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Published online by Cambridge University Press: 18 July 2014
This paper considers the current state of academic legal research in a neo-liberal policy environment. The purpose of this study was to obtain empirical data profiling the research activities of full-time, tenure-stream, law professors in Ontario's English-speaking common law schools to ascertain trends over the past 20 years. The implications of the findings were critically analyzed in terms of a socio-critical framework that considers the relationship between knowledge and professionalism within the context of the political economy of higher education. The findings suggest that while changes in higher education associated with neo-liberal policies are challenging law professors' research context, these same changes have contributed to their strengthened position in the university. The findings suggest this is largely because of factors not associated with research, such as the strong teaching mission and the deregulated tuition fees associated with the professional program, as well as the proximity to a wealthy and entrepreneurial profession that has strong connections to the market and offers potential endowments and donations. Some participants believed this allowed law professors to preserve their professional autonomy in relation to their work and scholarship while others maintained that the law itself had been penetrated, and possibly compromised by a neo-liberal agenda.
Ce travail examine l'état actuel de la recherche juridique universitaire dans un milieu de politique néolibérale. L'étude avait pour objet d'obtenir des données empiriques sur les activités de recherche des professeurs de droit, à statut régulier et à plein temps, dans les écoles de common law anglophones de l'Ontario, afin de déterminer les tendances des vingt dernières annés. La portée des résultats a été analysée dans un cadre sociocritique qui prend en considération les liens entre connaissances et profession dans le contexte de l'économie politique de l'enseignement supérieur. Les conclusions suggèrent que bien que les changements associés aux politiques néolibérales qui sont apparus dans l'enseignement supérieur représented un défi au contexte des recherches des professeurs de droit, ces mêmes changements favorisent également leur position au sein de l'université. Les résultats indiquent que cela est principalement dû à des facteurs qui ne sont pas associés aux recherches : une forte mission d'enseignement et des frais de scolarité déréglementés, reliés au programme professionnel, ainsi que la proximité à une profession riche et entrepreneuriale qui a des relations étroites avec le marché et offre des possibilités de dotation et de dons. Si certains interviewés pensaient que cela permettait aux professeurs de droit de préserver l'autonomie professionnelle dans leur travail et leur recherche, d'autres maintenaient que le droit lui-même avait été pénétré, et possiblement compromis, par un agenda néolibéral.
1 An in-depth discussion of the theoretical underpinnings of the project, the complete range of findings and a critical analysis of their implications can be found in the doctoral thesis upon which this paper is based. See Shanahan, Theresa, Legal scholarship: An analysis of law professors' research activities in Ontario's English-speaking common law schools (Ph.D. Thesis, University of Toronto, 2002)Google Scholar [unpublished].
2 Consultative Group on Research and Education in Law, Law and Learning (Ottawa: Social Sciences and Humanities Research Council, 1983)Google ScholarPubMed [Law and Learning Report].
3 Computer assisted methods of analysis were used that permitted frequency counts, tabulations, descriptive statistics and low-level statistical analysis from the survey data.
4 McKennirey, John, Canadian Law Professors, A Report to the Consultative Group on Research and Education in Law, based on the 1981 survey of full-time law professors in Canada (Ottawa: Social Sciences and Research Council of Canada, 1982)Google Scholar [McKennirey, Canadian Law Professors].
5 Ibid. at i.
6 Boyer, Ernest, “The Scholarship of Teaching from Scholarship Reconsidered: Priorities of the Professoriate—Highlights of the Carnegie Report” (1991) 39:1 College Teaching 11 CrossRefGoogle Scholar.
7 This definition excluded two schools of law in Ontario: the Department of Law at Carlton University which does not offer the LL.B., and the Faculty of Civil Law at University of Ottawa which is not the common law section of the law school. It also excluded programs in other schools outside of the law faculty but within the university that may contain law courses such as in management, sociology, or criminology. While these programs offer law courses they are not part of the law schools per se, and were excluded on this basis.
8 This study focused only on full-time, tenured or tenure-stream, law faculty at law schools on the basis that these individuals have the greatest engagement and experience in academic legal research within the academy. Therefore, they could best describe and explain the trends occurring in legal research.
9 Arthurs suggests that in the common law world, university law faculties began to develop in the nineteenth century, but their prominent role in legal education only dates back to after World War I in the United States, and after World War II in England and Canada. Formal academic legal education made its way into the law schools in Canada later than Britain and the United States. For example, the majority of the law schools in Ontario were established in the last half of the twentieth century. This can be attributed, in part, to the overall later historical development of Canada and concomitantly the later development of universities in English-speaking Canada as compared to Europe and the United States. As a consequence academic scholarship has suffered. For a historical review of the evolution of law schools into Canadian universities see: Harry Arthurs “The Law School in a University Setting” in Mr.Matas, Justice Roy J., & McCawley, Deborah., eds., Legal Education in Canada (Montreal: Federation of Law Societies of Canada, 1987) 157 Google Scholar [Arthurs, “Law Schools”].
10 Law and Learning Report, supra note 2 at 63.
11 Ibid. at 18.
12 Ibid.
13 McLaren, John, “The History of Legal Education in Common Law Canada” in Mr.Matas, Justice Roy J. & McCawley, Deborah., eds., Legal Education in Canada (Montreal: Federation of Law Societies of Canada, 1987) 145 Google Scholar.
14 Ibid.
15 Law and Learning Report, supra note 2 at 65.
16 Ibid. at v. Others in the legal community shared SSHRC's concern and were interested in assessing the developments in legal education that had taken place between mid 1960s to the mid 1970s: namely the Canadian Council of Law Deans and the Canadian Association of reference and membership of the Consultative Group on Research and Education in Law appointed by SSHRC in 1980 that conducted and authored the Law and Learning Report (1983). Although this was not the first time that Canadian legal education had been considered, previous examinations has been limited and no full-scale national study had been completed in Canada.
17 Four research studies were sponsored by the Group and published separately as reports. The data collected for these background reports underpin the Law and Learning Report. They are: McKennirey, John, Canadian Law Professors (Ottawa: Social Sciences and Research Council of Canada, 1982)Google Scholar; McKennirey, John, Canadian Law Faculties (Ottawa: Social Sciences and Research Council of Canada, 1982)Google Scholar; McKennirey, John, Profile of Published Legal Research (Ottawa: Social Sciences and Research Council of Canada, 1982)Google Scholar; McKennirey, John, Sources of Support for Legal Research (Ottawa: Social Sciences and Research Council of Canada, 1982)Google Scholar.
18 Law and Learning Report, supra note 2 at 93.
19 Ibid. at 153.
20 McKennirey, Canadian Law Professors, supra note 4 at viii.
21 See Matas & McCawley, supra note 13.
22 S.M. Waddams, “Research and Scholarship” in Matas & McCawley, Ibid. at 179-186.
23 Arthurs, “Law Schools”, supra note 9 at 157.
24 See Edwards, L., “The Process and the Product: A Bibliography of Scholarship about Legal Scholarship” (1998) 49 Mercer L. Rev. 741 Google Scholar; Ellickson, R., “Trends in Legal Scholarship: A Statistical Study” (2000) XXIX:1 (Pt. 2) J. Legal Stud. 517–55CrossRefGoogle Scholar; Jones, D., “Research and Teaching in Law Faculties: An Empirical Approach” (1998) 73:3 Chicago-Kent L. Rev. 765–821 Google Scholar.
25 For several American examples of this, see the works published in “Symposium on Trends in Legal Scholarship” (1996) 71 Chicago-Kent L. Rev. 743 Google Scholar; or “Interpreting Legal Citations: A Symposium Sponsored by the West Group” (2000) XXIX J. Legal Stud. Google Scholar
26 Backhouse, Connie, “The Changing Landscape of Canadian Legal Education” University of Manitoba, Faculty of Law, Legal Research Institute (1999), online: University of Manitoba, Faculty of Law, Legal Research Institute, <http://www.umanitoba.ca/faculties/law/LRI/Legal_education> [Backhouse]Google Scholar.
27 Some of these papers have been published in the “Legal Education, Knowledge and Access” (2001) 20 Twentieth Anniversary Volume of the Windsor Y.B. Access Just.
28 Backhouse, supra note 26.
29 See Arthurs, Harry, “Globalization of the Mind: Canadian Elites and the Restructuring of Legal Fields” (1997) 12:2 C.J.L.S. 219 CrossRefGoogle Scholar [Arthurs, “Globalization of the Mind”]; Arthurs, Harry, “The Political Economy of Canadian Legal Education” (1998) 25:1 J.L. & Soc'y 14 CrossRefGoogle Scholar; Buchbinder, Howard, “The Market Oriented University and the Changing Role of Knowledge” (1993) 26 Higher Education 331 CrossRefGoogle Scholar; Currie, J. & Newson, J., Universities and Globalization: Critical Perspectives (Thousand Oakes: Sage 1998)Google Scholar; Kelsey, Jane, “Privatizing the Universities” (1998) 25:1 J.L. & Soc'y 51 CrossRefGoogle Scholar.
30 See Brown, P. & Lauder, H., “Education, globalization and economic development” (1996) 11:1 Journal of Educational Policy 1 CrossRefGoogle Scholar; Buchbinder, Howard, “Globalization, Deficit Reduction and Canadian Universities: Considering the Contradictions” (1995) 8:3 Higher Education Policy 26 CrossRefGoogle Scholar; Fisher, Donald & Rubenson, Kjell, “The Changing Political Economy: The Public and Private Lives of Canadian Universities” in Currie, J. & Newson, J., eds., Universities and Globalization: Critical Perspectives (Thousand Oakes: Sage 1998)Google Scholar; Magnusson, Jamie-Lynn, “Examining Higher Education and Citizenship in a Global Context of Neo-liberal Restructuring” (2000) Canadian Journal of Ethnic Studies 34 Google Scholar; Rice, J. & Prince, M., Changing Politics of Canadian Social Policy (Toronto: University of Toronto Press, 2000)Google Scholar.
31 Axelrod, Paul, “Challenges to liberal education in an age of uncertainty” (1998) 10 Historical Studies in Education 1 Google Scholar; Fisher & Rubenson, supra note 30; Newson, Janice & Buchbinder, Howard, “Corporate-university linkages in Canada: transforming a public institution” (1990) 20 Higher Education 355 Google Scholar; Newson, Janice, “The Decline of Faculty Influence: Confronting the effects of the Corporate Agenda” in Carroll, Williams et al. , eds., Fragile Truths: Twenty-Five Years of Sociology and Anthropology in Canada (Ottawa: Carleton University Press, 1992) at 227 Google Scholar; Janice Newson, “Transnational and Supranational Institutions and Mechanisms” in Jan Currie & Janice Newson, Ibid. at 235; Polster, Claire, “Dismantling the liberal university: the state's new approach to academic research” in Brecher, B., Fleischmann, O. & Halliday, J., eds., The University in a Liberal State (Aldershot: Athenaeum Press Ltd., 1996) at 106 Google Scholar; Magnusson, Ibid.; Sheila Slaughter “National Higher Education Policies in a Global Economy” in Currie & Newson, Ibid. at 45; Slaughter, Sheila & Leslie, Larry, Academic Capitalism: Politics, Policies and the Entrepreneurial University (Baltimore: John Hopkins, 1997)Google Scholar.
32 Backhouse, supra note 26 at 8.
33 Boyd, Susan, “Corporatism and Legal Education in Canada” (2005) 14 Soc. & Leg. Stud. 287 CrossRefGoogle Scholar; Pue, Wes, “Globalisation and Legal Education: Views from the Outside-in” (2001) 8 International Journal of the Legal Profession 87 CrossRefGoogle Scholar.
34 Thornton, Margaret, “Among the Ruins: Law in a Neo-liberal Academy” (2001) Windsor Y.B. Access Just. 3 Google Scholar; Thornton, Margaret, “Gothic Horror in the Legal Academy” (2005) 14 Soc. & Leg. Stud. 287 CrossRefGoogle Scholar [Thornton, “Gothic Horror”]; Collier, Richard, “The Law School, the Academy and the ‘Global Knowledge Economy’—Reflections on a Growing Debate: Introduction” (2005) 14 Soc. & Leg. Stud. 259 CrossRefGoogle Scholar; Cownie, Fiona & Bradney, Anthony, “Gothic Horror? A Response to Margaret Thornton” (2005) 14 Soc. & Leg. Stud. 277 CrossRefGoogle Scholar.
35 The LL.B. degree is one of the educational components in the licensing process for those lawyers seeking admission to the Bar.
36 I am referring to AUCC and Statistics Canada data on full-time instructional faculty at Canadian universities by rank and field. In 1998 at Canadian universities 43% of professorial ranks across all disciplines are full professors. Identical figures are offered for professorial ranks in just the social sciences and 39% for professorial ranks in just the humanities. See AUCC, Trends: The Canadian University in Profile (Ottawa: Publications and Communications Division, 1999)Google Scholar. See AUCC and Statistics Canada data on full time instructional faculty at Canadian universities by rank and field, 1998.
37 Law and Learning Report, supra note 2. See also McKennirey, Canadian Law Professors, supra note 4 at 1-16.
38 Ibid.
39 The average percentage of time they spent on teaching, research and service was 42/33/25.
40 Law and Learning Report, supra note 2. See also McKennirey, Canadian Law Professors, supra note 4.
41 Ibid.
42 Participants were asked to describe all funded and unfunded research projects over the last three years by topic, subject area, organization (group, individual, cross disciplinary, etc.) theory, and methodological approach and final product (paper, article, conference presentation, book, chapter, workshop etc.).
43 Law and Learning Report, supra note 2. See also McKennirey, Canadian Law Professors, supra note 4.
44 This refers to research activity that is external employment to the university and is distinct from grant-funded research conducted within the context of employment as academic law professors.
45 It is important to remember the respondents in this study were tenured or tenure-stream faculty and this finding does not necessarily reflect the experience of younger untenured faculty.
46 Interview of N at 24-27.
47 Interview of H at 17.
48 Interview of J at 15.
49 Ibid. at 27-28.
50 Ibid. at 21-22.
51 Interview of H at 7.
52 Rice & Prince, supra note 30.
53 Arthurs, “Globalization of the Mind”, supra note 29.
54 Interview of H at 10.
55 Here I am relying on the literature cited in notes 29, 30, 31, 33, and 34.
56 Interview of H at 21.
57 Interview of H at 21.
58 Ibid. at 21.
59 The “entrepreneurial” professions are: business, journalism and law. The “helping” professions are: dentistry, medicine, ministry, nursing, pharmacy, social work, and teaching. The “technical professions” are: architecture, engineering and the military. This classification is based on Stark, Lowther and Hagerty's work on the primary missions of the field which build upon a University of Michigan Professional Preparation Project which conducted a massive study of 2900 journal articles on professional preparation that were published between 1979-1984. See Stark, J.S., Lowther, M.A. & Hagerty, B.M.K., Responsive Professional Education: Balancing Outcomes and Opportunities, ASHE-ERIC Higher Education Reports, no 3 (Washington, D.C.: Association for the Study of Higher Education, 1986)Google Scholar. See also Rice, E.J. & Richlin, L., “Broadening the Concept of Scholarship in the Professions” in Curry, L. & Wergin, J., eds., Educating Professionals: Responding to New Expectations for Competence and Accountability (San Francisco: Jossey-Bass Publishers, 1993) at 279 Google Scholar.
60 Interview of N at 5-6.
61 See notes 29, 30, 31, 33 and 34 for this literature.
62 It has been argued by Larson that historically professionals commodified and sold their specialized knowledge and skills as part of the process of professionalization. So this is not necessarily a new development in law. See Larson, Magali, The Rise of Professionalism: A sociological analysis (Berkeley: University of California Press, 1977)Google Scholar.
63 Slaughter & Leslie, supra note 31.
64 Interview of D at 27.
65 Interview of N at 15-16.
66 By 2010 the Ontario government plans to add 14,000 graduate student spaces in post secondary education. It will provide $240 million in operating funds and $550 million in capital funds (for facilities) to support the expansion of graduate enrolment. See: Ministry of Training, Colleges and Universities, Backgrounder: Reaching Higher in Postsecondary Education (Ontario: Government of Ontario, 2005)Google Scholar.
67 Boyd, supra at note 33; Crownie & Bradney, supra note 34.
68 Thornton, “Gothic Horror”, supra note 34.