The “irreducible core” of a law school

Thoughts on our mission as an institution

Okay, a different kind of core. Photo by Mak Flex on Unsplash

The concept of an “irreducible core” comes from Millett LJ’s judgment in Armitage v Nurse, in which his Honour spoke of the irreducible core of what makes up a trust:

[T]here is an irreducible core of obligations owed by the trustees to the beneficiaries and enforceable by them which is fundamental to the concept of a trust. If the beneficiaries have no rights enforceable against the trustees there are no trusts.¹

My mind is on trusts at the moment, but it is also on the role of a law school. It has been a tumultuous time for Melbourne Law School in the last few months. I had hoped things were calming, but on Monday 25 March 2024, we were told that our Dean, Matthew Harding was resigning (as reported in the Herald Sun later that week). Professor Harding is also a trust lawyer, a personal friend and a colleague of long standing.

The decision came as an immense surprise. However, a hint as to the reason why came from the Provost’s email, in which it was said that the Acting Dean and Acting School Executive Director “will remain focused on addressing the significant challenges that have arisen over the recent period with assessment processes and other issues relating to the student experience.”

I have written a post earlier on the issues which have arisen with regard to administrative support, and how student complaints made it into the media a month ago. If Professor Harding has been held responsible for this, I believe that he has been unfairly blamed for a problem which has arisen as a result of successive decisions of central university over the last decade. It is central university, not the law school, who has demanded that we gut our professional support staff, over and over. The law school ran its own online exams perfectly well from 2017 onwards (for what it is worth, I was involved in the committee which instituted this system). It was only when we were forced to adopt a centralised examination system last year that problems arose, as I noted in a detailed memo to various high-ranking people in the university in August 2023.

I haven’t spoken to Professor Harding about this, but I have spoken to others who have held the office of Dean at various institutions, and of various faculties, in a number of different countries across the globe. In light of these conversations, I understand that the office of Dean is an unenviable position, wherever you are in the world, and whatever faculty you lead. The Dean generally has little power to push back against central university when it issues diktats against the faculty’s interests, but he or she ends up taking the responsibility for central university’s decisions when those measures fail. It’s the epitome of moral hazard.

In academia, the current pattern seems to be that the person who bears the brunt of the decisions made by the university has no control over those decisions, and the feedback loop which conveys information that the decision was bad is broken. The exponential increase in bureaucracy in universities over the past decade has not made universities run better; it has made them much worse. I started as an adjunct lecturer in 2006, and the decline in services which help me to do my job (particularly the teaching aspects) is remarkable. Meanwhile, the ridiculous red-tape requirements proliferate, but do not make any positive difference to the situation on the ground; they only create more work and give me headaches.

Added to that, the last eighteen months been a particularly difficult time to be in a position of leadership at an Australian university, with strikes, tension between different groups on campus, numerous protests, polarised opinions, and general global instability and conflict.

Professor Harding and I had a conversation a few weeks ago, where we discussed our shared view that the twin pillars of academia should be research and teaching. Given that we are both trust scholars and erstwhile teachers of trust law, I was thinking that it would be appropriate to call these two pillars the “irreducible core” of a law school. It is those two things upon which we must focus.

Photo by Ian Hutchinson on Unsplash

Like some other faculties (Medicine, for example) the study of law is associated with a profession. This creates a tension. Not only do such faculties have the pressures from students on the one hand, and central university on the other, but we also have the outside pressure of the profession. The profession tends to demand that the teaching and research we provide is deeply practical. They want universities to provide them with baby lawyers, whom they don’t have to train, and who can hit the ground running. On the other end of the spectrum, at least some academics tend to say that practice is irrelevant, and that we should emphasise theory and fundamental questions of justice, and focus on getting students to question the status quo.

Neither is correct. On the one hand it’s impossible to teach people how to practice law without hands-on practical experience. I learned the most about litigation from my work with a trial judge. On the other hand, certainly it’s important to think about justice and what underpins our law, but our job is not to undermine the status quo, particularly given that we are taxpayer-funded. Our role is to think very carefully and analytically about how the law operates—which may sometimes lead us to challenge existing paradigms—and share our insights with others.

I undertook my high school education in two different countries, Australia and England. My Australian high school tended more to the questioning the status quo side of things. It taught me to think laterally and creatively. However, when I came to England at the age of 14, I found that my knowledge was severely lacking compared to my peers. I had to study intensively to catch up. My education at that time was an old-fashioned one, for which I am profoundly grateful. We had to memorise various things: dates for history, formulae for science, quotes for English literature, and so forth. The copious exams we had to undertake were closed book.

My strange “bitty” education taught me what was ideal. It’s good to be taught to question, but if you don’t even know what the status quo is, or understand why it operates like that, then the questions you ask are likely to be useless. On the other hand, it’s also good not to just accept everything you are given as gospel, nor should you treat learning as a mechanical exercise, memorising reams of information. In an ideal world, you have straw to build your bricks, otherwise they crumble, but they can’t just be straw either. In other words, you have a sound and decent knowledge base, but you question things in ways which are intelligent and helpful. And not everything needs to be broken apart and smashed. That’s one of many advantages I obtained from my education in two different countries.

The same thing goes for legal studies. Some academic lawyers like to pooh-pooh private law. It might surprise practitioners to learn that people who specialise in private law are looked down upon, as far too practical, and somehow venal, because private law often deals with money. Once a colleague told me that they regarded my work on practical restraints upon awards of damages as “dirty”. It’s been four or five years, and I’m still laughing about this, because I have an inappropriate dark sense of humour and an appreciation of the absurd. Only the rich can afford not to care about money. Only someone profoundly out of touch with society can believe that it’s dirty to consider how much a wronged party will get in a legal action.

The problem with academia is that the pendulum has swung to prioritise research above teaching, and theory above practice. As for the latter, I am afraid that—contrary to popular opinion—it is often easier to be a theorist than someone who focuses on practice. A theorist can engage in thought experiments without having to worry about that pesky little thing called reality. It’s ever so much harder to explain the messy, unpredictable nature of reality in a clear and concise way which fits with the world.

The answer to this problem is not to turn universities into mills to churn out practitioners, or to ban theory. The answer is to achieve a happy medium, where one thing is not prioritised above the other, and all facets of academia are valued. As I said in the introduction to my practitioner text on contract damages:

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.

Unfortunately, the government incentives we have now have warped the way we operate, and have also produced bureaucratic layers.

I have no faith in the recent Universities Accord. It will just create another layer of people to issue absurd instructions about how we must “innovate.” As a friend said, “Steering the ship and keeping an even keel isn’t what gets you get ahead in a bureaucracy, it’s initiating change.” Hence the ship is constantly rocked by pointless innovations and changes, enabling those who want to make their way up the greasy pole to have something to put on their CVs.

While the Dean does not seem to have much ability to push back against central diktats, a bad Dean can be disastrous. I have seen other law faculties hollowed out with a mass exodus in staff. Those higher up don’t seem to care, as long as the new Dean accedes to their diktats. For central university, the important thing is to manage up successfully, not to manage down successfully: a tremendous churn of staff and huge unhappiness among the students does not seem to be of concern.

I fear for our future as a law school. I do not want a Dean who buys into faddish identity politics. As I have outlined previously, I find that all too often, exponents of this ideology tend towards verba non acta (words not deeds). Words are cheap, deeds are much harder. What matters to me, as someone with physical disabilities and chronic health conditions, is acta non verba (deeds not words). I want things to work, and I want to be properly supported.

Inclusive statements about welcoming disabled people and their “lived experience” are useless if the powers that be sack the person who distributes the mail, and I discover that I have to crawl to pick up my mail from the lower shelves of the mail room because I cannot squat or bend easily. Telling people not to use the word “lame” doesn’t prevent me from falling badly when I am stressed out by the demands of the job and not properly supported by the university. This has happened twice in the last nine months; luckily I did not break a bone on either occasion, but they were close calls. And yes, for what it is worth, I am lame, and I have no shame about it. My left leg tends to drag, particularly when I am tired, and I limp.

Statements about “cultural safety” are also useless, if an Indigenous student who lives in regional Australia cannot get information from central university on whether they are eligible for a supplementary exam. In the end, I exercised my “equitable discretion” to award a supplementary exam to the aforesaid student—and I was so glad I did this—two weeks later, it was decided by central university that the student should have been entitled to a supplementary exam.

I also feel rather cynical about those who complain vociferously about infringements of their cultural safety but are happy to sign up to statements suggesting it is justifiable to violently slaughter Jewish or Israeli civilians because they are evil colonisers. The phrase that immediately came to my mind was from George Orwell’s Animal Farm: “All animals are equal, but some animals are more equal than others.” As I have said, I have a duty of care to all my students, regardless of race, religion or any other matter.

Enough already of the social justice statements and twenty year visions. I would rather have a university that cares about making things work in the here and now, not cutting costs and putting duties back onto academic staff as “self-service”, and then blaming staff or the Dean when things fall apart.

Yes, I’m upset and angry, but I’m also afraid about who will replace Professor Harding. Please recall my observation about the damage a bad Dean can do to a school. I beg the University to ensure that the new Dean has the power to make a difference in a practical way, because otherwise no one will want to do the job. At the moment, the office of Dean is a poisoned chalice. Professor Harding’s fate seems to indicate that you’re likely to get all the blame for the problems, and have little power to do anything about them.

I want someone who cares about teaching and research (the irreducible core of what we are), who emphasises academic freedom, who fosters diverse viewpoints and constructive disagreement, who keeps up the excellent connections with legal practitioners, and most importantly, someone who has the power to make a difference. Otherwise, our law school will wither.

1. [1997] EWCA Civ 1279, [1998] Ch 241, 253.