Private law blues
The succession problem (again)
Sometimes I feel like Cassandra, the mythical prophetess of Troy, fated to predict the future, but fated not to be believed. When I set up this Substack over two years ago, I meant to promote my fiction, but I suddenly found myself writing a rant about the “succession problem” for academics teaching and researching in private law (i.e. contracts, tort, trusts, equity, property, restitution).
Since I wrote that post in 2023, the succession problem has become even more acute: not only are we lacking young private law scholars to replace existing scholars, but we are losing the people we had, as private law academics retire or (increasingly) leave academia and go back into practice.
As I explained two years ago, the subjects I have taught during my career are mostly compulsory “black letter” private law subjects, including property law, contract law, trust law, tort law and so forth. Law students must undertake these subjects to qualify as lawyers. In recent weeks, aspects of the legal curriculum and the approach of law schools towards Indigenous materials have been in the news. I don’t intend to discuss such a fraught topic in any detail here.1
I will observe, however, that teachers of compulsory subjects and law school deans are caught between Scylla and Charybdis. On the one hand, you face practitioners and the media, asserting that you do not teach enough black letter law nor do you prepare students for practice. On the other hand, within the academy, at best, some might assume that “black letter” law is both easy and boring (a suggestion I would strongly reject). At worst, some might think that teaching positive law lacks value, because our role as academics should always be to question assumptions and take strong theoretical positions, not to accept the status quo.
Your subject becomes packed with the competing demands of many different cooks, making the broth a complex one, and sometimes threatening to spoil it.
Is it any wonder that we have difficulty recruiting people to teach private law, when we are stuck between Scylla and Charybdis in this way?
This week, I gave a lecture on causation, remoteness and mitigation in contract damages. Obviously, a large part of this required me to teach what the law is. I think my students would agree that the concepts are very complex, and difficult to apply to practical situations without a good deal of thought. Students are required to undertake logical reasoning. How do we decide whether an action causes a certain response? Part of the business of law schools is to teach law students to think like lawyers, and to get used to applying legal analysis to fact scenarios, hence the use of hypothetical problems in exams.
There are times, as I tell my students, where no single principle can be distilled from a case, or there are multiple answers to a question, or the answer is unclear. Sometimes there’s leeway in applying a principle. What one person thinks is “reasonable” may differ from another’s view. It follows that students must also consider why the law is as it is, and what the law should be. For example, in the context of contractual remoteness, should Australian courts adopt Lord Hoffmann’s “assumption of responsibility” test from The Achilleas for contractual remoteness, or stay with the rule in Hadley v Baxendale? There isn’t a right answer to that, although I have my own view. I accept that others might have a different view.
Moreover, even if the principle is certain, what the law is might appear unjust or perverse when it’s applied. It’s necessary, then, to discuss what the law should be, and how it could be improved.
As a consequence, although I teach black letter law, my teaching necessarily involves explaining not only what the law is, but also why it is that way and discussing what it should be. I try to allow room for students to express different opinions on what the law should be, and what principles should prevail. I explicitly state that I welcome reasoned disagreement in my first class or lecture.
As I said in my previous post on the succession problem:
Compulsory subjects can be difficult to teach. At first, students don’t necessarily think that they want to be there—at least some want to do “sexy” electives like international human rights law, and think that more commercial areas are “boring”,“dry” or difficult. Compulsory classes are large and the marking load heavy.
To my mind, private law is part of the oil which keeps the gears of society going around smoothly: if the rules work well, we barely even notice them. The subjects I teach are far from boring or dry, at least in the way that I see them: they raise questions which are fundamental to the way in which we organise our society and deal with each other as private individuals. A lot of the scholarship I do (not all) is doctrinal.
It’s easy to point the finger at the “woke academy” but much harder to actually make a difference.
People respond to incentives. It is now impossible to attain the rank of professor without a PhD (this has been the case since about 2005 in Australia). If firms and practitioners wish to encourage more private law or commercial law scholarship, or further teaching in this area, they might consider contributing to scholarships for PhDs in private law, to encourage younger scholars so that the succession problem is not so acute. Alternatively, they might sponsor professorial chairs in commercial law (as some of the large firms do in the United Kingdom).
I note too, that it’s also difficult (although not impossible) for private lawyers to get government grants for their research, and the acquisition of grants is often an important aspect of the academic promotion process. I was lucky enough to obtain a grant funded by a practitioner to undertake my visiting scholarship to Oxford in 2013, otherwise I would not have been able to afford it.2
One of the problems, perhaps, is a growing divide between practice and the academy, where the two do not understand the constraints under which the other operates. Personally, I would like to keep a foot in practice. But it’s difficult. Recently, we had an interesting discussion on LinkedIn, as a result of this post by my friend and colleague, Professor Cathy Sherry.
If I were in the UK, I could become a door tenant at a barristers’ chambers, and give boutique remedies advice, as well as continue my academic career. Alas, I am in Victoria, and so I have to consult for a firm, set up my own firm, or do the Bar Reader’s course to hold a practising certificate. I can’t afford to do the Bar Readers’ course, and it seems like a waste of time and money, since I wouldn’t want to appear anyway.
A practitioner friend pointed out that the same is true in reverse for people like him, who want to keep a foot in the academy. Teaching for practitioners has become increasingly difficult, because of the practical and administrative hurdles. As someone who is coordinating a large compulsory subject with practitioner or ex-practitioner tutors, I can only agree. The nightmare of university processes and hiring policies is a significant disincentive. Moreover, practitioners often expect to have administrative support of a kind that universities simply don’t supply any more.
At the moment, it’s difficult not to feel like law schools are under attack on all sides. It’s incredibly disheartening. People keep saying, “But your students enjoy your teaching.” I’m glad to be told this. My students are what keeps me going.
It’s easy to criticise law schools, but to change them in a positive way is more difficult. My intention with this post is to start the conversation, and to think constructively about what we can do to ensure that law schools fulfil the needs of students, lawyers and academics.
I also want to ensure that others share the joy of my area of research, and that there are others to carry on the torch when I eventually retire.3
For the curious, I’ll disclose what I have done with JD Remedies. Yes, after discussions with Tyson Holloway-Clarke, I put the Timber Creek decision on compensation for native title into Week 2 of JD Remedies this year, as part of the broader discussion regarding compensation of non-pecuniary losses and the difference between pecuniary and non-pecuniary loss. Tyson and I worked hard to ensure that the addition had pedagogical value, and fit well with the broader subject and the principles being taught. He had undertaken Remedies previously (in fact, he was taught by me!) so he had a really good idea as to how the subject works. I think that’s a really important part of dealing with requests to put extra subject matter in. Additions must fit with the subject, and add to students’ ability to understand the subject. This goes for all requests to put extra material in, from any source.
It also made up for one of my big academic disappointments: I had been accepted into the BCL at Oxford in about 2002, and been unable to afford to take up the offer.
I suspect I will be one of those people who cannot stop researching and writing, even when I do retire. I’m just built that way.
This isn’t just a problem in Law Schools. The Arts, more broadly, has a similar problem, only it’s worse. Even the remaining academics who are not critical theory activists are retiring and their students, read the writing on the wall don’t bother even entering academia. It’s very difficult to get funding full stop, let alone funding that doesn’t have a ‘sexy’ ie critical theory twist, or is not directly relatable to some kind of technological ‘innovation.’
No one is willing to fund archive ratting, (history/politics) real quantitative studies (in sociology) or anything that might vaguely reflect positively on Western Civilisation (aside from a few private colleges). There are few academics interested in properly teaching those ‘non-sexy’ bread and butter courses like ‘Introduction to Western Civ’, or World Politics, or even just Classical literature and poetry. With Law we risk forgetting how society and justice works. If we forget the Arts, we forget who we are.
Is it any wonder our young people are adrift and going nuts?
I enjoyed your post, Katy, thank you. I am not a lawyer but I do negotiate complex contracts. It is self evident that the contracting process proceeds at the pace of the slowest corporate lawyers ( or their chosen legal advisors). Forget Transfield Shipping Inc v Mercator Shipping or the second limb of Hadley vs Baxendale, warranty, liability and indemnity clauses are negotiated as if Monty Python’s Fish Slapping Dance was the primary reference source for both parties. The commercial balance of power determines the “negotiated” position during interminable back and forth about “departures” from the client’s original Ts&Cs.
Meanwhile, far away, in another part of town, business practitioners and procurement people are urging agility and NEC4 contracts avoid the “lawyers at ten paces” that both slows contracting and drives up legal fees. Cui bono? My point is that exposure of academics to practitioner issues is not just about philosophical points of principle about remoteness. I’m listening to Subterranean Homesick Blues as I write this, and his Bobness sings “you don’t need a weatherman to know which way the wind blows!”
There will always be contractual disputes but I think the big legal practices are clinging to anachronistic “model contracts” which drive up their billings but are no longer fit for purpose in a world where the parties want to compress cycle times.
If i was a cynical and grumpy old man i would suggest that there will be increasing supply of forty-something lawyers who have been made redundant from the large legal practices by AI-driven contract negotiation, the business imperative to compress contract negotiation cycle times, the impatience of clients with practices that serve the interests of their legal advisors and the emergence of new contractual vehicles to deal with uncertainty.
I doubt many would want to enter academia given the stories that are now being told by Janet Albrechtsen and others but I would suggest it would be a step forward for the legal profession and a huge benefit for the students. It would address (some of) the succession issue, but not address the need for academics to leave the gardens of academe for the grubby corporate world from time to time.
But who knows? The times they are a changing, and perhaps mass redundancies at larger practices might create some part time vacancies? 😎