The coming arrived casebook revolution

This morning, I received a survey from Wolters Kluwer (Aspen), publisher of the IP Survey textbook I use. The survey sought out what I find important in a book, and even asked if I knew any young IP professors I was impressed with (who could presumably write a new book). Why? The casebook authors (Profs. Merges, Menell & Lemley) somehow worked out a deal to take the book "private." That is, Aspen won't be publishing the book anymore, and they will self publish the book for a mere fraction of the former cost.

This is just one example of the casebook revolution. Contrary to what students might think, many professors actually do care about casebook prices. Modern technology is finally allowing them to do something about it.

The straw that broke the camel's back, I think, came last year, when Aspen offered Dukeminier, et al., as a rental only. That is, students paid for an electronic version and a paper version, could mark up the paper version, but then were required to send the paper version back. The cost was less than the prior full price of a casebook, but not by much. The rationale for this move was obvious: cut out the secondary market. Professors rebelled, and many said they would switch books before they would allow this, and Aspen relented, offering a print version (and claiming that its prior emails saying there would be no such version were misinterpreted).

But the handwriting was on the wall: book publishers are looking for a way to extract more and limit competition. Some of my colleagues get angry about that. My view is more sanguine: entry costs are low, so someone should be able to capture the market by simply competing with a lower price. If we hate this setup so much, we should just do casebooks another way. 

Perhaps not surprisingly, IP and internet law professors have led the way to start doing just that. Independent presses have arisen, open source casebooks have been created, and materials have been shared. You can now get two IP Survey texts (with a third on the way) for around $30. You can get statutory supplements for free in PDF (or cost of printing in paper). These things sell for $60-$90 from publishers. There are specialty casebooks (e.g. trademark or internet law), as well as highly focused reading materials (for example, you can get free access to my internet law readings online, or you can buy it in paper for about $35, if you want my exact reading choices for internet law).

Another benefit of the revolution is that new platforms allow for benefits not previously possible. Unlocked PDFs that allow for easy search, cut, and paste. An "open source" feel whereby edits by one professor's edits can be recombined into other books (though standardization of format would be helpful for this). More images, quotes, video links, etc., by professors willing to take fair use positions that publishers might not be willing to take.

In other words, the revolution has arrived, and is waiting to spread. Non-IP professors have not picked up on this as much (yet), though the H2O platform at Harvard has several reading lists in non-IP courses. As self-publishing platforms grow and more professors get on board, casebook publishers will see significant pressure.

I'll end this post with a couple caveats, however:

1. Publishers add value. For the most part, the cheaply available works are not nearly as polished as casebooks. They also contain far less material (which is good and bad - depending on whether the book matches what you want to teach). There are definitely exceptions to both of these.

2. Authors that have more potential upside may spend more time. If you like "notes" that sum up history, cases in other jurisdictions, etc., you are less likely to see those in a self-published book - certainly in the first editions. That work takes time, and simple incentives may limit it. On the other hand, if the author keeps 100% of the profit, then maybe such work will be worthwhile. Creating my own set of materials took a huge amount of time, and I simply had nothing left in the tank to write long notes, introductory text, hypotheticals, etc. But not all works are the same. I have colleagues who have written books with some fine problems in them, for example.

3. Sometimes the published book is just better. I like my patent law book. I like my contracts book. It's going to take a lot to convince me that another book is better. But that's what competition is all about.

4. New systems lack standardization, and thus may not offer all the features we want. Converting my fully online materials to printed materials was time consuming and, frankly, pretty ugly. There are other systems that may work better, and eventually the best ones will shake out.

In conclusion, be on the lookout for opportunities to collaborate on new textbooks in new areas, and the next time you complain about high prices, remember that you can do something about it!

[updated to incorporate and respond to some good comments]

Comments

[James Grimmelmann]

Well said.

Another important point about the rise of open-source casebooks is that it's getting much easier to develop your own custom materials, or to create a new book by forking an old one. I'm teaching my IP Survey this semester entirely from a coursepack of public-domain and fair-use materials. When that's done, I'll release it publicly, not because I think it'll sweep the market (it most assuredly won't), but because it might be a useful input for others. One of the wonderful things about the shift away from publisher-dominated casebooks is that it takes us away from a casebook market and toward a casebook ecology of cross-fertilization and hybrid vigor.

As for polish, I am happy to provide formatting help to anyone who is interested in self-publishing open-source course materials. It requires surprisingly little work to set up a good template for an attractive book; after that, all you have to do is be disciplined about using styles for your formatting and about proofing your work.

[Mark Edwards]

Please check out law-professor-created-and-owned ChartaCourse for a much better alternative to complete self-publishing. www.chartacourse.com. We are law profs and we have found a better way. Join us!

[Mike Madison]

+1 James Grimmelmann. I, too, have abandoned the physical, bound casebook and have shifted entirely to public domain and fair use materials. In 2 courses (Copyright and Contracts), it's still mostly cases, edited by me, available for downloading from my (public, open) site. In 1 course (Trademark), I'm using Barton Beebe's free e-casebook. In all 3 courses, this year I have supplemented all of the primary source materials with liberal lists of links to secondary materials -- some law, some policy, some culture, some (business or other) context, some fun. Shades of the long-ago shift from casebooks built purely from cases to casebooks framed as "Cases and Problems," and shades of Hart & Sacks and mimeographed materials that signaled that law isn't bound in casebooks. In other words: what we're doing isn't really revolutionary. But it still feels good, and my students, at least, seem to like it a lot.

[Michael Risch]

Spam filter is crazy high, folks, so be patient. Feel free to mention your self publishing solutions, but leave out the links, as those are double spam blocked and I likely won't let them through.

[Eric Goldman]

While I understand why you said "the cheaply available works are not nearly as polished as casebooks," as Rebecca Tushnet and I will explain in an article coming out shortly, self-published casebooks may have more functionality for readers that, I think, more than compensate for any possible lack of polish. For example, our Advertising & Marketing Law casebook has way more ad images than we'd have if we had to work through a traditional publisher. The ebooks are also allow full-text word searching and allow students to cut-and-paste text into their notes. As for your statement "They also contain far less material," I'll point out that our Advertising & Marketing Law casebook is 1,400 pages--longer, in fact, than any traditional publisher likely would have allowed. Eric.

[Michael Risch]

All good points. I've made some updates based on the comments so far here, some of which I meant to say but forgot the first time.

[John Mayer]

Please google 'elangdell'.

[Mark Edwards]

What neither physical books nor e-books can overcome, however, is that the book format itself is a sub-optimal instrument for learning systems. Books are wonderful for lots of purposes but seeing and understanding the relationships between concepts within a system isn't one of them. To learn a system, the optimal tool is a concept map with all of the content embedded within the map at the appropriate points. That's what I and and about 20 other law professors from around the country (so far) are doing. It works incredibly well -- the pedagogical benefits are real and the product is much easier to use than either physical books or e-books. If anyone wants more information please contact me.

[Sheldon Bernard Lyke]

This blog post is interesting in that it kind of uses a quick economics analysis of the arrival of online and electronic casebooks to point out some caveats. I would like to point out a potential benefit that lies outside of an economic analysis--and that is electronic and digital technology can do things that print cannot. I think that we normally think about an electronic book as simply being the PDF version of a print book that may have some hyperlinks to cases and outside materials. But electronic publishing can be far more robust with respect to features that can dramatically assist the learning of some students.

For example, I have used Chartacourse for my 1L property class, and it is pretty unique in that---in addition to providing hyperlinks to cases and "outside" material and audio/visual media---it is a collection of concept maps. So for example, when students click on the famous property law fox case (Pierson v. Post), they can see that it is part of the capture rule, which is a subset of first possession (which also houses the discovery rule), which is subset of the right to possession. Of course this is typical of any textbook, to have an outline which has many levels, and sublevels. But what is cool about this system is that it is visual and spatial. A student can see the concept map on the screen and can see the virtual location of the topic she is studying in relation to other topics. The mapping has been somewhat helpful for many of my students as they prepare their own course outlines.

In any discussion of online/electronic textbooks, I think we should definitely take into account the potentially robust features that eletronics can provide in the law school textbook world. These are exciting times when we can focus on the value added that tech can bring.

[John Haskell]

Speaking with publisher reps over the last few years, one idea that has repeatedly come up in different forms is that publishers join together and set up an electronic database with access to all the law textbooks and supplemental materials, and students would just pay a semester or yearly fee to join as a member and then have access to any of the books electronically (not downloadable though), and they could then choose if wanted to purchase a hard copy of any particular book. E.g., pay 400 dollars per semester and then purchase anything you feel necessary.

In the UK, often teachers don't base courses on textbooks, but instead put together reading packets of articles, cases and so forth, and just sell at the book store for the cost of the printing.

Maybe just a bit outdated, but hard for me to think that hard copy material will disappear or that it won't need to be in one way or another bound together in some way and just matter of how to make more affordable (e.g., get rid of hardbacks and make only paperback, etc...).

[Diff-Anon]

I love the idea of things being more current, more manipulable, and less expensive. Does anyone have thoughts about how all of this can be squared with the research suggesting people learn and retain differently on screen versus in hard copy? I am not a luddite, but I know that when I need to really concentrate on something complex, I have to be looking at paper.

[Paul Gowder]

I'm most excited by Harvard's h20 platform---I'm using it right now just to collect whole cases for the Con Law II course I'm teaching this semester ( https://h2o.law.harvard.edu/playlists/22269 ), but you can make and share edited cases on it too, and mix-and-match a custom casebook with cases edited and shared by others. (If anyone wants to go in on a Con Law I ---federalism and separation of powers---"playlist" with me that actually has edited cases, drop me a line.)

Nice to be able to tell the students that they don't have to pay more outrageous sums to the casebook publishers.

[Leo]

Diff-anon. There have been many studies that show that people retain more reading off paper. Don't have time now to find a cite, but I know the chronicle of higher Ed has published pieces on this, as has the WSJ and NYTimes. As I recall, a lot of it has to done with the margins on a page, the ability to hand write notes and hand underline passages.

[Elmer Masters]

CALI's long running eLangdell project has two solutions in this space. First is the CALI eLangdell Press which publishes casebooks and supplements in a variety of electronic formats that are free to students and faculty. We pay faculty to write the books and release them under a Creative Commons license. Second is CALI eLangdell Lawbooks which provides a robust platform that allows members of the CALI community to create and share their own law books including casebooks, textbooks, supplements, teaching guides, hornbooks, and monographs. Lawbooks includes a number of advanced features that allow faculty to customize existing eLangdell materials for their courses.
The Center for Computer-Assisted Legal Instruction (CALI) is a 501(c)(3) non-profit consortium of law schools, law libraries and related organizations. Virtually every US law school is a member of CALI and all of our resources are freely available to faculty at member law schools.

[Suzanna Sherry]

Many of us are banning laptops (or any electronic recording device, which now includes most e-readers) in class because of all the studies showing that students learn much better when they take notes by hand. That complicates the issue of using any form of on-line textbook -- either we have to drop the ban, or we have to make the students print out every assignment.

[Michael Risch]

I agree about the online only solutions. While I think the online options offer great features, I wouldn't offer a solution that was only available online. I would pull my hair out if that were my casebook.

I would also look for an easy way to get it to a PDF for self publishing. Three-fourths of my students bought a printed version of my materials - the createspace cost was 3.8 cents per page; if they had to print directly from the system, they are charged 10 cents per page for printing on campus.

[Mark Edwards]

Diff-Anon, Leo and Suzanna,

I urge you to take a close look at the study that was the basis of those news reports. It measured the effects on test performance of longhand note-taking versus laptop note-taking and studying versus not studying.

The study found the following, from most effective to least:

1. Not studying / longhand notes.

2. Not studying / laptop notes.

3. Studying / longhand notes.

4. Studying / laptop notes.

Anyone see a reason for skepticism?

Even if you accept the study at face value -- and I don't suggest it -- the real story is that not studying is more effective than studying regardless of whether one uses longhand or a laptop.