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Bye the Book


This occasional series about the law school casebook, for decades the fundamental teaching unit of American law students and many law students elsewhere, makes the case that micro changes in pedagogical expectations — what we teach with, rather than what we teach — have the potential to open pathways to macro changes in institutional culture both in schools and in the broader profession. 

Earlier posts have outlined the broad claim, explored the motivations and incentives that drive the persistence of the casebook model, and even defended the uses of casebooks from the point of view of both students and professors.  [First post here] [Second post here] [Third post here]

In this post, I want to turn the screws a little bit.  The clearest and most direct argument in opposition to the current casebook model is economic, pure and simple.  Casebooks cost students a lot of money, money that they often don’t have, money that they shouldn’t have to spend on teaching materials in law, and money that they might better spend on other things.

In crude, quick terms, the economics look like this.  For people “inside” American legal education, as students, teachers, administrators, and vendors (publishers, mostly) much but not all of the following will be familiar.  “Outsiders” – academics in other fields, professionals outside the academy, prospective students – may find something new. There’s a twist at the end, however, and I’ll give away the punch line now:  Open Access, and Open Educational Resources.

A typical law school casebook, purchased new, costs approximately $250.  A typical law student enrolls in 5 courses per term, so if that student purchases 5 new books per term, or 10 books per academic year, that’s an outlay of $2,500 per year for books, or $7,500 over three years of the usual JD program.

For all kinds of reasons, that raw arithmetic is misleading.  Students may not take that many courses; they may take law clinics or work in internships and externships.  Not every course requires a casebook, though most do.  Some courses require not only casebooks but also additional texts, such as statutory supplements.  Not every casebook costs $250.  Increasingly, for that $250, sophisticated casebook publishers supply not only the printed volume but also access to digital editions and tools.  Students often do not buy new copies of their casebooks. They may buy used copies online or from other students, and they may buy out of date editions that are still available online.  The law changes, but it rarely changes so much that a student can’t make do with the 5th edition and knowledge about how to access the new material added for the 6th.  Finally, having paid for books up front, many students sell their books into the used book market after classes are complete.  Buyers, particularly commercial used book buyers, may impose substantial discounts, anticipating that new editions of the books will undermine the used book market to a significant degree.  For many students, any cash back is a win.

So, let’s try to be realistic.   Let’s assume that many students expect to pay as much $3,000 out of pocket for books over their three years in law school, and perhaps even less.  Note, further, that students who receive grants and borrow money to attend law school may wrap the cost of materials into their financial aid packages, so in many cases the cost of books will be deferred and amortized over an extended post-graduation period.  Repayment schedules and interest rates may vary, but given the massive amounts of tuition- and cost-of-living debt associated with attending law school, it might be said that borrowing a bit more for books doesn’t add much of a burden — perhaps only $20 to $30 per month over the life of the loan(s).  [Pepperdine’s Derek Muller works out the math more carefully, but consistent with the above.]  That doesn’t sound so bad.

Nevertheless, students’ subjective experiences of paying for casebooks differ from an objective review of the economics of their acquiring casebooks.  If one assumes that law graduates’ expected incomes over time will grow to accommodate the extra $20 to $30 per month carrying cost for buying the books, then objectively, that seems like a reasonable deal.  Subjectively, though, students in school simply see money going out of their pockets and wallets (and PayPal accounts), and they vary widely in terms of their beliefs that they are getting good value in return.  Many students like the digital bells and whistles that come with buying a $250 casebook new from a commercial publisher.  Some will keep their casebooks after graduating from law school, like I did. I also know that many students can’t get rid of their casebooks fast enough, and get some money back, after their courses end. They are acutely cash-sensitive. A few years ago, when I announced to my first-year Contracts students that I purposely organized the teaching materials so that students could access everything for free — no $250 casebook; no casebook at all, in fact — I got a loud ovation.  On the first day of class.

But I don’t need to elaborate on that point.  The easier point to make is that high quality free casebooks exist.  Why should any customer pay for something that exists in comparable form for free?

Consider the small but expanding universe of high quality zero-cost alternatives to pricey commercial casebooks, in many fields.  These are free casebooks (yes, for now staying with the casebook format and framework), produced by law professors, compiled, edited, and polished just like casebooks supplied by commercial textbook publishers. 

Some of these alternative casebooks have their own house “brands”:  CALI, the long-standing Center for Computer-Assisted Legal Instruction, publishes a number of them under the eLangdell brand.  Harvard Law School’s “H20” project houses many others.  Entrepreneurially-minded law professors have set up or helped to support alternative publishing ventures, such as Semaphore Press and LawCarta.  A third group of law professors have started self-publishing their casebooks, simply distributing professionally-developed texts via their own websites.  Even the Bluebook system has been re-implemented in a free product (the “Indigo” Book) that provides law students with training in citation rules without their having to buy copies of the Bluebook itself.

The Law Library at the Touro Law Center has posted this incredibly useful list of these texts, clustered by teaching field.

What these things have in common, despite their varied forms and distribution channels, is that they are Open Access — meaning that their digital contents are free to students and, for that matter, free to all.  Because some students prefer print materials, print copies are almost always easy to obtain, but at low, low prices. 

Some other law professors self-publish their casebooks in different ways, not in digital Open Access formats but at price points so low that the contrast between their new versions and older, $250 per copy versions remains striking.

Readers who are aware of substantial and critical concerns about textbook prices across all of higher education will see quickly that Open Access casebook publishing in law is a cousin of the Open Educational Resources (OER) movement generally. 

Given all of this activity, why do so many law professors still ask their students to buy expensive casebooks? More important, if students and professors are interested in expanding use of Open Access and OER materials in law, what might be done?

First, why does the traditional casebook system persist? 

The previous posts in this series touched on many of the relevant points:  inertia, path dependence, and the political economy of casebook publishing.  Whether they are casebook authors or casebook assignors, many professors like the current casebook system, like the casebooks they assign, and appreciate the value(s) associated with those books and their publishers.  Why change?  Also, I find that many faculty are unaware of Open Access alternatives, or don’t trust Open Access alternatives, or worry about the switching costs of moving to an Open Access alternative, or — if they’ve vetted an Open Access alternative — may have decided that the price-point benefit to students isn’t worth the possible loss in pedagogical value.  Casebooks aren’t perfect substitutes for one another.  Law professors might create OA materials for themselves and their own students, but for reasons mentioned in earlier posts — particularly lack of status and reputation benefits generally in terms of producing teaching materials, not to mention the time involved — that happens slowly rather than systematically, even if it seems to have picked up steam in recent years.

One additional point bears emphasis: 

At present, law students themselves have almost no voice in the system. They’re the customers in terms of buying the books, but they’re not the customers in terms of choosing whether to use one book rather than another. Publishers know this. The commercial publishers encourage their casebook authors to listen to student feedback, but the publishers’ sales representatives sell to the faculty, not to the students. In market terms, this might be considered a form of market failure.  The professors who choose and assign the casebooks are in a sense agents for the students who purchase and consume them, and as in any agency setting there may be a mis-alignment of interests.  The professor may choose a book that the students, had they had good information and an appropriate opportunity, might not have chosen.

Second, what might be done? 

Students themselves have so many things to wrestle with before, during, and immediately after law school that it seems unfair to say that they should collect and distribute information about Open Access teaching materials to their fellow students and ask their schools and professors to consider taking steps to offer Open Access alternatives.  Plus, the collective action problems are enormous.  And the agency problem is essentially baked into the structure of all formal education.  Students have long been expected to trust the expert judgment of their teachers when it comes to curriculum and pedagogy.

It seems to me that the burden falls on professors themselves, at the collective or institutional level as well as at the individual level.  I want to avoid getting into saying that particular law professors should do this or that when they choose materials for their students.  I do think, however, that there are institutional players within each law school who could take on a bit of informational entrepreneurship.  Possibly the biggest barrier to deployment of Open Access and cheap law texts in schools is familiarity:  many faculty literally don’t know that these books exist.  That awareness will vary considerably by field.  In my intellectual property disciplines, only a completely new or a completely naive professor would be unaware of high quality and low-cost and free choices in almost every overview course and domain-specific course in intellectual property law.

Librarians can help.  They are in so many ways the unsung heroes of our knowledge-producing institutions, and identifying and creating access to Open Access and OER content aligns precisely with what they are trained to do.  The challenge here is evolving ways in which librarians are comfortable institutionally and professionally in stepping a bit out of their stereotyped roles.  Creating subject guides, access guides and finding aids are great and useful practices, especially for researchers, but all too often I find that librarians respond to but don’t initiate conversations about “what teaching materials might I choose?” Individual faculty members don’t think to ask the librarians; instead, they sit in their offices and get educated, by default, by publishers’ sales representatives.

Faculty development deans can help, too.  Law schools vary a lot in terms of whether they have faculty development deans, or research deans, or something similar, and whether these people are charged primarily with supporting faculty research and scholarship, or teaching, or both.  Some schools have leadership appointments or committees that focus only on teaching.  Whatever the school’s organization, and whoever is in charge of advancing strategies for better teaching, OA and OER resources are topics to take up.

There’s more:  Law schools could adopt formal policies that confirm institutional commitments to prioritize OA materials across the entire curriculum.  Deans could offer incentives and rewards to faculty members who teach with OA materials.  Accreditation rules could examination schools’ strategies for minimizing the cost of student attendance.  I’m sure that there are more things to consider; that’s just 10 minutes’ worth of my own brainstorming.

Stay tuned for one, final installment on casebooks.