May 12, 2014

If law professors really wanted to "rebel" against commercial casebooks...

... we would not just sign petitions about rejecting one casebook publisher's scheme to overcome the used book trade.

We would take the cases — which are in the public domain — and work together to create an on-line archive of casebooks that would be entirely free. I proposed this solution in 1994 (PDF)— when, frankly, I could scarcely understand the concept of uploading a text:
[T]he radical step would be to build up a database of teaching materials on the Internet. As we experiment with different cases, questions, and materials, we should share the results, and respond to each other, incrementally building up a resource that each of us can download, customize, use, edit, add to, and ultimately upload. The cases are in the public domain, why should anyone make a profit selling them? Law review authors seem quite willing and eager to grant permission to reprint excerpts of their articles. And why should we compulsively horde the various insights that we use in class? Shouldn’t the future [casebook-writing] project take place in cyberspace? Instead of waiting for each other to produce a bloated, over-edited article (which we may copy and then never read), we should link up in the lively forum that technology has now made possible.
It's 20 years later. Why hasn't this happened? When I read about "rebel" law professors, I scoff with contempt.

Instapundit says: "Casebooks are overpriced as it is, and the quality is, if anything, in decline."  

We are in decline.

33 comments:

Matthew Sablan said...

Sad Real World Lessons 101: People would rather complain than enact solutions.

Bob Ellison said...

America is stupid about copyright.

Yesterday, my son asked me for advice on books about government. I suggested The Federalist Papers. He said he knew the suggestion and had looked it up, but there were no free versions on Amazon. (I ended up buying a one-dollar Kindle version that looks pretty good.)

Tank said...

It is amazing that this has not been done. Maybe because there's no money in it?

Matthew Sablan said...

Bob Ellison: Thomas.gov has the text.

NotquiteunBuckley said...

"It's like Lenin said man. Look to see who will, you know, benefit."

Jeffrey Lebowski paraphrased, paraphrasing V.I. Lenin.

Mike Rosen has talked often about how tiny special interests are very powerful because there is no organization against them. So even though they are vastly outnumbered they are able to achieve policy victories kinda like Obama won his first few elections: eliminate the organized opposition and mock/jeer/humiliate the weak-tea second-raters you end up against.

Really shove their face in the shit. Eliminate dignity.

That is what winners do in America.

southcentralpa said...

To adapt Garrison Keillor: "Large sums of cash are taken in by casebooks -- meanwhile, there are swell professors who would love someone to put a wad [of the cash] in their pocket without them noticing it."

Ann Althouse said...

"It is amazing that this has not been done. Maybe because there's no money in it?"

Which is why lawprofs should not bitch about Aspen trying to make money in the publishing business, no?

Ann Althouse said...

But don't you think I should have become wealthy over my idea for a website?

Tank said...

Ann Althouse said...

But don't you think I should have become wealthy over my idea for a website?


Yes.

All that Amazon nonsense has not made you rich?

Actually, you are wealthy (regardless of what your blog earns you).

David said...

A great casebook always seemed to me a difficult thing to produce. I've never looked into the economics of publishing casebooks, but they are brilliant ways to learn. That's mainly because you have to wrestle with the original sources and figure them out. That was one of the best aspects of a legal education.

NotquiteunBuckley said...

Anything to do with the University of Wisconsin has plenty of taxpayer money to do projects like this that would benefit a few people instead of projects benefiting everyone, such as teaching tolerance not racism, Western government-regulated markets instead of Marxist/Communist economics, and love not hate.

These Universities are swimming in money, from the facilities to the pensions to the lack of productive results required versus a private market enterprise not sucking the taxpayer teat.

Any change, like the Althouse proposal in 1994, could have unintended consequences such that those living high off the taxpayer hog might be negatively influenced were there to be any major changes, hence there shall be no major changes without many hours/days/weeks/years/decades of paid commentary and debate.

Ambrose said...

I am surprised casebooks still exist. Why not just give the students the citations and let them read them from free public records online? Before the internet, you could not have hundreds of students in the library clamoring for the same West volume of reported cases - but that is no longer a worry. I know casebooks edit the reported cases a bit - but law students have to learn to skim through a case and focus on the relevent issue at some point anyway.

Eric the Fruit Bat said...

An old lawyer once told me that casebooks used to have nothing in them but cases, hence the name.

I had no reason to disbelieve him.

That was when I was in law school, back in the early 1990s, and it was typical for the professors to assign some of the follow-up material set out after every case.

Now that I think of it, I kind of wonder whether the cases in the old casebooks were edited.

Ignorance is Bliss said...

But don't you think I should have become wealthy over my idea for a website?

No. Your idea didn't do anybody any good, so why should you be rewarded for it? And it didn't do anybody any good because it wasn't implemented, and it wasn't implemented because nobody would be rewarded for their efforts to implement it.

If you had proposed a website that provided casebooks at significantly lower prices, and some profit for the website operator and some profit for those contributing a casebook, then it might have gotten somewhere.

Ignorance is Bliss said...

Or you could have gone the Casebookpedia approach, and counted on people who care editing the content for free.

Of course, Wikipedia sucks for all topics political, and you would get the same sort or partisan edit wars on any case that could be spun for political advantage, which I suspect would be most of ones worth teaching

Anonymous said...

"why should we compulsively horde the various insights that we use in class?"

For a moment I had this vision of a law school reenactment of the Battle of Karamuran.

Strelnikov said...

...zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz...

Bruce Hayden said...

I think that it is fairly straight forward. The profs at some level pick the casebook. If none of them pick this casebook, it disappears. And if none pick case books from this company, it disappears. This isn't an area that is really dynamic, so I expect that there are plenty of case books to pick from. If this is a boycott, then fine, I support it. The company is trying to bypass First Sale copyright doctrine through essentially a shrink wrap license.

Wilbur said...

Query:
Shouldn't students spend their money on hornbooks, if any added expense is needed, and not casebooks?

You only need one casebook for a class, and that just to know what cases the teacher is covering the next week.

When I left law school, I kept my hornbooks (and still have them) but sold the casebooks.

Larry J said...

Bob Ellison said...
America is stupid about copyright.

Yesterday, my son asked me for advice on books about government. I suggested The Federalist Papers.


While reading the Federalist Papers, your son might want to spend some time with the Anti-Federalist Papers. These were people who argued against ratifying the Constitution. While many of these papers were written under pseudonym, some of the known authors include Patrick Henry and George Mason.

It's good to get both sides of the argument, especially in today's age where the Constitution only means what 5+ Supreme Court justices say it means on any given day. I'm only partway through these papers but it's interesting to see how many of the problems and abuses they predicted have come true.

The Anti-Federalist Papers are available online here for free. A PDF version is available for download here. A free PDF download of the Federalist Papers is available here and in ebook formats at Project Guttenberg.

Pettifogger said...

That there is no money in it is surely part of the explanation. Perhaps another part is that some law professors make money generating textbooks.

On the other hand, if a handful of law professors began a web-based project and opened it to others, a preference cascade might develop. Or it might not. It would be an interesting experiment.

kcom said...

"Why hasn't this happened?"

It was your idea. You tell us why it didn't happen.

Here's a hint: Thomas Edison's ideas worked out because he worked them out.

Bob Ellison said...

Larry J, I know Anti-Federalist. The problem there is that they are so disjointed and so poorly written overall. (Federalist is not entirely perfect either; some of it is like Deuteronomy.) I'm trying to help my son through important works, not polemics.

Larry J said...

Bob, I understand. History is usually written by the winning side, which is why we hear so much about the Federalists but not the Anti-Federalists. I find those AF papers that I've read were well written for their era. The language (and perhaps reading comprehension) has changed in the more than 200 years since those papers were written.

Biff said...

One thing that is different today from 1994 is access to reasonable publishing/hosting tools.

At a basic level, this probably could be accomplished with a team of volunteers/contributors and a fairly simple collaborative writing platform. (Something like MediaWiki, the open source platform that Wikipedia runs, might be a possibility, though I'm sure that some research would uncover something more attractive and easier to use.)

You might even be able to cover basic costs by charging a nominal fee for access to some sort of higher value content, e.g. the basic case is free, but commentary and analysis is paid.

Qwerty Smith said...

When I started teaching an undergraduate conlaw course some year ago, I did not like any of the casebooks. The books designed for law schools are generally weakened by their editors' Whiggish dispositions to view past cases as either stepping-stones leading to current doctrines, or as failures to do so. The books are generally pro-federalist, pro-judicial review, pro-judicial supremacy, pro-incorporation doctrine, pro-broadly interpreted commerce and general welfare clauses, and so on. Many skimp on the dissents. Those designed for undergrads, in turn, often focus on judicial behavior rather than legal arguments. So I have gradually put together a reader that to a great extent comprises things I downloaded and edited. It took some work up front, but now I have something that perfectly serves my purposes. I would recommend this approach to anyone (or at least anyone who is safely tenured!)

Nichevo said...

Zyz you beat me to it but professor, in your own words, to have said something like:

"And why should we compulsively horde the various insights that we use in class?"

makes you unfuckable.

...Remainder deleted, out of respect for your husband. (You owe him. I was on fire.)

Btw betamax3000, I bow to your gift, but it hurts me that you invoke Harvey Keitel. He doesn't deserve this. That said, you are spot on, but it is very sad.

Ann Althouse said...

"I am surprised casebooks still exist. Why not just give the students the citations and let them read them from free public records online?"

Because the cases are too damned long and need to be abridged.

This was the reason for my proposal. Profs could upload their edits, and we could create an on-line resource with all the cases, thoughtfully edited (in different versions of the edit, for different purposes), and then the students could access it.

If the judges would edit themselves, this would not be necessary.

For a law school class, you want about 20 pages of text that are challenging and rich with material that the students will have read closely in preparation.

If you used the text the judges published, you'd have 50 or 100 pages and the students will not have read things carefully and may not even have focused on the part you want them to be able to talk about.

Ann Althouse said...

"I think that it is fairly straight forward. The profs at some level pick the casebook. If none of them pick this casebook, it disappears. And if none pick case books from this company, it disappears. This isn't an area that is really dynamic, so I expect that there are plenty of case books to pick from. If this is a boycott, then fine, I support it. The company is trying to bypass First Sale copyright doctrine through essentially a shrink wrap license."

In an era where students are used to paying to rent streaming media, what's so terrible about renting the casebook?

The fact is these books, esp. in con law, need annual updating.

What's needed is the switch to ebooks and a lower price. Every student rents a text for a semester. No more supplements. You get all the updates. And all the links are hot and go to full texts of all the cited cases and articles. Links to the audio of the oral arguments and other things. Illustrations. Diagrams. Better stuff. Beyond what any professor could patch together as one's own materials.

Ann Althouse said...

They should try to make the professors and students really happy with the product!

Satisfy the customers… that would be a new idea for these people.

Lisa Brem said...

This idea has happened and it's called H2O. The Berkman Center for Internet and Society and the Harvard Law School Library created and maintain this website, where anyone can join for free. Public source US cases are uploaded and professors and others can create playlists (the H2O version of the case book). The best part? Professors can edit the cases and add commentary via text block. check it out at http://h2o.law.harvard.edu/

Lisa Brem said...

H2O is an online case book using public source materials to create online editable case books. Check it out at h2o.law.harvard.edu
It's free: H2O allows professors to freely develop, remix, and share online textbooks under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License

Sarah said...

There are also attempts beyond H2O and have been for a while. CALI has eLangdell Press imprint http://elangdell.cali.org/ in which law professors are PAID to write casebooks. The casebooks are then released under a Creative Commons license and in several formats for professors and students to use and remix for free. CALI is a consortium of almost every law school in the country. The eLangdell Project is one of the things funded by their dues. A born digital platform is going to be released later this year.

Another problem is that the primary case law is locked up or widely distributed in formats not conducive to editing and therefore the finished products are either locked up or not made. (btw to the above commentator...Thomas.gov doesn't have case law and also Thomas.gov has been superseded by Congress.gov) Many professors are using TWEN within Westlaw to create casebooks for their classes, but those exist behind a pay wall and are generally only open to their classes. If there was a system available where professors could easily pick and choose cases and other materials, more free and open casebooks would arise. Think Pinterest for Law.

And there's another hurdle: I'm not sure what causes it, but there is a huge cultural obstacle in the legal academe to share casebooks, syllabi, etc. CALI had the Legal Education Commons and West had the Law School Exchange. Neither had much success. I'm hopeful that this latest conversation about the casebook market as well as the ongoing crisis in legal education will spur law professors to change the materials that they use to teach.

(Disclosure: I am an employee of CALI, although I do not speak for them.)