A few thoughts on open-source or free legal casebooks

Professor Brian Frye is a tireless advocate (among others) for open-source legal casebooks. Casebooks are costly for students—even rented or used casebooks can run students into the thousands of dollars over three years.

To this day, I feel ashamed to say I haven’t taken advantage of open-source casebooks or developed my own materials. I thought about some of the barriers to entry.

Obviously, the decision to assign a casebook shifts the costs to students, and the costs of work or developing my own materials to others. In my earliest years, I thought I was too busy figuring out the materials to be using my own, and I just wasn’t satisfied with the open source casebooks I saw. Later, I was switching to new preps, and it was too much work again. In still other areas, there haven’t been open source casebooks.

A few sole authored casebooks I really like—Professor George Fisher’s Evidence and Professor Gary Lawson’s Administrative Law come to mind. It would be a cost to give them up.

But this spring, in an election law seminar, I hope to develop my own materials—and I hope to continue to use and modify them for election law courses (seminar and survey) for years to come. It’s simply getting over that hurdle of doing it the first time.

But I thought about a few other barriers to free legal materials for students, or underexamined costs.

It’s interesting to me that law schools don’t recognize the student loan aspect of casebooks. Students can take out loans based upon the estimated cost of attendance. Many simply take whatever is the maximum figure estimated by the school. And that, of course, can be an onerous cost for them down the road. Even if the casebooks may not cost $1000 per year, if that’s the estimated figure, students may well simply take out that amount—which they may use on casebooks, or on other personal expenditures, then have to pay back after graduation. So $3000 in casebook loans becomes and extra ~$35/mo for 10 years (with more than $1000 in compounded interest!). Maybe it’s not a lot, but it’s a good monthly chunk.

And worse for law schools, it’s $3000 in loans that isn’t even revenue to the law school! Much like loans for off-campus living expenses or travel to study abroad locations, the loans don’t even benefit the institution! Schools ought to think critically about such loans in particular, because the costs are often attributable to the law school—“Oh these are my law school loans,” even if the law school didn’t get all the revenue from them.

Another curiosity is the notion that law professors, particularly in first-year or required or “big” classes, have a lone wolf mentality for curriculum. In most universities that I’m aware of, undergraduate curriculum is decided by the department, including what books to use. Sometimes the university develops a reader, at other times they agree to a consensus anthology or workbook or whatnot. But the department usually settles on a curriculum, and everyone adopts (sometimes begrudgingly).

If law schools did this, it would open up significant opportunities to reduce the work associated with developing materials, too. For instance, the Contracts professors could agree to create a batch of case materials together, and supplement with their own personal preferences of additional cases to add. But if it occurs collectively, it cuts the costs for the entire class regardless of the professor, it distributes the work across the faculty, and it’s easily used and adapted from different professor or for different years in the future. (In many of the first-year “common law” classes, with relatively little “updates” to the material, this is particularly beneficial.) It might be that the law school has to incentivize the faculty with some kind of modest stipend the first time they do this. But it would pale in comparison to the long-term costs to students for casebooks.

Of course, one could bypass all this by adopting an open-source casebook. But I’m thinking creatively, particularly for those courses where (1) the faculty cannot agree on one of those open-source casebooks or (2) the course simply lacks such a casebook.

In any case, I hope to move toward free alternatives in the years ahead—my own excuses have held me back over these years. But institutionally, I believe law schools can be more cognizant of the costs shifted to students and how some school-centered decisionmaking can improve the situation all around.