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]
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 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, 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.  Not every
casebook costs $250.  But some courses
require not only casebooks but also additional texts, such as statutory
supplements.  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used copies online or from other students, and they may buy out of date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 discount. 
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 differs 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 belief 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.  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 in very much the same way that 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
the eLangdell brand.  Harvard Law School’s “H20” project houses
a number of others.  Entrepreneurially-minded
law professors have themselves set up or helped to support alternative publishing
ventures, such as Semaphore Press and
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 product (the “Indigo” Book)
that provides law students with training in citation rules – without their
having to buy copies of the Bluebook itself.

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 they 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 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

Given all of this activity, why do so many law professors still
ask their students to buy expensive casebooks, and 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

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?  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 naïve 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
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

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.