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Legal Commentary

: Prawfs

Casebooks and Collective Action

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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The good Professor Bainbridge is bemoaning his lack of market power as a casebook author:

Change is coming. The major law school casebook publishers are working on game changers like eBooks and textbook rentals, while trying to do so unilaterally within the confines of standard form contracts designed for the 19th Century.
Textbook pricing is out of whack. Our students are paying outrageous prices. I am willing to consider how we can fairly take steps to reduce that financial impact, but not at the expense of gutting my royalty income. . . .
Unfortunately, we have a collective action problem. Individual authors have little bargaining power. Collectively, we would wield considerable bargaining power, but there are huge obstacles to collective action on our part. As a result, we are all subject to huge pressure to accept unilateral changes imposed by the publisher even if the outdated form contract we signed 20 years ago doesn't remotely cover the situation.

As Brian Leiter noted, "I am glad to see that Professor Bainbridge is developing some class consciousness!"

I think the answer is to gut Professor Bainbridge's royalty income completely, as I argued in "The Future of the Casebook: An Argument for an Open-Source Approach." All we need is the right platform and a critical mass of professors in each subject area. No small things, of course. But it seems fairly obvious that soon -- within the next decade -- we will stop using casebooks altogether, at least in their current "book" form. There is an unprecedented opportunity to reshape the future of legal education for perhaps the next century. I hope we see more foment on this issue in the upcoming months.

In the meantime, you may want to check out the transcript from a terrific symposium at Seattle University School of Law, hosted by David Skover, Seattle University School of Law; Ronald Collins, First Amendment Center, Washington, D.C.; Edward Rubin, then Dean, Vanderbilt Law School; and Kellye Testy, then Dean, Seattle University School of Law. Participants included the major legal publishers (Foundation, Aspen, West, Carolina, Lexis-Nexis), software and hardware developers (Sony, Microsoft, Adobe), folks from CALI, and a great group of academics on the cutting edge of pedagogy. You can find the transcript at Workshop on the Future of the Legal Course Book, 33 Seattle U. L. Rev. 292 (2010) (on Westlaw; not yet here).

Full post as published by Prawfs on May 11, 2010 (boomark / email).