Alternative Publishing Models For Cost-Conscious Professors

July 13th, 2016 / By

Casebooks are shockingly expensive. The latest edition of Stone, Seidman, Sunstein, Tushnet, and Karlan’s Constitutional Law has a list price of $242. It’s even more shocking when you consider where the money goes. Not to pay for the cases and other primary materials that make up most of a casebook’s contents: they’re public domain and free to all. Mostly not to cover printing costs: the paperback edition of The Power Broker (to pick a book with the same word count and heft as a casebook) has a list price of $26, and you can buy it on Amazon for $18. Mostly not to authors: royalty rates are typically 10% to 20%. No, most of that money ends up in the pockets of the casebook publishers and other middlemen in the casebook chain. This is a tax on legal education, sucking money from law students and from the taxpayers underwriting their student loans.

In a perceptive and persuasive recent essay, Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books, Ben Trachtenberg runs through these numbers and reaches the obvious conclusion: law schools shouldn’t be asking students to shell out the big bucks to read public-domain legal materials. Casebooks should be cheap or free.

Trachtenberg’s preferred solution is that law schools, alone or together, fund the creation of “top-quality casebooks” which could then be made available to students for the cost of printing. Here at Law School Cafe, Kyle McEntee endorsed Trachtenberg’s suggestion and added that “it may make more sense to do this through an external organization funded through grants” to save students even more.

While I agree with them both that casebook prices ought to fall far and fast, I want to challenge an assumption running through both of their essays–that casebook creation needs to be funded up front at all. Recent trends in my corner of the legal academy — intellectual property and Internet law — have me convinced that there is no cost obstacle to making outstanding casebooks available to students at fair prices. We faculty already do so much of the hard intellectual work that goes into casebooks as part of our ordinary course preparation that going from here to there is a surprisingly small step.

Believe In It? I’ve Seen It Done

Let me start (self-promotion alert!) with my own casebook, Internet Law: Cases and Problems. I started my teaching career using a major-label casebook. The next year, I supplemented it with some cases I edited myself. The year after that, I extended those cases into a full standalone coursepack. The fourth year, I added some questions, notes, and problems, and told my students it was a “draft casebook.” The fifth year, I added more cases, gave it a thorough edit and cleanup, and published it as a casebook others could use. Every year since then, I’ve rolled the annual changes I make to keep my own students on top of recent developments into a new edition. It was a little harder than just teaching my own course would have been, but not much. The casebook grew organically out of my teaching.

Now for the publishing model. I didn’t go to a major casebook publisher, who would have slapped its own branding on the book and charged three figures for it. Instead, I talked to my friends Lydia Loren and Joe Miller (both IP professors) and their legal-publishing company Semaphore Press. They sell their books as pay-what-you-want PDF downloads with a suggested price of $30. That’s just a suggestion: a few students pay more, some pay less, some pay nothing at all. We’re fine with that; if someone doesn’t feel that $30 is a fair price for my book, I’m not going to argue with their honest opinion, and I still would rather have them read it than not. We also sell a bound print-on-demand version
through Amazon CreateSpace: it costs $65 to cover Amazon’s cut and the raw printing costs, but you can always still pay $30 or $0 for the PDF. I have absolutely no regrets about publishing the book this way. Loren and Miller have written their own essay on how well the Semaphore model has been working.

I’m not the only one selling a cheap PDF casebook. Semaphore Press also has Loren and Miller’s own IP casebook, which I’ve taught from repeatedly, as well as casebooks on property and on interstate compacts. Eric Goldman and Rebecca Tushnet have a crackerjack casebook on advertising law. They sell it as a PDF on Gumroad for $11.50. No, I am not making that number up: $11.50. Goldman and Tushnet have an essay on the experience whose title says it all: “Self-Publishing an Electronic Casebook Benefited Our Readers — And Us.” Goldman sells his own Internet law materials as an $8 PDF, a $10 Kindle ebook, or a $20 CreateSpace hard copy. And Rob Merges, Peter Menell, and Mark Lemley just took their Intellectual Property in the New Technological Age, which has been the gold-standard IP casebook through six editions with a major publisher, to a self-publishing model. They set up their own publishing company, Clause 8 Publishing, to “promote creation and dissemination of the highest quality and most up-to-date educational resources at fair prices and in a way that ensures that much of the revenue flows to authors.” The book comes in two print-on-demand volumes — $25 and $30, respectively — and they’re working on an ebook edition that will be even cheaper.

But wait, there’s more!

There are also outstanding casebooks that are completely free to students, without even suggested prices. James Boyle and Jennifer Jenkins have released two editions of their Intellectual Property: Law & the Information Society as free downloads under a Creative Commons license that lets anyone copy and distribute it. They also emphasize on their copyright page that the primary materials are public domain, for which no permission is ever required from anyone. To make it even easier to adapt and adopt the book, they offer their individual chapters in half a dozen file formats. They even have a completely free statutory supplement, suitable for use with any IP casebook, taking another piece out of the cost of taking an IP course. Then there’s Barton Beebe’s Trademark Law: An Open-Source Casebook, which is just what it says on the tin, except that Barton is too modest to say that it’s also a top-notch casebook. Rebecca Curtin, Leah Chan Grinvald, and Jessica Silbey have an open-access copyright casebook in the works. And I’ve been working with some colleagues on an open-source set of materials for another course, which we hope to release as a set of Word-file modules that professors can mix and match into their own preferred syllabi.

Then there are the platforms: experiments in making edited materials affordably accessible in flexible new ways. I taught substantial parts of a course using the Berkman Center’s H20, a web-based system for editing and annotating cases and then assembling them into freely available “playlists” of related material. It has some quirks and glitches, but it also makes it straightforward to remix someone else’s edits. ChartaCourse replaces case “books” with concept maps that pull together all of a course’s materials into a graphical “chart” with a clear visual organization and easy navigation. Students pay $49, which gives them digital access to the full chart for a year and the ability to download and print any parts of it they want. LawCarta, which will be launching soon with a patent casebook, will feature rich authoring and editing tools, letting professors drag and drop materials to customize books for their courses. It’ll be a hybrid, offering both reasonably-priced commercial casebooks and completely free open-source ones in multiple formats, electronic and printed. I particularly like Lynn LoPucki’s VisiLaw system for marking up statutes to make their sentence structure clearer; he’s made “The Readable Delaware General Corporation Law” (emphasis in original) a free download on SSRN, and sells an $8.30 print-on-demand version through Amazon. It’s a thrilling time for technical innovation in legal publishing.

I count more than a dozen separate casebook projects here, all available to students for $50 or less, all released within the last five years, and all of them — every single one — produced without subsidies on the front end. I’m not saying that subsidies are a bad idea. They can kickstart projects into existence. (And yes, pun intended — I can easily imagine Kickstarter or other crowdfunding platforms being used to get new casebooks going.) I would be delighted if Trachtenberg’s idea for a law-school funded criminal procedure casebook came to fruition. CALI’s eLangdell casebooks show how subsidies can effectively catalyze open-access casebook creation. Their books are free and Creative Commons licensed; CALI gives authors a modest stipend to produce them, but no ongoing royalties. Does it work? The existence of more than a dozen eLangdell casebooks suggests that it does: there are plenty of law professors who are willing to set their work product free. So subsidies can be great — it’s just that we just don’t need to wait around for them.

The Future Is Now

There are two things we can learn from this outpouring of low-cost course materials. The first is that there are many roads to Rome. There are commercial casebooks at fairer prices, there are subsidized free casebooks, and there are unsubsidized free casebooks. There are PDF downloads, ebooks, print-on-demand hard copies, Word files, interactive maps, wiki-style websites, and more. The second lesson is that the time is now. We have all the tools we need, and some of them are working very well indeed. There are no major financial or institutional obstacles to switching over to affordable course materials now. Professors, find them and use them in your courses. If they don’t exist, help to create them. Students, ask your professors to consider casebook costs. Administrators, find out how much your faculty’s assigned books cost, help them identify cheaper alternatives, and help support your faculty when they want to contribute to bringing these costs down by creating their own.


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Deborah J. Merritt

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Kyle McEntee

ABA Journal Blawg 100 HonoreeLaw School Cafe is a resource for anyone interested in changes in legal education and the legal profession.

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