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Wednesday, July 15, 2015

Why Don't We Just Have Students Print Out Materials from Lexis and Westlaw?

When I decided to try to teach an "open source" civil procedure class, I had two broad motivations.  First, I am very aware of the high cost of casebooks, and I was interested in minimizing (or possibly even eliminating) these costs for my students.  Second, as a procedure nerd, I wanted more control over how I taught my class. I'll return to that motivation in later posts.  In this post, I'll address one particular facet of the cost question: why not just list cases and leave it to students to find/consume this material? 

Periodically, commenters on this (and other) law blogs will wonder why professors assign casebooks at all. Students could just get the list of cases and statutes from the professor, print them from Westlaw or Lexis, and read them on their own.  This is an argument worth taking seriously.  After all, most of these materials are publicly available.  Some are proprietary to Lexis or West, but students have already paid for this access when their tuition dollars are used to purchase their student subscriptions to these services.  Why pay twice for materials that are often in the public domain?  

There are a few good reasons not to take this approach to open source teaching.

(1)  It doesn't completely eliminate cost.

Printing is not free.  Most schools have limits on how many pages students can print per semester, and asking students to print out dozens (if not hundreds) of unedited cases would quickly exceed that limit.  Students could print the materials at home, but again, the volume of material to be printed would require a high quality printer and lots of expensive toner.  Although some students might be comfortable reading the material from a computer screen or tablet, many students might still have a justifiable desire for hard copies of material, forcing them back onto the cost of printing.  Finally, if the professor wants to give an open book exam, school rules on the use of tablets and computers during a final might mean that students using an e-reader might ultimately need a paper copy anyway.

(2)  Unedited Cases Can Be Difficult and Distracting

Printing a case straight from the source means that students will have to sift through all sorts of extraneous material:  lengthy captions, the syllabus, headnotes/key notes, long string cites with parallel citations, and text and discussions that are not relevant to the specific holding/issue for which a case is being taught.  In practice, students will ultimately need to develop the skill of reading unedited cases.  One place they may learn to do that in law school is in a legal research and writing class, or in an upper level research class.  But in a doctrinal class, where most of us already feel pressed for time to cover material, it does not seem like a great pedagogical choice to force students to direct energy towards sorting the relevant from the irrelevant.  While I could make a detailed syllabus telling my students, "read this, don't read that," I feel that it is my obligation as the professor, and not their obligation as the student to make these microedits as they go along.  Although I do not doubt that there are a few students who would make this trade off, I would not foist it upon all of my students.  There is something to be said for ease of reading, both in terms of content and in terms of visual presentation.  I want to be able to offer that to my students so that they can concentrate on the facts, doctrine, and arguments.  Moreover, it's useful to have a a uniform format so that the whole class and the professor are, quite literally, "on the same page" during lecture and class discussion.

(3) Don't underestimate the value of the interstitial materials and/or notes and comments in the casebook.

I think it is a common belief among students that their course materials are just a collection of cases, and that all other text in the textbook is secondary (or perhaps even unimportant).  I will say that I also subscribed to some form of this belief -- it was part of what led me to think that it would be easy to create my own materials by just providing a collection of edited cases.  Having put the materials together and taught the class for a few times, I can now say how wrong this is.  The context and background that such materials provide -- however brief, is crucial.  Students who skim or ignore this material do so at their own peril.  Students who skim introductory material believing that it is not as important as the cases may be correct in their assessment, but may undervalue the context that such material has given to the subsequent reading.

Many professors differ in how much background material they want to provide, and this is why different casebooks have vastly different approaches to narrative text and notes and comments after cases.  But providing the students with zero context or notes of a few additional decisions was simply not an option for me.  Moreover, there are some topics in civ pro that really do not lend themselves to teaching exclusively through cases.  Take service of process under Rule 4.  The number of cases it would take to illustrate all of the moving parts is way out of proportion to the importance of a topic.  A solid summary of the rules and their applications is sufficient.

In a future post, I'll explain how I've dealt with the problem of interstitial materials while making the transition to open source.  For now, suffice it to say that this is a barrier to a simple "list and print" approach to teaching an open source class.

Posted by Robin Effron on July 15, 2015 at 05:43 PM | Permalink


Actually, we do let people download for free. That $30 price I quoted is actually just the suggested price for a pay-what-you-want download. We think it's a fair price for the book, but anyone who disagrees is free to pay less or nothing.

As for the value added by Semaphore, it's run by a pair of law professors who teach and write in areas the book covers. They give it an excellent edit every year. So it's a better book through Semaphore than it would be on its own.

But you make a good point about self-publishing. I'm also contributing to some casebook projects that will be free downloads, and I know of more that other people have in the works. Models based on one or more of DRM-free downloads, open licenses, and optional payment strike me as the future of casebooks.

Posted by: James Grimmelmann | Jul 18, 2015 5:55:50 PM


Since you're doing PDF downloads, why not just self-publish and let people download for free? How much value do you see Semaphore adding to what you've already written?

Posted by: Derek Tokaz | Jul 18, 2015 10:48:02 AM

My sense is that the principal reason most professors who publish casebooks do so with the major publishers (Aspen/WoltersKluwer, West/Foundation, Lexis, and Carolina Academic Press) is inertia. That's where the books they're familiar with are published, so that's the model of "a casebook." These companies also have representatives who regularly ask professors whether they have any casebook proposals they'd like to publish. Going with a major publisher is easy; it's the default.

But that's in the process of changing, and rapidly. Professors' awareness of the unacceptable cost of casebooks, historically low, has been growing quickly in recent years (especially after Aspen's Connected Casebook controversy last summer). It's not just that professors like Robin are putting the work into developing their own materials to get away from high-cost casebooks, it's also that they're developing low-cost publishing models to make those materials widely available in high-quality versions. My own publisher, Semaphore Press, sells DRM-free PDF downloads for $30. James Boyle and Jennifer Jenkins are on the second edition of a Creative Commons-licensed intellectual property casebook; in addition to the downloadable version, they sell a paperback print-on-demand version for $35 through Amazon CreateSpace. Add to that Harvard's H20, CALI's eLangdell, and more, and the infrastructure for distributing cheap and free casebooks is better than ever.

Posted by: James Grimmelmann | Jul 18, 2015 8:54:17 AM


The issue with law students not reading may have little to do with the format of the texts. I doubt the printer barrier is going to have much of an effect.

Most law students are willing to put in a great deal of effort. After all, these are kids who generally did very well in undergrad, not a group of slackers. However, they do have limited time, and I think it's most commonly a strategic decision to not read. They may have more pressing work, know that they're not getting called on that day, and the professor may be so inconsistent with what's being covered that reading doesn't necessarily prepare you anyways.

In so far as the printer barrier really does discourage law students from reading, the custom course pack solves that problem.

Posted by: Derek Tokaz | Jul 17, 2015 11:15:45 AM

If you want to abandon casebooks and have students print and read, then I have one simple question: why should I think that students will take the time to do that, when they often fail to complete the assigned reading in the text? It seems to me that that is the real problem.

Posted by: Anon | Jul 17, 2015 10:40:44 AM


I don't doubt that there are many excellent case books out there. What people have a problem with is the cost. $200 for a book is outrageous.

What I'd really like to know is how many professors who write text books count that writing as part of the scholarly duties of their job. If they are, why isn't the book being printed by their university press and sold marginally above cost? These things could easily be brought down to the $40-50 range.

Posted by: Derek Tokaz | Jul 16, 2015 11:02:28 PM

I'm surprised that no one in the comments has made the argument that some casebooks are really good. A lot of my casebooks were pretty uninspired, but Hart and Wechsler is a classic. Fisher on Evidence is excellent. I suspect that many law professors, notwithstanding their abilities as scholars, writers, and teachers, don't have a great knack for organizing a complex set of materials, nor the desire to spend their time on collating interstitial materials between important cases, e.g., summarizing the holdings of cases that don't merit lengthy excerpts, or writing terse synopses of disagreements among the lower courts or in the literature. Even knowing what to excerpt and what to leave out requires considerable skill and a certain discipline; a professor might find much of note in passages that are ancillary to the key teaching points at hand. I think law students would suffer in many instances if professors discarded the best casebooks, or even some relatively mediocre ones, and took it upon themselves to produce packets of materials.

Posted by: Asher | Jul 16, 2015 8:51:09 PM

That's a lame limit, but in the face of high book costs, why not adjust one's book-marking-up-practices? It makes sense that profs should make their own materials to reduce excessive book costs. It makes less sense that profs should generate their own casebook to ensure that students can heavily mark it up.

Posted by: Rentals? | Jul 16, 2015 5:28:18 PM


From Amazon's rental policy:

"As a courtesy to future customers, we ask that you limit your writing and highlighting to a minimal amount. If we determine that the book is no longer in acceptable rental condition when you return it, including because of excessive writing or highlighting, you will be charged the full purchase price, less any rental fees and extension fees you have already paid, and we will ship the book back to you to keep."

Limit writing and highlighting to a minimal amount? Obviously don't have law students in mind.

Posted by: Derek Tokaz | Jul 16, 2015 3:56:19 PM

I have also tried to work through these problems, particularly with statutory supplements I allow students to bring into class. They aren't as expensive as casebooks, but definitely more expensive than the paper/toner. Online statutes are generally not edited or formatted well (you may have to cut and paste hundreds of sections into one document).

One twist I have run into when having a syllabus of cases/article with Westlaw cites versus editing the cases/articles and posting them: at one point at a particular law school, students paid to print on the regular law school printer, but not from the Westlaw printer. So, students would rather print out the unedited case for free than the edited version.

Posted by: Christine Hurt | Jul 16, 2015 2:37:19 PM

What about the cost of rental books? I just looked at a very expensive new edition on Amazon that new costs $190, used costs $140, but can be rented via Amazon for the semester for $25. Is there a hidden problem with the rentals?

Posted by: Rentals? | Jul 16, 2015 2:15:13 PM

Texts and casebooks are for a defunct era. One can teach student more effectively referring to cases and law review/journal articles. Moreover, you will be giving the students up to date material not only cases from prior years.

Posted by: J.R. | Jul 16, 2015 1:18:46 PM


I don't think that does much to solve the problem. It's like when a professor recommends a specific study guide for his class. While it's technically optional, there's no real option if you want to be competitive come exam time.

Posted by: Derek Tokaz | Jul 16, 2015 12:59:19 PM

Presumably an easy out here would be assigning an optional casebook, no?

First day of class just say: "The syllabus has cites to all the cases I'm going to have you read. These are also in the optional casebook, which also has notes that you may find useful. You do not need to purchase a casebook, but you may find it preferable to have a printed copy of the assigned cases and supplemental notes. The cases are also edited down in the casebook, which may save you some time on the reading. I will leave it up to you."

I've also heard one professor say that he prefers unedited cases because that's what you have to deal with in practice, although I'm unsure if I think that there is merit to that line of thinking.

Just spitballing though.

Posted by: The Most Interesting Breh in the World | Jul 16, 2015 12:37:59 PM

Any thoughts on why self-edited materials aren't the norm for law schools? I mean, there is the cynical answer that there's no direct benefit for many professors to do so.

Any less cynical reasons?

Posted by: Derek Tokaz | Jul 16, 2015 11:08:12 AM

P.S.: Here's the link to my first post explaining my motivations for teaching open source civ pro and linking to my posts from a couple years ago. I should have included it in this post as well for clarity, so I apologize for any misunderstanding. http://prawfsblawg.blogs.com/prawfsblawg/2015/07/teaching-open-source-civ-pro-a-recap-and-a-revisit.html

Posted by: Robin Effron | Jul 16, 2015 9:41:10 AM

Hi, Derek.

To be clear -- this post was about why we shouldn't choose a "list and print" method. As you'll see from my previous posts (and future posts), I have opted precisely for what you advocate: editing cases myself and distributing them in that format. I'm looking forward to your feedback on those decisions as well, because as you'll see, there are still decisions about cost and format that need to be made at each point.

Posted by: Robin Effron | Jul 16, 2015 9:37:53 AM

None of these reasons really stands up to even basic scrutiny.

(1) Still costs to print.

Sure, but it's not like the costs are at all comparable. A new Con Law text book will run you about $225, and that's about 1500 pages long. I'm just going to use my own printer for comparison. A Brother TN221BK toner cartridge costs $58 (assuming Amazon Prime membership), and yields 2500 printed pages, so let's call that $35 in toner. A case of 20lb HP printer paper will be about $20 for 4500 pages. Assuming duplex printing, that's another $3.33 on paper.

Printing the case book would be less than $40, compared to $225 to buy it. Even if you're getting a steep discount on a used book, printing is going to cost you less than half. Not to mention many classes skip a lot of material (I don't think we read close to 1500 pages in con law), so the actual printing price will more likely be in the $20-30 range. Hey, $20 isn't nothing, sure, but it's pretty darn close.

There's also the upfront cost of the printer. I have a very good one, bought specifically to keep my price per page low. It was about $200. Or, you know, the cost of a single case book. Not a huge investment, and it'll keep being useful for years to come. (Law school is also going to require you to print a ton of stuff anyways, so you'll benefit by having a good printer either way.)

(2) Unedited cases suck to read.

So edit them. Either do it yourself, or hire a few research assistants at $15/hr to do it for you and just double check their work. Then distribute the edited cases as pdf or word docs.

You could also get a few professors together to share the workload. Sure, you're not all using the exact same cases, or want them edited exactly the same, but after you've done one, share it with the group, and if they like it they don't need to edit the same case themselves. If 1Ls can make study groups work, professors should be able to pull this off.

(3) The notes have value.

Yeup. And the ideas aren't proprietary. You can express the same or similar ideas in your own words, and attach that to your pdf copy of the case. Surely this is a task someone teaching the material can manage. And again, you and your working group of other profs can share your notes to cut down the workload.

(PS) This has already been done, and the costs can be even lower.

Once you've got your cases selected and edited and the notes added, see if your university will print copies and distribute them through the bookstore as a course pack. A professional press can print at a far cheaper rate than even a very efficient home printer, plus add some basic binding. One of my professors did this and the books for the class ran about $12.

I suspect the real reason the vast majority of professors don't do this is simple: They aren't paid to.

Posted by: Derek Tokaz | Jul 16, 2015 9:32:40 AM

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