Thornton, Margaret --- "The Demise of Diversity in Legal Education: Globalisation and the New Knowledge Economy" [2001] ALRS 6; (2001) 8(1) International Journal of the Legal Profession 37-56

Last Updated: 23 September 2011

THE DEMISE OF DIVERSITY IN LEGAL EDUCATION: GLOBALISATION AND THE NEW KNOWLEDGE ECONOMY[*]

(2001) 8(1) International Journal of the Legal Profession 37-56
(Prepublication Version)

Margaret Thornton
Professor of Law & Legal Studies
La Trobe University

Abstract:
This paper considers the impact on the law curriculum of globalisation within a neoliberal climate. While globalisation has connotations of diversity and difference, its economic manifestation may have a homogenising effect.The backdrop to the study is the marked shift to the right that has occurred in Australian politics, emulating the global trend, which has resulted in neo-liberalism supplanting social liberalism as the dominant ideology. Neo-liberalism necessarily locates its subjects within the market where they are expected to vie with one another for survival and success. Globalisation is one manifestation of neo-liberal competition policy, which, along with corporatisation and privatisation, displays little interest in diversity politics, other than as a means of enhancing market image. The feminine, for example, is constructed as incompatible with corporatisation and competition. Just as the political shift to the right has witnessed a dilution, if not a complete disbandonment, of formal social justice measures, there has been a tendency to dismantle feminist legal studies subjects, as well as to contract critical and theoretical subjects of all types within the law curriculum because they are deemed to have little use value. In contrast, subjects such as international business law are expanding rapidly because of their assumed value to the neo-liberal state.

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Apologue

Just when it appeared that legal education was becoming more critical, more humane and more diverse, the ground beneath our feet began to move. The earth opened up and the positive developments of two decades or more began to slip and slide inexorably towards a gaping abyss. Our efforts to intervene were of little avail. Some initiatives disappeared into the blackness and were never seen again. Others teetered on the edge. We tried to look but were overcome by vertigo. We fell into a stupor. Some of our colleagues had a dream in which a Midas-like figure appeared, crying out: ‘The market is the way, the truth and the light. All who follow it faithfully and spread its message throughout the world shall experience eternal prosperity. Forsake all thought of justice and the life of the mind if thou hopest to partake of its rewards.’ And they did.

Introduction: The Neoliberal Turn

This paper will consider how the twin phenomena of globalisation and neoliberalism are impacting on legal education to mould it so that it may better serve the new knowledge economy. My analysis draws mainly on the Australian example, where the propulsion in favour of neoliberalism has been dramatic,[1] although it has followed a similar trajectory in the United Kingdom, Canada, Europe, the United States and other parts of the world.
Neoliberalism has supplanted social liberalism as the dominant political philosophy of our time. It has sloughed off the notion of common good associated with the welfare state of the Twentieth Century in favour of an arrant individualism which is relentlessly pursued through the market. The state has supported this change by forming an intimate liaison with the market at the expense of civil society. The market has become the quintessential sphere of freedom, even though it is incapable of producing a civic culture.[2] The pro-market role of the neoliberal state is clearly manifest through its policies of privatisation and de-regulation. Neoliberals believe that the world will get along best if markets are allowed to function with little or no interference.[3] The adulation of the market is not merely a Western aberration, but a seemingly unstoppable global phenomenon. Indeed, neoliberalism itself is a globalising theory because it involves the application of the same theory at world level that guides local involvement.[4]
Not only are neoliberalism and globalisation thoroughly imbricated with each other, but the crucial role of law as the traditional handmaiden of capitalism cannot be overlooked. Always deferential to the dominant political values in society, law tolerated social liberalism, but globalisation has given it an adrenalin shot in the arm. The prospect of unprecedented financial rewards outweighs any quibble that might be raised about the ethical ramifications of globalisation: ‘Compassion and philanthropy aren’t part of the “global” agenda.’[5]
At the same time as marketising changes are being wrought, neoliberal governments are seeking to harness knowledge production.[6] As Lyotard first recognised, knowledge has become a commodity as a consequence of industrialisation and society’s entry into the post-modern age. Government policy is quite explicitly directed towards the new knowledge economy in which it is the role of universities to train new knowledge workers to serve nation states in order to make them globally competitive. Law is a key area, along with business, informatics and biotechnology. Accordingly, there is pressure on law schools to produce new knowledge workers because of the high premium attached to legal knowledge. New knowledge is gauged solely in terms of its use value. Hence, legal education is valued in terms of its ability to generate profits as a commodity in its own right, as well as to facilitate the market in a global setting. Those dimensions of legal scholarship lacking use value are expendable. This is the crux of the diversity dilemma but, first, a word about globalisation and its impact on legal practice.The Global Stage
Globalisation has become the paradigmatic (fin de siècle) buzzword of our time. It epitomises chaos and instability in its disregard for borders and its perpetual need to re-invent the corporate self through restructuring and downsizing. Despite the fluidity of the term, the signs of the market remain clearly discernible — competition, insecurity and short-term relationships — all of which are corrosive of loyalty and commitment.[7] Globalisation is driven by a voracious need to find new markets and ever-cheaper sources of labour in order to maximise profits. The undeniable leitmotif of globalisation is that the market is the measure of all things.
An uneasy relationship exists between internationalisation and globalisation. The literature seeks to draw a distinction between them,[8] suggesting that internationalisation refers to relations between nation states, while globalisation refers to relationships, practices and money flows that transcend national borders. Perhaps of most significance is the way globalisation challenges traditional understandings of governance and legality, whereas internationalisation endeavours to hold onto the sovereign state.[9] Globalisation refuses to be corralled by borders, semiotic or otherwise. In the manner of a corporate takeover, it evinces a desire to swallow the nation state and become the generic term. The realpolitik of globalisation, however, is that it is based on a society of nation states of unequal power. The elusiveness of globalisation arises in part from the manner in which it flits between the universal of the global and the specificity of the nation state, filching whatever takes its fancy, and restlessly moving on. Globalisation’s imperialistic propensity is contingent on identification with specific nation states, as can be seen from its ubiquitous Anglocentricity, illustrated by the fact that the preponderance of electronically coded information is in English. Similarly, the preponderance of identifiable corporate symbols are associated with the United States.1[0]
Some examples of economic globalisation, such as the establishment of branches of a company all over the world, are very familiar.1[1] More recent manifestations include cross-border mergers, such as that which occurred between the United States company, Chrysler, and the German company, Daimler Benz, to create a super firm valued at between $US35b and $US39b, billed as the largest cross-border merger in history.1[2] The new super firm would be neither German nor American, thereby exemplifying the anarchic character of globalisation. Mergers of this kind also reveal the magnitude of the financial operations, which exceed the gross national product of many nation states, as well as signifying the impossibility of containing and limiting global appetites. The corporate users of new knowledge may be located anywhere in the world: they may inhabit several places simultaneously or float free without a fixed place of abode altogether. How are these corporations to be reined in, and by whom, when there is no system of global governance and the concept of good corporate citizenship rings hollow? Their magnitude threatens the viability of the nation state.1[3] There is little point in looking to law for guidance, despite its metonymical association with good order and legitimacy. Like other institutions under neoliberalism, including universities, law has been seduced by the market and the lure of global business.

Auxiliaries of Globalisation

As the primary facilitator of business within Western democratic capitalism, law ‘oils the wheels of capitalism’ and underpins the workings of the global economy. The globalisation of business is dependent on lawyers who have knowledge of the local scene, either through their jurisdictional or their cross-border expertise.1[4]
Despite the alacrity with which law has attached itself to globalisation, there is, as John Flood rather drily points out, ‘hardly any global law for global business to operate within’.1[5] In other words, transnational corporations must rely upon the law of particular nation states, which tend to be those where lawyers have been most entrepreneurial. Unsurprisingly, they are predominantly American (New York) and English (London), like the most powerful transnational corporations. Hence, legal practice is still wedded to specific jurisdictions; it falls far short of the global descriptor. Baker and McKenzie, with offices in 35 countries has been described as the only truly global law firm.1[6] However, many United States law firms have a long tradition of maintaining foreign offices for the convenience of their corporate clients.1[7] The insecurities of globalisation mean that client defection is always on the agenda, which requires special efforts to be made to anticipate client needs. ‘Global seamless service’ or ‘one-stop shopping’ is one example, whereby law firms are now joining with other professionals, such as accountants and financial advisers.1[8]
Despite a core business of servicing clients, corporate law firms want to be the biggest and the best in the world. Their ‘brand names’ endow them with an edge in a competitive market in the same way as benefits their leading clients.1[9] The mega-firms which resulted from national mergers a few years ago now aspire to be transnational firms. Thus, cross-border mergers have been effected between law firms in order to consolidate their position within the international market. The United States, with its aggressive corporate culture, together with its domination of investment banks and financial services, has taken the running in constituting the concept of international lawyering.2[0] As a counter-move, five of Europe’s leading commercial law firms have combined to create Europe’s largest law practice in order to compete against American firms.2[1] These firms push for deregulation on their own behalf as well as that of clients. Hence, lawyers can no longer be termed merely the ‘bag carriers of the business world’,2[2] but major drivers of global change. Anti-competitive barriers to legal practice are being dismantled as practitioners argue for the further liberalisation of trade in legal services.2[3]
For the leading Australian firms, the rewards at the international level dwarf those at the national level. Mallesons Stephen Jaques, with three out of eight offices located overseas, was involved in global acquisitions work worth approximately $A140b in 1998, compared with $A17b in mergers and acquisitions work within Australia.2[4] These global players represent a new caste, whose very existence constitutes a tantalising lure to young lawyers. Law schools, too, are magnetically drawn to the wealthy firms and their perceived needs in the design of their curricula. The liaison between government and market is also illustrated by the way law firms are assisted by government bodies set up for the express purpose of promoting and exporting their legal expertise.2[5]
In developing new capital relations, we see the inventiveness of lawyers as they create new roles for themselves.2[6] Nevertheless, in the course of facilitating billion dollar transactions, the broader, socio-economic, political and cultural impact of the activities of the multinational law firms eludes scrutiny. While international protests signify awareness of the potentially devastating impact of marketising policies in Third World countries, I know of no demonstration conducted against corporate law firms, multinational or otherwise, despite their key roles in effecting the business of corporations, which may involve child labour, or other dubious practices. Lawyers are very adroit in taking refuge behind the principle of agency, the technocratic veneer of legal doctrine and the language of the universal so as to denude their handiwork of moral content, while fashioning courses of action that evade or effect minimal compliance with local laws. Such strategies conduce to what Peter Fitzpatrick percipiently the ‘innocence of law’.2[7]
Law is thoroughly imbricated with global business in a number of sites other than multinational law firms. The role of in-house corporate counsel has increased in importance in satisfying the corporate need for international law expertise, which has served to enhance the role of lawyers as managers and policy makers within corporations. In addition, there has been a significant increase in the number of chief executives of leading companies holding law degrees.2[8] Senior managers also rate law highly as a core business subject.2[9] The incarnation of law that is favoured tends to be that of the technocratic facilitator of business: the ‘how to’ of contract and commercial law, and the protector of intellectual property. The homologous relationship between law and business privileges the technocratic and facilitative imperatives so that the possibility of critical and reflexive voices are quelled.
Western law firms are not only playing key roles in facilitating global business in Africa, Asia, Eastern Europe and the Pacific, but they are also instrumental in importing Western political systems in order to write new constitutions for former totalitarian and communist regimes, as well as for developing countries.3[0] These constitutions tend to be devised along Western liberal legal lines, the approach thought to be most effective for economic liberalisation. Because the ethnic groups favoured by the market are frequently different from the ethnic groups favoured by majority rule, the market and democracy may not be mutually reinforcing.3[1] The imperialism and paternalism of Western lawyers’ intervention, effected within the rubric of globalisation, is sometimes blatant:

Since the United States alone cannot provide all the world’s enforcement and adjudication, our foreign assistance program has been called on to help improve the legal systems of developing countries so that laws and contracts are enforced. The overall objective of U.S. foreign aid is to help poorer countries develop so that they can become better partners with us and play a role in world affairs.3[2]
The fragmentation induced by corporatisation and globalisation has numbed ethical sensibilities. If corporate colleagues are gone tomorrow, or one finds oneself suddenly in a new job, new city, or new country, relationships and workplace norms become ephemeral. If people are treated as disposable, there is little connection between risk and reward, workplaces are created which ‘brutally diminish the sense of mattering as a person’.3[3] This fragmentation and indifference is fostered by global lawyering with its focus on a ‘“fly-in, fly-out” method of service delivery which is cost-effective particularly for smaller law firms or new markets’.3[4] In a culture committed to economic rationality and billable hours, lawyers are not supposed to worry about the long-term ramifications of their actions, other than in regard to the functional relationship to business? Globalisation may induce a sense of powerlessness so that associate lawyers become engulfed by indifference, or they leave. Legal positivism endeavours to mask the dilemmas of practice by drawing a line of demarcation between law and morality.3[5] In the context of globalised law, clients are likely to be multinational corporations, not workers in the forced labour trade, which makes reversion to positivist paradigms, with their bland exterior, more appealing to the proponents of the new knowledge economy. Legal practice becomes bearable if it can be conceptualised as no more than a series of rules, game plays or set pieces. The technocratic has always been a nifty mechanism for occluding the violence of law, a project in which a doctrinally oriented legal education has been complicit. It is ironic that just at the very moment legal education was becoming more questioning and more diverse, neoliberalism and its globalising imperative has sought to rein it in.

Legal Education

(i) Responding to the Siren Call
As a result of the social justice orientation of the 1970s, the high point of social liberalism, legal education began to blossom, providing the impetus to break out of the sterile technocratic straitjacket that accompanied and facilitated post-War expansion. The yoke of the profession assumed a less overt role in the new law schools of the 1960s and 1970s. A swag of subjects appeared, which problematised the nexus between law and justice. The novelty of concerns pertaining to poverty, sexism and racism mirrored the prevailing political philosophy of social liberalism. Law reform commissions were established by progressive governments and clinical programmes emerged as a dimension of the social justice imperative. Legal education also became more sophisticated as law struggled for acceptance as an intellectual discipline within the academy.3[6] A predetermined epistemological standpoint, which included deference to the legal profession and legal hierarchy, had persisted in getting in the way of independent scholarship.3[7] The concept of research as something other than doctrinal exegesis emerged from the interrogation of legal epistemology, spurred on by the appointment of highly qualified academics. Law took on board interdisciplinary critiques and a range of theoretical perspectives, including feminist legal theory, critical race and Queer studies. Poststructuralism also had an effect on the legal academy, in both destabilising legal positivism and influencing the emergence of interdisciplinary fields of inquiry, such as law and literature, and law and popular culture.

Despite the intellectual vibrancy, however, the new scholarship remained marginal to the primary purpose of the law school, that is, the training of legal professionals. Thomasset and Laperrière suggest that nothing short of a revolution would be required to overcome what they describe as the existing feudal order in which law schools defer to the profession.3[8] Such a revolution has become virtually unimaginable in a climate in which nation states are obsessed with the creation of the knowledge economy.3[9] The struggle for the control over information has supplanted past battles for the control over territory and raw materials.4[0]
In terms of university research, the change of direction has involved targeting applied rather than basic research. The pursuit of knowledge driven by curiosity, that is, knowledge for its own sake, is no longer regarded as valuable because it does not contribute to wealth creation.4[1] Knowledge must be prioritised. Hence, linkages with industry are key mechanisms for harnessing research for the ‘national good’. With industry as the driver, academic research can be assured of possessing use value. To capture the manner in which academics have become state-subsidised entrepreneurs, Slaughter and Leslie have coined the evocative phrase ‘academic capitalism’ to capture fully the idea of the encroachment of the profit motive on the academy.4[2]
Law is perceived to fall on the applied side of the research equation. Universities now generally evince little patience with basic or theoretical research, despite the desire on the part of some law schools to alter their ‘trade school’ image within the academy. As the only credible goal of research is power, not truth,4[3] the humanist goals of social liberalism are regarded as effete. Some notable and lucrative liaisons have been effected between legal academics and industry partners in the patenting of intellectual property regimes, but the discipline of law is generally regarded as weak in terms of research productivity, compared with, say, biotechnology. In lieu of research, the main focus of the applied prescript in regard to law is directed to the training of undergraduates as facilitators of the new economy. However, it is only those elements of the curriculum which have use value in relation to the market that are considered to be worth retaining and defending.
The ‘massification’ of legal education, whereby universities have had to cater for large numbers of school-leavers to satisfy the demands of the new economy, has helped shift the orientation and purpose of universities generally from intellectual inquiry to instrumentalism and vocationalism. There has been a dramatic increase in both the creation of new law schools and in undergraduate enrolments in law in Australia since 1988 (when the binary system of higher education came to an end).4[4] Even though massification itself has meant that the vastly increased numbers of law graduates cannot all find positions as practising lawyers,4[5] the institutional aspiration that they will, remains a powerful determinant of market-oriented courses. Jobs with transnational firms are taken as evidence of a law school’s ‘success’ in the legal labour market. Desirable law firm destinations for graduates are ranked in terms of ‘brand name’, size and wealth. The prestige and power of the large corporate firms has grown out of all proportion to their number.4[6] An international dimension adds an extra cachet to the status of the corporate firm. The mere possibility that one such firm might employ a graduate justifies the inclusion of a corporatised market-oriented curriculum for everyone.
The homologous relationship between business and law is ubiquitous.4[7] The compulsory core of the law degree has traditionally emphasised property and contract, as well as tort and criminal law. With the expansion and diversification of legal education, a plethora of business electives, taught in utilitarian ‘how-to’ vein, including intellectual property, taxation and trade practices, appeared to supplement the core. More recently, a raft of cognate subjects specifically geared towards global business, such as international trade law, Asian legal systems, comparative business law, and so on have appeared. Socially progressive and theoretically oriented electives have been cut back, just as the humanities and the social sciences have been decentred within the university. Teachers of socio-legal subjects may be made redundant, or moved into more utilitarian areas. In one instance, a specialist in sexuality studies, was told to teach banking law, or her full-time status would be jeopardised. Through direct pressure on staff, underpinned by restructuring mechanisms, university managers can effect a rapid transition from an ostensibly progressive law school culture to one that is geared towards the market and academic capitalism.4[8] Insecurity and uncertainty in the workplace, whether it be academic, public sector corporate, are very effective mechanisms for inducing acquiescence.
Students, about to confront the insecurities of the neoliberal labour market, similarly cannot help but imbibe the insistent message that the market is the measure of all things. Thus, the more market-oriented subjects and practical skills they have on their CVs, the more attractive they believe they will be to prospective law firms. Reflecting the general mood of resiling from social liberalism, students have become ‘increasingly impatient with “humane professionalism”’ and ‘purely academic’ offerings.4[9] The populist message of neo-liberalism is that one should not waste time on knowledge which lacks use value, although it may be that students find mooting more exciting than research.5[0]
It is notable that so-called private law subjects have received a boost within the international law cluster where public international law has traditionally been privileged. Economic globalisation has allowed the private values of international commercial law to achieve ‘an invigorated ascendancy over the public fairness values of the UN Charter system’.5[1] Accordingly, there is pressure on graduates to opt for private, rather than public, law, as the public sphere contracts and becomes impoverished under the neoliberal pressure to privatise and commodify. Despite the changed emphasis, however, the recurring refrain is that law students are not being appropriately trained for an international vocation.5[2] Legal education is thought to lag behind business education on the ‘global playing field’.5[3] The gist of the complaint would seem to be that there is insufficient international business law.5[4] The sub-text is that there is never enough; global business should constitute the entirety of the degree. Indeed, degree courses focussing exclusively on globalisation and the law are beginning to make an appearance.5[5] Predictably, they appear to be of an exclusively functional nature. Alternative voices pleading for the retention of critical and theoretical spaces within legal education are no match for the magnetic power of élites.
The autonomy that law schools secured from the dominance of the profession under social liberalism is evaporating under neoliberalism, but the process is a subtle one.5[6] Scholars may not be overtly prevented from engaging in critical scholarship that lacks obvious use value, but they are less likely to secure grant income and the approbation of the university if they pursue pure rather than applied research directions. The amalgamation of business and law faculties, the identification of business-related ‘priority research areas’ and the promotion of linkage grants with industry, signifies how the shift is presently occurring within Australian law schools. The contemporary adulation of entrepreneurship in the academy mirrors that accorded corporate entrepreneurship. Thus, generating money from external grants is more highly valued than the research actually achieved.5[7]
Perhaps even more compelling in terms of the pressure on law schools to defer to and serve the legal profession is the fear that commercial higher education providers will enter a deregulated market,5[8] and ‘cherry pick’ the profitable areas of higher education.5[9] The implicit message for legal education is that if universities are not consciously wooing law firms, they should not be critiquing what they do. The profession could take umbrage and set up its own legal education providers, as well as decline to support law schools in other ways, such as by not employing their graduates. If the legal profession thought that law schools were no longer teaching ‘law’, understood as ‘hard’ technocratic, market-oriented law, as opposed to ‘soft’ critical, contextual and theoretical law, they could well look to commercial providers.6[0] This implied threat looms like a Damoclean sword above the heads of law schools in a quasi-deregulated education market in which public universities are starved of funds, a factor that
operates to revive the practice-centred focus of legal education.
Reverting to a practice-oriented approach to legal education appears, on its face, to be a regressive step but it accords with government policy causing universities to turn away from liberal education and basic research in favour of vocationalism and academic capitalism. This policy has reified the privileged status of the ‘creeping core’6[1] of the law degree, designed to facilitate market activity.

(ii) Containing Diversity in the Law Curriculum

Law has traditionally been able to disguise its political predilections very effectively by means of the technocratic approach to law. As Marcuse argued, the technical is highly political.6[2] Theorising and critiquing social justice necessarily involves taking a position which is not easily disguised, whereas focus on the technical enables law to present itself as neutral, apolitical and innocent. The means-end calculus embedded in globalisation’s relentless push for profits and power is effectively occluded by the technocratic and scientific veneer in such a way that it stifles dissent.6[3] This mechanism legitimises the separation between law and justice. In addition to depoliticising and decontextualising legal knowledge, it is always concerned to slough off the unruliness of the social.6[4]

The pressure to contain diversity in the law school agenda has been ongoing; it is not merely a product of neoliberalism, but a corollary of the fact that elites always possess the power to drive social agendas. Hence, the compulsory ‘core’, which is necessary for admission to practice, has prioritised those subjects dealing with property and profits. Law firms are not interested in addressing policy debates or the hard reflexive questions which may expose the adverse effect of the actions of their potential corporate clients on local communities. While critical thought is arguably of more relevance now than ever before as global capitalism becomes more voracious and brutal, the conjunction of globalisation and marketisation has induced indifference.
While there may be a frisson of the novel associated with Taiwanese business law or Asian legal systems for Western students, such courses also tend to be taught in a way that is descriptive and uncritical. Questioning and critique are sloughed off, ostensibly in order to allow more space for global business of the functional and facilitative kind. By means of technocentrism — the centripetal pull of the technical — law insistently seeks to mask injustice.
Calling for a renewed ethical sensibility in the age of the corporatised academy, with its trend towards the McDonalds’ Law degree, sounds like whistling in the wind. We are moving relentlessly towards a lowest common denominator product, with a few Ronald McDonald baubles tossed in to tantalise our customers so that they will part with their money. Of course, we know that law and justice are not synonymous, but will our students know it? If all they learn is law for practice, that is all they will ever know, a point percipiently made by Blackstone 250 years ago.6[5] If the focus of legal education is singelmindedly confined to the ‘is’ of law, with scant regard to the ‘ought’, is it incumbent of them to envisage unaided ‘the spirit of the laws and the natural foundations of justice’?6[6]
The technocratic approach quickly desensitises law students so that they become morally neutered.6[7] They accept knowledge as legal form, denuded of substance. The pedagogical shift from dialogic teaching methods to the one-way transmission of known knowledge through lectures also contributes to the dehumanisation and objectification of knowledge. The current neoliberal and economically rationalist higher education funding policies are thereby complicit in the production of technocratic knowledge. In addition, such teaching practices contribute to the production of docile and compliant new knowledge workers who have no space in which to question the impact of globalising policies.
Under social liberalism, combined degree programmes for law became the norm. An understanding of the social context in which law operates required the study of law to be combined with an Arts, Science or other distinctive degree programme. It is notable that a number of law schools have reverted to the ‘straight’ law degree of the past. The approach sloughs off context again in conformity with the minimalis approach. Again, we see how the market narrows and delimits legal education to maximise its use value.
The skills focus currently in vogue also operates to induce a lowest common denominator approach. Changes in pedagogical methods — including the moves from small interactive seminar groups to large lectures, as well as from essays to exams — accede to market pressures by cutting costs. Again, such mechanisms operate to delimit the parameters of legal knowledge, for they allow less space for reflexivity and critique. Academic capitalism means that academics have to expend more time on activities other than teaching. The inference is that a decline in teaching standards is occurring, if it has not already done so.6[8] In legal education, this encourages a focus on what Freire terms the banking method, in which knowledge is deposited and recalled at will.6[9] Perforce, it also encourages an almost exclusive focus on technocratic knowledge, Not only is this the only type of legal knowledge considered to have use value, it is the type of knowledge which most effectively protects law’s innocence in light of the depredations wreaked by global markets.

(iii) Marketing Legal Education

Under neo-liberalism, the privatising imperative is to treat higher education is a commodity rather than a public good, so that students become customers purchasing a product. The use value of education is therefore gauged in terms of the market in three ways: vocationalism for the ‘customers’ in the labour market once they are credentialled; professional knowledge and expertise for the corporate purchasers of labour; and the enhancement of wealth creation for the nation state in a global setting. The shift in the academic world to a more commercial perspective is changing academic institutions worldwide.7[0]
For universities to survive, university managers have accepted that they must enter the market. The movement in favour of academic capitalism has occurred with remarkable rapidity in the UK and Australia, as a corollary of neoliberalism, although the phenomenon is notable in the United States and elsewhere.7[1] Universities, like other players in the global marketplace, must have a product packaged under a brand name that is going to be attractive to consumers. If not, the consumers will exercise their prerogative of market choice and go elsewhere. Nevertheless, rather than focus on a distinctive product, competitition policy encourages provision of the same product. To effect comparisons with competitors, the same criteria tend to be invoked:

To do this they might need to install American-style standardised tests, and a curriculum to match. This also illustrates the point that when national systems focus on performance as measured in the common comparison, a homogenising logic is installed. Over time all systems tend to become the same. In the 1990s, this kind of homogenising logic entered university evaluation and quality assurance around the world.7[2]
To assess ‘quality’ and ‘excellence’, the focus is on the performative, the quantitative and the measurable. As Marginson and Mollis point out, quantitative scores especially lend themselves to sameness rather than difference:

A ‘7' from Norway looks the same as a ‘7' from Malaysia regardless of the circumstances in which each ‘7' was produced. Indeed, even in qualitative studies designed to prepare a content-rich and context-rich description of each national case, there is a moment of abstraction which occludes at least some elements particular to each nation.7[3]
This flattening effect of the market contributes to the conservatising imperative within legal education by sloughing off difference and diversity, rather than enhancing it. Twining has referred to the ‘football league syndrome’ in which (American) law schools tend to behave ‘as if they are all playing exactly the same game in a single hierarchically organized league’.7[4] Thus, there is already a propensity towards homogeneity in legal education, which is exacerbated by subjecting legal education to the vagaries of the market. This phenomenon is discernible whether one looks at domestic or off-shore offerings. Thus, international business law figures prominently in postgraduate courses, just as for undergraduate courses. The same business-oriented cluster is deemed to be equally attractive to students, whether they are in Manchester, Moscow or Missouri. Offerings in other areas, such as international human rights or comparative legal history, may make brief appearances, but they are exceptional. While non-market-related courses may be commodified, they are, like the humanities and social sciences generally, thought not to be viable in a competitive market. The overwhelming assumption is that international business law, whether offered in a domestic or a global education setting, whether at the undergraduate or the postgraduate level, is gauged by providers and consumers alike as having the greatest use value. What is more, the marketing of the same legal education courses means that the same uncritical acceptance of existing hierarchies isexported.7[5]
The almost exclusive focus on international business law publicly emits the message that market facilitation in the interests of the dominant is the only legitimate role of law. The possibilities of the legal imaginary then wither or are consigned to the status of a disabled Other. While the Other may possess a certain discursive power with which to direct salvoes at the law and business homology, its position is necessarily very much confined to the margins.

Homogeneity as Moral Conservatism

Finally, I would like to say something briefly about the neoliberal antipathy towards diversity.
In addition to conservative economic policies, which accord maximum freedom to the market and contain the ambit of government, neoliberals are socially conservative, as revealed in attitudes towards the family, crime, abortion and drugs. Neoliberals favour benchmark masculinity which is white, Anglo-Celtic, heterosexual, able-bodied and middle class. They tend to be antipathetic towards difference, diversity and the Other. Ultra-conservatives may argue for the eviction of women from the workforce, particularly in time of economic downturn. Most typically, they will oppose special programmes designed to effect equality, such as maternity leave, on the ground that such initiatives interfere with employer prerogative which should be accorded free rein in the interests of the market. Because it is the masculinist model which is overwhelmingly favoured by global business. Benchmark Men are invariably appointed to positions of authority, a predilection that can by no means be dismissed as a Third World aberration. For example, the percentage of men at a University of Michigan program for senior managers was 89 per cent in 1992 and 97 per cent in 1999.7[6] Similarly, neoliberals oppose gay rights and rights for Aboriginal people. The model of equality acceptable to neoliberals is that of EEO in its meritocratic sense. That is, if one has the ability or the wealth to give one a boost in life which is immediately going to produce inequality of outcome, this is of no consequence, providing that the starting points are the same for everyone. EEO instantiates the classic liberal position of procedural equality, not substantive equality or equality of outcome. .
Conservatives have sought to pit equity against efficiency. They have sought to argue that organisations would be less efficient if women or blacks were appointed. In the United States context, clients are quoted as saying, ‘Diversity is fine, but I’m concerned with shareholder value!’7[7] As a result, there has been an attempt to shift the ‘diversity machine’ away from what is dismissively referred to as the moralists’ preoccupation with race and gender.7[8] Globalisation presents a veneer of diversity, or corporate multiculturalism, as a market leitmotif to add a touch of the exotic:

We are now allegedly installed in a fully globalized, post-racial, post-racist, post-sexist, post-ideological, post-civil rights era, and anyone who thinks otherwise is clearly out of touch with the times.7[9]
The idea of equality has been an important underpinning of social liberalism and its antinomy - inequality - has been the raison d’etre for redistributive justice policies. The modus operandi of an unregulated globalised market, is inequality of wealth and power. Indeed, once everyone has been reduced to the status of a consumer exercising choice within the market, the welfare state becomes irrelevant:

In a world populated by consumers there is no room for a welfare state; that venerable legacy of industrial society looks suddenly much like a ‘nanny state’, pampering the slothful, coddling the wicked, abetting the corrupt.8[0]
Social liberalism accepted, albeit somewhat reluctantly, that while equality for all is a norm, women, blacks, NESB people, gays and lesbians, people with disabilities have suffered as a result of having been historically excluded or confined to the margins of the community of equals. In light of the limitations of individual complaint-based mechanisms of anti-discrimination legislation, affirmative action programmes for women and blacks were introduced by employers to help overcome the historic animus against them in non-traditional areas of work, and positions of authority. These programmes are now being widely dismantled under neoliberalism, because they averredly constitute an ‘impost on business’.
In the United States, there has been a dramatic decline in the number of blacks in law schools since affirmative action programmes were disbanded.8[1] A massive backlash against affirmative action emerged from conservative forces which were joined by members of the affluent Afro-American middle class, who did not want to be reminded that they themselves had been beneficiaries of affirmative action:

Those who have reached the top no longer need the state-provided ladder and are eager to send it to the scrap yard. Those who climbed it first are the first to declare it useless and to complain of the iniquitous, degrading shadow it casts on the users.8[2]
Successful blacks are comforted by the construction of a line between them which allows them to identify with the white middle class and those tagged as unsuccessful Others. These ‘unsuccessful blacks’ and poor whites thereby become the ‘impotent, indolent players’ who are to be kept on the outside.8[3] They are an ever-present reminder of the good of credentialism, competition and survival of the fittest within the market; they act as a necessary counterpoint to the message of ‘success’ emitted by the corporate barons.
In Australia, the language of diversity has been deployed by neoliberals to replace AA, EEO and social justice.8[4] ‘Diversity’ has a post-modern ring to it, which suggests inclusiveness, the very quality that corporatism lacks. The rhetoric of diversity also appeals to managers in multicultural and global settings as it can be exploited for business ends.8[5] The Other has a use value in the market which can be selectively exploited. I have argued elsewhere that the language of AA and EEO provides an antinomy, a notion of injustice and inequality that is missing from diversity.8[6] But an amoral market, committed to inequality of outcome, remains unmoved.

Conclusion

In drawing attention to the impact of global marketisation on legal education, I do not wish to suggest that resistance to the onslaught of neo-liberalism is completely out of the question.8[7] The history of political movements suggests a pendulum effect. As Foucault has compellingly shown, power can always be productive in the way that it produces resistance so that change is possible. Understanding what is occurring around one is the first step in the resistance movement. However, the material of effect of neolibalism on the academy is less easily turned around. The change from the pursuit of knowledge for its own sake to the pursuit of knowledge for its use value has been dramatic and destabilising, not unlike the rollercoaster of globalisation itself. Furthermore, academics themselves have been suprisingly quiescent in the face of what amounts to a paradigm shift has occurred in academic life,8[8]. Undoubtedly, the shift from collegial to corporate governance has been instrumental in the facilitation of academic capitalism. New structures and forms of control are designed to steer the constituent parts of the university in order to maximise their use value. A focus on performativity as a means of ensuring accountability, linked to the rewards system, including promotion, has hastened the change in culture.8[9]
Legal education was late in coming to the idea of law as a liberal art. Even then, the idea was inchoate because of the prevailing orthodoxy of deference to the profession. Now that the liberal arts role of the university has moved from centre to margin as a result of the new knowledge turn, it is only those law subjects which facilitate the market and the global economy that are considered worth retaining because they possess use value. Subjects that deliberately set out to explore diverse identities, such as feminist legal theory and critical race theory are expendable. Not only do such subjects lack use value, but they destabilise neoliberal norms. However, unless confronted with a highly interventionist university administration, we probably can pursue those projects we think are worthwhile, so long as we do not delude ourselves that such work retains the same social significance that it once had.9[0] Despite the temptations for students to become corporate apprentices, some of them long for an intellectual experience at law school, even if they know it is likely to be fleeting. They need to envision the world as other than a global marketplace. Furthermore, if we dwell in the ruins of the university, we must do what we can, as Readings reminds us.9[1]
For a decade or so, there was an attempt to make the law degree a generalist degree which would replace the BA.9[2] A liberal legal education, it was thought, would be the ideal way to produce good citizens who would also be equipped for a range of occupations, including legal practice. However, these disparate ends produced uncertainty because the legal profession had been decentred; legal education had lost its way.9[3]

Globalisation has served to reaffirm the legitimacy of the technocratic, practice-oriented approach to legal education — regardless as to what percentage of law graduates become legal practitioners. The impoverishment of the civic public has corroded commitment to the values of critical inquiry and diversity, once the epicentre of the academy. Legal practice has traditionally been more responsive to the market than the liberal arts because of its role in facilitating business and, by and large, it seems to have suffered less discomfort as a result at the loss of critical inquiry. The unexamined legal life comports with the cultivation of indifference through globalisation. There was a high political moment when legal education appeared to be bold and flamboyant, flirting with difference and diversity, Foucault and Derrida, reflexivity and critique. But appearances are deceptive. The first puff of globalisation revealed the modern legal academy to be built of straw. Criticality was blown away and an unquestioning commitment to the service of corporate legal practice was all that was left remaining. Now, it is to market, to market, with government as the driver.

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[*]Warm thanks are extended to Avrom Sherr, David Sugarman and Wes Pue for their encouragement, and to Jo Bagust for research assistance.

[1]Marginson and Considine suggest that it may be that countries such as Australia and New Zealand, because of their peripheral location and vulnerability to global responses, have been fashioned as zones of neoliberal experiment. See Simon Marginson and Mark Considine, The Enterprise University: Power, Governance and Reinvention in Australia, Cambridge University Press, Cambridge, 2000, p 55.

[2]Anthony Giddens, Runaway World: How Globalisation is Reshaping our Lives, Profile Books, London, 1999, p 77.

[3]Anthony Giddens, The Third Way: The Renewal of Social Democracy, Polity Press, Cambridge, 1998, p 14.

[4]Giddens, The Third Way, p 14.

[5]Guillermo Gomez-Pena, ‘Somewhere between Corporate Multiculturalism and the Mainstream Bizarre (a border perspective)’ (2001) 45(1) TDR (Cambridge, Mass) 7 <http://web1.infotrac.galegroup.com/itw> 3.

[6]Jean Lyotard, The Postmodern Condition: A Report on Knowledge, Manchester University Press, Manchester, 1984.

[7]For an excellent study of the devastating effect of the disappearance of careers and commitment in the contemporary corporatised world, see Richard Sennett, The Corrosion of Character: The Personal Consequences of Work in the New Capitalism, WW Norton, New York & London, 1999.

[8]Eg, Philip G Altbach, ‘Universities and Globalization: Critical Perspectives & the Globalization of Higher Education’ (book review) (2001) 72(2) Journal of Higher Education 254; Simon Marginson, ‘Living with the Other: Higher Education in the Global Era’ (1999/2000) 12/13 Australian Universities Review 5; Graham Pratt and David Poole, ‘Global Corporations “R” Us? The Impacts of Globalisation on Australian Universities’ (1999/2000) 12/13 Australian Universities Review 16.

[9]For further discussion, see Adelle Blackett, ‘Globalization and its Ambiguities: Implications for Law School Curricular Reform’ (1998) 37 Columbia Journal of Transnational Law 57.
1[0]Some commentators use ‘Americanisation’ as a synonym for globalisation. Eg, Bill

Readings, The University in Ruins, Harvard University Press, Cambridge, Mass & Lond, 1996, p 2 et passim.

[1]1The chief executive of Deloitte Touche Tohmatsu is described as managing 85,000 staff in 132 countries, producing revenues of $US11b in one year. See 'Strength in Numbers’ 353(8146) The Economist (US), 20 November 1999, p 86.

1[2]Elizabeth Howard, ‘Can Business cross the Cultural Divide?’ 15(9) Communication World, Oct-Nov 1998 <http://web1.infotrac.galegroup.com> 1.

1[3]Cf Lyotard, The Postmodern Condition, p 5.

1[4]Tung-Lung S Chang, Cheng-Min Chuang, Wen-Shiung Jan, ‘International Collaboration of Law Firms: Modes, Motives and Advantages’ (1998) 33(3) Journal of World Business 24; <http://web1.infotrac.galegroup.com/itw>

1[5]John Flood, ‘Legal Education, Globalization, and the New Imperialism’ in Fiona Cownie (ed), The Law School: Global Issues, Local Questions, Dartmouth/Ashgate, Aldershot, UK & Brookfield, Vt, 1999, p 128.

1[6]'The Battle of the Atlantic’, 354(8159) Economist (US), 26 Feb 2000, 79.

1[7]For a detailed account of firms and dates, see Carole Silver, ‘Globalization and the US market in legal services - shifting identities’ (2000) 31(4) Law and Policy in International Business 1093; <http://web4.infotrac.galegroup.com/itw> p 5ff.

1[8]'Strength in Numbers’. New South Wales is in the process of enacting legislation to enable multidisciplinary practices to be allowed to operate.

1[9]Chang et al, ‘International Collaboration of Law Firms’, p 5.

2[0]For an excellent study of the role of United States lawyers, see Silver, ‘Globalization and the US Market in Legal Services’.

2[1]Howard, ‘Can Business cross the Cultural Divide?’, p 2.

[2]2'The Battle of the Atlantic’.

2[3]Eg, Christopher Pyne MP, ‘Legal Practice in a Global Jurisdiction’, Bulletin, March 2000, p 29.

2[4]Eugene Clark and Sam Blay, ‘The Internationalisation of Legal Practice and Education’ (1999) 73(11) Australian Law Journal 791, 792.

2[5]In Australia, this function is performed by the International Legal Services Advisory Council (ILSAC).

2[6]Lawyers, as the ‘par excellence institutional inventors’, are paid to be creative in circumventing regulatory requirements. See Maureen Cain, ‘The Symbol Traders’ in Maureen Cain and Christine B Harrington (eds), Lawyers in a Postmodern World: Translation and Transgression, Open University Press, Buckingham, 1994.

2[7]Peter Fitzpatrick, ‘Racism and the Innocence of Law’ in Peter Fitzpatrick and Alan Hunt (eds), Critical Legal Studies, Basil Blackwell, Oxford, 1987.

2[8]Mary C Daly, ‘The Cultural, Ethical, and Legal Challenges in Lawyering for a Global Organization: The Role of the General Counsel’ (1997) 46(3) Emory Law Journal 1057, 1077.

2[9]George J Siedel, ‘Six Forces and the Legal Environment of Business: the Relative Value of Business Law among Business School Core Courses’ (2000) 37(4) American Business Law Journal 717. While the significance of litigation and regulation is well established, the four forces that gained momentum from the end of the 20th century are globalisation, entrepreneurship, technology and compliance.

3[0]Sir Anthony Mason, ‘Sharing Expertise with the Developing World’ [2001] AltLawJl 3; (2001) 26(1) Alternative Law Journal 7.

3[1]Amy L Chua, ‘Markets, Democracy and Ethnicity: Toward a New Paradigm for Law and Development’ (1998) Yale Law Journal 1 <http://web1.infotrac.galegroup.com> . Chua argues that the twin globalising imperatives of marketisation and democratisation can interact to catalyse ethnic tensions.

3[2]J Brady Anderson, ‘Promoting the rule of law around the World’ (2000) 36(12) Trial 84. Other commentators have questioned the cultural imperialism flowing from the global business imperative. See, for example, Howard, ‘Can Business cross the Cultural Divide?’

[3]3Sennett, The Corrosion of Character, p 146.

3[4]International Legal Services Advisory Council (ILSAC), Australian Legal Services Export Development Strategy Outline 1999-2002, Canberra, 1999 <http://law.gov.au/aghome/advisory/ilsac/exportreport/export/report.htm> p 11.

3[5]H A L Hart, The Concept of Law, Clarendon Press, Oxford, 1961, n 181, p 253.

3[6]Australian legal education as liberal education received a boost with the publication of the Pearce Report in 1987. See Dennis Pearce, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission, Australian Government Publishing Service, Canberra, 1987. The Arthurs’ Report in Canada had similarly stressed ‘humane professionalism’. See Harry Arthurs, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on research and Education in Law, SSHRC, Ottawa, 1983. More recently, the ACLEC Report in the UK followed a similar approach. See Advisory Committee on Legal Education and Conduct, First Report on Legal Education and Training, Lord Chancellor’s Department, London, 1996. For analysis and comparison of these reports, see Andrew Goldsmith, ‘Standing at the Crossroads: Law Schools, Universities, Markets and the Future of Legal Scholarship’ in Cownie, The Law School.

3[7]Kahn conceptualises the problem as a collapsing of the distinction between the subject studying law and the object of study, the legal practice. See Paul W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship, University of Chicago Press, Chicago & London, 1999.

3[8]Claude Thomasset and René Laperrière, ‘Faculties under Influence: The Infeudation of Law Schools to the Legal Professions’ in Cownie, The Law School, p 217.

3[9]Eg, Department of Employment, Education, Training and Youth Affairs, Commonwealth of Australia, Learning for Life: Review of Higher Education, Financing and Policy (West Report), Australian Government Publishing Service, Canberra, 1998.

4[0]Lyotard, The University in Ruins, p 5.

4[1]The dramatic resiling from socio-legal scholarship to a commercially oriented law degree at La Trobe has been addressed elsewhere. See Duncanson, ‘The Ends of Legal Studies’; Thornton, ‘Law as Business in the Corporatised University’.

4[2]Sheila Slaughter and Larry L Leslie, Academic Capitalism: Politics, Policies, and the Entrepreneurial University, John Hopkins, Baltimore, 1997, p 9.

4[3]Lyotard, The Postmodern Condition, p 46.

[4]4Craig McInnis and Simon Marginson, Australian Law Schools after the 1987 Pearce Report, Centre for the Study of Higher Education, University of Melbourne, AGPS, Canberra, 1994; Duncanson, ‘The Ends of Legal Studies’.

4[5]Sherr suggests that the UK figure was about 42% of graduates in 1995. Avrom Sherr, ‘Legal Education, Legal Competence and Little Bo Peep’ (1998) 32 Law Teacher 37; <http://ials.sas.ac.uk/themat/inaugpub.htm>

4[6]A T Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession, Belknap, Cambridge, Mass, 1993, p 273; Alan Freeman, ‘A Critical Look at Corporate Practice’ (1987) 37 Journal of Legal Education 315.

4[7]Margaret Thornton, ‘Law as Business in the Corporatised University’ (2000) 25(6) Alternative Law Journal 269; Thornton, ‘Among the Ruins’.

4[8]Thornton, ‘Law as Business’.

4[9]Arthurs, ‘The Political Economy of Canadian Legal Education’ 36. Cf Thomasset and Laperrière, ‘Faculties under Influence’, pp 193-99.

5[0]Thomasset and Laperrière, ‘Faculties under Influence’, p 194.

5[1]Dianne Otto, ‘Handmaidens, Hierarchies and Crossing the Public-Private Divide in the Teaching of International Law’ (2000) 1 Melbourne Journal of International Law 35, 47-48.

5[2]Clark and Blay, ‘The Internationalisation of Legal Practice and Education’. Cf Richard Haigh, ‘Of Law, Lawyers, Globalisation and Millennia’ (1999-2000) 4(2) Deakin Law Review 93. Haigh pleads for a broader legal education, which includes areas such as trade law, public law, finance and labour law - all with an international focus (at 100).

5[3]Blackett, ‘Globalization and its Ambiguities’ 59. Cf John B Attanasio, ‘The Globalization of the American Law School’ (1996) 46 Journal of Legal Education 311.

5[4]A survey of curricular offerings by Australian law schools within the international law field by Dianne Otto in 2000 showed that free market globalisation had led to rapid growth in courses in international business law and in Asian and Pacific law, which also appeared to privilege the marketised and privatised facet of international law. See Otto, ‘Handmaidens, Hierarchies’. Otto also notes the results of United States surveys which revealed that 91 per cent of law schools offered international business law by 1996, p 57.

[5]5The Bachelor of Laws (International Studies) at the University of Technology, Sydney, includes a foreign language and a one-year ‘in country’ study. New York University Law School is one of the few to market a ‘global law school program’, thereby developing a ‘“super-niche” through co-opting globalization as its motif’. See Flood, ‘Legal Education’, p 143.

5[6]Thomasset and Laperrière, ‘Faculties under Influence’, p 190.

5[7]Marginson and Considine, The Enterprise University, p 135.

5[8]Corporate universities, such as those run by McDonalds, Sears and Mastercard, have become widespread in the United States. See Stuart Cunningham et al, The Business of Borderless Education, Evaluation and Investigations Programme, Higher Education Division, Department of Education, Training and Youth Affairs, Canberra, 2000. Some public universities, such as Deakin Australia and Melbourne University Private, are running courses for corporate clients through their private arms. In this way, the private is leaching into the public, and the market into civil society.

5[9]Cunningham, The Business of Borderless Education, p 150.

6[0]There have been several notable examples in the history of legal education of pressure being placed on law schools which were engaged in innovative approaches to law to justify that they were in fact teaching law. Notable examples include both Yale and Columbia Law Schools and the critical approaches of the Legal Realists in the 1920s and 1930s.

6[1]

6[2]Herbert Marcuse, One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society, Beacon, Boston, 1964, pp xvi, 168.

6[3]Wendy Brown, States of Injury: Power and Freedom in Late Modernity, Princeton University Press, Princeton, 1995, p 33.

6[4]Margaret Thornton, ‘Technocentrism in the Law School: Why the Gender and Colour of Law remain the same’ (1998) 36(2) Osgoode Hall Law Journal 369.

6[5]Jones p 22, 1973.

[6]6Cf Julian Webb, ‘Post-Fordism and the Reformation of Liberal Legal education’ in Cownie, The Law School, p 247.

6[7]W Bachman, Law v Life: What Lawyers are Afraid to Say About the Legal Profession, Four Directions, Rhinebeck, NY, 1995, p 57; Cf Charles Derber, ‘Managing Professionals: Ideological Proletarianization and Mental Labour’ in Charles Derber (ed), Professionals as Workers: Mental Labour in Advanced Capitalism, GK Hall, Boston, 1982, p 182.

6[8]Slaughter & Leslie, Academic Capitalism, p 234.

6[9]Freire

7[0]Melissa S Anderson, ‘The Complex Relations between the Academy and Industry’ (2001) 72(2) Journal of Higher Education 226.

7[1]Slaughter & Leslie, Academic Capitalism, p 13.

7[2]Simon Marginson and Marcela Mollis, ‘Comparing National Education Systems in the Global Era’ (1999/2000) 12/13 Australian Universities Review 53.

7[3]Marginson and Mollis, ‘Comparing National Education Systems in the Global Era’ 54.

7[4]William Twining, ‘Rethinking Law Schools’ (1996) 21 Law and Social Inquiry 1007, 1012.

7[5]Otto, ‘Handmaidens, Hierarchies’ 62.

7[6]Siedel, ‘Six Forces and the Legal Environment of Business’.

[7]7Frederick R Lynch, The Diversity Machine, Transaction Publishers, 1997 (excerpt) (1997) 34(5) Society 32; <http://web4.infotrac.galegroup.com/itw> , p 6.

7[8]Lynch, The Diversity Machine, p 9.

7[9]Gomez-Pena, ‘Somewhere between Corporate Multiculturalism and the Mainstream Bizarre’, p 5.

8[0]Zygmunt Bauman, Work, Consumerism and the New Poor, Open University Press, Buckingham & Philadelphia, 1998, p 91.

8[1]At Boalt Hall, University of California, minority enrolments declined from 33 per cent in 1996 to 20 per cent in 1997, following a referendum banning affirmative action in admissions. See Margaret Graham Tebo, ‘The Right Mix: Conference honoring James White addresses Diversity’ [June 2000] ABA Journal 102.

8[2]Bauman, Work, Consumerism and the New Poor, p 60.

8[3]Bauman, Work, Consumerism and the New Poor, p 75.

8[4]See, for example, B Cope and Mary Kalantzis, Productive Diversity, Pluto Press, 1998.

8[5]Eg, Santina Bertone and Mary Leahy, Business Benefits of Productive Diversity: Case Studies, Report to Department of Immigration and Multicultural Affairs, Canberra, Australia, 2000.

8[6]Margaret Thornton, ‘EEO in a Neo-Liberal Climate’ (2001) Journal of Interdisciplinary Gender Studies (forthcoming).

8[7]Efforts are being made all over the place to resist the homogenising effects of recent trends. See, for example, Ellen Dannin, ‘Toward Promoting Diversity in Legal Education: A Model Program for At-Risk High School Students’ (1999) 49(2) Journal of Legal Education 292; Jon C Dubin, ‘Faculty Diversity as a Clinical Legal Education Imperative’ (1999-2000) 51 Hastings Law Journal 445.

[8]8Slaughter & Leslie, Academic Capitalism, p 227.

8[9]Thornton, ‘Among the Ruins:

9[0]Readings, The University in Ruins, p 169.

9[1]Readings, The University in Ruins, p 176.

9[2]Pierce; Cf ACLEC, 1996, p 57.

9[3]Sherr, ‘Legal Education’.