As I get ready to leave the legal academe after thirty years of service — with only one brief interruption to return to practice as the Director of Policy and Senior Solicitor with the Environmental Defenders Office, a scrappy public interest environmental law firm, in the late 1990s — it seemed fitting to me to take stock of the changes wrought in legal education by a constellation of factors and causes – many beyond the law school – over this period. I am aware of the dangers in such an exercise. As a baby lawyer in the academe, I was pretty critical of old fuddy-duddy ivory tower curmudgeons who failed to move with the times. I was an earlier adopter of classroom technology before its use was enforced. I shunned talking at students in ‘lectures’ for Socratic questioning and class discussion.
At this point I was going to forge on and chronicle a host of ‘turns for the worse’ I have seen take place in the legal academe over the past thirty years, despite my misgivings that some of my younger colleagues might view this as the compilation of a grump with idealised memories of ‘the good old days’. I was going to start with the root of many demoralising changes – the corporatisation of the entire University endeavour. I planned to highlight the self-evident; that universities today are not run primarily as institutions of higher learning with this unique purpose dictating their governance. Instead, they are ‘managed’ as big business with income generation at least as equally important as their missions to educate students and produce new knowledge. I would then go through, in detail, a litany of developments I have witnessed, such as those captured by these dot points:
- The replacement of democratic university decision-making at all levels with absolute executive power (happily for me, all my Deans have been consultative and benevolent, but that is luck).
- The rise of a ‘students as customers’ mentality which elevates students to potentates, no matter how little knowledge or experience the potentates possess.
- The measurement of academic staff by one size fits all ‘KPIs’ that are often unrealistic.
- The creation of rigorously policed ‘branding’ and marketing strategies devised to bring in students – the financial ‘milch cow’ for the University.
- Academic and administrative ‘management’ at the highest levels paid triple and quadruple the amount of the highest salaried professors, with access to corporate-like executive perquisites denied the rest.
- The increasing appearance of academic staff that are casuals on contracts with little or no leverage over pay or conditions.
- Course ‘content and delivery’ dictated by non-legally trained educationalists.
- Relentlessly proliferating form filling and reporting (often duplicative a number of times over).
- And on and on and on.
But this is what I am not going to do. Instead, I am going to concentrate on the many things that, for the longest time, made being a law professor the best job ever. A job I have loved. In many ways, it still is. I like to tell the story about mumbling to myself getting ready for work one morning in 2014. Almost under my breath I said, “I love what I do”. My wife overheard me and asked, “what did you say?!” And I told her that I did love being a law professor, researching issues that mattered and helping to prepare students to make a difference in the world.
On the teaching side of things, it has been a treat to spend year after year with students who are perpetually 18-24. As my old boss, Professor Lou Henkin at Columbia University, used to say, one of the things he liked the best about the job was the opportunity to be constantly exposed to young minds. We professors, if we are honest, often learn as much from students as they do from us. If we pay attention we are continually exposed to new and current world views and cultural developments that would otherwise remain subaltern. It is sort of like the story of Dorian Grey in reverse. We represent the painting of Dorian, ever ageing, and our students represent Dorian, perpetually young.
Also on the teaching side, is the immense pride one has in seeing students go out in to the world and make significant contributions in bettering the lives of individuals and society. Many years back, I got a kick out of reading an item on what makes a great teacher. It started with the humorous observation, that you can tell a great teacher by the fact that their students consistently exceed them in competence. Of course, a student’s natural ability and her or his hard work have much more to do with professional success than anything the teacher does, but by this measure, I’ve been a pretty good teacher. My former students lead government departments, universities, and law schools. They are partners in some of the world’s most elite law firms. They have advanced social justice for the vulnerable and disadvantaged. They have protected some of Australia’s and the world’s most important ecosystems and biological diversity.
On the research side of things, I’ve never had illusions that anything I’ve ever published was earth shattering. I may have provided some small illumination on some things, perhaps explained things better, but I have no doubt that nothing I have written will be remembered 100 years after I am dead. That’s not to say I have not enjoyed all my time doing research in myriad law libraries around the world. I have. I have loved the serendipity in finding new things just roaming the stacks and pulling interesting books. I have loved even more being productive in the flow of research and suddenly looking at the clock to find five hours have passed when it seems like a matter of minutes. There are few things that are finer than that feeling.
I am happy, too, that my legal research has never been exclusively academic. I have maintained a pro bono legal practice throughout my career, which I have thoroughly enjoyed. And, some of the research for those cases has had lasting impact. The important cases in which I have appeared as counsel include
- Case No. 17 in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS), concerning the responsibility and liability of states sponsoring activities in the Area beyond national jurisdiction;
- ITLOS Case No. 21, concerning illegal, unreported, and unregulated fishing and rights and obligations of flag states, coastal states, and regional fisheries organisations;
- advisory proceedings before the Inter-American Court of Human Rights, which saw the Court issue a landmark Advisory Opinion ruling that states must take measures to prevent breaches of human rights caused by significant environmental harm to individuals inside—and outside—their territory.
- And a number of amicus curiae briefs I have filed as attorney of record on behalf of some of the world’s most eminent international lawyers before United States Courts of Appeal and the Supreme Court of the United States. All of these cases, and more, informed my teaching and, hopefully, brought the law alive for students.
Then there are my mentors, colleagues, and assistants across institutions, decades, and continents. How lucky I have been with the brilliant teachers and colleagues I have had. Kindred spirits and models to emulate, whose love of the law has helped me to see both what it is able to accomplish and certain glaring defects ripe for reform. I have worked with and learned from so many sapient people with so much wisdom, starting as a law student. It is certain that I would not have been able to accomplish what I have been able to contribute without their generosity, kindness, and advice. And, without all the excellent administrative assistance I have received, it is certain I could not have done as much.
For all of this over the course of thirty years of my life, I am extremely grateful. And, I will keep a hand in things as an Emeritus Professor at the Australian National University (where I spent the vast majority of my time as a legal academic) and as an Adjunct Professor in Griffith University’s Law Futures Centre.
At this point, however, I am compelled to see if I can be a success at something outside of law before I run out of time. And so, it is over and out on a full, rich career in the law school.
Professor Don Anton