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Wednesday, February 12, 2014

Funding Legal Scholarship: The Sales Model

Under the traditional law school model, the individual schools fund legal research; under the grant-funding model, third-party non-profits and government agencies supply a big chunk of the resources.  There's a third model that exists in law schools today, and that is the sales model.  Under this model, scholars act as individual entrepreneurs selling their research to publishers for personal payment.  Much of the action between profs and publishers is in teaching materials, which I do not count under the research rubric.  However, I do count academic books and doctrinal treatises as research, and professors sell their IP interests in these works to publishers in exchange for advances and/or royalties.

These contracts are generally private, and I'd love to hear any additional information on this, but my understanding is that purely academic books do not offer much remuneration.  In fact, the business model for academic presses has suffered a series of blows over the last twenty years.  As a recent AAUP report states:

[T]he simple product-sales models of the twentieth century, devised when information was scarce and expensive, are clearly inappropriate for the twenty-first-century scholarly ecosystem. As the report details, new forms of openness, fees, subscriptions, products, and services are being combined to try to build sustainable business models to fund innovative digital scholarly publishing in diverse arenas.

So even though a law professor might "sell" her book to an academic press, the relatively low return to the prof means that that book has been funded, in large part, by the professor and/or the law school itself.  However, treatises offer more remuneration, at least as a general matter.  One advantage of doctrinal publications is the broader audience, which includes not only libraries and fellow academics, but also students and practitioners.  Some treatises, like Bob Clark's Corporate Law, are notable for their longevity; other treatises prosper because of their breadth and their continual updates which keep the readers current.  I know of no treatise-writer who does not have a regular "gig" as professor or practitioner, but the money incentivizing the production of treatises is more substantial.  And it flows directly to the author, rather than the author's institution like a grant.  The author may also build on the expertise signified by the treatise to land paid consulting opportunities or "of counsel" status at a law firm.

A big benefit of the sales model, like the grant-funding model, is that third parties provide funding and support for the research.  But the sales model is more business-oriented; rather than spending their funds for the public good, publishers buy materials that (they believe) will make the most money.  And professors get the money directly, rather than funnelled through their home institution.  To that extent, it is more responsive to demand in a traditional capitilistic way, which may be good or bad depending on your outlook.  The sales model of research is likely limited by the limited market for doctrinal, generalized legal research itself.  But at least some percentage of the research going on out there will find funding from publishers who are willing to bet on a market for the material.

One question I have for our readers: why don't law schools use the "work-for-hire" doctrine on these publications?  Not enough money at stake?  Or do faculty contracts explicitly reserve copyright to faculty?  If so, why do schools give this up?

Posted by Matt Bodie on February 12, 2014 at 12:36 PM in Life of Law Schools | Permalink

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"One question I have for our readers: why don't law schools use the "work-for-hire" doctrine on these publications? Not enough money at stake? Or do faculty contracts explicitly reserve copyright to faculty? If so, why do schools give this up?"

As you suggest, I guess it is because there is not enough money at stake, but perhaps also because schools see publication of such work as good publicity and the money (as limited as it may be) provides extra incentives to professors (most of whom appear to be post-tenure and many of whom might not choose this type of publication without the extra compensation).

Posted by: BA | Feb 12, 2014 4:05:00 PM

I think the sales model is helpful only to the extent it encourages useful works that are not considered prestigious within the academy. These days, treatises and casebooks are not considered prestigious; the financial incentive to write them and update them is at least somewhat significant in encouraging such works to be published.

Posted by: Orin Kerr | Feb 12, 2014 4:41:12 PM

I love that this post appears in the blogfeed under Daria Roithmayr's review of Triple Package. Is that the sound of my YLS loans chuckling in the amen corner?

Bu the way, some schools have already taken steps in this direction. For example, new employees at UC Berkeley -- as I found even as a grad student in anthro -- are given to sign a WFH boilerplate form. It's in the same bundle of routine paperwork as the W-4 and is treated the same: you don't sign, you don't get paid. I assume this is true for Berkeley law faculty too, and I expect it's standard practice across R-1 state universities. I don't know, however, if it's enforced outside of lucrative fields like, say, biotech.

Posted by: Monica Eppinger | Feb 14, 2014 9:25:16 AM

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