February 13, 2014
Matt Bodie on the Sales Model of Legal Scholarship
Posted by Christine Hurt

Matt follows up on his posts about funding legal scholarship with a post on professor-produced publications that are sold, with the profits going (mainly) to the publisher and (in smaller quantities) to the professor-author.  Some of the questions that emanate from this model are (1) why law schools/universities don't require these works to be "work for hire" with the profits going to the law school; (2) why professors engage in this type of time-intensive writing; and (3) [my question] wouldn't a direct-to-student model be better?

Work for hire.  In my second year of teaching legal writing, my co-author and I sold a programming for teaching the Bluebook to Lexis.  I remember a tenured colleague sneering at me that the profits should go to the university.  Well, the university never called, and I never called them.  I'm now at a university that has seen faculty create some extraordinarily lucrative products without much, if any, remuneration.  I just don't think that universities are great about tech transfer or commercializing professor works, even when the profits are worth the hassle.  Some universities are better about creating structures for professors and their universities to share in profits of lucrative discoveries.  Books may just fall into a category of "not worth it on average."  If the average book royalties professors received were halved with their institution, professors may not produce them.  Because these books create some marketing/branding/prestige for their institutions, universities may be happy to let publishers pay the university employees for their production.

Incentives.  Going to the first point, the incentives are fairly "on the line" for many professor publications.  Casebook profits vary widely depending on whether its suited for a course that is widely taught and widely taken or for a niche course.  I'm sure monographs also vary widely between "purchased by a few libraries but given as complimentary copies" and trade publications that end up on the best seller list, with most toward the former.  I've heard proflific monograph authors tell me that they aren't looking for profitable sales; they just want the book on law professor shelves.  And, once upon a time, university tenure standards required books to be a full professor because that's what people write in other disciplines.  

The direct-to-student model for casebooks.  I've been thinking about this since I discovered how much a new edition of the Torts book I use cost (gasp).  So, currently, I can use my work time to write a casebook that is then sold to law students, including mine, who pay $200/ea, and I get $20/ea.  For doing my job.  (I know, others deviate from this model, including paying their own students back their royalties .)  But why not just self-publish?  I spend my summer coming up with my own materials (as many do for their own courses anyway) and make them free for my students online?  All the cases are available on the internet, and so are all the statutes/Restatement sections/etc.  The only thing missing is the commentary and the questions (which I usually skip).  This could save students $1000/semester.  I'm teaching a course for the first time this semester, BA II, and I put together my own materials -- cases, law review articles, public disclosure documents.  It takes a lot of time, but it's not crazy.  What about first-time professors?  Well, I would be happy to share my materials.  In fact, all the Torts professors here could combine forces.  Just a thought.

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