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Wednesday, July 29, 2015

The Virtues and Vices of Casebook Supplements

My co-authors (Bill Banks, Steve Dycus, and Peter Raven-Hansen) and I have just put the finishing touches on the 2015-16 supplement to Aspen's (or is it Wolters Kluwer's?) National Security Law and Counterterrorism Law casebooks, which checks in just under 500 pages this year. Some of that length can be attributed to (1) the seismic changes that these fields have encountered in recent years (thanks, Obama!); and (2) the elapsed time since the last complete editions (2011 for the NSL book; 2012 for the CTL book). Indeed, we're already hard at work at the next editions of each of the books, which, if nothing else, should be ready in time to defeat the need for a 2016-17 supplement.

As pedagogically useful as putting together an annual supplement is, though, it got me thinking about the virtues and vices of casebook supplements more generally. And so I thought I'd sketch out, below the fold, what I see as some of the principal advantages and disadvantages of these enterprises--from the perspectives of authors, adopters, and users. But more than anything, I'm curious if folks agree with my lists--or think I'm missing obvious pros and cons to the world of the casebook supplement.

I.  The Virtues of Casebook Supplements

  1. Current-ness. This is the easy one: Like pocket parts in the good ole' days, supplements help to ensure that the classroom materials are current. In some fields, the value of current-ness may spring almost entirely from piquing student interest and curiosity by covering current "hot" topics. In others (like national security and counterterrorism law), current-ness is a virtual necessity, given how much the entire structure of the field can change in a short period (see, e.g., Edward Snowden), and not just how much individual aspects of the relevant doctrines can evolve. 
  2. Efficiency. It's certainly true, of course, that individual teachers can and should provide their own materials to satisfy the current-ness values noted above. But supplements are, from a market perspective, deeply efficient. Rather than having dozens of individual professors creating their own excerpts of overly lengthy opinions (I'm looking at you, Second Circuit), supplements centralize the labor.
  3. Continual pedagogical reassessment. It would be one thing, of course, if supplements were merely collated excerpts of new materials. But supplements also allow casebook authors to constantly revisit pedagogical choices made in the last edition--and to decide whether certain materials should be taught differently, whether in light of intervening developments or just further reflection. To that end, adopters and users of supplements benefit not just from the primary source materials excerpted and collated in the supplement, but from the pedagogical choices the authors make about which materials to include, how much those materials should be annotated with introductory discussion and/or notes and questions, and so on. As with everything else on this list, not all supplements are alike. But the more a supplement reflects a conscious choice about which (and how much of the) new materials should be included, the more pedagogically valuable it is as compared to DIY case excerpts.
  4. Making the next edition (somewhat) easier. Related but distinct from this last benefit, the work that authors put into the supplement should also, in theory, make the next edition of the book at least somewhat easier. After all, if the authors use the supplement as an annual opportunity to ensure that individual chapters are up-to-date and pedagogically coherent, it should be somewhat easier to produce a new edition once a critical mass of new material has accumulated. To be sure, the new edition of a book is likely to be more than just the sum of the previous supplements--but, based upon personal experience at least, it feels like a far lighter lift to plan a new edition when many of the updates have already been contemplated.

II.  The Vices of Casebook Supplements

  1. Cost to students. The vice of which I am the most mindful is the cost of supplements to students, especially in proportion to the supplement's utility. I've long thought that supplements are priced even more aggressively than the casebooks themselves, and have, at various points, declined to assign supplements because I was using too little of the material to justify the cost. My usual rule of thumb is that I need to assign at least 1/4 of a supplement before I'll ask my students to buy it, and even then, the supplement needs to do more than just excerpt cases. Of course, the increasing move toward electronic materials may mitigate at least some of these costs--but not get rid of them.
  2. Shelf-life. Related to the sticker price of the supplement is its terribly limited shelf-life. Although every book is different, over two-thirds of the material in our 2015-16 supplement, to take just one example, is new this year. Thus, supplements have zero resale value--and are, in many ways, a sunk cost to students.
  3. Labor costs. Given the above vices, along with information deficits (publishers aren't always on the ball about publicizing supplemental materials), the percentage of adopters who also adopt the supplement is never 100%, and may, in some cases, be far lower. And the lower that # is, the harder it is to justify the (often substantial) labor costs that go into producing a supplement. Again, every field is different. But speaking just for me and my co-authors, it took the better part of the past two months for the four of us to put together this year's edition--labor that we certainly enjoyed, but that is a fairly substantial investment. 

III.  Closing Reflections

I'm sure I've missed some obvious pros and cons in the above description, and would welcome folks' thoughts in the comments. I also suspect that the choice whether to assign a casebook supplement is deeply field- (and even casebook-) specific. And supplements play an increasingly interesting role in the potential transition to electronic course materials--perhaps providing real-time updates online will come to replace the annual print supplement (we already do both for our adopters). But insofar as these considerations can be generalized, the real question I keep grappling with is how we can maximize the upsides of supplements while minimizing their downsides...

Posted by Steve Vladeck on July 29, 2015 at 11:19 AM in Life of Law Schools, Steve Vladeck, Teaching Law, Things You Oughta Know if You Teach X | Permalink



There's quite a bit of research that would back up the idea that we wouldn't see much difference in quality between a book a professor is paid to write and one which is written on a pro-bono basis. I'd watch the RSA Animate video "drive" if you haven't already. Or the tl;dr: Linux is created by volunteers. Apache (which runs the majority of web servers) is created by volunteers. And just imagine if people demanded to be paid first before analyzing law school employment data! What a crazy world that would be!

While there's plenty of people who will put in the absolute bare minimum for their paid work, I suspect it's very rare to see many slacker volunteers (true volunteers, not those who have been forced into volunteer work).

But that's just the quality issue. Quantity is also important. It's really hard to say how many books there'd be on the market if the norm was to treat them on par with scholarship. Certainly professors already produce more than the bare minimum of scholarship without extra compensation. Odds are the market would just look wildly different. I can see writing an entire 500 page casebook to be quite a drag and something few professors would find pleasure in. But a 50 page chapter? I don't think it's too far fetched to think we would see a dozen or so chapters out there for some of the more popular topics. Surely there's professors who'd relish working on that sort of project. Maybe some of the more niche issues would only have 1 or 2 versions, but that could represent a huge improvement over the current market -- if the one Local Government Law text book (no idea if there actually is only one) doesn't happen to cover a topic, then it's not covered in any text book.

And perhaps those niche chapters would be a good place to start. Obviously what I'm talking about is a massive change to the market that's as likely to happen as a switch to DVORAK keyboards. But I remember plenty of professors assigning cases and articles on topics that went beyond what was discussed in the text books they'd chosen. Those materials could be compiled into a chapter and then sold at or slightly above cost. Once there's a few of those floating around, it's less of a huge leap to switch to a sort of modular text book model (it also cuts out a bit of the collective action problem).

Posted by: Derek Tokaz | Jul 30, 2015 3:24:40 PM

Derek, I 'm trying to argue, perhaps inarticulately, that I don't think the "part of the job" test is a useful line, as it's so hard to draw for a lot of what profs do. It's not considered part of the job if "credit" (whatever that means post-tenure) is the issue, just like the other items I listed above. But is it part of the job in some pure sense, regardless of credit? It just depends on how you think the test is for "the job.: On one hand, it seems like a law professorish thing to do: It relates to law schools, and to one's field. It can be used in teaching if you want to use it. On the other hand, a professor who decides to spend the time he would have spent on the casebook learning to play tennis instead will be no worse off from the standpoint of his employer. In my view, the better way to think about it is to consider the likely quality and quantity of casebooks if profs get paid for them versus if they don't.

Anyway, speaking of the job, I have an article to work on, so I'll let you have the last word. :)

Posted by: Orin Kerr | Jul 30, 2015 1:46:40 PM

I completely agree it's a very hard line to draw, possibly impossible.

Given that's the case, what is it about casebooks and supplements which makes them not part of the job?

Posted by: Derek Tokaz | Jul 30, 2015 1:19:00 PM

Derek, the hard part is that there is no clear line between "part of the job" and not "part of the job." Consider a few things I have done in the last 24 hours:

1) Read some new cases in my field that seemed interesting.
2) Write a blog post about one of those recent cases.
3) Write blog comments in this and other blog threads.
4) Read a law review article, not in my field, that seemed interesting.
5) E-mail with some colleagues about legal education.
6) Comment on a listserv about a recent case in my field.
7) Tweeting about new legal stories, checking twitter for new legal stories
8) Reading some of the briefs filed in a pending case in my field.
9) Reading materials for a conference call on an outside committee I'm on.

Which ones of these things are part of the job, and which ones are not? None of them? All of them? Did I spend all day working, or did I spend all day procrastinating and avoiding real work? I don't know.

Posted by: Orin Kerr | Jul 30, 2015 1:12:08 PM


Regarding the credit question, it gets to the larger issue of what ought to be considered part of the job, and what should be considered purely extracurricular. That distinction is pretty important when it comes to considering ethical economic models for legal education. If writing course supplements or casebooks, or doing other non-scholarship writing is considered 'part of the job,' then there seems to be something very perverse about expecting to be paid even more on top, especially when the pay is coming directly from students who've already paid for that job once.

If it's not 'part of the job,' then there's much less of an ethical issue on the sales end. It's the production side where ethical problems could pop up, as law schools (read: law student tuition dollars) shouldn't be going to support a professor's hobbies.

What really muddies the waters if the nature of academic work. It has significant degrees of self-direction and a quasi-entrepreneurial nature. This means we shouldn't immediately dismiss anything that is not a formal requirement as not being 'part of the job.' I have a tabletop games consulting business, and while my clients don't require me to travel to tournaments or write strategy guides for completely unrelated games, it's definitely 'part of the job' because to do the job well I need to network, study strategy, build a reputation, learn how a game's meta operates, etc. Of course, being a professor isn't wholly like being an entrepreneur (the steady pay check is a bit of a giveaway), but there are some very common elements. You'll do things beyond the bare minimum in order to build relationships, gain prestige, seek a promotion, leave a legacy, or even just be better at your job because that itself is rewarding.

Perhaps a better way of framing this would be to ask which tasks a professor performs are distinct from the job of being a professor, and which are supererogatory. When you write a course supplement, do you feel like you're moonlighting as a supplement writer, or that you're a professor who's going above and beyond the call of duty? Not that supererogatory work shouldn't be compensated -- I don't have a problem with bonuses. But, it could have serious implication for how the compensation model works.

And now for something totally unrelated: If so many professors really do dislike writing casebooks, and they recognize the value of having a very good casebook, and they also recognize that $200 is an insane price to ask students to pay, could a Kickstarter or other crowdfunding model work? Would professors who would likely be assigning the book be willing to kick in $250 each (basically the price of a single text book) to pay the authors, who in turn agree to make it available at a very low price, something like $5 download, $30 printed? [Just doing a little back of the envelop math, for core courses, if the book is adopted by just 10% of the market, and each of those schools has 2 professors teaching the subject, that 40 profs contributing $10,000. Is $10k enough of an incentive to write a case book? That's on par with a summer research stipend.]

Posted by: Derek Tokaz | Jul 30, 2015 12:59:44 PM

Derek, no, I don't generally use secretarial or research assistance for my casebooks. I have hired students to check a casebook draft for typos and other copy-edit-type issues. That was helpful. But I haven't done that for casebook supplements, which I think is the subject of the discussion here.

On the credit question, I think the discussion is a little misplaced. First, after tenure (when most profs consider casebooks), I'm not sure what it means to get school/internal "credit" for things. A pat on the back from the Dean? A gold star on your office name plate? Second, I think the relevant issue is what what projects are desirable for academics figuring out how to spend their time, rather than what leads to internal "credit." Paiting with a broad brush, those profs who do pro bono legal work usually do so because it is enjoyable and personally satisfying. Those who consult usually do it for the cash. Those who serve on an outside committee find it satisfying, and in many cases the service is also considered important and commendable within the academy. The challenge with casebooks is that for most authors, writing a casebook is neither particularly fun nor considered prestigious within the academy. Your answer might be to just change perceptions of what is prestigious, but that is not easy to do.

Posted by: Orin Kerr | Jul 30, 2015 12:00:27 PM


Did you not have research or secretarial assistance for your casebooks? Or were they just paid for by someone other than the school?

As for there being credit for blogging, of course they don't see it as a 'substitute' for a professor's job, but as has been pointed out on these pages before, a professor's job can be quite broad, especially when looking at the service aspect, which would include service to the school, the profession, and to the community at large.

Of course this may just be a case of mileage varying depending on what school you're at, but if your school gives some credit for pro bono legal work, or serving on an outside committee, or doing consulting, it should not be too difficult to get it to consider working on a casebook to be either service directly to the school, or to the profession.

Posted by: Derek Tokaz | Jul 30, 2015 8:38:17 AM

Steve, if you weren't publishing through a major commercial casebook company, it would be much easier to make this decision on the merits. You'd weigh the good to students of each updated case and note against the time it would take to write it, and go with a set of changes that seemed likely to justify the work. That's what I do with my Semaphore casebook; it's also (not coincidentally) the same kind of trade-off I make when I'm preparing a coursepack for a course I teach. It really is that simple, and all you need to do to get off the treadmill and out of the world where pricing and publishing cycles distort the issues is to terminate your contract with Aspen when you get the next chance to do so. Join us in the world of indie casebooks. Life is much easier here for professors, and a lot cheaper for students.

Posted by: James Grimmelmann | Jul 29, 2015 3:54:54 PM

As the risk of making a point that's obvious, we do lots of things using university resources that are unquestionably parts of our jobs as law professors, but that don't count as "scholarship." (Service on committees. Advising students. Preparing lecture notes and slides. Teaching.) I certainly think of working on my casebook as part of my job (corollary: it is a work made for hire subject to the university's copyright policy), but not as a part of my job for which I get scholarship credit. At least on my faculty, both casebook authoring and blogging count in a tenure determination, but they don't count as scholarship.

Posted by: Jessica Litman | Jul 29, 2015 3:32:34 PM

Derek, I can only speak as to my experience as a casebook author, but the only one of the university resources you list that I use in preparing supplements is the Westlaw access.

You also write: "Aren't schools beginning to accept blogging as a part of a professor's job? If so, surely making the case for writing text books shouldn't be so hard." In my experience, the answer is no. Professors who blog don't get any 'credit' for blogging: It's just a side hobby for those who enjoy it. If professors want to blog instead of picking up golf or crochet, the law school won't actually stop them. And the school might actually have a page on the law school website listing the blogs because they think students might be interested. But the schools don't see blogging as a substitute for a professor's job.

Posted by: Orin Kerr | Jul 29, 2015 3:17:41 PM

Oh, sorry to have misunderstood. As to whether the free posting of supplemental materials will prompt publishers to add the cost to the textbook fee . . . do they actually have any appreciable costs? Isn't it virtually nil?

Posted by: Marty Lederman | Jul 29, 2015 2:06:23 PM

Marty -- I was talking there about _all_ course materials, including the book itself. We can certainly aim for a world in which supplements are posted online for free; I just suspect that publishers would find a way to fold the cost of creating and producing the supplement into the underlying price of the book. But maybe they wouldn't...

Posted by: Steve Vladeck | Jul 29, 2015 2:00:57 PM

Very understandable that casebook authors would want to be paid for their work, on top of their salary. I simply can't imagine how making the supplement available online would have the slightest impact on the terms of the contract that you had already signed with the publisher (unless, of course, the publisher informed you, ex ante, that it would give you more $$ if you agreed to charge for the supplement, too).

I must be misunderstanding something, Steve, when you write that "if we didn't charge for them _at all_, one of two things would happen: (i) folks would rely upon open-source materials that would likely be of far lesser quality; or (2) folks would rely upon self-created materials, the quality of which would likely be directly proportional to the time spent creating them." I would think that if you made the supplement available for free, *more* teachers and students would assign - and pay for -- your casebook, not fewer.

Posted by: Marty Lederman | Jul 29, 2015 1:57:33 PM


I know that RAs are paid. I've been a paid RA (granted, I was paid less than what the university's student expense budget estimated I needed each month to live on, but that's beside the point...). It's a question of who is paying these RAs. If the school is paying for them, then it would seem to be some sort of acknowledgement that writing case books and supplements is part of the professor's job. It would be odd for a university to hire an assistant for a professor's extracurricular activities, no? It would be equally odd for a university to make a gift (of RA time) to a for-profit publisher.

As for it not changing soon, the best time to plant a tree is 20 years ago. The second best time is now. Aren't schools beginning to accept blogging as a part of a professor's job? If so, surely making the case for writing text books shouldn't be so hard.

Posted by: Derek Tokaz | Jul 29, 2015 1:54:30 PM

Jessica -- This is very helpful, thanks! My own (anecdotal) experience is that we have very little say over how the publishers price what we produce, but perhaps that's only because we haven't tried hard enough.

Derek -- I can't speak for anyone else. I don't use RAs (who are, in any event, paid for their work) for my casebook. I guess I do use my Westlaw account and my school-provided e-mail, but the larger problem seems to me to be the extent to which casebooks _aren't_ seen as scholarship at most law schools. Whether that's _right_ or not is, methinks, a different (and important) conversation. But I sure don't see it changing anytime soon...

Posted by: Steve Vladeck | Jul 29, 2015 1:45:30 PM


Based on the Preface section of casebooks, usually at the very end, or occasionally the Acknowledgements section. It's extremely common for student research assistants as well as secretaries (who happen to also be secretaries at the professor's university) to be thanked. Perhaps these people are drawing a second pay check from the publisher, or are paid out of pocket by the professor, but that just seems unlikely.

Like I said though, it's a guess. If in fact these people are paid by someone other than the university, I'd more than welcome hearing about how that works. It might be a little tougher to explain when a professor thanks the university for their financial support though.

Posted by: Derek Tokaz | Jul 29, 2015 1:42:21 PM

The Casebook I co-author is published by Lexis Law Publishing. Our annual supplement, like most of Lexis's supplements, is made available to teachers and students as a free download. Because we (me and my coauthors) were concerned about keeping the price of the book more nearly affordable, we asked Lexis to price the book inexpensively. It still isn't cheap, but at $125 for the bound volume and $75 for the looseleaf and ebook versions, it is cheaper than many other casebooks. One of the things that Lexis said in response to our request is that most of their casebook authors want their casebooks to be priced at the top of the range because high price signals excellent quality. (I have trouble believing that that's as widespread and Lexis said that it seems to be.) If that is even a little bit of the reason that casebook prices have spiraled out of control, then authors of casebooks have tools at their disposal to begin to reverse the trend. We are also beginning to see excellent course materials published more cheaply (check out Semaphore Press at www.semaphorepress.com, which publishes its casebooks as drm-free pdf files and puts out an integrated new edition rather than supplements, because it's no more expensive and easier for the students) or released as open source materials (see, e.g., Barton Beebe's open source casebook at http://tmcasebook.org/).

Posted by: Jessica Litman | Jul 29, 2015 1:28:12 PM

Derek: "I'd venture to guess that most people writing case books or making supplemental materials would answer Yes to all, if not most, of those questions. "

Venture to guess based on what?

Posted by: Orin Kerr | Jul 29, 2015 1:21:26 PM


When you create these course materials, are you using university resources to do so? Do you work on it in your office? Do you use a computer provided by the university? Do you use university printers? Use the library's resources? Use a Lexis or West account provided as part of your faculty position? Ever have a research assistant paid by the university? Regularly work on your course materials during normal business hours? Ever work on them during your posted office hours?

I'd venture to guess that most people writing case books or making supplemental materials would answer Yes to all, if not most, of those questions. If so, then it is part of your job as a professor. It's too bad that your university doesn't recognize it as scholarship and part of your faculty duties, but then the solution isn't to charge the kids (who have already paid for this material through your salary) or ask to be compensated twice for the work. The solution is to get your school to recognize what the work is. They already include publishing text books as part of their press releases and faculty highlights, so this shouldn't be too hard of a case to argue.

Posted by: Derek Tokaz | Jul 29, 2015 1:16:10 PM

All the casebooks I use email the supplement to me each semester and say "share this with your students." I put it on the TWEN page. Of course, none of them has anywhere near 500 pages.

Posted by: Jennifer Hendricks | Jul 29, 2015 1:10:06 PM

Derek -- Speaking only for myself, I think there's a rather significant difference between producing scholarship and producing course materials, at least from the perspective of the incentive to the professor. Most of us _have_ to produce scholarship as part of our contractual (and professional) obligations, and, to that end, receive salaries that are based at least in part on incentivizing / supporting our scholarly production.

Course materials are different. Because most schools _don't_ count them as scholarship, the incentive structure is rather distinct. I'm sure I have some professional colleagues who happily create and disseminate course materials for free (and, indeed, I've done that for students in my seminars at various points in the past). But the amount of labor and effort required to produce _good_ course materials strikes me as too significant to rely upon altruism--hence the arrangement in which professors create materials qua casebooks, the profits from which provide the incentive to the authors to not only create the book in the first place, but to keep it up to date.

I don't mean to thereby endorse the current model or pricing structure for course materials; I just mean to suggest that, if we didn't charge for them _at all_, one of two things would happen: (1) folks would rely upon open-source materials that would likely be of far lesser quality; or (2) folks would rely upon self-created materials, the quality of which would likely be directly proportional to the time spent creating them.

So if we _are_ charging for materials sold on the open market, the question I'm trying to raise in this post is how best to account for the economic and non-economic costs and benefits of supplements. And for the reasons I've suggested in these comments, posting them online and for free doesn't strike me as the answer.

Posted by: Steve Vladeck | Jul 29, 2015 1:01:28 PM


How is it unsustainable? Professors make tons of materials available for free all the time. There's an entire website dedicated to this called SSRN. You've got like 40 papers on there right now. Is that model unsustainable?


I think the more likely reaction from publishers is that they'll ramp up the price of text books to respond to the longer time frame between new editions and the more robust secondary market that would be created. But that's just all the more reason why professors should be keeping their text book publications in-house.

Posted by: Derek Tokaz | Jul 29, 2015 12:50:11 PM

I think Steve's point is that the textbook publisher will increase the price of the book to account for the "free" supplement (TANSTAAFL) -- which I take it Marty acknowledges (in suggesting that that the supplement will be "factored into the price of the casebook itself."

The only question is whether the price increase will be limited to the accounting cost of creating the supplement, or also include an additional profit designed to soak up as much as possible of the consumer surplus from the supplement.

Posted by: William Baude | Jul 29, 2015 12:42:41 PM

We certainly _could_ put the supplement materials online for free. But unless we limit access to folks who have purchased the casebook (which, presumably, would require the publisher--and would lead to the front-ending of the same cost concerns), we'd then be providing course materials for free not just to those who have purchased the original book, but those who have not. That strikes me as an unsustainable model for course materials (and one that would be hard to convince authors to participate in, no?).

Posted by: Steve Vladeck | Jul 29, 2015 12:36:00 PM

Can't you just make a PDF of the supplement available for free online? Why the need to go through the textbook publisher?

Posted by: Derek Tokaz | Jul 29, 2015 12:32:26 PM

That's why I said *freely* available. Don't charge them.

Posted by: Marty Lederman | Jul 29, 2015 12:27:19 PM

Marty -- I actually think that would make the cost issue worse, since presumably publishers would charge _all_ students for access to supplemental materials, as opposed to passing that decision off to individual adopters... At least as currently constituted, there's the prospect that individual adopters can decide that a particular year's supplement just isn't worth it...

Posted by: Steve Vladeck | Jul 29, 2015 12:17:36 PM

Isn't the simple solution to the "vices" simply to make the supplements freely available on the web (or at least freely available to students who have purchased the casebook)? I know some casebook publishers do that. The costs of creating the supplement (minimal other than the authors' time, right?) could then be factored into the price of the casebook itself (which usually is, of course, already absurd).

Posted by: Marty Lederman | Jul 29, 2015 12:14:15 PM

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