Succession planning

The travails of being a private law lecturer

Last year, I was hospitalised for five days, with pneumonia and asthma (non-COVID related). It was at that point I realised there was a problem. I was course coordinator and lecturer in a subject called ‘Remedies’, which covers the practical aspect of what happens when private disputes come before the court. My two co-lecturers already had a full class load. Who was available to cover me while I was in hospital? The short answer is: no one. We don’t operate like a high school; there is simply no one available to step in at short notice. Luckily, after a week or two, a retired Professor was recruited to assist, once it became evident that I was going to need a lengthy period of recuperation. He did my marking, as well as teaching one of my Masters’ subjects in my stead. I remain profoundly grateful to him. However, it illustrated to me that we have a succession problem.

Let me back up and explain why.

Since I began at the law school in 2006, I have taught at least five different ‘compulsory subjects’—subjects which students must complete at law school before they can be admitted to practice—known colloquially as the ‘Priestley 11’ after the chair of the Law Admissions Consultative Committee. These are what are known as ‘black letter law’ subjects: the basic principles are generally well-known and established (although there’s always room for debate, because we’re lawyers, and that’s what we do). Lawyers need to understand these practical subjects to be competent lawyers, and to advise clients.

Common law legal training has traditionally been intensely practical—hence the term legal practice—and at first, one did not have to do a law degree to become a lawyer. Lawyers did an ‘apprenticeship’ with a more senior lawyer, and learned on the job. As scholars including Neil Duxbury and Alexandra Braun have outlined, academic scholarship was generally distrusted by English courts until the second half of the twentieth century. Judges believed that legal academics lacked pragmatism, were too far from the hurly-burly of ‘real’ law, and works by practising lawyers were preferred.

Photo by Dmitrij Paskevic on Unsplash

Nonetheless, I stand by what I said in the Preface to one of my books, published last year:

I believe academics can provide an important service to the legal community more generally: we have time and opportunity to step back and look at the big picture, something which judges and practitioners may find more difficult as they move from one case to another.

My speciality is private law: that is, the rights and obligations we have between each other as private individuals or organisations. If someone makes an agreement with me, and fails to keep it, what happens then? How does one make a binding agreement in the first place? If someone trespasses on my land, what can I claim against them? I could keep asking questions, but you hopefully get the picture. In fact, during the aforesaid stint in hospital, I came up with a possible solution to date of assessment of contract damages in The Golden Victory at 3am in the morning!

In my sixteen years as an academic, I have taught Property Law, Contract Law, Trusts Law, Equity, Remedies and Torts. I have been told that this is an amazing range.

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. As my colleague Professor Jason Varuhas has outlined in this exceptional chapter, the fundamental question asked by doctrinal scholarship is what the law is. Varuhas identifies four levels of doctrinal analysis, of increasing complexity:

(i) description, which may for example involve summarizing a case; (ii) derivation, which involves distilling legal propositions from legal materials; (iii) systematization, which involves organization of interconnected legal propositions into categories, which form part of a wider system; and (iv) interpretivism, which involves interrogating normative justifications which explain legal propositions or categories, and refining one’s account of those legal phenomena by reference to those justifications.

It is obviously useful to be taught a black letter law subject by someone who thinks about what the law is, and even more, to have a teacher who writes about the law as it is and rationally organises it, and normatively justifies it (or points out the problems or inconsistencies).

However, given the shortage of lecturers in black letter subjects, some teachers of compulsory subjects do not research or write in the area. Sometimes (but certainly not invariably) this means that they don’t enjoy teaching these subjects as much, and do so out of a sense of obligation, not pleasure. I can think of several lecturers I had at law school whom I now realise had been dragooned into teaching in an area not their own.

I am a rara avis, and so are each of my colleagues who specialise in private law. In order to get a permanent position at an Australian university, from about 2004 to 2005 onwards, it has become imperative to hold a PhD in law. There are not many people who wish to undertake a PhD in private law, and many of those who do end up at the Bar, or overseas. Someone who has an aptitude for private law or commercial law has a multitude of positions to choose from, as does someone who is interested in criminal law, family law or any widely practiced area. Conversely, in other areas of law, there are fewer opportunities to practice, and hence many more PhD students or academics. The paradox is that, in the areas where teaching is needed most, we are training fewer academics.

What can be done about this? I believe that there are massive issues with perverse incentives in academia generally—don’t get me started on the topic of academic publishing!—but just to deal with this problem, I would suggest the following:

1. Point out the elephant in the room. I daresay most legal practitioners are utterly unaware of this conundrum. It seems counter-intuitive: why would practical subjects be the hardest to find lecturers for? It’s precisely because they are practical that the problem arises. Anecdotally, I’ve been told that the shortage of private law lecturers is not just an Australian problem, and extends beyond our boundaries. It may also be a problem for other compulsory subjects.

2. Get rid of the PhD requirement for permanent lecturers in private law (and possibly other compulsory subjects, if they suffer the same issues as private law). It is preventing worthy people from joining academia.

3. Recognise that doctrinal scholarship has an important place. Currently, there is a tendency to reward theoretical work, where grand claims can be made as to it its significance and relevance. “I am exploring fundamental concepts of justice” sounds more interesting than “I am trying to impose some order on the law of contract damages”. Being confined by practice means that your work might look less flashy, but that does not take away from its importance.

4. Recognise the worth of textbooks and treatises. Textbooks are not currently counted as proper academic work, because they deal with what the law is (black letter law) rather than what it should be. I have been told that several important black letter textbooks will likely wither now that their primary authors have retired: there is no one who wants to continue the back-breaking work of updating them, because it doesn’t get recognised. As an author of textbooks, casebooks and treatises, I tell you that it is literally a labour of love: I don’t do it for the money.

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Please note that I am not saying theoretical work should not be undertaken (I undertake theoretical work at times myself, and find it important and useful, and I have taught theory subjects) nor am I criticising people who research or teach in other subjects.

I am simply saying that doctrinal scholarship has a place in academia, and that it is as valuable as theoretical work. Moreover, if universities are to continue to be useful in training the lawyers of the future, we must recognise that we need people who teach compulsory subjects. Our role is not only to research and to theorise. We are also there to teach the lawyers of the future, and to guide current lawyers in practice. One of the most enjoyable parts of my job is hearing how my teachings or writings have benefitted past students. Nothing makes me happier than when a former student gets in touch.

I am also saying that if I got run over by a bus tomorrow (touchwood it doesn’t happen!), I don’t know who would replace me, other than someone like the long-retired lecturer who stepped in last year, but he can’t last forever either. If you ask me, we have a problem, Houston.