Are You Missing the Market, Aspen?

Professors are in an uproar over Aspen Publisher’s new rules for textbooks. In short, if you thought you could buy a book and do what you wanted after that (i.e. sell it used), Aspen wants to change that system. Instead of a true, unbundled digital option, it has a system where students buy both a physical textbook and a “lifetime” digital book. Too bad as there is a market opportunity that they might be missing. On the legal doctrine front, Josh Blackman called it out. James Grimmelmann jumped on the bashing. Rebecca Tushnet has poked at the offer too. But where is the market here? Is there a way Aspen could make this shift work well? If so, would authors (i.e., professors with deals with Aspen) like it? And why not use dollars to tell Aspen what to do? Assign a different casebook from a competitor (FYI there is a free one out there, see below). There are some specific issues that illustrate sme of the problems in this space.

First, what about time and artificial editions? Rebecca nails this point by calling out that some areas of law (e.g., IP) change so fast that new editions and coverage issues make staying up with casebooks a problem. In those areas, does first sale do much work? Maybe it does much work in the few years between editions. But after that, the text is somewhat obsolete. Dusting of an IP text in digital or hardcopy from the 1990s would be dangerous except for fundamentals (and maybe even for those). Still, there are now seven editions for the Dukeminier casebook. Are the updates every four or so years needed? Even in other areas, are authors updating to add value or to create a new text that undercuts the used market? Do publishers lean on authors to issue new editions when there is not much to say as a market window or version control? If so, the publisher is setting up the demand for secondary or alternate markets that cut out the publisher.

So is this system functioning? As I noted before, the OpenStax system offers high quality texts for free and in a modular way. That means sections are updated for free and folks can assemble material as they wish. Law does not have that yet. The folks at Semaphore Press are close however. That press happens to publish a property text by Steve Semeraro (disclosure I am friends with the folks at Semaphore and introduced them to Steve). It is not quite OpenStax, but it is an interesting model with a shareware feel.

Second, what about the cost to write and update a text? I know it takes tons of time. Whether RA’s do some work or it is all by the professors, the time to write a good casebook is real. I am grateful for the good books. A great teacher’s manual is also a huge help. For new teachers and even experienced, a rich manual provides insights about how the author(s) teach the material and where they see the comments to be headed. One can then choose to follow that lead or modify. But is the price point for texts (as many noted often close to $200) sustainable? Would the market collapse if the cost dropped to low or no charge? OpenStax indicates that the system could shift, and a small crowd of experts would be able to offer an excellent, up-to-date text. And as Pam Samuelson and many others have noted, scholarly works pay off in reputation. So having the most assigned text (or specific chapter on a subject) may stimulate just enough competition for reputation to get great texts (or chapters) but not a glut of roughly the same material from many high-priced publishers.

Third, what about that market opportunity? Would a publisher that offered A) a true digital copy for $40, $50, or even a $100 take share from others? B) What if the publisher said rent the hard copy for a reduced price (again it should be low)? Some might hate that idea as a matter of doctrine but that market is emerging on Amazon and at least lets the student know what is going on (though I think a rental model poses some issues for libraries in that no one should say that libraries should just be rental depots that is another debate for another time).

So Apsen, if you’d like to survive I am betting your authors would like that too. But I am also betting they want to work with you to offer much better solutions than the ones you have right now. The life time digital edition and the high price insult the authors and the marketplace. I think others will find ways to route around you. But you could take your current position and parlay it for the future. If not, I think you may have pushed the law text market to Semaphore or OpenStax. Hmm, maybe Aspen should stay with its model after all.

How Is Privacy Not a Class at all Law Schools?

Privacy law does not exist, but it should be taught at every law school. There is no one law of privacy. That is why I love teaching Information Privacy (Solove and Schwartz (Aspen) is the text I use). The class requires students to reengage with and apply torts, Constitutional law (First and Fourth Amendment at least), and statutory interpretation. It also lends itself to learning about sectoral approaches to regulation in health, finance, commerce, and education. Given that the idea and problems of privacy are everywhere, there are jobs in them thar hills. Yet, schools often see the course as a luxury or somehow part of IP. That is a mistake.

Schools should not pander to skills and job training demands, but sensitivity to areas of practice that have large needs is not pandering. Much of the skills, ready-to-practice rot comes from a small segment of the legal practice (i.e., big firms with huge profits who are not willing to pay for training their employees). That said, law schools tend to use the same playbook. For example, the rarified world of public corporation law is a standard part of business associations course materials. Yet according to the Economist, the number of public companies peaked at around 7,888 in 1997. Of course folks will say “Don’t teach to the bar.” Amen brothers and sisters, but why teach for a tiny portion of students in a core course? To be clear, I love teaching business associations and think it is useful, because agency and limited liability forms are so important. They are important, because being able to compare and contrast the forms for a client makes the attorney worth her pay. Grasping the beauty and nuances of the system unlocks the ability to be a true counselor. There are many, many businesses that are not, and may never become, public and that could benefit from having an attorney set up their project from the start. Privacy is similar. It reaches across many aspects of our lives and businesses.

Privacy issues come up in such a large range of practice that the course can allow one to address doctrinal mastery while also moving students beyond the silo approach of first year law. Seeing how property and trespass ideals reappear in criminal procedure, how assumption of risk permeates issues, and so on, shows students that the theories behind the law work in not so mysterious, but perhaps unstated ways. The arguments and counter-arguments come faster once you know the core idea at stake. That is the think-like-a-lawyer approach working well. It does not hurt that along the way students pick up knowledge of an area such as HIPPA or criminal procedure and technology that will make them a little more comfortable telling an employer or future client “Yes, I know that area and here’s how I’d approach it.”

Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.

Dean Search – Texas A&M University School of Law

We are beginning our Dean search at Texas A&M.  The next several years are going to be a very exciting period of time for our law school, and the position of Dean will be a great opportunity for the right person.

Dean, Texas A&M University School of Law
Fort Worth, Texas
 
Texas A&M University invites nominations and applications for the position of Dean of the Texas A&M University School of Law. The desired appointment date is July 1, 2014.  Texas A&M University is a nationally-ranked, Tier 1 research university. It is the flagship institution of the Texas A&M University System, the fourth-largest university in the United States, and the largest university in Texas. Consistent with its Vision 2020 goal to be recognized as one of the ten best public universities in the nation, Texas A&M University added the first public law school in North Texas to its list of prestigious graduate institutions on August 13, 2013 when it acquired the ABA-Accredited and AALS-Member Texas Wesleyan University School of Law, which is now the Texas A&M University School of Law. 
 
Texas A&M University School of Law is located in downtown Fort Worth, one of the 20 largest cities in the nation. Fort Worth has been voted one of “America’s Most Livable Communities” and has a population of nearly 800,000. Just 30 miles separate Fort Worth and Dallas, and the encompassing Fort Worth/Dallas metropolitan area is joined by a number of suburban communities and small towns. The metropolitan area, with a total population in excess of six million people, offers a vibrant legal community supporting extensive federal and state court systems and agencies, including regional branches of the Patent and Trademark Office, the Federal Reserve Bank, the National Labor Relations Board, the Environmental Protection Agency, the Equal Employment Opportunity Commission, and the Securities and Exchange Commission. This metropolitan area also provides affordable housing and a thriving economy.
 
Texas A&M University School of Law is committed to excellence in scholarship, teaching, and public service. With its distinguished faculty of scholars and practitioners who are recognized experts in their field; its nationally ranked advocacy programs in moot court, mock trial and alternative dispute resolution; its certificate programs in intellectual property, business law, dispute resolution, estate planning, and family law; and its strong supportive network of former students and community partners, Texas A&M University School of Law provides a dynamic opportunity for a visionary leader. That leader can help continue a tradition of excellence while operating with the new support, resources, and opportunities for excellence from a world class public university.
 
The Dean will provide academic, intellectual, and administrative leadership, helping to shape and advance Texas A&M University’s vision of transcendent excellence in research, teaching, and service. In addition, the Dean will have responsibilities for creating strong relationships with the North Texas community, alumni and the broader legal profession.  Candidates must have a juris doctorate degree and be qualified for appointment at the tenured rank of Professor. Applications are welcomed from individuals whose experience has prepared them to make strong contributions to diversity, inclusion, and innovation in higher education and to further Texas A&M University’s mission of educational preeminence. A mature understanding of the working dynamics of a law school within the parameters of a larger university system is preferred, along with experience in, or aptitude for, administration and fundraising. However, other candidates who hold distinguished records of professional and intellectual leadership or outstanding service to the community will also be considered. 
 
The Search Committee welcomes applications and nominations from interested individuals and also encourages applications and nominations of minorities, women, and other candidates who are traditionally underrepresented at the Dean level. For nominations, the Committee asks that complete contact information be provided for the nominated individual. Applications should include a curriculum vitae and a cover letter including a brief statement of interest. Although the Committee will continue to accept applications until the position is filled, to be given fullest consideration applications should be received by January 15, 2014. Applications and nominations should be sent to:
 
Texas A&M University Law Dean Search Committee
Texas A&M University School of Law
1515 Commerce Street
Fort Worth, TX 76102
Electronic submissions are encouraged and should be sent to:
deansearch@law.tamu.edu
 
Texas A&M University is an Equal Opportunity/Affirmative Action Employer. This position is a sensitive position and is subject to a criminal background check. All nominations and applications will be kept confidential. For more details about Texas A&M University School of Law, visit our website description at https://law.tamu.edu/DeanSearch.aspx

Constructive Feedback for Writing and Maybe Living

Writing well requires attention to style and execution, but it also requires interaction. John Gardner’s works on writing explains his views on temperament and talent. In On Becoming A Novelist he also addresses training and education. What he says about writers workshops applies for classrooms, conferences, and more:

In a bad workshop, the teacher allows or even encourages attack. … In a good workshop, the teacher establishes a general atmosphere of helpfulness rather than competitiveness or viciousness. Classmates of the writer of the writer whose work has been read do not begin, if the workshop is well run, by stating how they would have written the story, or by expressing their blind prejudices on what is or is not seemly; in other words, they do not begin by making up some different story or demanding a different style. They try to understand and appreciate the story as it has been written. They assume, even if they secretly doubt it, that the story was carefully and intelligently constructed and that its oddities have some justification. If they cannot understand why the story is as it is, they ask questions. … It takes confidence and good will to say, “I didn’t understand so-and-so,” rather than belligerently, “So-and-so makes no sense.” It is in the nature of stupid people to hide their perplexity and attack what they cannot grasp. The wise admit their puzzlement (no prizes are given in heaven for fake infallibility)… John Gardner, On Becoming A Novelist, p. 81

This attitude reminds me of my introduction to rhetoric class. We had to re-state what the author said for our first essay. We lost points for doing anything more. Saying “I think…” was not allowed. We were not ready to have an opinion. As Philippe Nonet used to say, “That you think it does not matter. Only what you show matters.” Tough advice. But good. He also said we have to let the idea present itself. We have to let it be.

A good workshop is a place where we let the writing be. Take it at face value and root around to see what is being said. Some will be good, some bad, some confusing. We will not agree with all that is said. But as Garder says, if we admit our puzzlement and share well, the writer may see how to improve or explain what was missed. Then all will have learned and constructed a new way forward. I think this approach applies to much more than writing, but leave that for another time.