Following up on Wednesday's post, How Law Schools Could Save Students $150 Million. Per Year.

• Orin Kerr (George Washington):

First, I think it would be great if casebooks were free. The cost of textbooks is a real burden on students, and that cost is especially troubling in this legal economy. … My point is just that however desirable Mayer’s proposal sounds, it wouldn’t work because it assumes a set of incentives that I don’t think currently exist. …

Second, I am not suggesting that Mayer is a communist or a socialist. Nor am I suggesting that his proposal is the moral equivalent of Communism or socialism. Rather, I was just making a point about incentives. Mayer’s specific proposal assumes that people will do a set of things voluntarily that sounds (at least to me) similar to the assumptions of why people will do a set of things voluntarily in a socialist system.

Third, I think that in some circumstances, open source casebooks might work. It depends mostly on the field and how good is “good enough” in terms of quality. … The hard part is that many subjects rely a lot on discussion and notes to explain the materials, and many areas have lots of moving parts that require an author to spend a very large effort assembling the materials in a particular way. In that kind of field, an open source casebook would be hard. You could have a book, but I suspect the quality would be very low.

Finally, several commenters ask why professors seen to have an incentive to write law review articles but might need a monetary incentive to write casebooks. I think the answer is that, for better or worse, schools currently value law review articles but not casebooks when they decide who to hire and who to promote.

John Mayer (Executive Director, CALI):

There are many different economic models for remunerating authors for their work. The current one involves 80-90% of the cost of the book going to intermediaries and processes that are becoming increasingly unnecessary or can be eliminated through age-old American ingenuity and innovation.

With ebooks, we can (eventually) eliminate the cost of printing, shipping and warehousing the physical books themselves.

With websites and freely available software, we can eliminate the proprietary digital production processes that were previously only available via commercial publishers.

With blogs like this and personal computers and the Internet (which we all own/access already), we can largely eliminate the need for marketing.

I am not saying that authors should not get paid for writing casebooks. I am saying that there is an enormous amount of inefficiency in the system that can be squeezed out and the savings distributed back to the authors and the students.

It's up to the law school to cut a deal with the faculty using leave time or stipends so that faculty have time and incentive to write the book. It's up to other faculty to decide if the fruits of this effort are worthy of adoption. Hardly socialism, much less communism. Just a different, and I believe better, economic means of production.

When CALI was getting started in the 1970's, no commercial entity existed to create computer-based tutorials, so law faculty used found-time or received grants to support their efforts. Today, we pay law faculty to write CALI lessons and we have over 900 of them available covering over 30 different legal subject areas. These were used over 1 millions times per year over the last five years. None of CALI staff do this for free and all of CALI's authors were compensated for their time
and content.

The issue that I wish ANON had picked up on, however, was innovation. Legal education is going through cataclysmic changes and law schools are going to need to innovate with their methods of delivery and the design of their curricula. This is hard to do if the core content is owned by an external agency that is tasked with extracting maximum dollar value – not serving the educational or access-to-justice mission of the law school. Freely licensed course materials allow for maximum flexibility to meet changing models of educational design and delivery. Lessig anyone?

I agree, let us compensate our authors, but why do we have to add a 80-90% markup on top of that AND lockup the result such that it cannot be used in new, better and different ways to suit our needs?