Abstract
Our essay charts out the pedagogical, technological, operational, institutional, commercial, and theoretical implications of moving from a print-based casebook paradigm to an electronic course book model. Central to this venture is what we call the Conceptions Course Book (CCB), the law school course book of the future. That e-book is, as we discuss, the end product of an entirely new and sophisticated process of creating and distributing materials (textual, audio-visual, and interactive) to be used in law school courses. This process allows professors to develop (in an I-Tunes-like manner) their own custom-designed course books in efficient, economical, and innovative ways best suited to their pedagogical concerns. Unlike proposals for computer-based e-books, our CCB would be designed to take advantage of the unique opportunities offered by more advanced versions of e-readers such as Amazon’s Kindle, the Sony Reader, or Apple’s I-Pad.
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Notes
Though it doesn’t seem that long ago, it is amazing for us to recall that our manuscript was submitted to the editors in paper form. Furthermore, the most advanced electronic technology that existed at the time included CD-ROMs and VHS recorders.
See generally Palfrey and Gasser (2008).
For one example, the University of Columbia Law School offers a skills-based program called the Charles Evans Gerber Transactional Studies Program, which focuses on complex financial transactions. See http://www.lawcolumbia.edu/center_program/deals.
Columbia Law School Professor Conrad Johnson argues convincingly: “Connecting doctrine to primary sources, leveraging the ‘added value’ that many publishers already provide, producing text, graphics, audio, animation, and video that reflect and cater to the multiple learning styles present in our target audience, allows students to learn in multiple ways and to develop analytical and persuasive capacities that are not limited by the over-worn ‘top down’ approach.” Johnson (2008). For example, one could imagine an electronic course book that contained pod-cast mini-lectures, video interviews of clients, or audio clips from depositions and recorded police interrogations, and virtual reality experiences in legal settings. See Lustbader (2008). One creative multimedia approach used in Civil Procedure courses is offered by the video documentaries produced by Seattle University Law School Professor Marilyn Berger in Lessons from Woburn, which are based on Jonathan Harr’s book, A Civil Action. See Films for Justice Institute, Lessons from Woburn, at http://www.law.seattleu.edu/x1873.xml. Accompanying the videos is a course book that includes research and writing assignments, issues for class discussion, and role-playing exercises. The videos vividly chronicle the story of the Anderson v. W.R. Grace case arising from the environmental disaster in Woburn, Massachusetts. See Anderson v. W.R. Grace & Co., 628 F. Supp. 1219 (D. Mass. 1986).
These figures represent retail prices plus 7% tax for new first-year law-school casebooks, such as the following: Knapp et al. (2007) (list price: $138/3.4 lbs/1105 pp); Singer (2006) (list price: $139/3.6 lbs/1202 pp); Epstein (2008) (list price: $142/4.2 lbs/1402 pp); Kaplan et al. (2008) (list price: $130/4.2 lbs/1144 pp); Friedenthal et al. (2005) (list price: $134/4.6 lbs/1295 pp); Stone et al. (2005) (list price $142/5.2 lbs/1704 pp); Oates et al. (2006) (list price: $78/2.6 lbs/914 pp).
How many professors who assign such tomes actually cover the entire text, or even a substantial portion of it?
See, e.g., Choper et al. (2008) (list price: $94/2.6 lbs/912 pp). The unabridged counterpart costs $146, weighs 5.3 lbs, and has 1745 pp.
See, e.g., Dorf (2004, 540 pp).
See, e.g., Stark (2007) (476 pp.).
See, e.g., Garvey et al. (2004, 820 pp).
See, e.g., Goldberg (2007, 424 pp).
See, e.g., Carolina Academic Press’s series entitled Contextual and Practice Casebooks (Michael H. Schwartz, series editor).
See generally Marchand (1980, p. 209).
Langdell (1871).
Since a printed book could only be sold as a packaged work, there was no opportunity for the bookseller to subdivide its contents and sell them independently. As discussed infra, that is no longer the case.
Many of today’s casebooks exceed the 1,022 pages of Langdell’s 1871 work.
Bill McCoy, General Manager of the Digital Publishing Business at Adobe Systems Incorporated, predicted a relatively short remaining life for print-based law school texts: “It seems obvious that legal course books, along with most other textbooks, are going to be substantially replaced by digital content, with a significant portion (i.e., well over double-digit percentage) of this replacement occurring within the next 5 years.” See McCoy (2008).
This moniker refers to the youth of Generation Y who “were all born after 1980, when social digital technologies, such as Usenet and bulletin board systems, came online.” Palfrey and Gasser (2008, p. 1).
McCoy (2008). Following this thought, the digital publishing expert opined: “Institutions that remain paper-centric will be marginalized and their learning experiences devalued by digital-savvy students.”
One experiment in integrating print casebooks with interactive instruction is being attempted by Thomson-West in its “Interactive Casebooks Series.” See http://interactivecasebook.com/.
See generally Collins and Skover (1992).
Tim O’Reilly, the founder and CEO of the esteemed computer book publishing company O’Reilly Media, has noted a “strong preference of our customers for PDFs” (i.e., portable documents downloadable to e-readers) over either print books or online computer reading. See http://radar.oreilly.com/2006/05/gentlemen-prefer-pdfs.html.
For current examples, consider the KindleDX by Amazon, the Sony Reader, the Pixelar e-Reader, and Apple’s I-Pad. As we will later explain, however, all of these e-readers will have to evolve to actualize some of the proposals that we set forth in this essay.
Open-access material is available to all users free of charge, whereas restricted-access material is typically available only for a fee.
For example, links in a Constitutional Law CCB might direct students to SCOTUSBLOG or OYEZ to remain current on developments of the day.
See, for example, New York Law School’s Visual Persuasion Project, overseen by Professor Richard Sherwin at www.nyls.edu/pages/2734.asp.
A variety of digitally created visual and audio law school lectures could be made available on the CCB database for professor and student use. A professor might want to assign such a video lecture. Imagine, for example, a constitutional law professor who wanted to require readings on executive powers, but did not want to cover such readings in class. S/he might assign students to watch a streaming video lecture, available in the CCB, by a noted constitutional scholar such as Laurence Tribe or Akhil Amar.
The CCB team might be organized similarly to the structure—e.g., reporters, consultants, editorial revisers, and advisers—used by the American Law Institute for its Restatements.
Schwartz and Riebe (2009).
Assuming technological standardization were achieved, private publishing companies might prefer to maintain proprietary content in their own databases, but to develop their website systems so as to interact seamlessly with the CCB system.
Obviously, if public domain documents were uploaded from commercial databases such as LexisNexis or Westlaw without stripping them of headnotes, hyperlinks, and other features added by the publishers, copyright issues would arise and a licensing arrangement would be required.
These and related points are ably discussed in Bodie (2007, pp. 28–34).
Georgetown Law School Professor David Vladeck expressed his eagerness for an electronic course book that would permit him to fuse self-generated instructional materials with portions of a traditional casebook:
My vision is that, at some point, technology will permit publishers … to offer teachers flexibility to adapt their own teaching materials, perhaps by taking a conventional textbook and adding material that the teacher wants to include. For instance, I would be happy to use one of several civil procedure books, provided that I could add a new introduction, set forth my introductory fact-pattern, add a few cases that pose current problems, and include some skills exercises that involve drafting pleadings and discovery. I would also appreciate being able to exclude material that will not be covered in the class.… We all now edit by addition and subtraction, but we’re stuck with casebooks that are one-size-fits-all and non-adaptable. My hope is that technology will permit us at some point to use casebooks as menus that offer teachers choices about what to cover; permit us to add and subtract material; and enable us to make the book conform to our choices about how to teach our students doctrine and how that doctrine is used in law practice. (Vladeck 2008)
2 H. & C. 906, 159 Eng. Rep. 375 (1864).
Holmes and Wendell (1899, pp. 39–49).
Gilmore (1995).
Such breaches might include violations of copyright, tort, contract, libel, or obscenity laws.
See, e.g., Manz (2005).
Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928).
See, e.g., Kionka (1999).
Generally speaking, the technological divide between today’s law professors and their younger students is significant, in that the latter are far more receptive to electronic alternatives to print casebooks. Regarding this point and digital literacy, see Rich (2008, p. 1).
According to Kantor: “E-books are a boon for publishers. While the cost of content … remains the same, the cost of production and delivery obviously drops significantly. There’s no paper to buy, no shipping charges to pay, no worries about how big a production run should be.” Kantor (2006). It is already evident that cost savings in electronic book publishing are passed in substantial part down to the reader. For example, Leigh’s The Wikipedia Revolution (2009) is priced at $25.00 list for the print version and at $10.00 list for the electronic one. See http://www.amazon.com/The-Wikipedia-Revolution/dp/B001UQO41Y/ref=kinw_dp_ke. Those cost-savings would readily overcome the initial expense that the student would bear for purchasing an e-reader or other receptacle.
See, e.g., Lieberman (2009).
Carolina Academic Press CEO Keith Sipe estimates that most law casebook publishers now need to sell between 800 and 1,200 units before it would be feasible to publish a casebook. Phone interview with Keith Sipe, 18 March 2009.
Holmes (1897).
Horwitz (1992, p. 142).
Consider White (1993) (“the two works have often been contrasted, and the current scholarly view appears to be that Holmes’ jurisprudential views evolved considerably between the late 1870s and 1897.”).
Posner (2002, pp. 121–151).
249 U.S. 47 (1919).
250 U.S. 616, 624 (1919) (Holmes, J., dissenting).
Posner (2002, pp. 128–129).
There may well be warrant for this assumption, as evidenced by the very few professors who seem to know of Posner’s seminal article. A recent Lexis search indicates that the article has been cited in legal periodicals a paltry 11 times since its publication 7 years ago, and two of those citations were by editors of the book in which the article first appeared. Lexis Search of “The Speech Market and the Legacy of Schenck,” undertaken 19 March 2009. Should this opportunity to publish within the CCB database become popular, the system might develop a tracking mechanism to calculate how often a particular item was selected for download within CCBs. Moreover, it might be possible—though this is a far more complicated matter—to create a LexisNexis-like function for identifying where an article like Posner’s was used or cited in CCBs.
Alschuler (2000).
For the record, we are not entering into this philosophical fray.
In this regard, Grant Gilmore once described Langdell’s casebook project as “dogmatic.” See Gilmore (1995, p. 14).
See Guthrie (1967, Vol. 1, pp. 435, 449–454).
Much as any print casebook author does, the CCB author would, of course, be obliged to give credit to those who wrote the materials s/he selected for the course book.
Naturally, there would be some professors—the less innovative and the novice—who would not be immediately attracted to creating their own CCBs. They would, instead, prefer to order a reliable pre-packaged set of materials—either a proprietary package (e.g., Redish and Sherry (2006)) or an already developed CCB made available for selection by the system editors (e.g., our earlier reference to Vladeck on Federal Courts). Such professors would rather remain consumers of information than become authors of it.
Presumably, such institutional figures make similar decisions today in the case of professors who maintain scholarly blogs, such as Professor Jack Balkin’s blog, “Balkinization,” Professor Eugene Volokh’s “The Volokh Conspiracy,” or Professor Richard Hasen’s “Election Law Blog.”
Generally speaking, we envision something akin to or approximating the long unpublished but widely copied and distributed 1958 manuscript, The Legal Process, written by Professors Henry Hart, Jr., and Albert Sacks, which has been praised as “the most influential book not produced in movable type since Gutenberg” See Hyman (1976, p. 1286 n. 70). Over 30 years after its inception, the uncompleted manuscript was finally published in print. See Hart et al. (2001). See generally Eskridge and Frickey (1994). To be sure, the coin of the CCB realm need not be as remarkable as the Hart & Sack’s manuscript. Nonetheless, the editorial decision to make a noteworthy CCB available for professorial adoption is analogous to Foundation’s publication of The Legal Process.
62 Cal.2d 777, 44 Cal. Rptr. 442, 402 P.2d 130 (1965) (felony murder rule).
32 N.J.L. 169 (N.J., 1867) (involuntary manslaughter).
83 Miss. 43, 35 So. 826 (Miss., 1904) (voluntary manslaughter).
455 S.W.2d 882 (Ark., 1970) (conspiracy).
The string of quotes in these sentences is taken from Holmes (1897, p. 466).
References
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Hodnicki, J. (8 January 2008). Professional reading: is open-source the future of eBook legal publishing? Law Librarian Blog.
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Unpublished Memoranda
Johnson, C. A. (2008). Memorandum on preliminary thoughts. Prepared for the Workshop on the Future of the Legal Course Book (on file with authors).
Lustbader, P. (2008). Memorandum on preliminary thoughts. Prepared for the Workshop on the Future of the Legal Course Book (on file with authors).
McCoy, B. (2008). Memorandum on preliminary thoughts. Prepared for the Workshop on the Future of the Legal Course Book (on file with authors).
Silverman, G. M. (2008). Memorandum on preliminary thoughts. Prepared for the Workshop on the Future of the Legal Course Book (on file with authors).
Vladeck, D. C. (2008). Memorandum on preliminary thoughts. Prepared for the Workshop on the Future of the Legal Course Book (on file with authors).
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This essay is an outgrowth of a Workshop on the Future of the Legal Course Book that we co-chaired with former Dean Edward Rubin of Vanderbilt Law School and former Dean Kellye Testy of Seattle University School of Law, held at Seattle University on September 27, 2008. We are especially appreciative to the following participants in that workshop, among others, who helped shape our thoughts: Kraig Marini Baker, Marilyn Berger, Matthew Bodie, Maggie Chon, Peggy Davis, Steve Friedland, Gene Koo, Paula Lustbader, Bill McCoy, John Mitchell, Richard Mixter, John Palfrey, Dennis Patterson, Michael Schwartz, Greg Silverman, Keith Sipe, Joel Thierstein, and David Vladeck.
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Collins, R.K.L., Skover, D.M. Paratexts as Praxis. Neohelicon 37, 33–51 (2010). https://doi.org/10.1007/s11059-010-0050-0
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DOI: https://doi.org/10.1007/s11059-010-0050-0