Hitting the Books

My occasional series about the law school casebook continues. [First post here.] This is about the future of law, law practice, the legal profession, and legal (and higher) education, filtered through the lens of contemporary law’s most essential artifact, the teaching tool that unites every professor, every lawyer, every judge, and every student, regardless of field, in a shared experience.  The casebook.

Law professors love to write things like “use this as a lens for that,” because it makes them feel and sound like their academic colleagues in other parts of the university.  “We’re researchers, too!,” we like to think, even if we rarely say so out loud. 

That micro bit of casual academic sociology is the key to this installment, which is in other respects an effort briefly to explain where casebooks come from and why, despite generations of legal professionals complaining about them, neither their fundamental forms (including prices) nor their contents seem to change much. By design, casebooks are set up rarely to give readers the contents of legal doctrines, but instead to provide students with an annotated set of primary source materials from which students are expected to discern the rules. As teaching texts, as a rule casebooks are guides for the soon-to-be-initiated rather than actual summaries of law.  They are devices for migrating generations of students out of “student” mode, in which they are presumed to enter law school, and into “practicing professional” mode, in which they exit it.

The essence of my argument is that casebook writing, editing, publishing, and selling practices are emblems and functions of an analous distinction between education and vocation.  They are almost entirely creatures of the professionalized academic publishing industry – the marketplace side of education — and only to a very modest extent creatures of legal education, as a subdiscipline of higher education, meaning research and publishing scholarship – the generation and transmission of knowledge side of education.  And that distinction is a feature of the contemporary legal education and legal profession landscape, an intended result, rather than a bug.

As I noted in the last installment, I’m writing here primarily for practicing professionals and present and former students, rather than for my faculty colleagues.  From inside a law faculty, little that follows is new, or news.  I find, however, that in bits and pieces it surprises others.  It seems especially to surprise others who imagine that all of the institutions and practices of law, like all of the institutions of other professions, either should be busily engaged in re-examination and re-assessment to determine their suitability for present and future application (on the one hand) or are already well-suited to carrying on (with resilience ) what are sometimes assumed to be essentially eternal forms (on the other hand). 

What is happening around casebooks tells us that in each case, don’t be so sure!  Or, in other words, if you are trying to understand the causes of and solutions to innovation and improvement problems that beset the law, the casebook is a pretty good place to look.

For starters, I’ll note that it can be unfair to write about “the casebook” as if there were some single, ideal form of the thing.  That’s obviously not true.  Every casebook has its own authors and editors, and its own history, form, goals, styles, and contents.  There’s a lot to be learned from close examination of a particular book.  Readers with a historical sensibility will recall Mary Jo Frug’s powerful feminist reading of the Dawson, Harvey, and Henderson Contracts casebook (Mary Joe Frug, Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook, 34 Am. U. L. Rev. 1065 (1985)).  Even casebook titles let on modest hints regarding differences.  Some casebooks are titled “The Law of X,” some are “Cases and Materials on X,” and still others are “Notes and Problems in X,” or just “Problems in X.”  At key moments in 20th century legal education history, titles and contents of casebooks and similar teaching materials have changed the course of pedagogy (and more!), at least for a while.  Hart & Sacks and “The Legal Process: Basic Problems in the Making and Application of Law,” for example. That list of sample titles doesn’t exhaust the range.  The point is clear.

Despite that variation, my goal is to draw some inferences from what I believe are fair generalizations.  I’ve been a casebook author for a long time, used a lot of different casebooks in my courses, and talked extensively not only with colleagues about their casebook experiences but also with a lot of people in academic publishing, from acquisition to editing to sales to management. I think that most law professors would agree that there are some clear, common patterns.

The first thing to know about casebooks is that they’re a business, and in many cases, at least in their traditional printed and bound form, a pretty good business.  Many casebooks, particularly in major fields like Constitutional Law and Criminal Law and Contracts (initial capital letters to indicate that these are also titles of standard law school courses) have been around for a long time, with groups of authors and editors that evolve slowly as editions of the same book accumulate.  A pair or trio of faculty members may have launched the book some time back.  (Almost all casebooks are produced by full-time law faculty, and almost all casebooks are produced by teams.)  Individual participants may retire, pass away, or lose interest; new (often more junior) colleagues are recruited to take their place, and/or to expand the team and share the workload.  These “franchise” books are widely adopted across law schools, often across the spectrum of the USNews rankings hierarchy.  At a price point of $250/$300 per new copy, they generate a nice revenue stream for the publisher – and virtually all casebook publishers are for-profit entities, either in stand-alone form or as part of larger academic publishing empires — and a decent royalty stream for each author.  The royalties are usually not enough to live on, but they can be healthy supplements to a faculty salary, particularly if the check isn’t split too many ways.  In fields that are largely stable over time, such as Contracts, new editions appear every three or four years not to signal important updates to the law but instead largely to keep the second-hand market at bay and preserve demand for new copies.

The point to take away here is that authors’ incentives and publishers’ incentives for these books are aligned in a classic book publishing way.  The faculty authors involved may or may not be actually motivated to participate by the fact that they get paid a reasonable amount of money, but it’s plausible to assume that financial rewards play a role here.  It’s almost certainly true that the economics of these franchise books play a central role in the publishers’ business models.  If 35,000 new students enroll in US law schools each Fall, and each of them is expected to have a copy of a Contracts casebook (because Contracts is almost always a required first-year course), then at $250 per new copy that’s almost $9 million of revenue for the publishing industry to share.  For one course.  The actual amount of “Contracts” revenue is likely less, but again.  The point is clear.

The majority of casebooks likely don’t fall into this “franchise” category.  They may address fields that are comparatively new or that undergo a more than typical amount of change in the law on a regular basis, or a given book may compete with a relatively large number of other books in the same field. Barriers to entry in casebook publishing are relatively low, and a casebook publisher may bring a book to market even if it is expected to sell only a few hundred copies per year, or even fewer.

Of course, that raises the question:  Why would authors (law professors) produce such a thing?

For authors and editors of these books (and perhaps even for some authors of “franchise” books), money is almost never the point.  The likely number of books sold means that the amount of royalties paid is not large, even if it’s not trivial, and it is almost certainly not large enough to constitute a reasonable rate of return on the hours spent assembling the book.  Producing a casebook rarely involves intellectual heavy lifting (it can; it need not), but it is undoubtedly time-consuming, and only so much of the work can be shared with student research assistants, administrative assistants, professional librarians, and professional editors. 

If there is a benefit to the authors and editors, it is mostly reputational – among their peers, and to a lesser extent among soon-to-be lawyers and practitioners, and judges.

To understand that, we need to take a detour over to the business side.  For the publishers of these books – companies like Wolters Kluwer, for example, which succeeded Aspen Publishers, which itself was heir to Little, Brown, which published the very first modern casebook in 1871 – the lower sales figures for these non-franchise books means that they pursue aggressive sales efforts not only to secure and protect their “franchise” businesses but also to get steps ahead in the niche markets.  For example, assume that 15,000 law students per year take an introductory course in Intellectual Property law.  At $250 per new copy, that’s not quite $4 million in revenue to divide up among all IP books and publishers – and there are a number of those, some which cost much, much less than $250 per copy. 

But students aren’t the authors’ and publishers’ direct customers; the direct customers are the professors themselves.  Indirectly, but critically, casebook authors and editors are competing for mindshare among their fellow faculty.  And casebook adopters are signaling their own status via their choice of casebooks for their courses.  As a sometime Contracts teacher, I could choose one of the best-selling (most widely adopted) Contracts casebooks.  That means that I would subconsciously (and perhaps consciously) adopt that team of authors as notable authorities in Contracts.  (Sometimes, but not always, authors of these “leading” casebooks are – or were — also well-known scholars.)  And I position myself as someone who is making the mainstream choice, even if I’m doing that positioning only in my own head, and perhaps for the benefit of my Dean and some of my faculty colleagues.  That may make me part of the “safe” crowd, which is often a good choice, especially for newer teachers.  The variables of the reputational equation can be computed in different variations.  I might know the identity of salient experts in my teaching field and therefore might choose a casebook authored by those people, as a way expressing my aspiration as a teacher and scholar.  I, too, am part of the upwardly mobile “in” crowd.

(Somewhere in this, to be clear, virtually all professors, as both producers and customers, are also paying attention to what’s in the best interests of their students.  What’s a well-constructed, comprehensible, usable book?  What will support an effective teaching and learning experience?  What book has been assembled with “good teaching” as a major goal?)

The publishers know all of this, and they play to the collective reputational insecurities of law professors.  The leading publishers, Wolters Kluwer (WK, for short) and West, both employ travelling sales representatives who make regular sales calls to individual faculty members.  In my experience, these people are terrific at their jobs.  They are often interesting, thoughtful, and fun in ways that great salespeople often are.  They know their products, they know their territories and their markets, and they cultivate close, almost intimate relationships with individual professors.  What are you teaching?  What materials do you assign to your students?  What are your career-related hopes and dreams?  What are your colleagues up to, at your school and in your field?  Here’s a tidbit about so-and-so at this other law school.  The casebook salesperson can become a trusted friend, a source and a sympathetic ear with “inside academia” knowledge and grounded foundation outside of it.  Using that book?  That’s a great choice for you.

So the second thing to know about casebooks is that within the usual rhythms and patterns of higher education and legal education – hiring and promotion of faculty members; tenure; compensation; recognition within the field – little of this matters directly.  The reputational ecology of casebook production and selection operates almost entirely outside the scope of what “counts” for professors’ career advancement. The publishers of casebooks are not the same firms as the publishers of scholarly monographs (i.e., research, rather than textbooks); the publishers of casebooks have little to no organizational relationship to the publishers of the journals in which most law professors publish articles.

And writing or editing a casebook or other textbook (a student hornbook, or a treatise that is short enough to use as a teaching text) is rarely regarded as the “scholarship” that is rewarded and recognized in academic tenure and promotion decisions.

That leaves us with questions.  First:  why not?  And second:  if not, then why to professors still do it – why produce casebooks?  Because assigning motivation to the vague category of “reputation” is far from satisfying.

The second question is easier to answer first.  Some professors do, indeed, it for the money. That makes the most sense for senior faculty who are top of the authorial team and who still collect royalties while junior and newer team members do most of the editorial lifting on new editions. Others do it for ego gratification. Some do it because they enjoy it, and/or because they like having (and taking) and opportunity to frame a body of law that will, if assembled well, shape the baseline learning of a generation of new lawyers.  Some, perhaps many, authentically like the idea of sharing good teaching materials with new lawyers and see it as part of their teaching identities.  Some do it in the hope of secondary benefits.  Authorship of a casebook may bring a degree of name recognition among students (and future practitioners), judges, and peers in adjacent fields (IP law isn’t taught only in law schools, for example) that may lead, eventually, to productive peer relationships, citations in judicial opinions, and even consulting contracts. 

All of those things may be so rare and distant that they don’t meaningfully affect incentives in the first place.  So I’m not suggesting that any of these considerations are combined in a rational actor model, or in some linear or formulaic way.  But status rewards come in many forms.  Casebook authorship or co-authorship can offer a less well-known law professor a stirrup for standing a little taller in the academic saddle.  Name recognition matters in academia in many ways; if I’m a casebook author in my field, I’m betting that I’ll earn a tiny bit of extra attention, and, I hope, good extra attention, for the scholarship (law review articles, mostly) that does count at hiring, tenure, and promotion time. Law professors may not move laterally from school to school in the numbers that they once did, but a casebook-enhanced scholarly reputation likely cannot hurt in that context.

That leads us to the first question.  Why don’t casebooks “count”?  After all, if the legal profession and law schools and students want better and more modern teaching materials and teaching techniques, the obvious and easy solution would be to motivate and reward producing those things by making them count in the wallet and on the CV.

Yet history kicks in.  Back to where I started above, with casual academic sociology.

For most of the 20th century, casebook production did matter to academic standing and status.  Langdell, the founder of modern legal education at Harvard, was himself the author of the first modern casebook, in 1871 (Contracts – and the table of contents suggests that the book would still be pretty useful today).  As recently as the late 1960s, I am told, new law professors were counseled by their mentors affirmatively to consider going into a field where they could literally write the book, if the existing “book” appeared to be tired or out of date.  That was viewed as job security.  And a great way to master a field.

Casebooks used to matter, and now, most of the time, they don’t, or they matter much less.  What happened? 

The stakes changed, beginning in the 1970s.  Up until that time, law schools were, on the whole, focused on teaching.  Teaching directed to different swaths of future lawyers, but teaching, primarily, nonetheless.  Calling law school “vocational education” wasn’t the notional criticism that it later became.  Bringing forth new teaching materials, in the form of casebooks, was valued precisely because it aligned with the underlying mission of the institution. 

Elsewhere, however, and across higher education, following World War II universities chased large-scale program expansion based on outside research dollars.  To the extent that law schools continued to be modest, largely non- research-based units amid universities with big ambitions in medicine, the sciences, engineering, and even the social sciences, law schools were out of step.  Training lawyers to practice law may be a noble thing, but without research to go with it, a law school’s identity aligned poorly with the changing mission of their institutional parents.  Universities expressed skepticism of law schools; law schools expressed anxiety about their university-supplied budgets.  Yes, in the old days, law schools often generated budget surpluses for their universities, which means that universities could safely ignore them – both for good and for ill.  University investments in schools and departments then and now generally follow research productivity and prestige (which, today, often go hand-in-glove), and law schools had the latter – in some cases – but not the former. 

To remedy the gap, during the 1970s and 1980s, law schools experienced a period of keeping up with the academic Joneses.  Universities could have embraced more “vocationally”-based education, but instead, law schools became more like universities.  Law schools transformed themselves, focusing more explicitly on research profiles and research productivity, aligning law professors’ identities as “scholars” with the scholarly identities of their close professional peers in academia: the social scientists.  Social scientists get recognized and rewarded primarily for publishing in journals, not for publishing monographs.  With intended irony, I’m cribbing here from a terrific journal article published in 1975 by the economist Paul Samuelson, titled The Convergence of the Law School and the University.  Samuelson was the author of a legendary economics textbook.

In a bit of evolving institutional isomorphism, law schools and their faculties secured their places in their universities specifically and in higher education generally by looking and acting more like (though never exactly like) economists, political scientists, and sociologists.  Student-edited law journals and law reviews started to cast off their older identities as purveyors of (mostly) doctrinal examination and to acquire new patinas, as homes for legal scholarship.

That evolution has paid off in a lot of ways both positive and negative, for higher education, for law, and for society.  Here, I’m interested in only one implication:  that it led to allocating “the casebook” to its present role as a component of the for-profit publishing world, an enabler of the older vocational identity of law schools, rather than as a component of the intellectual agenda and scholarly expectations associated with law professors and law schools in their new aspirational roles, citizens of the university. Casebooks are a part of a market economy that supports teaching, which the university, on the whole, prefers to keep at arms’ length.  

Here’s an example of how that generality can turn specific. When law professors publish journal articles and other scholarly works, it is almost unheard of for them to receive royalties – even though those same articles, bundled and distributed through West and other online services, generate thousands of dollars of revenue for West and for the journals themselves.  To be clear, it’s not that any individual article generates thousands of dollars, but rather that a given journal, especially a flagship law journal, is likely to receive thousands of dollars annually by virtue of its content being distributed through West.  The journal distributes none of that income to authors; the journal’s home law school keeps it.  (Or, in the exceptional case, the independent publisher of the journal keeps it.)  The ins and outs of scholarly publishing, including the allocation of that revenue stream, are parts of the grand bargain of serving as a university faculty member.  The professor and the school share burdens and benefits.  By contrast, casebook royalties may be significant, but whether significant or not, they’re a standard part of the authorship bargain, and with rare exceptions, faculty authors virtually never share their royalties with their institutions.  For casebooks, we’re on our own.

I’m not here to defend either the process that brought us to this point, or the result.  It has virtues as well as drawbacks.  For now, I’m just explaining.  And in future posts, I’ll explore and try to explain some of the “under the hood” nuances that I’ve skipped over above.  I’m looking at you, clinical faculty, and at experiential education generally.  I’m looking at you, costs borne by students.  And I’m looking at you, reproduction of professional hierarchies and the status quo.