The Volokh Conspiracy

Conflict of Interest Scandal Rocks Volokh Conspiracy

and hundreds of law professors' offices throughout the country. Lawprof Ian Ayres complains, in the New York Times, about textbook prices -- a matter on which I express no opinion -- but goes on to say this:

[A]t the moment, professors' incentives in choosing textbooks are in some ways more distorted than doctors' incentives in choosing drugs. You see, I earn a $10.30 royalty on every copy of my textbook that a student buys. Instead of just trying to get the best book for my class (and to do so I should weigh both quality and price), I might also consider assigning my own book and increasing my profit.

This is a self-dealing transaction, which would be presumptively illegal if professors owed a fiduciary duty to students. Some professors realize this and donate to charity the royalties they earn when they assign students their own books.

So this year, I am going to do something different. I will give $11 to each of my contracts students who buys my book. That way, we will all know that I assigned the book for the right reason. The textbook isn't included with my students' tuition, but at least in my contracts class the royalty will be.

I actually worried a little about this when deciding what to do when teaching my own First Amendment class. Anyone trained to worry about potential conflicts of interest should indeed spot this one.

But on reflection, it struck me that the conflict of interest is illusory. Presumably I sincerely think that my textbook is the best one, quite apart from the modest money I make from textbook sales. It takes a tremendous amount of time to write and maintain a textbook -- probably in the thousands of hours, at least in the high hundreds. I make several thousand dollars from the textbook a year; I didn't write the book for the money. Rather, I wrote it because I thought I had a better way of organizing the material. The volume of effort, and the very modest financial reward, is a pretty good sign of my good faith. Perhaps this is different for some of the most popular undergraduate textbooks; but I suspect that the great majority of all textbooks make their authors only a fairly small amount of money.

Now it may well be that I'm wrong, and that other textbooks are better. (It's pretty clear that lots of other law professors think so!) But in any event, if my judgment is clouded here, it's clouded by my inflated ego, not by filthy lucre. And beyond that, even if other textbooks may be better for others to teach from, my textbook is probably better for me: I at least know my textbook inside and out, and can teach more effectively from it as a result; plus at least this way students don't get conflicting messages from the teacher and the book. (There is an argument that it's better for students to occasionally get such conflicting messages, but on balance I find that argument unpersuasive.)

So I don't think we need to worry too much about professors' judgment about which book to assign to their own student being swayed by their financial interest. I think people ought to indeed think about such potential conflicts; but here, there seems to me to less than meets the eyes. Aeon Skoble makes a similar point; Paul Caron blogs some more on it.

Commodus:
What a sacrifice! Ian Ayres gets to write a self-aggrandizing article in the New York Times, all for the low, low price of $11.
9.20.2005 3:08pm
Goober (mail):
My law school's song-and-dance revue had a couple of songs about this very subject: one called "The Farnsworth Math" (after the widely assigned contracts casebook and adopting the tune of "The Monster Mash") and a second set to the tune of the Divinyls' sole hit, employing the chorus, "I don't cite anybody else, when I teach my classes I assign myself" or words to that effect.

As for the more central concern, I don't think you've really shown that (a) Professor X having determined, ex ante, to edit a casebook actually entails (b) Profesor X finding, ex post, the finished product to be the best there is. Scholars often undertake to outdo what they cannot, and although we might admire the ambition, we'd nevertheless be insulted if Chermerinsky thought he'd outdone Hart &Wechsler, for instance.

But in any event, even if you had proven that the supposed conflict were illusory, it shouldn't make any difference whether the professors were paid or not for the books, so why not give the money back to their students and prove that they don't believe they're in it for the profit, either?
9.20.2005 3:15pm
Cecilius:
Gee, and here I thought that my professors were bright and hardworking folks because their names appeared on my textbooks. Silly me. They didn't write those textbooks so they could be better professors - it was all just a big scam! I smell a class action suit in the pipe. Perhaps Professor Ayres could represent us. The retainer agreement will pay him $11 after recouping his costs - and then we'll pressure him into giving it back to us.

Seriously, who cares. As someone who went to a mid-tier lawschool (1) I was impressed that my professors knew the subjects they were teaching well enough to write casebooks and treatises on them; and (2) I knew they weren't millionaires. If I was going to pay a royalty to someone, I'm glad it was them.
9.20.2005 3:16pm
Goober (mail):
$11 times the (certainly non-trivial) number of his students. Probably the true figure is in the range of $500 per class.

And as all we former journal editors know, professors can always publish self-aggrandizement for free.
9.20.2005 3:17pm
Simon (391563) (mail) (www):
Actually, it is $11 per student, which in a first-year class could amount to a fair amount of money. I had a professor do the same thing when I was in school (only donating the dollars to a charity -- I think our summer fellowship program -- instead of refunding them) and it probably cost him several hundred dollars per semester.

Is this required? No, because as Eugene and everyone else recognizes, the conflict such as it is should hardly disable a professor from using his or her own work in class. But it was a welcome gesture nonetheless.
9.20.2005 3:18pm
Gene Vilensky (mail) (www):
Really good point, Eugene. I thought about the same thing myself when reading Ayres' quote. I think that Ayres likes to engage in public hand-wringing over really trivial issues that upon examination sound ludicrous. The first example was his claim that single-sex bathrooms violated the equal-protection clause. This is the latest installment.
9.20.2005 3:21pm
MDM (mail) (www):
I had two professors in undergrad who assigned their own books. Both effectively declined royalties. One actually gave students a crisp $5 bill on the first day of class as reimbursement. The other wrote a check for his royalty amount times the number of students in the class to the campus chapter of Habitat for Humanity.

It's a little different ball game in law school, I think, especially for casebooks, where there are for many classes, maybe 2 or 3 options out there.
9.20.2005 3:24pm
Alfred Brophy (mail):
I teach at a state school and any time we want to assign our own material, we have to make arrangments with our publisher to sell the materials to the bookstore at their cost (so that we don't receive any royalties). The state ethics commission has ruled that assigning books for which we'll receive royalties is abuse of our position of authority.

I would have suspected that most states would have similar rules. And even if they don't, I would think that giving up royalties (which as Professor Volokh points out are pretty small anyway) would be a good gesture towards our students.
9.20.2005 3:33pm
Commodus:
Gene hit the nail right on the head. I had Professor Ayres for contracts, and he was quite good. That said, most of what he has written about (particularly in the New York Times) is trivial. This piece is not merely trivial; it screams out "hey, look at me, I'm a good guy and I need validation."
9.20.2005 3:36pm
John Wismar:
I actually disagree, to some extent, that using your own textboox in your class is always a benefit. When I took Intoduction to Differential Equations at RPI, I had Dr. Boyce, who used his own book. I followed the lectures to the best of my ability, but if I had difficulties with any of the in-class examples, I was out of luck. Why? Becuase I'd go to read the relevant section of the text, and find he had used the same example I hadn't understood in the first place....
9.20.2005 3:46pm
Aeon J. Skoble (mail):
"The state ethics commission has ruled that assigning books for which we'll receive royalties is abuse of our position of authority."
But it's not. If I wanted to abuse my (dubious!) "authority" for self-enrichment, I'd make students buy me scotch, or whatnot. I assign books based on whether I think they serve course needs, and right or wrong, that's my call, not anyone else's. If in my judgement, the most suitable textbook is my own, which would probably be why I produced one in the first place, that's the proper thing for me to order. Denying me the royalty thus serves no purpose but to be punitive. It's presumably ok for me to earn royalties if a colleague orders the book. I see no reason why I should not. As commenter Cecilius points out above, students should find it impressive that they have a prof expert enough to produce a publishable textbook in the first place, and they'll be paying royalties to someone no matter what. There is no "conflict of interest" - so the State's heavy-handed attempt to solve the non-problem is likely pandering to yahoo concerns about unscrupulous profs, etc.
9.20.2005 3:53pm
Scipio (mail) (www):
At Ole Miss, a few professors were notorious for assigning their own books. They did happen to teach topics for which they were the accepted state wide authority, however, which tended to mitigate the feeling that you were paying them an extra gratuity.
9.20.2005 4:06pm
Daniel-San (mail):
A greater danger may be that other professors on faculty feel obligated to assign a book written by a colleague. I know this happens, even when they don't believe it is the best book. (O.K., I know of one such case).

At least one medical school guards against this conflict by prohibitting the assignment of a text that is written by a faculty member and by banning such books from the school bookstore. In at least one case, that means that students have difficulty getting access to one of the best reference books, widely used at other schools.
9.20.2005 4:07pm
TomHynes (mail):
This is chump change. Law professors need to think big, like this guy did in L.A. public schools:

A former Los Angeles Unified School District curriculum director has been accused by district officials of secretly ordering more than $4 million of his own, unauthorized math instruction materials for use in city classrooms.

Matthias Vheru reaped more than $930,000 in royalties after he sidestepped the approval process for textbooks and then shifted district funds to purchase nearly 46,000 copies of the textbooks, workbooks and teaching aids, according to Los Angeles Unified officials and a lawsuit filed by the district.


www.latimes.com/news/local/la-me-book16sep16,1,371296.story
9.20.2005 4:08pm
Tim Sisk (mail) (www):
A number of my professors during school authored textbooks in the area that they were teaching. It was one of the reasons I chose the school that I did. I would have been highly suspicious of a professor who didn't assign a textbook he/she authored (relevant to the course). At least I can't think of a good reason why a professor wouldn't assign his/her own text. Modesty? Puh-leeze. Lucre? None of my professors seemed poor, but neither were they wealthy. I don't think the modest royalties impacted them one way or another. However, I can come to lots of bad reasons why a professor wouldn't assign his/her text.
9.20.2005 4:24pm
John Steele (mail) (www):
I made a similar point about profs assigning the best textbook -- which presumably will be their own. But the economic exploitation angle remains. I don't have lots of publishing experience, but is $10/book a huge royalty? What's the author's royalty on a hardback book these days? If the textbooks and royalties bore market prices, I'd see no issue here. But I doubt that's true.
9.20.2005 4:28pm
John Armstrong (mail):
I suppose things might be different in law, but in disciplines like mathematics the worst part of the professor's-own-book is the lack of intellectual diversity.

Say I'm teaching a course on linear algebra and multivariate calculus (you remember those from undergrad, right?) I have a very well-defined point of view on the material, which I might write into a textbook. However, if I choose that selfsame textbook as the text for the course then my students have been deprived of another vantage on the material. I lecture from my viewpoint and the book repeats it. If that's not the best viewpoint for a given student, so much the worse for him.

On the other hand, if I pick a text by another author with a slightly different approach -- albeit one I'm not intellectually opposed to -- then students who find the approach from my lectures might be able to learn the material from the text, or maybe by putting the two together they'll be more enlightened and can pick and choose which approach works best for them in various situations.
9.20.2005 4:36pm
John Armstrong (mail):
John Wismar: I think I basically repeated your point. Incidentally, I wouldn't use B&DP at all.

Then again, I doubt any department would be foolish enough to throw me at an ODE class in the first place.
9.20.2005 4:39pm
rico:
Just curious if anyone knows the economics of textbook publishing? Comparing textbook buying ten years ago to now, I seem to recall many more used books being available, and a smaller gap between the cost to buy (new or used) and the trade-in value. Now it seems like the books I'm buying are consistently: over $120; not available used; and not accepted for buyback. I've switched to Half.com for all my purchases and sales, and am usually able to sell my books there for close to what I paid there a semester earlier, minus their commission. (I realize that this behaviour may be driving the lack of used books and buybacks - still, maybe if enough people do it we'll force a change in the business model!)

One other piece of anecdotal evidence - textbook sales is considered a feeder job for pharmaceutical sales. So if doctors choose what to prescribe based on who takes them golfing and out to dinner, who are the textbook sellers treating like this? I doubt professors are making their decisions that way; maybe they just don't realize the cost implications of changing the book every two years.

Any answers would be appreciated!
9.20.2005 4:39pm
Aeon J. Skoble (mail):
"I don't have lots of publishing experience, but is $10/book a huge royalty?" Yes. I make more like 50 cents/book. Also, in many cases, copyright permissions fees are charged against royalties, so when I co-edited my anthology, e.g., the first several thousand dollars of royalties never even made it to my bank. If I had been forbidden to "profit" from my book sales, I'd actually still owe the company! John Armstrong makes a good point above - but again, it's got to be the prof's call, not the Dean's and not The State's.
9.20.2005 4:54pm
John Steele (mail) (www):
Aeon:

Thanks for the info. That strengthens my conclusion that we do have an economic ripoff going on. When you see prices and royalties soar above market rates, you are seeing market power being exercised. That part of Ayres's op-ed I agree with. The students are a captive market and they're being squeezed.
9.20.2005 5:04pm
Patrick Casey (mail):
You could do what a number of my professors did when they assigned their own books. Refund the royalty. If you showed up after class with a new copy of their book, they'd give you $3 cash money.

Voila, no conflict.
9.20.2005 5:06pm
Dave L (mail) (www):
I've just started dental school and this is the first time I've ever had a professor using the textbook he wrote - our histology teacher is Dr. Gartner and we're using Gartner &Hiatt's histology text and atlas. I can hardly object since they're the same books I used in college and that my brother used in medical school. I'm actually kind of excited that we're going to be taught by the guy who wrote the books. Ironically when I took a histology course at a different school the teacher said that in order to save us money instead of using the same atlas and textbook combination that pretty much everyone uses (presumably gartner &hiat) she was going to assign us a combined atlas/textbook so we only had to buy one book. So while everyone else saved money with buying only one book I wound up with three.
9.20.2005 5:09pm
Jody (mail) (www):
I've been involved in a few multi-author textbooks. In every case we just donated all of the royalties (what little there were) to some mutually agreed upon charity or student fund, so this has never been an issue...
9.20.2005 5:10pm
fred (mail):
Avoid even the appearance of impropriety.
9.20.2005 5:34pm
Public_Defender:
My evidence professor wrote a check to the Student Funded Fellowships from the royalties he received from his students. His reasoning was that we were already paying him to teach us.

Given the huge amounts of money that law students pay professors, that seems fair. Using your own book also cuts down on the prep work, much of which you did while writing the book.
9.20.2005 5:37pm
Drewsil (mail):
It's interesting that you believe students recieve a greater benefit by having a book that "holds" the same point of view as the professor. In physics (my field) it is fairly clear that having access to distinct points of view while learning a subject is clearly beneficial. That it might not be so in other fields is something I had not considered but now that you mention it I can see there would be differences. In particular in physics there is less chance of conflict of opinion on the correctness of the subject, while learning several distinct ways of approaching the same problem can be essential.
9.20.2005 5:47pm
John Steele (mail) (www):
Several posters have suggested that the prof refund the royalties for his/her own students. That would cure any conflict of interest. But it wouldn't cure the exercise of market power in the price of the textbook, for the prof's students and for other law students (who, by the way, will pay the exorbitant royalty).
9.20.2005 5:50pm
mrkmyr (mail):
I don't find Eugene's defense of making money from assigning his book persuasive.

He says "the conflict of interest is illusory." It is probably more proper to say that the conflict is real, but likely insignificant. If Eugene truly was assigning the best book available and is not influenced by his added income from the sales, he should feel comfortable giving up the added income.

Although he probably did not write the book for the added income, he did probably write it for the added noteriety. And while he probably does not conciously assign his own book for profit rather than as the best material available, human beings commonly adjust their reasoning to match their self-interest.
9.20.2005 5:50pm
bud (mail):
I'm seeing a bit of a pattern here- the techies (myself
included) like to see a textbook not written by the
instructor, so as to have a alternate POV, whereas the
law folks seem comfortable with it.

Not to be snarky, but is there more "regugitation" involved in law classes? In a math class, there's one right answer, whereas law has a more... personal aspect. Does this tend to make the right answer "what the prof says"?

email is human readable - aloud.
9.20.2005 6:10pm
Cold Warrior:
I first encountered this as a freshman undergrad. My economics assistant professor -- a young, enthusiastic guy and an excellent teacher -- had edited a small paperback volume of topical economics essays. It was published by a tiny academic publisher and sold for about ten bucks (new). I think he made about 50 cents per copy.

His solution? He invited the entire class to his apartment for dinner, splitting the class in three because his small Pasadena apartment simply couldn't accommodate more.

It may not be workable with a law school lecture class of 150, but the general point remains true: recognize the perceived conflict, address it, and try to have some fun by coming up with a creative solution. I've forgotten what other classes I had that semester, but I have fond memories of that intro to economics and that rubbery chicken with melted American cheese dinner.
9.20.2005 6:12pm
Guest2 (mail):
What one Gene Vilensky said is worth repeating: "I think that Ayres likes to engage in public hand-wringing over really trivial issues that upon examination sound ludicrous." This supposed conflict of interest is the kind of "concern" that makes me think academics need to get out more.

When I take a course from somebody, I want him to be proud of his point of view. He should feel like he deserves every penny of the price that the market has placed on his book. I don't want a prof who thinks he's just a conduit for information and not adding any value. If that's all I wanted, I'd just skip class and read hornbooks.
9.20.2005 6:56pm
Jason Fliegel (mail):
On the other hand, I had a class in the late 1990s in which the professor assigned a casebook written in the early 1980s. The professor in question was not one of the casebook authors, but for a variety of reasons, it is possible (but very unlikely) that he had a financial interest in the books. A more likely motivation was that the professor and the authors were friends. But regardless of the motivations, I wound up learning antitrust from a casebook that was 15 years out of date.
9.20.2005 8:24pm
Mattattack:
It's not a "conflict of interest" - that term confuses the issue. The problem is that the collection of royalties from one's own students constitutes a bilking of the students. A professor should be more than happy to assign his own book, but he shouldn't get paid for it - his students are paying him already to be in his class. Eugene worked thousands of hours preparing and maintaining his textbook. This made him a better professor by allowing him to synthesize the information that he would like to teach to his class. But, presumably, if he wanted to be a good professor he would have similarily spent thousands of hours preparing his course outline and class notes. Why should students have to pay more because his book happened to get published? Put another way, if instead of publishing, the professor hands out a bunch of mimeographed sheets of paper that he painstakingly prepared (presuming he didnt pay for the paper), would he be justified in asking his students for a premium?
9.20.2005 10:22pm
Boris A.Kupershmidt (mail):
The conflict of interests involved
is illusory only if one's ear
is already made out of tin.
This dubious practice in natural sciences
(in undegraduate education) is
fairly widespread, and the students
exploited have no real recourse.
It's rather obvious that the refund of
royalties generated by the author's
text-books asignement power should be both
ethical and prudential.
9.20.2005 10:38pm
Penta:
Prof Brothy: What about those of us who go to private schools? No ethics board to help us.

Anyhow...

I'm an undergrad. Thinking about my textbook buying...

If I take 15 to 18 credits (5 or 6 classes, a full courseload) in a semester, I'm paying easily $300 for books. Every semester. (I'm only doing 12 credits (4 classes) this semester, a fairly light load, and I'm still paying $186.)

Most textbooks, for the record, are $50-80. I've never seen an actual textbook (vs a novel or a pamphlet) go for less, and I have seen books cost much more.

Consider too that students find out, at best, maybe a few weeks (2-3 was about average for me, 4 at the most) what texts were being assigned. And professors do change the book they want on the first day of class, or be real fun and *add* books...Then expect us to have it in 2 weeks, never mind that the books are out-of-print.

It gets infinitely worse if, say, you're blind (or dyslexic) and need the books in a different format. There, you might not get the books in time for the class, period. I read print, so I can avoid that, but...That's not always the case. However, in such case, the tapes are free..assuming you can get them in time for the start of classes or, heck, in time for any part of the semester.

And textbook prices go nowhere but up. I would be unsurprised if the freshman undergrad spends $800 per semester on books in a few years. (Keep in mind, too...Financial aid doesn't cover books. Nor do scholarships or the like.)

Textbook prices are a racket, plain and simple.
9.20.2005 10:59pm
Stephen M (Ethesis) (mail) (www):
it struck me that the conflict of interest is illusory

You know, I've done a modest amount of ethics work, and I find that most people faced with a conflict of interest issue feel that way.

Many feel that insigificant amounts of money start at six or seven figures.

I think you've breached a great topic, one that you need to revisit from the perspective of students as clients. It makes sense that a professor owes a student at least the duty an attorney owes a client. Would an extra $1,100.00 profit every four months be ok or not? When and when not?

What about partners or trustees or fiduciaries? A bank taking an undisclosed profit? A bank requiring you to use a particular check printing service -- after all, you need checks and someone is going to get the check. IBM selling punch cards?

Lots of great things to analyze here.
9.20.2005 11:12pm
David C.:
As an undergrad, every one of my professors who used their own book paid royalties back to the students in cash. Most stated the main reason they did this was that they thought the prices of textbooks was too high. Giving the royalties back to the students was a way to reduce the cost of textbooks to a more reasonable value.

An equal number of professors didn't have published textbooks but had a collected set of notes they photocopied and sold at the bookstore. The content was comparable to a hardbound, published book at about 20% of the price.

It's also possible that professors feel guilty about profiting at the expense of students with much less liquid cash. That was certainly true for me. I had practically no money in support from my parents so I had to make my Stafford loan money last to pay for books, food, and rent for the semester. The higher the book prices, the more 99 cent ramen noodles I had to eat to balance it out.
9.21.2005 12:46am
David C.:
As an undergrad, every one of my professors who used their own book paid royalties back to the students in cash. Most stated the main reason they did this was that they thought the prices of textbooks was too high. Giving the royalties back to the students was a way to reduce the cost of textbooks to a more reasonable value.

An equal number of professors didn't have published textbooks but had a collected set of notes they photocopied and sold at the bookstore. The content was comparable to a hardbound, published book at about 20% of the price.

It's also possible that professors feel guilty about profiting at the expense of students with much less liquid cash. That was certainly true for me. I had practically no money in support from my parents so I had to make my Stafford loan money last to pay for books, food, and rent for the semester. The higher the book prices, the more 99 cent ramen noodles I had to eat to balance it out.
9.21.2005 12:46am
K1avg (mail) (www):
And textbook prices go nowhere but up. I would be unsurprised if the freshman undergrad spends $800 per semester on books in a few years.

I spent $700 this semester because I'm stupid and bought new.

Luckily, the calc and chem textbooks are the same for calc 2 and 3, and chem 1 and 2, respectively, so I won't have to pay for those next semester. And those, by themselves, were $300.

It's still ridiculous.
9.21.2005 12:48am
K1avg (mail) (www):
And, by the way, my Comparative Politics prof assigned her own book, and has failed to compensate the class in any manner.

That's probably, though, due to the fact that it's paperback and only about 20 bucks.

It's also a pretty good book.
9.21.2005 12:52am
Bruce Hayden (mail) (www):
bud,

It is not really regurgitation, per se, but rather that at this level the difference is that law school is more subjective than technical / scientific schools. It makes no sense for a law school prof to use different examples in class than are in the text books. Rather, the entire purpose of the text book is the examples.

The way it works is that you are assigned every day in class to read 30 or so pages of cases for the next class. Then, you spend the next class discussing those cases. Many professors use the "Socratic" method here, quizzing their students as to what they got out of the cases they read for the class, subtly directing them to pick out what they want them to learn.

What you have to remember is that the actual law itself is only a part, in many cases a minor part, of what is taught. One of the biggest is how to read these cases. How to figure out what is important in cases, how they fit together, etc. Indeed, one of the (necessary) frustrations of law school is that much of the law taught is taught through this sort of "hide the ball" where the students have to figure out what the law actually is from these cases that often talk about a lot of other stuff. The reason that law is taught this way is that this ability to dig the important stuff out of cases is one of the most important things taught in law school because that is what you have to do as a lawyer. But, when the tests roll around, you need to know the actual law that you so painfully dug out of these cases and put together in your head as you apply it to fictitious fact patterns - another law school goodie.

The professor can't really give different examples in class than you read in the textbooks because that would negate the entire purpose of reading those cases in the first place. Besides, in many cases, you are reading the leading cases on the subject, esp. when precedent is primary (such as in Constitutional law, and its adjuncts, like Eugene's 1st Amdt. law). For example, there was no substitute in understanding abortion to reading Roe v. Wade when I was in law school.

Finally note that the subjectivity involves really two things - the selection of which cases to utilize, and how the cases are edited. It is not uncommon for a 100 page case to be cut down to a couple of pages. (Oh, for the days when opinions were actually only a couple of pages long).
9.21.2005 4:14am
Bruce Hayden (mail) (www):
I should point out that any prep time saved by writing their own text books is many times over lost through the time spent in writing and maintaining a case book for law school. Eugene pointed at the thousands of hours involved.

There are several reasons for this. First, in many subjects, there are numerous relevant cases from which to pick. You have to pick the best ones to illustrate your points, and then edit them accordingly. They may not be the leading case in some subjects, just good ones to teach from. Add to this, that the text book writer must read a whole lot of cases just so he can be expert enough to do the job right. And then he needs to keep up on the current cases so he can issue supplements (and ultimately new revisions) keeping them accurate. Both are extremely time consuming (of someone's time - not necessarily the text book writers', as I have been drafted a couple of times).

I should add that my introduction here was by a prof who used his seminar classes to help write his text books. He would assign a paper (instead of giving a final), and most in the class would pick a topic. But for those of us who couldn't decide on a topic, or were more adventuresome, he would assign a chapter in his book. One benefit was that if you did a decent job, it was a guaranteed "A". But it was a lot more work. On the two chapters I initially wrote, I worked with him through the next summer constantly revising what I had originally done.
9.21.2005 4:40am
Public_Defender:
Professor Volokh,

Your post refutes itself. You claim "that the conflict of interest is illusory" because you think your book is best. Then in the next paragraph, you admit that "that lots of other law professors think" "that other textbooks are better." Could your judgment, perhaps, be biased?

It seems that the conflict is not as illusory as you may think.

You give the same excuse that nearly every bribed politician tries to give. "I couldn't be influenced by that tiny amount of money."

Your students already pay you a lot of money to tech them about the First Amendment. That compensates you for the hundreds of hours you put into the book, all of which was probably done on computers, in an office, and with staff support provided at student expense.
9.21.2005 6:12am
Public_Defender:
Yes, I see the irony in telling Professor Volokh that his students pay him to "tech" them.

Professor Skoble,

Law professors are not above the law. You saying that you think state ethics commission was wrong does not make the ethics commission wrong. And if that commission covers your state, I hope they prosecute you.

As a public employee, I would be forbidden to 1) profit from a book I wrote using government time or resources (including my unlimited-use Lexis account); and 2) do business with my own office even if I wrote a book on my own time.

The state figures that a salary is the government employee's reward for work done on government time with government resources. If Professor Skoble doesn't like that deal, he should find another job. But the same rules that apply to government employees like me should apply to government employees at law schools.

Also, Professor Skoble, did you use any resources that the students help pay for to write the book? Your office? Your computer? Your staff? Your research time? If so, the students already made their contribution. They shouldn't have to pay twice. You shouldn't collect twice.

I put “research time” into the list because students subsidize the research of professors. Professors have the paid "summers off" and paid sabbaticals in part so they can conduct research. My professors often blocked off time during the school year for research. So when professor Susan J. Behrens argued in a 9/19/05 NYT letter that her time writing the book was "unpaid," she was, to put it mildly, coloring the facts (unless she was on unpaid leave for that time, in which case, I apologize in advance to the professor).
9.21.2005 8:06am
Rhadamanthus (mail):
Public_Defender

An interesting take on this subject. However, surely the flaw is that it assumes all research is done during a law professor's paid time. Granted I haven't experienced this as I am a student but surely the primary purpose of the job is to teach the students and to help them through the rigours of learning the law. The development of academia is a duty but a limited one. Should they choose to do additional services such as the apex of writing a book on a subject, I have no problem with them getting paid a royalty- albeit a low royalty.

Interesting take, when I was studying a semester at Brandeis, one of the Profs had recommended (not required) his book and made a donation of the royalty to the Student Bar Association. At the time I recall expressing disbelief at the gesture which I put down to his good nature. To my knowledge, the issue has yet to arise in Britain and I would certainly not consider asking my lecturers for a donation of their royalties.

At the end of the day everyone benefits (the school, students and Prof) from the kudos of having a published Prof.
9.21.2005 10:02am
Kipli:
I'm not convinced by Volokh's argument. Regardless of my motivations for selecting a text, if I profit from assigning it then I now have an interest in the selection other than providing the best instruction I can to the students. As Volokh pointed out, I might believe that my book is the best and so, for me, I see no conflict. But that doesn't remove the fact that I have two interests in mind: making money and educating students. These are not always orthogonal, and the "making money" vector may be rather short, but neither are they always parallel.

What about this situation: a botany professor owns (or co-owns) a local arboretum that is open to the public for a small admission charge which includes guided tours -- the professor himself conducts these tours on the weekends (and the university knows of his secondary employment, so nothing is being hidden). In the professor's Botany 101 class he assigns a field trip to the arboretum and meets the students just inside the gate. Of course, to get inside they need to pay the admission fee, of which a (small) part goes to the income of the professor.

The professor clearly has an interest in getting more people to his arboretum. He also has an interest in providing quality instruction to the students. The two interests are not necessarily perfectly aligned, and when not you have a conflict. The conflict does not go away just because it doesn't seem to be that important.
9.21.2005 10:09am
Guest2 (mail):
A couple of quick points:

1. Professors don't determine the prices of their books. The publishers do, based on the market. Before I became a lawyer, I was the head of advertising for a small for-profit academic publisher. People always complained that our prices were too high, but believe me, our margin was paper thin. (The president of the company, for example, made less than half of what I make now as a law firm associate. I myself made one fifth of what I make now.)

2. Unless the prof hides this info from the students until it's too late, they can find out well in advance what books he assigns and about how much they will cost. If you think that cost is too high, then don't take the damn course. (Yes, I realize that this approach won't work if the course is required and only one prof offers it, but I think that that precise situation rarely arises.)
9.21.2005 10:44am
Aeon J. Skoble (mail):
Apparently I need to defend myself from the Public_Defender, who is so put off by my position that he or she is hoping for my prosecution! 1, I do teach at a state school. 2, there is a state ethics board from which I had to obtain clearance, although I'm evidently in a different state than commenter Brophy, since the rules are different. 3, your conception of "working on the company's time" doesn't apply in an academic context. I'm in my office 40-50 hours a week, but I'm not contractually obliged to be here anything close to that. It's only "company time" during my scheduled teaching and office hours. But rather than spend the rest of the time watching TV, I spend it doing research, which indeed the college encourages me to do, and which is why they provide me with office space and a computer in the first place. As another commenter noted, the school and the students benefit when the faculty are productive scholars, and scholarship is both actively encouraged by the college, and seen as impressive by the students. So the idea that profs who write books are scamming unless they were on unpaid leave is nonsense. Sue Behrens' point is indeed correct - we don't get paid extra to do research. It's an additional burden we take on because we choose to. (Furthermore, and I realize this is slightly ad hoc, but my _current_ students did not "already pay for" my time writing the book. The students who were enrolled when I started the project had graduated by the time the book was actually published.)
Everyone who produces a book gets some financial reward. Why is it ok for the publisher, distributor, and bookstore all to make money off a work, yet not ok for the author or editor? I'm entitled to my (tiny) royalty payment no matter who buys the book. Regarding my own students, this is only a conflict of interest if I know my book is crap, and make them buy it anyway so I can cash in. Eugene's point, and mine, is that anyone who produces a textbook will be of the opinion (shared by a publisher) that that textbook is good and appropriate and contributes something to the educational process. If there had been another book I found entirely adequate to my classroom needs, I'd use it, and not have bothered to make my own.
9.21.2005 10:50am
Public_Defender:
Professor Skoble,

Are you saying that research isn't part of your job? If so, you have a different perspective than any other professor with whom I've spoken. I thought that a professor's research and writing were critical factors in whether the professor received promotion or tenure. If research and writing are truly optional (that is, if it’s “an additional burden [you] take on because [you] choose to,” how many professors in your department have been promoted without doing any?

I stand by my statement that the students have already paid you for the research. The students aren't just paying for the time you stand in the classroom, they are paying for the many hours of preparation (including research) that go into each hour of teaching.

In addition, you concede that you do your research in facilities that the government and the students, through their tuition, have provided you.

Why should professors be permitted to earn extra income by using government facilities when other government employees cannot? Do you think the government should let me use a government-provided office, a government provided-computer, a government-provided phone, government-provided online research, and a government provided staff to write a book for profit as long as I do it when I'm not "on the clock"?

Eugene's point, and mine, is that anyone who produces a textbook will be of the opinion (shared by a publisher) that that textbook is good and appropriate and contributes something to the educational process.

My point is that your opinion is biased. That is the essence of a conflict of interest. You might reach the same point without the conflict. You might not.

As to the legal point, if your state ethics board has approved your arrangement, then you should not be prosecuted. It would be interesting to see how lenient the board would be with similar requests from non-professors.
9.21.2005 11:29am
Aeon J. Skoble (mail):
I realize that this varies from college to college, but technically, no, I'm not _required_ to publish anything. But it is encouraged, and of course it certainly helps in promotion and tenure. I agree that part of our salary is intended to cover class prep time, but we're not literally paid to do research or compile textbooks, that's above and beyond the call of duty. As to your argument that my students have already paid me for the book via their tuition, remember that I teach at a state college, so you could just as well argue that all taxpayers in the state have paid me -- am I not entitled to the royalties from _any_ purchase of my books in this state?
As to my opinion being biased, as Eugene noted, our opinions are only "biased" in the sense that we all make judgements about course content and about which materials will best serve that content. It's missing the point to say "he prefers his own book -- that's because he's biased." The reason for undertaking to produce a textbook in the first place is dissatisfaction with the available textbooks. So I would have antecedently decided that the other books were inadequate, prior to the existence of my own, hence my preference for my own isn't "bias" in any objectionable sense.
9.21.2005 11:39am
Public_Defender:
You should not be entitled to book revenues when you have used government facilities (office, staff, computer, phone, etc.) to write the book, even if you are arguably “off the clock” when you do the work. At least in my state, that’s the way the law applies to other government employees. Why should you get a special exemption? Or do you think other government employees (public defenders, for example) should get the same benefit?

Is publishing merely “encouraged”? Does publication merely “help” in promotion and tenure decisions? Or is it practically impossible to get hired, promoted, or tenured without publishing? Based on my conversations with the professors I know, on paper, publication may be "encouraged," but in practice publication is required.

Finally, most of us in practice are not all that impressed with the fact that you work 40-50 hours per week at work. Is that all year round, or just when school is in session? Either way, the figure is not exactly awe inspiring.
9.21.2005 11:58am
Aeon J. Skoble (mail):
You're starting to get nasty, and you're pseudonymous, so I think this will be my last reply.
Your position means that no college professor (except at Hillsdale) is entitled to royalties from book sales, period. I think you're wrong.
You're correct that, in practice, most profs need to publish in order to get tenured and promoted, and in many cases to get an appointment in the first place. But that's neither here nor there. I'm not "arguably" off the clock, I'm literally off the clock. I am _required_ to be in my classroom during assigned teaching hours, and in my office during scheduled office hours. Other times, I'm free to go home. Sounds like you're saying that if I went home and wrote my books, I'd be entitled to my royalties, but if I stay in my office at the collge to write my books, I'm not. That distinction seems to be arbitrary and without substance - and if accepted, would create an incentive for all profs to write at home rather than at school, meaning they'd be _less_ accessible to their students and colleagues. Seems to me the college would want profs to have the opposite incentive, that it's better for everyone if the faculty maintain a presence on campus. And indeed that's surely why any of us needs an office -- to give us an incentive to do our supererogatory work on campus. If it were only a matter of having a place to meet students 2 or 3 hours a week, we could have small cubicles or shared office space or assigned library carrels. But they give us offices with desks, bookshelves, computers. Why? To encourage us to stay on campus when we're doing our research and writing. Anyway, I bought my home computer with salary paid by the taxpayers, so on your argument I'm not entitled to royalties no matter where I write. Seems to me that the logic runs the other way: that I _am_ entitled to the royalties whether I write at home or at work. Writing at the office means I am more engaged with campus life, more accessible to the students, more available to colleagues. Do you think the incentive-structure should be otherwise?
As to your final point, before you complain that 50 hours a week is unimpressive by lawyer standards, remember that my salary is similarly unimpressive by lawyer standards. But in any case, my point wasn't to impress you with how much I work - I was simply distinguishing between the number of hours I'm literally required to sit at my desk (hardly any) from the number of hours I actually work (a lot).
9.21.2005 12:39pm
John Steele (mail) (www):
Guest 2:

The fact that the margins are paper thin is consistent with supra-competitive pricing. We'd expect the publisher to spend the extra money in rent-chasing.

You suggest that the consumer simply decline to take the course, but I'm not sure that captures the reality. It certainly doesn't apply to mandatory courses and courses that are essential to bar exams, employment choices, etc. These texts are mandatory purchases in an after-market. You are correct that, to a limited degree, students might be able to do a lot of research and avoid any class where this problem exists, or participate in a secondary market for used texts, or share texts, etc., but all that economic activity is itself wasteful and driven by the original supra-competitive price.
9.21.2005 12:54pm
krosenstein:
Honorable intent, pure motive, and trivial amounts of money have never been sufficient justification. This stinks.
9.21.2005 1:12pm
Public_Defender:
First, you are right, the 40-50 hour remark was a cheap shot. I apologize.

But as to salary, based on the job announcements I've seen, most law professors (even non-tenure-track professors at schools well out of the top 40) start about where a public defender with ten years of experience makes. In the world of government lawyers, professors are very, very well-compensated. (I obviously cannot speak about the salaries of philosophy professors.)

As to the substance, you say that it's arbitrary to distinguish between working at home or in your government-provided office with a government-provided computer, government-provided support staff, government-provided phone, and government-provided research facilities. I wish you could convince my state ethics commission of that.

Yes, permitting use of school facilities provides an incentive to stay "more engaged with campus life, more accessible to the students, more available to colleagues," but any government employee could make the same argument. And we're not allowed to use government facilities for personal gain.

As an analogy, many prosecutors and public defenders are allowed to do legal work on the side (I am not one of them), especially in small towns. However, they have to maintain personal offices. They cannot use government facilities for their private gain. State professors should live by the same standard.

Professors need to make a choice. Either publication is part of their job, in which case they're already paid for it. Or publication is not part of their job, in which case they shouldn't get university subsidies (in the form of money or facilities) for it.
9.21.2005 1:18pm
Guest2 (mail):
John Steele -- I'm afraid that I really don't understand your comment. Specifically, what is the rent that textbook publishers are seeking, and in what way are their prices supra-competitive?
9.21.2005 1:35pm
John Steele (mail) (www):
We'd expect that where mutliple sellers have some market power but lack true monopoly power, they'd priced high, but be forced to spend most of the profits on promotion, advertising, product give-aways, high royalties, and other costs associated with maintaining their market power. So, supra-competitive pricing and thin margins are not mutually exclusive.

We suspect (know?) that the prices are supra-competitive because the prices are so much higher than their cost, than competitively priced books of similar length, etc., and because we see that the consumers are in a locked-in aftermarket.
9.21.2005 2:30pm
Guest2 (mail):
John Steele -- I think you're operating from some incorrect assumptions (at least based on my own experience working for one academic publisher):

1. By far, the main determinant of the price of any book is the number of copies that the publisher thinks it can realistically sell. Most publishers know from experience approximately how many copies of a given text they will sell. They then take their projected costs (acquisition costs, wholesale discounts, editing and design costs, advertising/marketing costs, and distribution costs, as well as the bare cost of getting the thing printed), add a little (very little) for overhead and a return on investment, and divide the sum by the number of copies they expect to sell. That's why a 500-pp. reference book published by Oxford U. Press will sell for a third of the price of a 200-pp. reprint of a 19th-century treatise by the Law Book Exchange. It's not based (in any substantial way) on the number of pages or size of royalties. It's based on the number of copies that can be sold, and it's capped by the "ouch" factor as reported back by sales reps.

A lot of authors used to complain to us (and other publishers) that if we charged less, we would sell enough additional copies to more than make up for the lower return on each unit. Sounds good. But many a publisher has gone into the red trying to put it into practice. The market for most upper-level texts is simply not that big, regardless of the price. The market size is a given, the costs are a given (although more and more publishers have been skimping on editing and typesetting, shifting those responsibilities to authors, their computers, and their loyal secretaries), and so the price has to move accordingly.

Therefore, I believe the statement that "the prices are so much higher than their cost, than competitively priced books of similar length, etc." is incorrect. Thus, this is not a basis for concluding that the prices are supra-competitive.

2. Royalties in this area of publishing are not big. When you're considering royalties, you need to look not at the portion of each book's price that goes to the author, but at the total amount paid by the publisher to the author (i.e., the acquisition cost). Most academic authors receive a few thousand dollars in exchange for the "privilege" of having a book published. This is peanuts when compared to the amount of brains and time that goes into preparing a text. The royalty amount may seem big on a per-book basis because it's being distributed over a much smaller number of books than would be, say, the royalties on Freakonomics. But in absolute terms, the amount is negligible.

3. Finally, I don't see any rent-seeking here. Upper-level textbook publishers produce a product that they market to professors. A publisher hopes that the number of professors who will choose its book, and the number of copies that will be sold for each prof's class, will meet or exceed the publisher's projections. In order to get word out on its titles, the publisher gives away review copies, mails brochures and catalogues to profs in the field, and sends sales reps to campuses and academic conferences. Profs who think the book will be useful for whatever they're teaching ask their campus bookstores to order it and assign it to whoever chooses to take the associated course. The bookstore sells what it can and returns the rest to the publisher for a refund. Where in this process is there a rent? I see a free market at every step, except perhaps for the situation where all students must take a certain course from a certain professor. And even in that situation, there aren't enough such courses that they can drive textbook pricing. (The situation is of course different for texts adopted by public school districts; I do not understand that to be the topic here.)
9.21.2005 3:27pm
Penta:
Steele has it.

Guest2: Part of the problem is not just the numbers, it's also the rapid increase in pricing. GAO put it at, what, 3 times inflation?

How do you possibly justify such a rapid rate of increase?
9.21.2005 4:00pm
Penta:
Just read your last post, Guest2...

I'm beginning to wonder why publishers never ask students what they think of prices?
9.21.2005 4:02pm
Guest2 (mail):
Penta -- Could you please point me to the GAO study you're citing? I am not familiar with it.
9.21.2005 4:03pm
John Steele (mail) (www):
Guest 2,

Thanks for that info, although I think we may not be in agreement on this one. I see lots of evidence of supra-competitive pricing, rent chasing, and rent dissipation in the textbooks I'm familiar with.
9.21.2005 4:05pm
Per Son:
Doug Whaley at Ohio State had a good way of dealing with this dilemma. He would donate the royalties he received from the students in his classes to the Student Bar Association. Therefore, he made no profit from his students.
9.21.2005 6:46pm
Penta:
9.21.2005 9:43pm
JoseP (mail):
If you all are serious about only wanting to use your own text without the self-conflict of royalties there is a simple solution. Write your damn book and make it available in PDF or for the cost of copies at the book store. Somebody please point out the problem with this.
9.22.2005 4:05am
Aeon J. Skoble (mail):
JoseP, if I did what you suggest with my text (an anthology), I'd surely be violating copyright. The only proper procedure was to publish a text and secure permissions. Like the author or editor of any book, I'm entitled to a percentage, albeit a tiny one, of the sales. Why exactly am I entitled to royalties if a colleague (or a stranger) uses my book, but not when I do? You seem to suggest that we're all so corrupt and irresponsible that we'd order a lousy and inappropriate text just to make 5 or 10 bucks. Come on, give us a little more credit than that.
9.22.2005 8:17am
Public_Defender:
I could make the same arguments Professor Skoble makes if I sold a crim law book to my office after I wrote it on my own time but using office equipment, office resources, and office support staff.

I understand that there is a different ethical standard in academia, but why should that be?

There is a line-drawing problem that the academics don't want to address. Under their reasoning, a lot of other ethics laws and practices should be repealed for non-academics.
9.22.2005 8:38am
Aeon J. Skoble (mail):
Both the Public Defender and JoseP are negelcting Eugene's (and my) observation that anyone who writes a textbook will necessarily be of the opinion that that book is the most appropriate for a course. Combine that with the facts that it is our responsibility to select books that are appropriate for a course; that profs, not deans or politicians, are in charge of textbook selection. If I've edited or authored a new textbook because I judge the extant textbooks to be inadequate, I'd be irresponsible if I _didn't_ order it. The Public Defender's analogy is, well, not analogous, since public defenders aren't in the same position relative to their law office that professors are to their students.
9.22.2005 8:51am
Public_Defender:
Actually, the argument to let government employees produce books using government resources, and then to sell the books to their agencies at a profit (if not government time) is stronger than the argument to let professors sell books to their own students.

Why? First, because to sell to my agency, I have to convince other people that my book is good. That at least diminishes the potential for a conflict of interest.

Second, if my book is helpful to the office, my office should buy it, regardless of whether I make a profit. My office has the same duty to provide the best materials it can as a professor does.

But the real line-drawing problem I was arguing was the use of office resources (if not office time) for personal profit. Professor Skoble is arguing that academics should receive a special privilege that few others receive. Why shouldn't that privilege be extended to private businesses and to non-academic government offices?

One final note: I am arguing with the professor over policy. I am not questioning his honesty.
9.22.2005 9:16am
Guest2 (mail):
Penta -- Thanks for the link.

I note this conclusion, from the report's abstract: "While many factors affect textbook pricing, the increasing costs associated with developing products designed to accompany textbooks, such as CD-ROMs and other instructional supplements, best explain price increases in recent years. Publishers say they have increased investments in developing supplements in response to demand from instructors." I don't see anything nefarious about this. Instructors tell publishers they want more X, and publishers are supplying it. The author's telling the publisher his book should have more X (let's say solely because the author thinks more X will make more money for him) would not cause publishers to react; the demand has to come from the market as a whole.

Public Defender -- I often have found your comments insightful, but I have to say that, on this issue, I think you're way off.
9.22.2005 9:58am
Stephen M (Ethesis) (mail) (www):
I'm in my office 40-50 hours a week, but I'm not contractually obliged to be here anything close to that. It's only "company time" during my scheduled teaching and office hours.

I had a friend insist that teaching was an easy float, a twelve hour a week job. I told him no, that professors were required to spend much more time than that.

Guess I was wrong.

But, this is a fascinating replay of what usually occurs when a conflict of interest point comes up in an Enron or a similar entity.

Those who benefit see no conflict of interest and think it is all silly. Those who are critical would have you think that the madonna is being abused in a back alley.

Is one right? Is the answer in a middle ground? That is why there are professional responsibility and ethics classes.

Glad to see these posts though.
9.22.2005 10:31am
Stephen M (Ethesis) (mail) (www):
But as to salary, based on the job announcements I've seen, most law professors (even non-tenure-track professors at schools well out of the top 40) start about where a public defender with ten years of experience makes. In the world of government lawyers, professors are very, very well-compensated. (I obviously cannot speak about the salaries of philosophy professors.)

That is similar to the federal judge compensation issue. I could get a line a mile long of people who would gladly trade their current jobs for one as a federal judge.

Interesting stuff.

I'm enjoying reading it.
9.22.2005 10:37am
Cold Warrior:

I'm in my office 40-50 hours a week, but I'm not contractually obliged to be here anything close to that. It's only "company time" during my scheduled teaching and office hours.

I missed this the first time around.

Truly astonishing.

As a former Ph.D. student/research assistant, I recall the contract I signed: all research that I conducted as a University employee, and the fruits thereof, were and would remain the intellectual property of the University.

True, the modern University has never really figured out where to draw the line. If I'd published my dissertation (which would've required finishing it first!), I think the standard rule is that I would've been able to reap the royalties from the meager sales.

But isn't a textbook a special case? After all, if the textbook relates to the same subject matter as one's teaching assignment, the textbook no doubt includes the fruits of one's class preparation.

Another example: in law school, Professor Lillich had written the first casebook on International Human Rights Law. He would run a contest -- for fun, the prize was his treasured English-version Mars Bars -- in which the students would compete to find the most errors (grammatical/citation/etc.) in his casebook. This is a more transparent example of what occurs every time a professor assigns his own textbook: the students provide feedback, which results in changes/improvements to the next edition. Isn't it fair to say this?

The students pay the University, which in turn pays the professor, who profits from the students' labors, who improves his product (a text) through the cooperative exercise that is teaching, who then profits from the royalties, who then kindly volunteers about 28 hours a week to the University because, after all, he is only required to work 12?
9.22.2005 12:35pm
Cold Warrior:
And I forgot:

The professor/textbook writer then gets promoted and receives accelerated pay raises because she receives acclaim as the author of the "leading text in the discipline," a text written on University office equipment in the 28 hours in which the professor would otherwise be free to sit in a bathroom stall reading the newspaper?
9.22.2005 12:38pm
Aeon J. Skoble (mail):
Cold Warrior, you're missing my point about the hours, as did Ethesis earlier. Is this a straw man, or are you not reading me carefully? _Of course_ we have more than 12 hours a week of things we're required to do! My point has been that there's no _particular_ time or place we have to do them. Take grading papers, for example: I have to read them, write comments on them, grade them, enter the grades. But whether I do it during "regular business hours," or at night, or over the weekend is up to me. Whether I grade papers at home or at the office is up to me. The same goes for class prep, and for research and writing. When I said "I don't have to be at my desk," the implication isn't "I don't have any work to do," it is "the work that needs to be done need not be done at my desk." I am required to have a certain number of office hours, but obviously when I'm teaching I'm not at my desk - as to the other tasks, well, nowhere in my contract does it say anything like "all grading must be done at your office" or "all course prep must be done at your office." No one cares where or when I grade papers as long as they're graded. Similarly, no one cares (except some of the commenters here) where I do the research, even though it's true that there is some expectation that I do some. People's work habits are varied and invidiualized: some profs work better at home, others at the office; some profs work better in the morning, others at night.
9.22.2005 12:53pm
Public_Defender:
I still ask the academics who read this, explain why it is OK for you to use your employer's facilities for personal profit when it would be unethical (and possibly criminal) for almost everyone else to do the same whether they are in the public or private sector.

Or do you think that non-university public and private sector employers should relax their ethical standards?
9.22.2005 1:02pm
Aeon J. Skoble (mail):
No, you explain why it's _not_ ok. Alternative assignment: exaplin why it would be ok for me to profit from a book if I wrote it on a desk at home, but not if I wrote it on a desk at the office.
9.22.2005 1:21pm
Aeon J. Skoble (mail):
D'OH!! I meant "explain." Always use preview, always use preview, always use preview...
9.22.2005 1:22pm
Public_Defender:
I am trying to pull this argument out of just the academic context to show the implications of your arguments. So, for the sake of argument, I grant that you can make a personal profit from the use of our employer's support staff and facilities.

Now, do you agree that the same rule should apply to non-academics? For example, should an employee of Pfizer be allowed to use the Pfizer lab on his own time to develop a drug he would sell at his own profit?

Should I be allowed to run a private law practice using the phones, computer, support staff and office the government provides me? Should I be able to sell a book for personal profit after writing the book using the computer, support staff, and office the government provides me?

My local government gives me an emphatic "no" to those questions (backed up with criminal sanctions).

Law and policy should either let both of us profit from use of government facilities, or neither of us. I can't see an argument why academics should be singled out for special privileges.
9.22.2005 2:02pm
Guest2 (mail):
It's not a question of "should." It's a question of contract. A biochemist's employment contract with Pfizer does not permit him to make a profit off of what he does as part of his job with Pfizer. The PD's employment contract (however dispersed it may be across various regs) with "the people" does not permit him to run his own law practice out of the PD's office. However, the prof's employment contract with his school does permit him to keep any profits from sales of a text he wrote on school time and with school facilities.

If the school doesn't like it, it can change the terms of the contract (at least with respect to new hires). If the students don't like it, they can take their business to different profs or different schools.

There's no reason why the prof "should" have the same terms of employment as a PD or a biochemist.
9.22.2005 2:34pm
Stephen M (Ethesis) (mail) (www):
Well ...

writing seriously, rather than half-way tongue in cheek.

First, of course there is a conflict of interest. But, that doesn't end the inquiry. There are lots of conflicts of interest. Index funds in the bottom 50%, for example. If I want to sell something that you are buying, we have a conflict of interest.

Second, (and the real issue) is there a realtionship that makes the conflict of interest wrong? Am I taking an unfair profit or exploiting the relationship unfairly?

A practicing attorney wants clients to pay for services. Clients would like to get services for free. No one disagrees with the appropriateness of charging a fee.

I've touched on the basics of how one looks at the issues.

But, like having sex with students, selling them textbooks comes up as well. I've known professors who got together to create entry level texts which they switched over to in order to make some money (thinking of an intro physical sciences class that became one that was required shortly after the homegrown text was finished) ... etc.

I'm not trying to misunderstand (other than to tease, gently, while trying to come back on the issue), but to see if we can get a better level of discussion than "hey, he said this is a conflict, but I'm sure it isn't." That's an argument I hear all the time. Kind of like "Hey, they didn't pay me enough, so I had to embezzle."

On the other hand, if your employer has an e-mail policy that allows for incidental personal use, there is no reason why you shouldn't send personal e-mails. The same for limits on personal computers, etc.
9.22.2005 2:52pm
Public_Defender:
But the question is should the contract of employment contain that term? Should, say, a state government permit state professors to profit from government staff and facilities, but not non-academics?

You say there are "differences." What are those differences, and why do they matter?
9.22.2005 2:55pm
Aeon J. Skoble (mail):
"like having sex with students, selling them textbooks comes up as well" That's obnoxious, as well as a terrible analogy. It is part of my job to order textbooks for a class, while it is not part of my job to have sex with anyone. Since it's a given that I have to order texts, the question is, what is the selection criterion? Answer: what each prof, in his or her professional opinion, judges to be the best text(s) for a given course. (I assume you don't disagree yet, but if you do, please say why.) If that's the case, then if I've actually written a textbook, which I surely judge to be superior to alternatives (else I wouldn't have bothered writing it in the first place), then it's perfectly proper to order it. NB the students will have to pay the author's royalty no matter who the author is, but if they take umbrage at it being me, they're at liberty to buy a used copy.
9.22.2005 3:02pm
Guest2 (mail):
"But the question is should the contract of employment contain that term? Should, say, a state government permit state professors to profit from government staff and facilities, but not non-academics?"

I think the answer depends on the employment market. Presumably, in view of the current state of affairs, state governments have found that they can obtain good enough non-academic employees while not permitting such employees to keep profits from what they create with office resources, and have also found that they can't obtain good enough academic employees while imposing the same restrictions on them.
9.22.2005 4:57pm
Public_Defender:
Guest2,so it's a matter of power, not ethics? Can you make an ethical argument of why the restrictions make sense for academic, but not non-academic, employees?

It's interesting that none of the professors made that argument. It would sound bad. "Why are our ethical rules lower? Because we can get away with it."
9.22.2005 5:12pm
Aeon J. Skoble (mail):
Public Defender, you imply that everything has to be exactly the same for all state employees. But that's silly. Cops get to carry firearms, state college profs cannot. Why should they get "special treatment"? Obviously, because their job is different from mine. It's true that we all work for the state govt., but the resemblance pretty much ends there. The governor gets a limo, and I don't - what's up with that? So profs can go to the dentist at 10:30, or leave early if the kid is sick, or use the office space to write a book. BFD.
9.22.2005 5:30pm
Guest2 (mail):
I don't think ethics enters into it for either academic or non-academic government employees. If the PD's arrangement with the state is that he can have his own clients and can serve them out of his state office (and it's all publicly disclosed), then doing so seems fine to me.
9.22.2005 5:42pm
John Armstrong (mail):
Bud:

If you think that there's "one right answer" in a math class you obviously miss the point of having multiple views on the subject. With the exception of (the late, of late) Serge Lang, no mathematician would assert the existence of a unique "right" answer to all but the simplest problems. I can't imagine the situation being any different in other technical fields.
9.22.2005 6:36pm
Stephen M (Ethesis) (mail) (www):
I wasn't making an analogy. There are two conflict of interest issues that seem to come up a lot. The first is whether or not faculty should have sexual contact with students (compare to private enterprise and sexual contact between managers and the managed). The second is selling textbooks and other material at a profit to students or making a profit from textbooks sold to students.

Heck, D. Oaks brought it up in his Trusts class when he had the *only* trusts textbook.

"like having sex with students, selling them textbooks comes up as well" That's obnoxious, as well as a terrible analogy.

Sorry I was too terse for you to understand that I was addressing that there seem to be two common conflicts of interest issues that come up over and over again, not making an analogy. Though, in that line, it is interesting to see how professors defend both practices.

It is part of my job to order textbooks for a class, while it is not part of my job to have sex with anyone.

Ok.

Since it's a given that I have to order texts, the question is, what is the selection criterion?

And whether selection should be influenced by side-profit issues. Kind of like when your bank provides credit life insurance. It is no surprise that one of the most popular credit life insurance companies in Texas at one time never paid a claim, never where suit had not been filed. And yes, I personally read about half of their policies and all of their claim files in litigation.

They did, however, pay very good commissions and in every bank where the commissions went to the officers rather than to the bank, they were a favorite.

Answer: what each prof, in his or her professional opinion, judges to be the best text(s) for a given course. (I assume you don't disagree yet, but if you do, please say why.)

Nope. You are getting into classic conflict of interest analysis. Someone has discretion and a duty. Should they be allowed a side payment that may affect how they use their discretion in fulfilling their duty?

Classic and simple issue.

If that's the case, then if I've actually written a textbook, which I surely judge to be superior to alternatives (else I wouldn't have bothered writing it in the first place), then it's perfectly proper to order it.

Reminds me of a judge who wrote a competing tome to O'Connor's Texas Rules. We had to buy and use it in his court or one would get a lecture on using inferior products -- and a ruling that would require mandamus to cure. At least that was my experience. But, he felt it perfectly proper to direct people to use the superior product.

NB the students will have to pay the author's royalty no matter who the author is, but if they take umbrage at it being me, they're at liberty to buy a used copy.

;)

As a matter of law, I don't think that the professor-student duty, as it is usually defined, rises to the fiduciary lawyer-client. That is why professors are allowed to exploit the relationship. It is not even as protected as the employer-employee relationship in a state like Texas (where it is pretty weak).

Which, is, of course, why the sex issue is a good reference point because over and over again, professors are allowed to marry and/or date students without it being a breach of ethics (compare to psychotherapists or lawyers and their patients and clients).

So yes, there is a conflict of interest.

Yes, in similar situations, the conflict results in sub-optimal choices that benefit the party with power.

However, it is probably not the type of conflict of interest that is actionable or that would result in a breach of professional ethics.

Honestly, I was hoping to see a deeper analysis, as there is one and a lot to go on once you start looking at legal ethics (and this is a law related blog).

Guess I'm seeing the cross-disciplinary nature of the blog at work right now.

Hope this post was not too terse.
9.22.2005 8:13pm
Cold Warrior:
Skoble said:

Cold Warrior, you're missing my point about the hours, as did Ethesis earlier. Is this a straw man, or are you not reading me carefully? _Of course_ we have more than 12 hours a week of things we're required to do! My point has been that there's no _particular_ time or place we have to do them. Take grading papers, for example: I have to read them, write comments on them, grade them, enter the grades. But whether I do it during "regular business hours," or at night, or over the weekend is up to me.

I went back and re-read the entire thread, and I believe your characterization is correct. My apologies.

My broader point remains. I don't like instructors assigning their own texts without acknowledging at least the appearance of impropriety and taking measures (I suggested fun, creative measures) to eliminate that appearance.

And I do believe that text/casebooks that are a product of the instructor's teaching duties should be considered the intellectual property of the institution. The institution should be free to distribute the texts to students taking the class (with fees to defray the copying/publication costs only), and the institution should negotiate contracts with publishers if the textbook will be used by other institutions. If the institution profits (either in a tangible way by making money from sales, or simply by increasing its prestige), then the institution ought to give the professor a promotion or raise.
9.22.2005 8:29pm
Aeon J. Skoble (mail):
Cold Warrior: deal! If you can talk the college into giving us raises if we publisha book, I'll be happy to forego royalties.

Ethesis: "whether selection should be influenced by side-profit issues." You imply that my 10-dollar profit influences my judgement in text selection. While I've been known to gripe about my low salary, I assure you I'm not so poor that 10 bucks is enough to make me abandon my principles. Again, remember that before I had a textbook to be biased towards, I would have had to have decided that I wasn't too happy with the existing ones. That's what prompts profs to produce their own - so thety can have a book they find more useful than any other available book. I can't recall offhand whether I said this here or at my own blog, but since 1999, I've made all of 70 bucks on my own textbook, and that includes students not at my own college. So the idea that I keep using it because of "side-profit issues" is pretty thin. I use it for the same reason I made it in the first place: because given the way I conceive of the course, no other text was satisfactory. So it's hardly a "sub-optimal choice": anyone who writes a textbook will necessarily think it's better, else why write one? (Additionally, the publisher will have to agree that it fills an unfilled niche, or is otherwise meritorious, or they won't publish it.
Furthermore, you said "nope" at just the place where I was making the point about instructor autonomy - apparently, then, you think profs should not have discretion as to text selection. I think you'll find that a tough sell; profs value academic freedom, and fortunately, most of us have contratual arrangements which protect that. Third, and this was seriously disturbing, you imply that I was defending sex-with-students, when plainly I was not, so either it was your intention to slander me, in which case this conversation is over, and I'll be asking Eugene to disallow your comment-privileges, or you misunderstood my argument. Here's the exchange again:
You: "like having sex with students, selling them textbooks comes up as well"
Me:"like having sex with students, selling them textbooks comes up as well" That's obnoxious, as well as a terrible analogy.
You: Sorry I was too terse for you to understand that I was addressing that there seem to be two common conflicts of interest issues that come up over and over again, not making an analogy. Though, in that line, it is interesting to see how professors defend both practices.

I wasn't defending the one, I was differentiating it from the other. That's pretty plain, have another look.
9.22.2005 9:56pm
Stephen M (Ethesis) (mail) (www):
Hmm, this is too much like dealing with the target of an investigation than discussing a practice.

You aren't the target of an investigation. You aren't doing anything that violates any legal duties you have (in my opinion, this isn't legal advice). I'm not saying that you've sold your principles for $70.00 (though I know people who have sold out for less).

So, reviewing, with some white space to make things easier to read:

"whether selection should be influenced by side-profit issues." You imply that my 10-dollar profit influences my judgement in text selection.

No, no, no. Conflict of interest analysis from a legal standpoint doesn't care whether or not you are actually selling out or whether there is any influence whatsoever. It is the possibility of an influence, not the actuality.

I was assuming you had a foundation in the area. My mistake.

While I've been known to gripe about my low salary, I assure you I'm not so poor that 10 bucks is enough to make me abandon my principles.

Joke taken.

Again, remember that before I had a textbook to be biased towards, I would have had to have decided that I wasn't too happy with the existing ones. That's what prompts profs to produce their own

My general thought was that writing a book was affected more by tenure requirements, etc.

I can't recall offhand whether I said this here or at my own blog, but since 1999, I've made all of 70 bucks on my own textbook, and that includes students not at my own college.

How many copies sold? I'm amazed (no offense). At ten dollars a copy that is only seven copies.

So the idea that I keep using it because of "side-profit issues" is pretty thin.

And not the point of the analysis. I'm (one) not talking about you as an individual and (two) not talking about what actually happened in any individual case, but rather the possibility of influence.

It is much like the various rules about self-dealing and deals with clients.

I use it for the same reason I made it in the first place: because given the way I conceive of the course, no other text was satisfactory.

Good.

So it's hardly a "sub-optimal choice": anyone who writes a textbook will necessarily think it's better, else why write one? (Additionally, the publisher will have to agree that it fills an unfilled niche, or is otherwise meritorious, or they won't publish it.

Well, that is a stretch ;) About the publisher, that is.

Furthermore, you said "nope" at just the place where I was making the point about instructor autonomy

My mistake, I was too terse.

No, I do not disagree about whether or not professors should have autonomy.

That isn't the issue.

The conflict of interest issue is whether or not the possibility of a side profit should be able to enter into the equation (not whether it does with any particular professor, but whether the possibility should be allowed to exist).

- apparently, then, you think profs should not have discretion as to text selection. I think you'll find that a tough sell; profs value academic freedom, and fortunately, most of us have contratual arrangements which protect that.

I communicated poorly.

Third, and this was seriously disturbing, you imply that I was defending sex-with-students, when plainly I was not

No. No. No.

I am not implying that you are defending, engaging in, or thinking of, sex with students. It seemed clear to me that I was merely using that as an example of another area where there is a conflict of interests and where professors in general (not you in particular) disagree with what seems clear to outsiders.

so either it was your intention to slander me, in which case this conversation is over, and I'll be asking Eugene to disallow your comment-privileges, or you misunderstood my argument.

Feel free to do what you feel appropriate, which, obviously, does not include sex with students.


Here's the exchange again:

You: "like having sex with students, selling them textbooks comes up as well"

Me:"like having sex with students, selling them textbooks comes up as well" That's obnoxious, as well as a terrible analogy.

You: Sorry I was too terse for you to understand that I was addressing that there seem to be two common conflicts of interest issues that come up over and over again, not making an analogy. Though, in that line, it is interesting to see how professors defend both practices.


As a class, especially in the discussions at The Chronicle, there was an amazing amount of success. I would assert that any outsider reading this should realize that (a) you are not defending sex with students and therefor (b) the discussion on that point is not about you but about the general cultural blindness to conflict issues, not your specific issues, if any.

I wasn't defending the one, I was differentiating it from the other. That's pretty plain, have another look.

I agree that the points are different.


As a matter of law, I don't think that the professor-student duty, as it is usually defined, rises to the fiduciary lawyer-client. That is why professors are allowed to exploit the relationship. It is not even as protected as the employer-employee relationship in a state like Texas (where it is pretty weak).

Which, is, of course, why the sex issue is a good reference point because over and over again, professors are allowed to marry and/or date students without it being a breach of ethics (compare to psychotherapists or lawyers and their patients and clients).

So yes, there is a conflict of interest.

Yes, in similar situations, the conflict results in sub-optimal choices that benefit the party with power.

However, it is probably not the type of conflict of interest that is actionable or that would result in a breach of professional ethics.

Honestly, I was hoping to see a deeper analysis, as there is one and a lot to go on once you start looking at legal ethics (and this is a law related blog).


Ok.

Enough attention on what is a non-issue, though if I were trying to slander you I would imply that you had missed the point on purpose in order to sidetrack the discussion.

Though, if I thought that, I wouldn't have replied to you.

So, I'm not saying you are having or defending sex with students and I'm not saying that you've gotten so irritated and side tracked because you missed the point for reasons other than my terseness.

Which brings me back to the real point and the real issue.

There is a conflict of interest.

The issue is:

1. Is it meaningful?
2. If so, does it implicate concern in regards to the duties held by professors?

I've seen specific examples of what looked a lot like abuse in introductory classes (like the math class example above -- only in introductory physical sciences) where hundreds of kids each semester were mandated to buy a book that changed/was updated on a yearly basis. Your book is obviously not in that category. You aren't talking tens of thousands of dollars a year in book income, it appears less than twenty dollars a year.

But, I'm not sure that there is a breach of a legal duty in this case. Unlike if a trustee were taking a profit from selling food to the beneficiaries of a trust. Sure they have to eat and someone will make a profit, and ... but the law doesn't allow the trustee to be the one to take that profit.

So, I don't see anything wrong from a legal standpoint.

At least this has had more depth than the debate at your blog, though that was spirited as well.
9.22.2005 10:42pm
Stephen M (Ethesis) (mail) (www):

This is a self-dealing transaction, which would be presumptively illegal if professors owed a fiduciary duty to students. Some professors realize this and donate to charity the royalties they earn when they assign students their own books.



and


I actually worried a little about this when deciding what to do when teaching my own First Amendment class. Anyone trained to worry about potential conflicts of interest should indeed spot this one.



Eugene is correct in his initial post to this point.

The thing is, the conflict is not illusory, it is not meaningful -- that is an entirely different point.

Anyway, that brings us full circle.

And I assure you, the judge I use in my example thought his book was better.

Funny, now that he is not on the bench, I haven't seen anyone use it. I see O'Connors everywhere, even out of state these days.
9.22.2005 10:51pm
Aeon J. Skoble (mail):
Me:"I've made all of 70 bucks on my own textbook, and that includes students not at my own college."
Ethesis:"How many copies sold? I'm amazed (no offense). At ten dollars a copy that is only seven copies."

No, no: I don't get 10 bucks a copy, I meant in any given semester, I might make 10 bucks _period_. It's sold several thousand copies, but (a) the royalty is less than a buck per book, (b) I only get half that, since I had a co-editor, and mostly (c) half of the budget for obtaining copyright permissions was charged against royalties, so the first $3,500 that I was "earning" on paper I didn't actually receive, the publisher kept it to pay itself back so to speak. Also, (d), in any quarter in which sales don't reach a certain number, I don't get paid at all. So my net earnings over the life of the book has been around 70 bucks, despite fairly decent sales, not only to my own students. I'm not complaining, mind you - as I have been saying, the point of doing the textbook was because I didn't like anything else that was available, but getting a check for 70 bucks is nice too. Obviously if the book were more popular or if I had been shrewd enough back then to negotiate a better deal, we'd be talking about more money, but I'd still make the same argument: profs rightly enjoy autonomy in textbook selection, profs have a duty to choose the best book available, I produced a text because I found the alternatives unsatisfactory, ergo when I teach that class, it's proper for me to order that book.
But as you note, perhaps we're just spinning our wheels here and should just agree to disagree. Minimally, I can assure you I'm in compliance with state regs.
9.23.2005 10:41am
Guest2 (mail):
On the off-chance that anyone is still reading this thread. . . .

I'm not so sure that there is a conflict of interest here involving the students. If anything, it's between the prof and the college. A college professor is not acting as an agent of the students, and since the students are legal adults, they are not otherwise entitled to special protections.

To simplify the issues, let's say that Prof P hangs out his shingle, offering to teach philosophy. The terms of his engagement are $100 for ten lessons, paid in advance; the lessons are in his home on Saturday mornings; and students must buy his book from him.

Finding a conflict here would in effect turn every contractual relation into a conflict situation. Prof P wants to make money, his prospective students want to learn philosophy, and they may reach an agreement despite their conflicting interests. I don't think saying that Prof P therefore has a conflict of interest is conceptually helpful. To quote Susan Shapiro in Tangled Loyalties, "One sees one's subject hidden under every rock, lurking behind every shadow, the hidden agenda in all of life's dramas." (xiii)

Then let's say Prof P joins the faculty of a college. The college employs him to teach philosophy on certain terms that Prof P and the college agree to. Prof P is supposed to educate students in Western Philosophy 101, and in carrying out that job, he is permitted to choose the text he will use. His course's description and syllabus are posted on the college's website (or can be obtained by emailing him). And let's say that, on the side, Prof P has self-published The Collector's Guide to Medieval Philosophy Manuscripts, which he sells for $75 each. And Prof P includes that book among the required texts for his Philosophy 101 class.

The conflict here doesn't involve any duty to the students. They can easily find out before deciding to take the course what texts Prof P requires, who wrote them, and how much they cost. They're free to decide whether the course is worth it or not.

To the extent there is a conflict, it's between Prof P and the college. The college employs him to teach a course on the college's behalf, not to sell books on his own account. But Prof P's role as a prof at the college entails requiring the purchase of books by students who take his course. There's a conflict between his role as an employee of the college and his role as an author.

But the label "conflict" is not dispositive. I think the question is whether it's a disabling conflict. For 99.99% of profs who are authors, I don't think it is. The outlier may be the situation someone described above, where profs write an entry-level text that they then are in a position to, and do, assign to thousands of students every year and unnecessarily revise every year. But even there the problem is not between the profs and their students -- any harm to the students is voluntarily assumed. The problem is between the profs and the college. They are hurting the college (hurting its reputation and hence its ability to attract "customers") by abusing their role as selecters of texts in order to serve their conflicting role as authors of a text.
9.23.2005 10:49am
Stephen M (Ethesis):
But the label "conflict" is not dispositive. I think the question is whether it's a disabling conflict. For 99.99% of profs who are authors, I don't think it is. The outlier may be the situation someone described above, where profs write an entry-level text that they then are in a position to, and do, assign to thousands of students every year and unnecessarily revise every year

Analysis is spot on to that point.

Thereafter it is much like applying an assumption of the risk analysis to a workers compensation claim.

However, I think we agree that Aeon J. Skoble is not subject to any claim of a disabling conflict of interest, which is a good place to let the discussion end.
9.23.2005 5:46pm