Jenni McManus
Three retired judges – all alumni of the University of Auckland’s Law School – have joined the groundswell of opposition to a proposed merger of the university’s law school with the much larger business and economics faculty.
Raynor Asher KC
Former Court of Appeal judges Raynor Asher KC and John Priestley ONZM KC and retired District Court judge and former Auckland Law School lecturer David Harvey say there is nothing rational or good about the proposal and warn of brand and reputational damage which will impact the law school’s international ranking.
Auckland is easily New Zealand’s top-ranked law school. On the SCImago Institute’s 500-point scale, it sits at 174, followed by Canterbury (291), Victoria (323), Otago (380), Massey (422) and AUT (426). In the QS University World Rankings, Auckland University’s Law School ranks at 55.
Further, the former judges say, there are fundamental differences between the way law and business subjects are taught, meaning the two will not sit easily within the merged entity. The proposal doesn’t appear to take into account these fundamental differences.
John Priestley ONZM KC
But most damning of all is the fact that the Auckland Law School would lose its independence.
John Priestley has had a long track record with the university, where he excelled academically in the 1960s. He says a merger makes no sense.
“I’m distressed, and that’s probably a better adjective to use rather than ‘volcanically angry’! I’m distressed by what I regard as a most unwise proposal which is going to impact on the international reputation of what is a very good law school.”
The proposal
A brief consultation document – understood to be the brainchild of business school dean Susan Watson and university vice-chancellor Dawn Freshwater – has been released by the university. This document suggests that while the proposal is being billed as a ‘merger’, it is in fact more akin to a takeover.
Cluttered with the usual business school-speak about ‘alignment’, ‘collaboration’, ‘enhancement’, ‘engagement’ and ‘leverage’, it reveals few, if any, benefits to the law school, its critics say.
Nor are there any financials to back the university’s claims, meaning it is impossible to tell whether there might be cost savings, either in the departments’ back offices or by pruning the teaching faculty.
According to the proposal, both the law and business schools will retain their own staff, buildings and branding. The deans of each school will report to dean of the combined faculty, and nobody believes this person will be a law school staffer.
The only tangible benefit for the law school might be access to the business school’s pool of donors to help fund research, but this is not guaranteed. And it is something the law school could do for itself.
Gateway faculty
One purported benefit that has particularly outraged the three judges is that the merged entity is intended to be a funnel for the business community.
“This combined faculty would act as a gateway, where business leaders gain direct access to legal expertise and legal professionals draw on a range of commercial, corporate and related expertise,” the document says.
“A combined Faculty of Business and Economics and Law would establish a dynamic gateway which could enhance the university’s role as a vital bridge for industry. This proposed new faculty arrangement would offer the business community expanded access to a broader spectrum of academic legal expertise, while providing the legal sector with direct insights into commercial and corporate practices essential for addressing today’s complex challenges.”
“I think it’s misconceived for two reasons,” Priestley says. “The first is that there’s much more to the discipline of law than as an adjunct to business interests and the business community.
“The teaching of law has a constitutional dimension. It’s got a dispute resolution dimension, it’s got a huge historical dimension. And finally, I think it’s got a social dimension where the corpus of law, the body of law teaching, has to reflect to some extent the society in which it is operating.
“And putting that argument around the other way, the business school may be very good at teaching taxation and aspects of mergers and acquisitions, but discussion of law or the teaching of law rather involves much more than that….In the common law world, or certainly in the English-speaking world, there’s not one law faculty of any reputable university that I can think of which doesn’t have independence.”
Asked whether the plan to run the law school and business school separately with their owns staff meant each was independent, Priestley said he did not think that was sufficient.
“It’s a fundamental change from the current arrangements and I don’t quite understand what’s driving it.
“Certainly, you can teach the law of contract in the business school…. but although the faculties will have their independence, the fact that the dean of the law faculty is ultimately going to be subservient to the dean of the business school speaks volumes in my view.”
He says it will be harder to recruit quality staff, particularly from overseas.
‘Undiluted approach’
Raynor Asher also struggles to see the rationale for the merger.
“It overlooks the fact that law is an independent discipline,” he says. “It’s not about business law. It’s not about evidence. It is about ethics, which underlines everything. And ultimately, all these laws combined create the rule of law. Law students have this drummed into them from their very first year.
“They learn some legal history. They learn about problem solving within the boundaries of the law and how the law works to resolve problems. And the degree is far more than just a meal ticket. It confronts and tries to teach students about what the law is about, why we have laws, how they developed and their function in our society,” he says.
“To treat it as in some way having a synergy with a business college is to misunderstand the nature of legal teaching, which is all about teaching the fundamentals of the law and a broad range of disciplines that will produce a lawyer.
“That’s still the undiluted approach. It is to produce people who can be good lawyers. And of course, it does give them all sorts of disciplines and knowledge that will help them in other careers.”
Done deal?
There have been previous attempts to merge the two departments – one of them in Auckland about 15 years ago and the other at the University of Canterbury. The Auckland move was scuppered in the face of opposition from law school staff, students and the profession and the Canterbury experiment was unwound in 2023 after it was found to be unworkable.
The current proposal is widely viewed as an attempt at empire building on the part of the business school and is facing stiff opposition. But those spoken to by LawNews fear that it might nonetheless go ahead.
David Harvey
As David Harvey puts it: “The proposal that has been put forward is quite detailed. And you get the impression this whole consultation thing is a bit pro forma because the decisions have been made. When you see the timetable that is set out for this thing, you realise that there’s been a lot of decision-making that’s going on.”
In his view, there are “a whole lot of reasons” why a merger is a bad idea.
“The first thing is that the academic rigor required for a law degree is quite different from that involved in business. What you’re talking about, for example, is extensive study of legal principles and case law, statutory interpretation and you’ve got to also develop the analytical and argumentative skills that go behind that.”
Commerce focuses on business principles, economics, finance, marketing and management, he says. “So, immediately you’ve got different focuses between the two disciplines.”
Lawyers are also concerned about the issue of accreditation. The accrediting bodies focus on very specific areas that require a broad knowledge of legal principles that might be lost if the merged faculty has a different sort of focus, Harvey says.
“If you have a single law faculty, then you have a focus on not only legal principles but also on professional responsibilities, ethics and duties…The ethical responsibilities flow from the principles that you learn.
“Then there’s faculty overlap and also an issue where people who are looking at practising law or looking at law as a career are wondering why they have to enrol with the business faculty if they’re studying law.”
Split departments
Another contentious matter is the proposed splitting of the law school into two departments: private and public law.
Under this system, private law would include commercial, corporate, intellectual property and technology law. The business school’s commercial law faculty would join this department. Public law would cover criminal, environmental, indigenous and international law.
Each department would have a head (the dean and deputy dean of the law school) who would report to the dean of the combined faculty. Many of those spoke to by LawNews noted that the law school has not had a permanently appointed dean since Pene Mathew departed in 2023.
Harvey says the public/private distinction is “a little bit silly”, particularly when some of the courses proposed for public law have significant private law elements.
“Criminal law has public law implications in terms of procedure, evidence, admissibility and practice but it also has much wider private law implications. Same with contracts, same with tort. The law doesn’t fit neatly into that sort of classification or categorisation.”
Barrister William Akel, of Sangro Chambers, says the important thing about law school is that you learn how all the private and public law disciplines interact with each other.
“A good corporate lawyer should know something about treaty principles, about environmental law, resource management and you can’t easily divide these things up. The fundamental philosophies of law and business are different…. Law school is different because it teaches students to think critically and to fulfil their duties and obligations as lawyers, not only to their clients and the courts but to society generally.”
Access to justice
Nor is the Criminal Bar Association happy. Vice President Sumudu Thode says the CBA stands with students and academic staff who have expressed concern about the possible loss of criminal justice education at the University of Auckland’s Law School.
“Legal education should not just be for those who wish to apply their skills to business but a forum to learn about the foundations of our justice system and how to advocate for justice in our courts,” she says.
“Without the support and resources to gain the very best education in criminal advocacy, New Zealanders will miss out on a generation of lawyers who would uphold the rights of our most vulnerable, making our already struggling justice system even less accessible and risk serious miscarriages of justice.”
As for the university administration, nobody is talking – apart from noting that feedback on the proposal is due by 20 January.
“No further comments will be made until such time as the university has engaged with, and received feedback from, staff, students and stakeholders. No decisions will be made until all feedback has been carefully considered,” the university said in a statement released by its communications team.
0 Comments