydney Morning Herald, January 31 2009) <http://www.smh.com.au/articles/2009/01/30/1232818725589.html?page=fullpage&gt; accessed 20 April 2015.

[xlviii] Ibid.

[xlix] Marco Beltrami and Tom Hiel, ‘The Case Against Alan Shore,’ The Practice (Season 8, Episode 18) (March 28, 2004) 8 <http://www.boston-legal.org/script/tp08x18.pdf&gt; accessed 25 September 2015.

[l] William M. Sullivan et. al, Educating Lawyers: Preparation for the Profession of Law,’ The Carnergie Foundation for the Advancement of Teaching (2007) 5-6, quoted in Jennifer S. Taub, ‘Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students’ (2013) 88 Washington Law Review 1451.

[li] Gonzalo Vilalta Puig, ‘Legal ethics in Australian law schools’ (2008) 42(1) The Law Teacher 34.

[lii] Ibid.

[liii] Peggy Cooper Davis, ‘Desegregating Legal Education’, 26 Georgia State University Law Review 4, 1275.

[liv] Ibid; Bruce A. Kimball, ‘The Proliferation of Case Method Teaching in American Law Schools: Mr. Langdell’s Emblematic ‘Abomination,’ 1890-191’ (2006) 46 History of Education Quarterly 2.

[lv] Michael Kirby, ‘Right Now,’ Speech to Melbourne Law School (January, 2007).

[lvi] Davis (n, 53) 1275.

[lvii] Ibid.

[lviii] Ibid.

[lix] John R Morss, ‘Part of the Problem or Part of the Solution? Legal Positivism and Legal Education’, (2008) 18 Legal Education Review 55, 3.

[lx] Davis (n, 53) 1286; Edward Rubin, ‘What’s Wrong With Langdell’s Method’ (2007) 60 Vanderbilt Law Review 2, 610; Sheppard (n, 50), 618.

[lxi] Ibid.

[lxii] Ibid.

[lxiii] Ibid

[lxiv] Kirby, ‘Right Now,’ (n, 55).

[lxv] Ibid; Elia Powers, ‘Harvard Law Alters First-Year Program’ (Inside Higher Ed, October 9 2006) <https://www.insidehighered.com/news/2006/10/09/harvard&gt; accessed 25 September 2015.

[lxvi] Jon Hanson and Jacob Lipton, quoted in Courtney Humphreys, ‘New Harvard Law School Program Aims for ‘Systematic Justice’’ (February 6 2015) The Boston Globe <https://www.bostonglobe.com/ideas/2015/02/06/new-harvard-law-school-program-aims-for-systemic-justice/PeGBqIenWhqqCuJ37Y20kJ/story.html&gt; accessed 20 April 2015.

[lxvii] Ibid.

[lxviii] Kirby, ‘Right Now,’ (n, 55).

[lxix] University of Wollongong, ‘Studying Law’ (2007) 6 <https://lha.uow.edu.au/content/groups/public/@web/@law/documents/doc/uow015658.pdf&gt; accessed 15 March 2015.

[lxx] ‘Bachelor of Laws’, Undergraduate Courses, University of Wollongong <http://www.uow.edu.au/handbook/yr2015/ug/H15000273.html&gt; accessed 15 March 2015.

[lxxi] Misa Han, ‘University no ‘trade school’ for lawyers’ (October 23 2014) Financial Review <http://www.afr.com/news/policy/education/university-no-trade-school-for-lawyers-20141023-11awap&gt; accessed 25 September 2015.

[lxxii] Ibid.

[lxxiii] Eugene Clark, ‘Australian Legal Education a Decade After the Pearce Report’ (1997) 8(2) Legal Education Review 213, 213-214.

[lxxiv] Uniform Admission Arrangements (2008) 5 <lawcouncil.asn.au/LACC/images/pdfs/212390818_1_LACCUniformAdmissionRules2008.pdf>; Legal Profession Admission Rules 2005 (NSW) reg 95(1)(b).

[lxxv] Michael Robertson, Lillian Corbin, Kieran Tranter and Francesca Bartlett (eds.) The Ethics Project in Legal Education (Routledge, 2011) [8.3.3].

[lxxvi] Johnstone and Vignaendra, (n, 5) 93.

[lxxvii] Ibid.

[lxxviii] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) 2.20.

[lxxix] William M. Sullivan, Educating Lawyers: Preparation for the Profession of Law (Carnegie Foundation for the Advancement of Teaching, 2000) 55.

[lxxx] Puig (n, 4) 59

[lxxxi] Sullivan (n, 20); D. L. Rhode, ‘Into the valley of ethical professional responsibility and educational reform’ (1995) 58(3) Law and Contemporary Problems 140.

[lxxxii] Margaret Thornton, ‘The Law School, The Market and The New Knowledge Economy’ (2008) 2(17) Legal Education Review 5-6.

[lxxxiii] Ibid.

[lxxxiv] Deborah L. Rhode, ‘Legal Ethics in Legal Education’, 16 Clinical Law Review 43.

[lxxxv] Lucy Maxwell, ‘How to Develop Law Students’ Critical Awareness? Change the Language of Legal Education’ (2012) Legal Education Review 5.

[lxxxvi] Han (n, 71); cf: Charles J.G. Sampford, Sophie Blencowe and Suzanne Condlin (eds.) Educating Lawyers for a Less Adversarial System (The Federation Press, 1999) 137-138.

[lxxxvii] Han (n, 71).

[lxxxviii] Law Admissions Consultative Committee, ‘Review of Academic Requirements for Admission to the Legal Profession’ (2015) 5.

[lxxxix] Ibid.

[xc] Council of Australian Law Deans, ‘Submission: Regarding: Review of Academic Requirements for Admission to the Legal Profession (2015) 4 <http://www1.lawcouncil.asn.au/LACC/images/Review_of_Academic_Requirements_-_Submission_by_CALD.pdf&gt; accessed 25 September 2015.

[xci] Ibid.

[xcii] Deborah L. Rhode, ‘Legal Ethics in Legal Education’, 16 Clinical Law Review 43; Malcolm M. Combe, ‘Selling intra-curricular clinical legal education’ (2014) 48 The Law Teacher 3, 281-283; Rebecca Sandefur and Jeffrey Selbin, ‘The Clinic Effect’ (2009) 16 Clinical Law Review 57; Sheppard (n, 31) 540.

[xciii] Ibid.

[xciv] Brett W. B. Smith, ‘The Case for Further Integration of Clinical Legal Education in Australian Law Schools’ (2007) <http://www.collaw.edu.au/assets/Final-Brett-Smith.pdf&gt; 2.

[xcv] Han (n, 71).

[xcvi] Maxwell (n, 86).

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