Tag Archives | The Future of Books Related to the Law?

I’m finishing up the The Future of Books Related to the Law? series, and I wanted to close by discussing what e-readers could do to the structure of the textbook publishing market. As before, I much welcome your comments, since I’m now editing my article on the subject (it will be coming out as the Foreword to the Michigan Law Review Books Related to the Law issue).

The legal textbook market differs in important ways from the academic book market.

First, most legal textbooks are probably written at least partly for the money. Textbook writing is generally less valued as intellectual activity than is writing original scholarship — less valued by tenure, promotion, and lateral hiring committees, less valued by colleagues, and less valued by the scholar-authors themselves. Many professors do create their own materials, with no payment, just to more effectively teach their own classes. But creating a book that others can use, with material that you might not use in your own class but that other teachers might demand for their classes — and with a Teacher’s Manual that beginning teachers have generally come to expect — is a good deal more work.

At the same time, the endorsement of an authoritative institution is probably less important for a legal textbook. The authors’ names, and the content of the book, will tend to be more important than the fact that West Publishing agreed to publish the book. The people selecting which textbook to use are themselves law professors, and tend to know who the important people in the field are.

Adopters are also, I expect, less likely to rely on textbook publishers’ selection processes as a real assurance of quality. A list of adopters or, for a new book, a list of other teachers who [...]

I argued yesterday that the advent of e-readers would reduce traditional publishers’ marginal advantage in publishing scholarly books. This makes it possible for others to compete effectively with book publishers. And the logical candidates for this role would be law journals.

Branding: Law journals have the sort of branding power that publishers do. If the Journal of Law & Economics decided to select books, readers could be assured of much the same things that readers of Harvard University Press books can be assured of: Some serious scholars in the field have read the book, and found it worth publishing.

If the Michigan Law Review decided to do the same, readers would have less valuable information, because the book will have been screened mostly by students. But they would still know that the book was selected through a competitive screening process. Between that and other factors, such as the author’s name, the cover blurbs, and the book reviews (now more accessible than ever, because of the Internet), readers will have a pretty good sense whether the book is worth reading.

Prominent student-edited journals could also institute some level of peer review for books as well, if they wish. The Harvard Law Review and the Stanford Law Review already provide some faculty review of their articles, though not as much as university presses tend to provide as to books.

Academic authors derive value from the publisher’s imprimatur, even independently of its ability to sell books: Placing a book with a publisher is important for promotions, and for professional respect. But we already know that the top law journals, both faculty-edited and student-edited, are also highly valued by authors, because their imprimaturs (whatever their faults) are also respected by the authors’ colleagues. Most law professors would be delighted to be published in the [...]

In earlier posts on this chain, I started by discussing the first phase of the migration to e-books: whether people will start reading the same content electronically that they’ve long read on paper. I then began considering the “second migration,” in which people take advantage of features of the new technology — for instance, the malleability of e-books, and the relaxation of size constraints — that don’t just emulate the old technology but go beyond it.

But there’s another aspect of the second migration: It opens the door to publishing structures that don’t now exist, making possible both further cost reductions and the distribution of books that can’t be distributed cost-effectively today. Let me speculate briefly and tentatively about that here, limiting myself to the two fields I know best — scholarly books and textbooks — and omitting treatises, other legal practitioner references, and student study aids.

To start with, consider scholarly books about law (i.e., books of original scholarship, rather than textbooks). If you’re a professor who wants to publish an academic legal book, you face a problem. Your primary goal is to get more readers. Secondarily, you’d like to get some money, though you might well be willing to trade off that money for readers. After all, unlike most authors who don’t have academic appointments, you’re already being paid for your time.

Expense limits readership: The trouble is that the book will often be priced at a level that will alienate many potential readers. Let me give as an example a book about which the author guest-blogged on my Weblog: Richard Painter’s Getting the Government America Deserves: How Ethics Reform Can Make a Difference, published by Oxford University Press. The book has a list price of $65, and Amazon sells it for $59.14, though one [...]

(This is part of a series; the earlier posts are here.)

So we’ve spoken about why lawyers, law students, and law professors might shift to e-readers, and how this shift may change their reading habits (especially by letting them have their main reference works constantly available). But the shift should also lead to a change in the content of legal books.

Size: The most obvious such effect will be to remove the influence of page limits. My First Amendment casebook is now 1074 pages, including front matter, and my publisher tells me that the next edition can’t get any bigger. And there are good reasons for that, both related to cost and to bulk. That means that if I add some new cases, I have to remove or trim down some old cases — that’s work for me, and inconvenience for teachers who use my textbook but find that a case they taught from the previous edition is missing from the new edition.

Likewise, if I’m interested in adding a new chapter (for instance, about the First Amendment and ballot access restrictions, something I don’t now cover, or about Framing-era views on the First Amendment), I either have to cut something else, or forgo the new material. This limits the useful material I can add, and the choices I can present to the teachers who adopt my book.

If my textbook moves to e-book format, these constraints will fall away. And though long law journal articles or scholarly books are hard to get through, thick (but well-edited) textbooks are good: Textbook authors deliberately design books to have more material than each adopter will need, so that adopters can pick and choose what to include. If my textbook grows to the equivalent of 1500 paper pages, but remains [...]

(This is part of a series; the earlier posts are here.)

So, as I discussed earlier, e-textbooks have to compete with substantially discounted used textbooks. But scholarly books that are aimed largely at law professors and law students also have to compete with something even cheaper: library borrowing.

Law professors can generally get all the books they want for free, with minimal hassle and modest delay, just by asking their librarians. Law students can often do much the same, though with a bit more work. As a result, for instance, I never buy law-related e-books for my Kindle, though I do download free public domain items (such as Blackstone’s Commentaries), as well as draft articles and the like. Instead, I just borrow the paper books from the library.

Now of course borrowing these books isn’t really free for my employer. The library has to spend money on buying the books, as well as on maintenance, shelving and reshelving, and processing faculty delivery requests. Space that’s used for book stacks is also space that can’t be used for faculty and staff offices, classrooms, and the like. So libraries, their users, and publishers can all profit from making it possible to lend e-books on much the same terms as libraries can now lend books.

And fortunately, there’s ample precedent for this in the site licenses that many libraries already get for various online collections: HeinOnline’s collections of law journal articles, public domain legal classics, government documents, and some more recent treatises; Chadwyck’s Early English Books Online, Gale’s Eighteenth Century Collections Online, Making of Modern Law, and other databases; the Oxford English Dictionary; and the like. University libraries routinely have such subscriptions for all their users, but some public libraries do as well. Libraries and publishers would likewise be able [...]

(This is part of a series; the earlier posts are here.)

Electronic distribution has long been touted as making content cheaper for consumers. This has largely been true: Newspaper articles, including articles from out-of-town or foreign newspapers, are now largely available for free. So are many magazine articles. Many old books are available for free on Google Books and Project Gutenberg; the latter books can be easily downloaded onto the Kindle 2. And many Kindle versions of legal books already tend to sell for about 20% below their list price (though some remaindered copies of slightly older paper books actually sell for a deep enough discount that they cost less than the Kindle versions).

But that discount likely won’t be enough by itself for a broad conversion to ebooks, for two reasons: the used book market, and libraries.

Used book sales, and library borrowing, are both enabled by the so-called “First Sale Doctrine” of U.S. copyright law: Once a book is sold, buyers are free to resell it or lend it, and don’t need the author’s permission for that.

And people routinely take advantage of this. Law students often buy used textbooks, and then sell them back to the bookstore when they’re done. Legal academics can borrow pretty much any book they want from their university libraries. Likewise, lawyers routinely borrow books from the firm library; even sole practitioners may pool their book collections with other lawyers in the same suite of offices. We’ve gotten used to borrowing books for free, once someone at our institution — such as a university or a law firm — has bought a copy.

Yet the same transactions would likely be infringing when done for e-books (and are often technically stymied by copy protection). The First Sale Doctrine only applies to “distribution” of [...]

(This is part of a series; the earlier posts are here.)

To make e-readers most effective, manufacturers and publishers have to make some improvements to their technology and to their business models.

Let me begin by focusing on readability. E-readers are still not quite as legible as paper. The Kindle 2 is a vast improvement over earlier readers, such as the Rocket eBook from about 10 years ago. Still, its dark-grey-on-light-grey contrast is not quite clear as the contrast on paper. Books on the Kindle 2 are readable, but at least slightly less so than paper.

Current e-readers also tend to reduce the size of illustrations, because of the smaller page size. [Footnote: The Kindle DX, with its fairly large screen, doesn’t seem to have this problem.] You can zoom in on part of an illustration, but that lets you see that part more clearly only at the expense of temporarily making other parts invisible. Either the screen has to get clearer, or the electronic versions of books have to break up the illustrations in ways that maintain the illustrations’ readability.

Second, annotating and highlighting is still considerably harder on e-readers than on ordinary books. On the Kindle 2, for instance, you have to hit a button several times to move the cursor to the words one wants to highlight. To write notes in the margin, you have to type your annotations on a small and fairly clunky keyboard. [Footnote: Cf. Jeffrey R. Young, How a Student-Friendly Kindle Could Change the Textbook Market, Chronicle of Higher Educ., May 6, 2009 (reporting that the difficulty with taking notes on a Sony e-book reader persuaded a university to abandon its experiment with switching to e-reader textbooks).]

Fortunately, it seems likely that a solution will not be long coming: a [...]

The paper book is a familiar and generally well-loved technology. It also has advantages over e-readers that might endure for many years. The main ones have to do with how much material one can see at once, without flipping a page or clicking a button. Paper books still let people see more text, on two open largish-sized pages, than can be seen on a modern e-reader screen. [Footnote: This stems from three reasons: E-readers’ lower legibility requires them to use a larger font; their screen size tends to be smaller, presumably for cost and portability reasons, than the text size of a typical book (though screen size for the Kindle DX, which is designed specifically for textbooks, is roughly the same as the text size of a typical textbook); and a hardcover or loose-leaf book can be opened to show two pages at once. I don’t speak here of the supposed esthetic benefits of holding a paper book in your hand; I’m not sure that such benefits are on balance likely to be seen as high enough even with books that are read for pleasure, but they seem especially low as to books related to law. Students, professors, and lawyers are likely to make much more functional approaches towards the textbooks, treatises, study aids, and scholarly books that they real.]

Also, people can cheaply have several books or printouts in front of them at once. Few people are likely to buy several e-readers to duplicate that experience, until e-readers get as cheap as CD players have become over time. [Footnote: Of course, one can have many books available on the reader, and can switch among them at the click of a few buttons. But that’s not quite as easy as having several items that you can read side by side. [...]

That’s the title of a forthcoming Foreword that I was invited to write for the next Michigan Law Review Books Related to the Law issue. The issue itself mostly consists of book reviews, but the Forewords are generally on broader subjects related to legal books or legal scholarship. I thought I’d serialize the article here (with the law review’s permission, of course), largely to get our readers’ feedback. The article is still early in the editing phase, so I have plenty of time to make corrections and improvements. For now, here’s the Introduction.

People have been reading books for over 500 years, in more or less the same format. Book technology has changed in some measure since then. Fonts have become more readable. Books have become more affordable. The indexing of reference works has generally improved. Still, the general form of the book has remained much the same.

But the arrival of e-readers, such as the Kindle 2 and the Sony eBook, offers the possibility of a major change. [Footnote: I’m not wild about the label “e-reader,” since it makes it awkward to talk about readers (people) in the same sentence as “e-readers” (reading devices). But that seems to have become the generic term, with “e-books” being used to mean the electronic text that’s downloaded to an e-reader.] First, people may shift to reading existing books on those readers, and the shift may lead them to change the way they use books, for instance by letting readers have many reference works at their fingertips. Second, the shift may change the content of books. And, third, the shift may change who publishes books, and in some measure which books are published.

In this Foreword, I will try to briefly sketch how these changes might play out as to [...]