Free Law School Casebooks For Everyone? (And See Update)

John Mayer, the Executive Director of CALI, has a post suggesting a way to generate free law school casebooks for every law student.  Under the current system, professors who want to write casebooks can write the books on their own and can then make a deal with publishers to bring the books to market in exchange for royalties. Mayer has a very different proposal that works like this:

Every law school puts forth a Fellow who will participate in a team of faculty to write a casebook in a substantive area of law over 12 months.

The law school gives the Fellow leave from teaching a course or an institutional stipend for writing the book.  The details are to be worked out between the school and the Fellow.

These 201 Fellows form the first cadre of a three year, 100 casebook effort.

Faculty will form Fellowship Teams to work on a book together to share the workload and provide collaborative feedback and quality control to each other. The assumption here is 3 authors per book, so 201 law schools = 67 books and 50% completion/attrition, so 33-34 new books per year x 3 years = 100 books. . . .

Authors can retain copyright in their own works, but must license the book under a Creative Commons license to allow redistribution, remixing and re-use by anyone else. This is why one of the formats for distribution must be Microsoft Word’s .doc format.  This is critical to creating an ecology of course materials that permits improvement and customization for local needs.

As I understand Mayer’s idea, each law school community will put forth a worker who will participate in a collective. Members of the collective will share the workload and collaborate on the making of products. They will then be required to share their products to allow use by anyone else according to their needs.

Interesting idea. If only we had some experience in the 20th century to know if it might work.

(Hat tip: Paul Caron)

UPDATE: Based on the comment thread, I royally screwed up this post: It is being interpreted to take positions very different from what I had intended. So let me try to correct my screw-up with a few clarifications.

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. Although it’s just a small gesture, I plan to give away several boxes of my own casebooks to my students next spring when I am teaching classes that use my book. 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. Specifically, it assumes that schools have an incentive to pay extra money or take professors out of the classroom so they can write casebooks, and that professors have strong nonmonetary incentives to write and update them instead of doing other things. My sense is that these incentives are weak at best, so I don’t think the proposal would work. Perhaps we should dramatically alter the incentives of legal academia so that those incentives start to exist. But Mayer’s proposal seems to be taking the incentives as they are today, so I take that to be beyond the scope of his proposal.

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. An open-source casebook in a subject that can be taught with just main cases would work best, epecially if most casebooks in the field use the same basic cases. If you just want raw cases, you could just have a single page linking to copies of all the free cases. You might also have an open-source casebook where the only work is editing the cases: Different people edit cases differently, but I think you could probably have a group effort to have a free casebook in that setting, too. 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. As a result, professors have an incentive to write the best articles they can because their employment will be impacted by it. Right now, that is not generally true with regard to casebooks. Perhaps that should change, but that’s not the current state of things. Finally, when I suggest that law professors respond to incentives, I am not meaning to say that I think they are evil people. I just think they are people who respond to incentives like everyone else. Perhaps my brain is addled because I’m in the middle of a two-week economics program right now, but that’s my sense of things.