The Challenge for Law Schools of Satisfying Multiple Masters

A U S T R A L I A N U N I V E R S I T I E S ’ R E V I E W The challenge for law schools of satisfying multiple masters Margaret Thornton Australian National University University law schools have been beset with a sense of schizophrenia ever since first established in the 19th century. They were unsure as to whether they were free to teach and research in the same way as the humanities or whether they were constrained by the presuppositions of legal practice. More recently, this tension has been overshadowed by the impact of the neoliberal turn and disinvestment by the state in higher education. Ironically, as government has provided less money to universities, it has arrogated to itself increased control over teaching standards and research productivity. At the same time, the mastery of the legal profession continues to be exercised through the specification of 11 subjects required for admission to legal practice, known as the ‘Priestley 11’. Drawing on Foucault’s idea of the self as a kind of enterprise, it is argued that law students have also assumed an element of mastery over what is taught and how it is taught. It is suggested that all elements of mastery are imbricated with one another so as to reify enterprise and capital accumulation within the neoliberal economy. Keywords: Universities, legal education, teaching, research, neoliberalism Introduction Ever since law schools were incorporated into universities in the 19th century, the discipline of law has been haunted by a sense of dystopia. While Roman law, legal history and jurisprudence had an ancient lineage within the great universities of Europe (Wieruszowski, 1966), the training of lawyers was regarded as the responsibility of the profession – through the Inns of Court in London and apprenticeships elsewhere. The establishment of university law schools set up a tension between the university and the legal profession. The debate concerning the establishment of Sydney Law School in the latter part of the 19th century, for example, lasted for more than 40 years (Martin, 1986; Chesterman & Weisbrot, 1987). The discipline of law is still somewhat schizophrenic about whether it should prioritise academic or professional norms (Webber, 2004). The deference by law schools to a set of professional presuppositions regarding the nature of legal knowledge distinguishes it from other social sciences and vol. 62, no. 2, 2020 humanities disciplines that are more receptive to the plurality of knowledge and critique. This problem has been accentuated in Australia because of the close links between legal education and the legal profession (Chesterman & Weisbrot, 1987). While professional disciplines, such as engineering, accept predetermined epistemological standpoints, they do not appear to be beset by the same degree of angst as law. The hope of enlightened jurisprudes has long been that a balance between scholarship and practice might be effected, but such a balance may be unattainable because of the inherent tension between the presuppositions underpinning applied legal knowledge and the academic critique of them. The metaphor of the pendulum may be trite, but it captures a sense of the perennial movement between scholarship and practice. When the pendulum swings too close to scholarship, there is agitation from the practising profession for the injection of more applied knowledge into the curriculum, while a swing towards practice impels a plea for a more scholarly stance. Needless to say, the oscillation of the pendulum is inevitably affected by the play of politics and power at any particular The challenge for law schools of satisfying multiple masters Margaret Thornton 5 A U S T R A L I A N U N I V E R S I T I E S ’ time, which engenders resentment on the part of those who feel that their power has been attenuated (Brown, 1995). I suggest that a constellation of factors arising from the neoliberal turn has complicated the simple metaphor of the pendulum swing between the law school and the legal profession as to who has mastery over legal education. This is not to deny the prominent roles that both entities continue to exercise, but disinvestment in higher education by the state in the late 20th century disturbed any notion of balance between them. While judges and senior members of the profession continue to play a key role in ensuring that the law curriculum is geared to serving legal practice through admission requirements, as will be discussed, disinvestment has been accompanied by a more interventionist and prescriptive role on the part of the state. Indeed, I suggest that the Australian federal government has assumed an influential role behind the scenes in respect of higher education policy, including with regard to teaching and research that might be likened to that of puppet master. Furthermore, legal education has come to be regarded not only as a source of capital accumulation for government, but also as a source of human capital for student/consumers, a role that has endowed them too with an enhanced element of mastery over what is taught and how it is taught. Government as puppet master Despite the orchestrated transition from an élite to a mass system of higher education that emerged from the Dawkins reforms in 1988 (Dawkins, 1988; Croucher et al., 2013), there was not a commensurate increase in the funding of Australian public universities. As the privatisation of public goods was a key imperative of neoliberalism (Urciuoli, 2010), a shift from free higher education to a system of user-pays occurred. Hayek (1976; 1960) and Friedman (1962), the gurus of neoliberalism, had propounded the view that students in professional schools should assume responsibility for the cost of their education themselves in the belief that they would be the beneficiaries of high incomes (Friedman & Friedman, 1980). This philosophy underpinned the transformation of higher education from a public to a quasi-private good across disciplines (Thornton, 2012). The radical reform was effected relatively smoothly due to the introduction of the income-contingent Higher Education Contribution Scheme (HECS), now FEE-HELP (Chapman & Nicholls, 2013). While the user-pays regime ostensibly privileged private benefit over public good, the state was able to slough off responsibility for a significant proportion of the cost of higher education and profit from its commodification. Indeed, enterprise became the ‘third mission’ of the university, along with teaching and research (Shore & McLauchlan, 2012). The income now generated by this former public good is phenomenal, for it added approximately A$140 billion per annum to the Australian economy in 2018 and elevated higher education to the third 6 R E V I E W largest export ‘industry’ behind coal and iron (Universities Australia, 2019). To be sustainable, however, the new ‘industry’ had to be closely regulated, despite the free market rhetoric of neoliberalism. ‘Moscow on the Molonglo’ is the witty phrase devised by economist, Max Corden (2005), with ‘Moscow’ signifying the former Soviet central planning system and ‘Molonglo’, the small river in Canberra signifying the Australian federal government. Nevertheless, government mastery has been maintained not so much through punitive Kremlin-like edicts but by financial inducements (Corden, 2005). The Pearce Report (Pearce, Campbell & Harding, 1987), a detailed overview of the discipline of law, had been authorised by the Commonwealth Tertiary Education Commission (CTEC), but this body was a casualty of the Dawkins reforms. Its disbandment meant that there was no longer a single regulatory body charged with disciplinary oversight of higher education. The Pearce Committee had suggested that there might be one more Australian law school, preferably in Queensland (Pearce ibid.), but the radical shift in regulation led to a dramatic expansion of legal education. Moscow on the Molonglo made no endeavour to restrict the number of law schools in the new regime, as the choice of discipline (apart from medicine) was left to universities themselves. Vice-chancellors (VCs) of the new universities, many of which were former ‘teaching only’ colleges of advanced education, were keen to have law schools as law was regarded as a prestigious professional discipline, although VCs believed it could be taught ‘on the cheap’ through the large lecture format in order to subsidise the more resource-intensive parts of the university (cf. Tamanaha, 2012, p. 127). The virtually unstoppable demand for law places has resulted in the number of law schools more than tripling – from 12 to 40 in 30 years – which includes Australia’s first for-profit law school (Sydney City School of Law at TOP Education Institute, established in 2016). The number of law graduates in established schools has also increased exponentially as universities have endeavoured to survive ongoing cuts to their operating grants. The corporatisation of universities nevertheless proved to be so lucrative that tuition fees were soon ratcheted up with law in the highest band, culminating in the Coalition Government proposing in 2014 that university fees be deregulated. However, the electorate baulked at the idea of $100,000 undergraduate degrees, and deregulation was shelved. Had the initiative proceeded, each university would have been able to set its own fees according to whatever the market could bear, a situation that would inevitably have exacerbated competition between universities to the advantage of established metropolitan law schools and the disadvantage of new and regional universities. Equity, however, is accorded short shrift in a regime contingent on competition. The marketised environment that universities now inhabit nevertheless brings with it risk and uncertainty (Beck, 1992). To counteract that risk, everything and everyone is subject to The challenge for law schools of satisfying multiple masters Margaret Thornton vol. 62, no. 2, 2020 A U S T R A L I A N U N I V E R S I T I E S ’ audit and accountability (Power, 1997). As a dimension of ‘new public management’ (NPM), which took hold of the public sector as a corollary of neoliberalism, government needs to be assured that any investment of public funds is put to good use. While ‘management’ is concerned with the conversion of resources into productive outputs, ‘managerialism’ is an ideology that distorts the primary function of management by promoting the view that consultation, collegiality and even academic expertise are unnecessary for solving problems ( Joseph, 2015). Instead, the measurement of key performance indicators through frequent auditing is regarded as the best way of evaluating risk. Academics can no longer be trusted to deliver courses to the appropriate standard unaided, but must be told what to do and how to do it. Hence, senior managers, or the ‘manageriat’ (to invoke Rob Watts’ (2017) evocative term) have replaced the professoriate as the university élite and are often paid very substantial salaries to reflect the inversion of status. Directed by government as puppet master in a way that was unknown prior to the Dawkins Reforms, the manageriat now plays a major role in orchestrating teaching and research in order to benefit what is believed to be the national interest, as I proceed to show. Managerial mastery: Teaching Managerialism encourages standardisation of both curricula and pedagogy through a range of technologies orchestrated by government. Uniformity of product is designed to reassure prospective student/consumers of the quality of a proposed degree as the aim is to maximise income, particularly from fullfee and international students. One of the most pronounced technologies is the quality regime that enables oversight of degree standards through the Australian Qualifications Framework (AQF) (2013), which, in the case of higher education, is administered by the Tertiary Education Quality and Standards Agency (TEQSA). TEQSA has adopted the Threshold Learning Outcomes (TLOs) for law programs endorsed by the Council of Australian Law Deans (CALD). The primary regulation of the quality of legal education has therefore become the preserve of government even though government contributes only around 15 per cent of a government-funded law place and nothing to international and full-fee domestic places. TEQSA standards are not discipline-specific but apply to learning outcomes for degrees at the same level. The LLB falls under Level 7, the purpose of which is to equip graduates with ‘a broad and coherent body of knowledge…to undertake professional work’ (AQF, 2013, p. 16). The Juris Doctor ( JD), the graduate degree that replaced the LLB as the basic law degree in the US 50 years ago, was introduced in Australia to circumvent the former prohibition on charging full fees for undergraduate courses (Cooper et al., 2011). Now a popular offering in Australia, the JD falls under Level 9, the Master’s vol. 62, no. 2, 2020 R E V I E W Degree (Extended) category, the outcomes of which are specified as ‘specialised knowledge and skills for research and/ or professional practice and/or further learning’ (AQF, 2013, p. 13). The LLB (Hons) occupies a position between the LLB and the JD at Level 8. Although TEQSA was developed after Corden coined ‘Moscow on the Molonglo’, the establishment of this agency is a dramatic manifestation of government mastery that undermines the autonomy of law schools and legal academics in respect of how they teach and deliver programs. Indeed, TEQSA is widely resented for its intrusiveness and lack of detailed knowledge. A former TEQSA employee said it was disrespectful of universities’ roles and histories. ‘You have a bunch of predominantly bachelor-educated people, who have not set foot in a university for 20 years, telling them they have to tick this box or that one’ (Ross & Trounson, 2013, p. 29). Although auditing of this kind inevitably fosters a lowest common denominator approach, universities are anxious to comply to avoid adverse repercussions. Financialisation is the key to government mastery, not only in respect of direct contributions to university operating grants, but also in specifying student contributions (fees) according to discipline. While Moscow on the Molonglo does not prescribe how teaching is to be carried out, ‘massification’ has meant that small-group teaching is no longer economically viable for most law schools, even though it involves a superior pedagogy that encourages interactive learning and a critical approach towards orthodox knowledge. To cut costs, there has been a widespread reversion to the outdated and pedagogically questionable large-lecture format (Le Brun & Johnstone, 1994), which favours the transmission of applied knowledge, or knowledge as information. This nevertheless comports with the government aim of producing ‘job ready’ graduates to serve the new knowledge economy. Money saved from utilising the cheaper large-lecture format in preference to the more labour-intensive small group teaching can then be expended on research, to which I turn. Managerial mastery: Research Despite sustained attempts to professionalise teaching through standardisation, accreditation and awards for excellence, research far outstrips teaching in the academic prestige stakes, a gap that is widening and accentuating the tension within law schools. The typical legal academic was formerly something of a dilettante when it came to research but, as with other aspects of education in the corporatised academy, the commodification of research has totally transformed the academic job description. This has occurred in two distinct ways: first, through the direct commercialisation of research and, secondly, through the pressure to produce legal scholarship, preferably of ‘world class’ standard or above. The challenge for law schools of satisfying multiple masters Margaret Thornton 7 A U S T R A L I A N U N I V E R S I T I E S ’ When we turn to the first aim, the commercialisation of research, it is perhaps unsurprising that law fares poorly compared with the technosciences. The ideal academic is expected to be what Jane Kenway et al. (2006, p. 42) refer to as a ‘technopreneur’, whom they define as one who combines ‘techno-scientific knowledge…with business acumen’. In a marketised environment, academics who pursue knowledge for its own sake à la Newman (1976) have become anachronistic. The neoliberal economy demands that the production of knowledge has direct value for business, society and the economy (Larkins & Croucher, 2013). Scientists, technicians and businesspeople are preferred over social scientists and humanities scholars, which include legal academics (Shore & McLauchlan, 2012). The pressure on legal academics to satisfy the second aim, that is, the production of scholarship of ‘world class’ standard to enhance the status of their university is also problematic for legal scholars as it does not sit easily with the imperative to transmit orthodox legal knowledge to students. While legal academics may not receive star billing as winners of Nobel Prizes, they are nevertheless subject to constant pressure to enhance their research productivity through publication, as well as to generate research income through competitive grants – whether necessary for their research or not. The desire by universities for reputational and positional goods flowing from research and scholarly publications is a corollary of the competition policy that underpins neoliberalism. For a law school’s research to be ranked ‘below world standard’ could lead to its collapse and closure. In order that the benefits of research might be harnessed by government to justify investment in schemes such as those under the auspices of the Australian Research Council (ARC) (2020), productivity is rendered calculable through national systems of audit such as the Excellence in Research for Australia (ERA). The requirement that grant applicants satisfy a National Interest Test (NIT) underscores the insidious way that managerial mastery by the state operates. If the Minister does not believe that an applicant has satisfied the NIT, a grant can be denied, despite having been highly rated by experts in the field. The assessment of research quality takes account of reputational and impact factors, including competitive grants and fellowships, journal standing and citation indices. The ranking of journals is particularly contentious for law as most branches of legal knowledge are likely to have municipal or domestic, rather than global or universal significance, unlike engineering and other science and technology subjects. Echoing the imperialism that pervades the economy of knowledge more generally (Connell, 2019), journals emanating from the northern hemisphere are invariably held in higher regard than those from Australia, as well as those from the global South more generally. The desire to enhance 8 R E V I E W an institution’s ranking on international league tables has led some Australian law school deans to insist that academics publish only in northern hemisphere (‘international’) journals. The effect has contributed to a downgrading of Australian legal scholarship, just when it had sloughed off its imperial ties and sought to establish its autonomy. The auditing of research enshrines competition between individuals, disciplines, institutions and countries, and has been entrenched internationally by a plethora of international league tables, such as the Times Higher Education World University Rankings and Quacquarelli Symonds (QS). League tables are another recent manifestation of competition policy that has emerged as a corollary of the corporatisation of universities. Rankings methodology is invariably flawed as it focuses on standard criteria at the expense of distinctiveness, which means that the achievements of regional and relatively young Australian universities with a commitment to, say, community engagement, must be compared with elite northern hemisphere universities renowned for their research. Like numerical rankings in a football league, metricisation encourages superficial comparisons with no allowance for differences in culture, wealth and positional goods. This includes the time – possibly centuries – over which substantial endowments might have been acquired, such as in the case of Oxbridge and the Ivy League. Despite the obvious flaws, league tables nevertheless exercise a seductive allure for law deans and university managers (Sauder & Espeland, 2009), as well as being likely to influence government funding policies. The inversion of the ranking of teaching and research has resulted in a propensity for legal academics to buy out the teaching component of their workload, preferably through competitive research fellowships. Casual teachers are then likely to be engaged to undertake teaching in their stead but are not required to be research active. Universities accord scant attention to the fact that a sizable proportion of the academic workforce is trapped in a succession of exploitative contracts (May et al., 2013; Clohesy, 2019). Indeed, it points to the way that collegiality and equity are likely to be discarded in favour of managerialism and competition in a corporatised context. Although TEQSA and ARC are both government regulatory agencies, no cognisance is taken of the fact that they are at odds with each other as to the relative significance of teaching and research. While the failure to produce excellent outcomes can result in financial penalties in both domains, the prominence of international league tables and citation indices make clear that research excellence is held in higher regard than teaching, a factor that carries little weight with the legal profession, which continues to exercise a central role in the mastery of university law schools, as I now demonstrate. The challenge for law schools of satisfying multiple masters Margaret Thornton vol. 62, no. 2, 2020 A U S T R A L I A N U N I V E R S I T I E S ’ Professional mastery Following the Dawkins reforms and the proliferation of new law schools, uniform requirements for admission to legal practice were developed in 1992 by the Law Admissions Consultative Committee (LACC). Comprising 11 areas of knowledge, they came to be known as the ‘Priestley 11’ or, more colloquially, ‘the Priestleys’, after Justice Priestley, the Chair of LACC. Focusing on doctrinal and technical competence with a commercial bias, these ‘core’ areas of knowledge comprise approximately two-thirds of the curriculum. They are often supplemented by ‘advanced’ core-related electives, for which students may agitate in the belief that such subjects will enhance their employability in a competitive legal labour market ( James, 2004). It is notable that the Priestley 11 ignored the broadening of the curriculum that had been occurring with the modernisation of the teaching of law and the embrace of social liberalism from the 1970s onwards (Thornton, 2001), particularly after the Pearce Report (McInnis & Marginson, 1994). Second generation law schools, such as Monash, the University of NSW and Macquarie, were interested in the study of law in its social context and law as an instrument of social justice (James, 2000); they were particularly keen to break away from the ‘trade school’ image of the past. However, these trends exerted no discernible effect on the LACC. Even non-doctrinal subjects with a long tradition of having been taught in universities, such as jurisprudence and legal history, did not appear in the Priestley 11. The expectation that the primary role of the law curriculum was to prepare students for private practice lingered on (Keyes & Johnstone, 2004, p. 557). Nickolas James (2000) has noted that a critical legal education is likely to be viewed with suspicion by the profession because it is ‘“more theoretical” and “less practical”’ than what is thought desirable for legal practice. The profession remains conservatively focused on what makes a ‘good lawyer’, evincing an antipathy towards law schools that have dared to be different. Macquarie Law School, for example, embraced theory and critique as essential dimensions of an intellectually robust legal education from its inception in the 1970s. However, Macquarie was criticised for not teaching ‘law’ (Pearce et al., 1987) which reveals just how difficult it is to resist the mastery of the profession. Even the reform of legal practice itself that occurred soon after promulgation of the Priestley 11 was not enough to alter the perspective of the LACC. The millennial turn saw initiatives such as the incorporation of law firms, listing on the stock exchange and globalisation. The effect of these reforms was to ratchet up competition with the aim of maximising profits and hastening the shift from legal professionalism to ‘law as business’ (Bagust, 2013). In conjunction with the changes to lawyering, a range of initiatives, such as the creation vol. 62, no. 2, 2020 R E V I E W of companies specialising in document review, discovery and predictive coding were established to undertake work more cheaply that was traditionally performed by legal associates (Henderson, 2013). This inevitably began to have an effect on the legal labour market to the disadvantage of those graduates who expected to obtain a position in practice. The Global Financial Crisis (GFC) saw the legal profession embrace technological innovation, which raises provocative questions about AI and the role of non-lawyers in undertaking legal work. While such issues have resulted in the emergence of the ‘poly-technical legal entrepreneur’ (Galloway et al., 2019), they have received scant attention from the admitting authorities, although some law societies have begun to address them (Law Society of NSW, 2017; Law Society of WA, 2017). Despite ‘disruptive innovations’ (Christensen, 2001) over more than two decades in both legal education and legal practice, a review of the Priestley 11 was very slow in eventuating. It was only in 2019 that a revision was concluded by the LACC, almost 30 years after the first iteration (LACC, 2019). However, the specified areas of knowledge in the revised version do not differ markedly from the initial version. The 11 doctrinally-oriented, largely commercial areas of knowledge that were specified in 1992 reappeared in 2019 and were reaffirmed as ‘fundamental areas of legal knowledge’ for both the LLB and the JD. Most significantly, the revolutionary developments in technology, including AI, which Susskind argues are likely to make lawyers redundant (Susskind & Susskind, 2015; Susskind, 2013), were accorded short shrift. AI has already made significant inroads into the routine legal tasks on which new lawyers have traditionally cut their teeth and is undoubtedly contributing to the steady decline in demand for young solicitors (Urbis Pty. Ltd., 2018). The issue of generational renewal does not appear to have been a matter of concern for the admitting authorities. While the ‘teaching of new developments in the relevant law’ is not precluded (LACC, 2019), the revised Priestley 11 does not envisage a more imaginative, diverse and critical approach to the compulsory areas of knowledge appropriate for the 21st century, let alone the idea that routine aspects of professional legal knowledge might become redundant as a result of technological change (Susskind & Susskind, 2015; Webley et al., 2019). Even if a broader approach is adopted, any innovation is bounded by doctrinal imperatives, as Galloway et al. (2019) point out. Although the marked changes in the practice of law exerted little effect on the Priestley 11, one might have thought that the proliferation of new law schools since 1992 would have encouraged the LACC to consider broadening its approach. What is the point of multiple law schools all being pale copies of one another? In any case, the overwhelming majority of law graduates do not embark on careers in traditional legal practice but pursue a diverse range of careers in the public service, The challenge for law schools of satisfying multiple masters Margaret Thornton 9 A U S T R A L I A N U N I V E R S I T I E S ’ the community sector, the international arena, non-profit and business organisations, as well as research and teaching. However, the legal profession has chosen to retain its mastery over law schools by means of standardising the curriculum. The Priestley 11 remains a powerful symbol of the assumption that the primary role of legal education is to serve the legal profession, regardless of the reality. As with the unifying propensity that emerges from ‘the state as homogeniser’ in its mastery over the corporatised university (Marginson & Considine, 2000, p. 176), the admitting authorities have sought to apply the same propensity through the Priestley 11. The admitting authorities’ endorsement of the original Priestley 11 almost 30 years after its first iteration has all the appearances of a rear-guard action designed to retain its mastery over law schools in the face of disruption and diversity. The student as master: Inverting the norm Conventionally, the student is expected to be docile, that is teachable (from the Latin docere to teach). Foucault (1995) defined the docile body as one that may be ‘subjected, used, transformed and improved’. However, docility, or teachability, is not the only quality that might be applied to the contemporary law student. In subsequently translated work, The Birth of Biopolitics, Foucault (2008) describes the neoliberal subject in more active terms, conceptualising the self as a kind of enterprise in which individuals are responsible for producing their own capital by making meaningful choices and decisions. This understanding aptly encapsulates the characteristics of the contemporary fee-paying law student. A user-pays system indirectly emphasises credentialism and vocationalism because student customers/consumers are necessarily concerned about a return on their investment. Consumerism has been a crucial factor in not only inducing a swing away from theory and critique in favour of applied knowledge in higher education, or from ‘know what’ to ‘know how’ (OECD, 1996), but also in vesting students with a significant degree of power over the content of the curriculum and modes of pedagogy. Foucault’s thesis of the self as enterprise is not only clearly evident in the case of the contemporary law student, but it is also supported by my argument of government as puppet master. That is, the imposition of fees places pressure on students to prioritise vocationalism over professionalism (James, 2017). In a neoliberal climate, the aim of government is not to produce critically aware graduates but a pool of job-ready skilled human capital to enhance international competitiveness (Purcell, 2008). Student consumers are able to influence modes of delivery, as well as the substance of what is taught in order to accommodate the fact that they are time-poor; attaining a law degree no longer commands their full attention. Whether as a paralegal or in some other capacity, an increasing proportion 10 R E V I E W of law students are engaged in paid employment for a substantial number of hours per week, increasingly in a fulltime capacity. In accordance with the consumerist mentality of neoliberalism, they ‘need’ consumer goods, such as the latest iPhone, although the struggle to survive and meet the high cost of living for many students is not denied. More particularly, a job as a paralegal, or even an unpaid intern, will assist in quick starting the student’s career in a highly competitive legal labour market. The trend of expending more time on paid work has significantly impacted class attendance and the opportunity to interrogate and debate the presuppositions of law. Students expect lectures to be recorded and all resources to be readily available online; flexible delivery is claimed to be their right as consumers in order to accommodate the competing aspects of their lives. A large empirical study conducted at the UWA Law School in 2019 established a 38 per cent rate of attendance over a semester (Skead & Elphick, 2019). The recording of lectures was noted as the most significant factor for non-attendance by both staff and students, although there was a marked discrepancy between them, with a staff estimate of 60 per cent and a student figure of 17 per cent. Individual students gave a range of reasons for non-attendance, including work commitments and timetabling, but those in focus groups placed a more constructive spin on non-attendance, explaining that recordings allowed them to learn at their own pace. This justified their desire for flexible delivery and the reason why lectures were passé. As is generally the case, students were more likely to attend classes when their participation was assessed. The prevalence of consumerism, or the student as enterprise, has resulted in law schools making courses easier and more palatable (Thornton, 2012). Anti-intellectualism and short cuts have become the order of the day because of the increased focus on credentialism. The demand by enterprising students that the law course be made easier for them is graphically illustrated by an incident reported to me, in which students formally complained because the lecturer set an assignment involving independent case analysis that the students deemed to be ‘too hard’. The gist of the complaint was that the lecturer expected them to read whole cases, not merely the digests that they preferred. Here is a telling excerpt from the lecturer’s communication following a meeting with the students that is a graphic illustration of Foucault’s thesis of the self as enterprise: Students said that if they did need to find a case and its principles, they would quickly do an on-line search, use a word-search function to locate the particular word or phrase mentioned in the lecture and simply cut-and-paste the extract into their notes. They did not read the balance of the case or attempt to understand it. Several students said they did this because they had attempted to read a case, but it had taken them almost two hours to understand it; and ‘no-one has that The challenge for law schools of satisfying multiple masters Margaret Thornton vol. 62, no. 2, 2020 A U S T R A L I A N U N I V E R S I T I E S ’ kind of time to waste’ – hence the reliance on quick short-cuts [my italics] (Personal correspondence, 2019). The students went on to say that during the semester, they were often so time-poor due to work, social and sporting commitments, they had to be strategic in their use of time. Commonly, they bought ready-made summaries, such as those available from LawSkool.com or from previous students. Student mastery may also impact the future career prospects of lecturers, which has been indirectly authorised by government. In 2018, the Australian Government imposed an ‘efficiency dividend’ on the Commonwealth Grant Scheme based on a university’s rates of completion, attrition and student satisfaction. Through the element of student satisfaction, students are able to influence not only what they are taught and how they are taught, but also by whom they are taught, as surveys may be taken into account in promotion applications, a practice held to be illegal by a Canadian arbitrator (Ryerson, 2018). In addition, satisfaction surveys may contribute to grade inflation when a student complains to a lecturer about an assessment exercise: ‘It is your fault that I didn’t get a High Distinction, because I wasn’t taught well enough and I propose to appeal’. In the face of such threats, a law school might capitulate to avoid a complaint being lodged with an ombudsman or other external body that could damage the brand name of the school. In this way, incremental creep can deleteriously affect the calibre of both curriculum and pedagogy to the advantage of students in such a way as to support the idea of the self as enterprise. The Foucauldian thesis can also be discerned in the way students are deterred from enrolling in subjects regarded as intellectually demanding in terms of content, mode of assessment or teaching style. Students may feel inclined to turn away from more theoretical subjects, such as jurisprudence, legal history or feminist legal theory, on account of their perceived lack of use value in the market. Declining demand may cause the more theoretical and critical courses to disappear from the curriculum in favour of applied knowledge. The student as enterprise has little interest in a liberal education, that is, an approach that is critical, theoretical, interdisciplinary, comparative or sociolegal, even though a liberal legal education may better equip him or her for a broader range of occupations. Law students usually have a form of traditional metrocentric legal practice in mind for when they graduate, suggesting a misallocation in terms of their aspirations and where they might make a useful contribution (Menkel-Meadow, 2012). In any case, as mentioned, what is required by the state for job-readiness is technically skilled human capital, ‘not educated participants in public life’ (Brown, 2015, p. 177). The student as enterprise underpins and supports the broader aim of capital accumulation that is a corollary of the corporatisation of universities. While a critical approach to the Priestley 11 is not formally precluded by the vol. 62, no. 2, 2020 R E V I E W LACC’s 2019 revision, it is not exactly encouraged either. Rote learning and regurgitation are more likely to satisfy job readiness over deep learning because of its short-term functionality and its ability to satisfy credentialism. What is important to the student is the prevailing discourse of ‘relevance’, which tends to be evaluated in market terms (Shore & McLauchlan, 2012). Through the shaping of the curriculum, we see how the individual aims of the student as enterprise dovetail with those of the neoliberal state in the privileging of ‘know how’ over ‘know what’ in the new knowledge economy (OECD, 1996). Conclusion: Deferring to multiple masters In considering the impact on legal education of multiple masters, I began by adverting to the schizophrenic relationship between the academy and the legal profession but argued that this traditional tension was disrupted by the neoliberal turn. Until the Dawkins reforms, the state played a key role in the funding of public universities but adopted a hands-off approach to their governance and internal operations (Jackson, 1999). Ironically, this changed with disinvestment, when higher education began to be regarded as a source of enterprise and capital accumulation rather than a public good but, instead of continuing to respect the autonomy of universities, government assumed a role of mastery over them. I suggested that Corden’s metaphor of ‘Moscow on the Molonglo’ aptly encapsulated the contradiction of government providing less financial support for higher education while simultaneously increasing the extent of its oversight and regulation in respect of internal matters, such as teaching standards and research policies. The historic mastery of the legal profession over legal education did not weaken in the post-Dawkins era. Indeed, it was partly in response to the proliferation of new law schools that the LACC developed uniform admission requirements. Once instantiated, the profession was resistant to updating the Priestley 11, despite the tranche of modernising reforms effected in the profession itself around the millennial turn, as well as the fact that most law graduates no longer entered traditional legal practice. There was no suggestion that there might be variable categories of admission to satisfy different forms of law-related employment. When the LACC eventually undertook a revision of the requirements for admission in 2019, it produced a virtual replica of the 1992 Priestley 11. A measure of the conventional mastery of the legal profession was that all law schools deferentially accepted and incorporated the Priestley 11 into their requirements for the award of the LLB, and subsequently the JD, regardless of whether students intended to be admitted to legal practice or not. Finally, with recourse to the Foucauldian thesis of the self as enterprise, I argued that law students themselves were able to exercise a degree of mastery over law school curricula and The challenge for law schools of satisfying multiple masters Margaret Thornton 11 A U S T R A L I A N U N I V E R S I T I E S ’ pedagogy. Having been transmuted into consumer/customers, students believed that they were entitled to complain about the substance, pedagogy and mode of assessment of their law courses. This augmented their power and played a role in directing legal education down an applied path in a way that accorded not only with their own vocational aims but with those of the state to ensure that universities’ primary role was to serve the new knowledge economy by producing technically skilled human capital rather than a critically educated citizenry. While many legal academics are doing their best to inspire students to become critically engaged citizens through a liberal legal education, they are constrained by the pressure to be deferential to multiple masters. Their universities require them to teach ever larger cohorts of students, particularly full-fee and international students, in order to maximise income. They are compelled to teach the compulsory ‘core’ of the curriculum, preferably from a doctrinal perspective, as prescribed by the admitting authorities and legitimated by TEQSA. The manageriat also expects them to teach mainly through the cheaper lecture method, for which students reward them by staying away. While legal academics are enjoined to be research active, the subjects of their scholarly research tend to be cordoned off from what they are permitted to teach. Although they may be able to offer an optional subject based on their research from time to time, the centripetal pull of the Priestley 11 may deter students from enrolling in it, and small enrolments could mean the kiss of death. This may induce legal academics to turn away from teaching and focus on research, for which the rewards are greater. Like students, academics are also neoliberal subjects interested in producing their own capital. The dystopian effect of having to satisfy multiple masters in the contemporary law school is apparent when a light is shone upon the phenomenon, as I have sought to do. The constituents are imbricated with one another so as to reify enterprise, capital accumulation and promotion of the self within the neoliberal economy and are reflected and normalised within the corporatised university. Multiple mastery confirms that the uni-versity has indeed become a multi-versity. 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