Blurring the Boundaries of the Autocratic Academy

To scholars interested in the history of the corporation, the claim that problem with today’s universities results from their “corporatization” remains odd. After all, universities and colleges sit at the very origins of the corporate legal form, tracing their corporate lineages back to the first medieval universities as well as the collegia of Ancient Rome. More proximately, the distinctive dimensions of US corporate law—its treatment of the corporation not as grants of public power but as private property containing vested right—begins with a case concerning just what type of corporation a college is.1 As a critique of the contemporary university, “corporatization” implies a foreign legal form grafted onto an autonomous institution. But it is more accurate conceptually and historically to say that universities are at the heart of the legal concept of corporations. The distortions of “corporatization” stem from the transformation of an ancient legal device into a modern tool of capitalist production, distribution, management, and accumulation. It is the application of those ends to the university that make it monstrous.

Timothy Kaufman-Osborn’s The Autocratic Academy (2023) offers a devastating critique of the governance of universities by taking seriously the institution’s corporate legal foundations. Kaufman-Osborn argues that the central purpose of the corporate form was to unite members in a common purpose whose achievement exceeded the abilities and time horizon of any one individual. For universities that purpose was truth and education. Thus, universities were literally composed of the community of scholars. Members of academic communities formed collective bodies and became legal subjects by receiving charters—documents that enabled members to self-govern as they pursued the ends of higher education. Yet, as Kaufman-Osborn demonstrates, over time corporate universities transformed from those ancient associations into what he terms “proprietary corporations.” So conceived, universities became legal representations not of the collective membership but of their property, with regents and trustees granted authority to direct and govern these institutions.

Kaufman-Osborn locates the problem in the increasing conflation of two distinct lines of corporate law. Medieval universities of England and Europe emerged as member corporations in which legal personhood was based on the collective will of equal members who direct the assets of the body politic toward its chartered ends. Yet, Kaufman-Osborn explains that the proprietary corporation descends from canon law, serving as a device the Catholic Church used to hold property in a collective and sempiternal body. Drawing on the work of David Ciepley (2020), Kaufman-Osborn argues that this second definition has come to dominate the corporate form broadly, including business corporations, but has also warped the corporate form of universities. Kaufman-Osborn places particular responsibility on neoliberal “contract theories of the firm,” which view corporations not as public grants but as a legal shorthand for a series of repetitive private contracts (see Easterbrook and Fischel 1996). This conceptual shift entails treating shareholders as “owners” who the corporation is supposed to serve. When applied to universities, contract theories provided a rationale for boards to increase their capacity as the governing bodies of universities, irrespective of the interests of other groups, including the faculty. It also transformed the relation between faculty and the institution from members of a common, relatively autonomous and self-governing entity to “at-will” employees.

In this manner, The Autocratic Academy narrates the decline of universities from member corporations into proprietary corporation. It is a story of lost battles in which faculty and fellows are dispossessed of their autonomy as it is transferred to trustees who govern these institutions not as members but as fiduciaries. As such, Kaufman-Osborn’s book poses vital and unasked question concerning the structure and justification of authority in today’s academy, while also illuminating the historical flaws producing this distorted governing logic. The Autocratic Academy challenges faculty and others who care about the academic mission to understanding the ways we have ceded control of universities to regents, many of whom have interests far afield from the core missions of our institutions. By focusing on the structure of authority in universities, Kaufman-Osborn brings into view not only problems besetting universities, but also new solutions. His proposals are necessary and inventive precisely because they rely on and re-politicize the very legal structure on which universities depend.

But declensions also have their starting points. To chart the decline of the member corporation implies some previous moment before things went off the rails. Although Kaufman-Osborn remains circumspect about early modern universities, he also seeks to “reaffirm” the older sense of a universities as republican corporations (6). In doing so, he conceives the project of reconstituting the university as “partly a matter of recovering elements of the corporate form that are forgotten” (258). This raises questions concerning the narrative of decline as well as the republican status of corporations prior to the fall.

Conceptually, Kaufman-Osborn links the transformation to the rise of neoliberal contract theories of the corporation. Neoliberalism, however, is only defined late in the book, associated, per usual, with the rise of Thatcher and Reagan, the Chicago School and the Austrians, and, of course, Hayek and Friedman. But, as Kaufman-Osborn notes, decisive shifts in thinking about corporations as aggregations of private property can be traced through almost the entire history of US corporate law, dating back to the 1819 Dartmouth College case. Likewise, the notion of the corporation as collective property, with shareholders as “owners” was central to corporate law long before neoliberalism. The separation of ownership and control was already a concern when Berle and Means published The Modern Corporation and Private Property (1932) and was the key issue in the Berle-Dodd debates of the 1930s (Berle 1931, 1932; Dodd 1932). This suggests that many of the problems in the structure of corporate law and with the corporate university began long before the hegemony of neoliberalism in the 1970s and 1980s while also calling into question the sharp decline of the member corporation into a proprietary corporation. Kaufman-Osborn acknowledges that these two models of corporations are heuristic devices, serving as a set of Weberian ideal types. David Ciepley also indicated that the sharp distinction between republican or member corporations and proprietary corporations was a “stronger thesis” (Ciepley 2020, 626) than much of the literature supports.

Another way of conceptualizing the development of the corporate university would emphasize the historically contingent and ad hoc use of the corporate legal form. Philip Stern (2023) has described corporations in this manner in his recent work on British imperialism, which he treats as less a project of the Crown than one of companies and their promoters. What he calls “venture colonialism” rested on a wide variety of dubious characters using whatever legal mechanisms they could find to acquire land, wealth, and resources. The state recognized these attempts, issuing charters and letters patent, not out of a high-minded conviction of serving the public good (even if they used that language) but out of its own exigent political and economic needs. This included serving the network of social relations in which Crown and parliamentary power were embedded. Most of the projects were controversial; they rarely came to fruition, and when they did, they usually quickly collapsed or fell apart. But ideas advanced at one moment were often recycled decades later by some other schemer who saw an opportunity.

As a theory of legal change and development, law, as Stern treats it, is a mode of action formed in conflict to advance social power. Legal forms, like the corporation, are not ideal types with essential qualities or inner essences but structures contingently advanced or mobilized and often created on the fly. Echoing the work of Lauren Benton (2009), the image of legal systematicity is only retroactively realized. When we apply such an approach to thinking about corporate types, the relation between member and proprietary corporations becomes blurrier. This has the benefit of historically accuracy, as Kaufman-Osborn recognizes when referring to his own presentation as “oversimplified” (53). But it remains hard to draw firm distinctions between corporate types. The imperial trading companies that Kaufman-Osborn presents as member corporations (53–55) were also chartered as joint-stock enterprises with tradeable shares. They too were bound up with the development of merchant, commercial, and industrial capitalism. And, as Kaufman-Osborn notes, the “public good” they were chartered to pursue ranged from dispossessing Indigenous populations and running the slave trade in the Americas (the South Sea Company) to direct company rule in South Asia (via the East India Company).

In this sense, we might be curious about the nature of authority within republican academic corporations. Because much of the book’s narrative traces the decline of the member corporation, we read relatively little about the way rule functioned within those entities. Kaufman-Osborn cautions us against romanticizing member corporations, which, after all, were involved in a variety of dispossessive projects. Yet that involvement might not be an aberration. Critical scholarship addressing republican theories of government has long recognized the tension in the ways social and political bodies are produced through exclusions and exceptions. Foucault, famously, discussed this problem in Society Must Be Defended (2003). In those lectures, he linked racism to the claims that specific groups—from aristocrats to the third estate—embodied the nation, justifying exclusions of others in the name of collective security. Subsequent literature has reiterated the point. For instance, the classical distinctions of public and private can be traced to Ancient Rome and the elevation of the res publica over the oikos or household. Adam Sitze’s (2013) work on the salus publica has shown the long tail of that distinction. Writing on law in South Africa, Sitze demonstrates the way the concept of the salus—referring to health, welfare, security and salvation—of the public legitimated and exculpated both colonial and apartheid era racialized violence as exceptional. Less departures from republican theories, the exceptions marked by indemnity laws and amnesty were conceptualized as necessary for the welfare and security of the public.

As ancient legal devices, corporate universities—those “little republics”—are not immune from such problems. Take, for instance, one of the most disconcerting developments in recent university politics: the clearing of campus protests by police in late spring of 2024. Separate from the substantive issues concerning Israel and Palestine, the arrival of police on campus and the subsequent arrests of more than 3,000 students across the US raised concerns for faculty members across the country. Faculty responded collectively, writing and signing letters, censuring administrators for breaching norms and rules of faculty governance, and acting as physical barricades to protect students from police. Memorable images included faculty from Barnard and Columbia, dressed in full academic regalia, calling for the removal of the police from campus and the restoration of the faculty’s voice in decision-making.2 In line with Kaufman-Osborn’s argument, regalia invoked the faculty’s status as educators and as constituent members of the academic corporation. Protesting in robes symbolized the abrogation of the ancient rights of corporate members to govern their collective institutions.

These claims rest on a seemingly self-evident distinction between universities and police. Although faculty might study criminology or teach classes on law and policing, we also know that the forms of authority that comprise the university are distinct from those undergirding the police. Scholars are not cops, and the position of the professorate does not rest on force as much as knowledge, expertise, and rigorously formed methods. This is all, of course, true. But scholars also know that our institutions involve their own practices of discipline and policing.3 Less acknowledged is that these forms of policing also rely on the corporate dimensions of our institutions and, thus, even academic corporations have a genealogical connection with the police. Of course, this genealogy does not begin with traffic cop on the street, much less the militarized police in riot gear, but rather the older notion of police as police science: that early modern form of policy and government concerned with the right disposition of persons and things (see Tribe 1980; Kneyemeyer and Tribe 1980). Police science involved extensive regulation of things in the interest of the public welfare, and, at least by the seventeenth century in England, the chartering of corporations emerged a mode of to achieve such regulatory ends (see Barkan 2013, Ch. 1). This corporations-as-police empowered corporations to govern by providing them special privileges and exemptions. But exceptions did not set corporations outside of the law or create legally vacant spaces. Corporations were saturated with rules on conduct. This could include everything from regulating the behavior of members to controlling property and territory, and, in the colonial context, even raising militaries and declaring martial law.

In this manner, we can see that even academic member corporations, granted exceptional rights to self-govern toward worthy ends, are not outside of or immune from a descent into the more conventional notions of policing and police authority. The historian Ernst Kantorowicz (1950) once remarked that academics share with judges and priests the privilege of wearing robes, attesting to the conscience guiding these vocations. But academics also share with the police maces and batons designed to keep our ceremonies and members in order. Recognizing as much suggests that the histories of academic corporations and police institutions are more long-standing and intertwined than we would like to admit.

If the member corporation as a form of academic authority is thus not immune from some of the most troubling developments of campus politics, it raises important normative issues about academic authority that remain to be addressed. Specifically, it not only asks faculty to press for our own interests as the core of these institutions, but it also compels us to develop conscientious forms of self-government in line with the ends for which these institutions were chartered. How we accomplish both the tasks of wresting control and reformulating the normative foundations of academic authority remain open questions. Kaufman-Osborn provides an essential starting point, suggesting that any resolution will require the collective work of the members of academic corporations.