The future of the casebook: An argument for an open-source approach

Journal of Legal Education

Volumn 57, Issue 1, 2007, Pages 10-35

  Bodie, Matthew ^a  

^a HOFSTRA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 36749054046     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (127)

1. See, e.g., Gary Neustadter, Contracts 2003, available at 〈http://www.scu.edu/Iaw/FacWebPage/Neustadter/e-books/abridged/index. html〉 (last visited May 18, 2007).
2. Yochai Benkler, Coase's Penguin, or, Linux and the Nature of the Firm, 112 Yale L.J. 369, 381-400 (2002). Some of these examples, like Wikipedia or Slashdot, will be discussed later in this article.
3. Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America 373 (New York, 1908).
4. Id.
5. Christopher C. Langdell, A Selection of Cases on the Law of Contracts: With References and Citations vi (Boston, 1871).
6. Douglas W Lind, An Economic Analysis of Early Casebook Publishing, 96 Law Libr. J. 95, 98 (2004).
7. Id. at 98-99.
8. Id. at 102.
9. Id. at 106.
10. Id. at 110
11. (citing Albert Ehrenzweig, The American Casebook: "Cases and Materials," 32 Geo. L.J. 224 (1944)).
12. Despite this comprehensiveness, many books assume that professors will also require supplements containing statutes, model codes, and restatement provisions.
13. See Richard E. Speidel, Edward J. Murphy: The Man and the Casebook, 71 Notre Dame L. Rev. 571, 572 (1996) (discussing his "best estimate" that over 80,000 law students had used the contracts casebook authored by himself and Edward Murphy).
14. See Arnold H. Loewy, Building a Better Casebook, 42 Brandeis L.J. 267, 267 (2003-2004) ("Editing a casebook is neither easy nor exciting. It can be tedious, time consuming and rarely as fulfilling as developing one's 'brilliant' idea into a law review article.");
15. Myron Moskovitz, On Writing a Casebook, 23 Seattle U. L. Rev. 1019, 1021 (2000) (noting that a potential casebook author is unlikely to make more than "four figures").
16. The monetary figure was provided confidentially by a third party.
17. Janet Ainsworth, Law in (Case)Books, Law (School) in Action: The Case for Casebook Reviews, 20 Seattle U. L. Rev. 271, 272 (1997) ("[Y]oung untenured faculty are counseled by their senior colleagues not to waste time working on casebooks.").
18. Many casebooks have comprehensive references to issues that arise in a particular area but phrase those references as questions, and thus require students to look up the cases to find the answer.
19. Robert Laurence, Casebooks are Toast, 26 Seattle Univ. L. Rev. 1, 4 (2002).
20. On a take home exam, no less!
21. Sec Gary Neustadtcr, Rethinking Electronic Casebooks, Jurist (1998), available at 〈http://jurist.law.pitt.edu/lessons/lesjun98.htm〉 (last visited July 10, 2007) (discussing the inelegance of "editing" someone else's casebook).
22. E. Allan Farnsworth, Casebooks and Scholarship: Confessions of an American Opinion Clipper, 42 Sw. L.J. 903, 905-906 (1988) (discussing the "scores" of contracts textbooks available authored by "some fifty contracts professors").
23. See Loewy, Building a Better Casebook, supra note 13, at 268 (saying that "the [casebook's] order is so idiosyncratic that it would be surprising if there weren't substantial disagreement about the order of a casebook").
24. See, e.g., S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) ("The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified....").
25. Overreliance on opinions by certain judges and/or schools of thought may contribute to a student's notion of a nationalized common law. See Mitu Gulati and Veronica Sanchez, Giants in a World of Pygmies? Testing the Superstar Hypothesis with Judicial Opinions in Casebooks, 87 Iowa L. Rev. 1141, 1146-47 (2002) (discussing the dominance of opinions by members of the "Chicago School" of Law and Economics in law school casebooks).
26. An example of such a change is the decision by Melvin Eisenberg to rearrange Lon Fuller's Contracts casebook so that it began not with remedies, as Fuller had made famous, but with formation. See Scott D. Gerber, Corbin and Fuller's Cases on Contracts (1942?): The Casebook That Never Was, 72 Fordham L. Rev. 595, 626 (2003).
27. This decision brought harsh criticism from other professors, who saw Fuller's original ordering as a "powerful symbol" of the acceptance of legal realism by the academy. Alfred S. Konefsky, Elizabeth B.Mensch, and John Henry Schlegel, In Memoriam: The Intellectual Legacy of Lon Fuller, 30 Buff. L. Rev. 263, 263-64 (1981).
28. For another description of this process, see Neustadter, Rethinking Electronic Casebooks, supra note 19.
29. I am assuming that the casebook could be modified to at least delete those materials that the professor did not wish to include. It would be possible to put a casebook into a single, unalterable file, such as an Adobe Acrobat (pdf) file, but that would defeat much of the purpose of putting the textbook on line in the first place.
30. The format of the digital distribution would affect the professor's choices down the road. If the casebook were distributed at the beginning of the class as one compiled file, then the professor would be unable to change materials during the length of the course without resorting to the usual methods. If the materials were posted to a database, however, the professor could add or subtract materials throughout the course. Last minute changes could be made without worrying about the distribution requirements or the confusion it might engender in students.
31. Laurence, Casebooks are Toast, supra note 17, at 2-4.
32. Id. at 2-3
33. Id. at 3-4.
34. Id. at 6
35. See also Neustadter, Rethinking Electronic Casebooks, supra note 19 (describing how an electronic casebook could use its own digital libraries rather than materials from an online database).
36. Laurence, Casebooks are Toast, supra note 17, at 5-6.
37. Id. at 2.
38. Id. at 5.
39. Id. at 8.
40. Id. at 11.
41. Id. at 10-11.
42. Id. at nn. 3 & 10.
43. Id. at 6 & n. 10.
44. Id. at n. 10.
45. Although government materials such as case opinions are not protected by copyright, materials that have been added to those materials, such as case notes or even page numbers, do have copyright protection. West Pub. Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986).
46. David S. Evans and Anne Layne-Farrar, Software Patents and Open Source: The Battle over Intellectual Property Rights, 9 Va. J.L. & Tech. 10, ¶3 (2004).
47. See Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity 279 (New York, 2004).
48. Id.;
49. Evans and Layne-Farrar, Software Patents, supra note 42, at ¶4-¶5.
50. Evans and Layne-Farrar, supra note 42, at ¶5.
51. Id. at ¶5 n. 10
52. {quoting Richard Stallman, Copyleft: Pragmatic Idealism, Free Software Foundation, available at 〈http://www.gnu.org/philosophy/pragmatic. html〉 (last visited June 29, 2007)).
53. Evans and Layne-Farrar, Software Patents, supra note 42, at 116.
54. Yochai Benkler, Freedom in the Commons: Towards a Political Economy of Information, 52 Duke L.J. 1245, 1256 (2003).
55. Id. at 1257.
56. For a more in-depth discussion on lesser-known open-source projects, see Eric S. Raymond, The Cathedral & the Bazaar: Musings on Linux and Open Source by an Accidental Revolutionary (Cambridge, Mass., 2001).
57. David McGowan, Legal Implications of Open-Source Software, 2001 U. 111. L. REV. 241, 253-54.
58. Id.
59. Id. at 255.
60. See, e.g., Yochai Benkler, Intellectual Property and the Organization of Information Production, 22 Int'l Rev. L. & Econ. 81 (2002);
61. Eric A. von Hippel and Karim Lakhani, How Open Source Software Works: "Free" User-to-User Assistance?, MIT Sloan Working Paper 4117-00 (May 2000), available at 〈http://ssrn.com/abstract=290305〉 (last visited July 10, 2007).
62. Benkler, Coase's Penguin, supra note 2, at 375.
63. Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 Yale L.J. 273, 334 (2004).
64. Benkler, Coase's Penguin, supra note 2, at 381-82.
65. Id. at 384
66. (quoting NASA, Clickworkers Results: Crater Marking Activity (July 3, 2001), available at 〈http://clickworkers.arc.nasa.gov/documents/crater- marking.pdf〉 (last visited July 10, 2007)).
67. See id. at 386 (discussing 2002 figure);
68. Wikipedia, available at 〈http://en.wikipedia.org/ wiki/Main_Page〉 (last visited June 29, 2007) (discussing current figure).
69. See Wikipedia, available at 〈http://en.wikipedia.org/wiki/ Main_Page〉 (last visited June 29, 2007).
70. In addition there are Wikipedias in eighteen additional languages that have over 50,000 articles, and there are thirty-four additional versions with over 1,000 articles. Id.
71. Ingrid Larson, Wikipedia Needs Help to Keep Growing, ZDNET UK, Mar. 1, 2005, available at 〈http://news.zdnet.co.uk/software/developer/0, 39020387,39189592,00.htm〉 (last visited July 10, 2007).
72. Benkler, Coase's Penguin, supra note 2, at 435.
73. Id.
74. Id. at 436.
75. Id.
76. It is important to note that casebook authors may be legally prevented from working on a commons casebook. According to one author, his casebook contract prohibits him from working on any form of competing project. The provision reads: "For the life of this agreement, the Authors agree not to write, edit, or otherwise contribute to any work that might in the reasonable opinion of the Publisher, compete directly with or injure the distribution of copies of the Work. ..."A commons casebook, even if completely nonprofit, might still be deemed to "compete directly with or injure" sales of the author's published casebook.
77. See Moskovitz, On Writing a Casebook, supra note 13, at 1020-21 (pointing out that he wrote his textbook because none of the available casebooks were organized around his pedagogical approach).
78. See id. (discussing the benefits of name recognition and contact with other professors that come from writing a casebook).
79. See John E. Dunsford, In Praise of Casebooks (A Personal Reminiscence), 44 St. Louis U. LJ. 821, 825 (2000) ("Lives there a law school teacher with soul so dead who never to himself has said: 'Why not assemble my own teaching materials and cases?'").
80. Id. A recent casebook from the Group is Robert J. Rabin, Eileen Silverstein, and George Schatzki, Labor and Employment Law: Problems, Cases and Materials in the Law of Work (3d ed., St. Paul, Minn., 2002). Copyrights in the work are held by the West Publishing Company and the Labor Law Group.
81. Dunsford, In Praise of Casebooks, supra note 68, at 825.
82. Id. at 826-27.
83. Id. at 827.
84. Id. at 827-28.
85. I think a user counter would be more helpful than a download counter, because a download counter would only indicate how many people looked at a particular file, not how many found it helpful. However, a download counter would work automatically, while a user counter would require actual input from the user, often requiring a subsequent visit to the site.
86. Benkler, Coase's Penguin, supra note 2, at 393.
87. Randy E. Barnett, Contracts: Cases and Doctrine (3d ed., New York, 2003).
88. For praise of Barnett's approach, see Kellye Y. Testy, Intention in Tension, 20 Seattle U. L. Rev. 319 (1997) (book review).
89. See Lessig, Free Culture, supra note 43, at 282-86 (discussing Creative Commons licenses). It might also be noted that any professor who took original commentary from the commons, used it in a separately published work, and then attempted to enforce copyright protections against the commons would be such a pariah that social norms alone are likely to prevent such behavior.
90. See, e.g., Langdell, A Selection of Cases, supra note 5.
91. Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 796 (5th Cir. 2002) (noting a "continuous understanding that 'the law,' whether articulated injudicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright");
92. West Pub. Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1223 n.2 (8th Cir. 1986)
93. (citing Wheaton v. Peters, 33 U.S. 591, 668 (1834) ("[N]o reporter...can have any copyright in the written opinions delivered by this court."));
94. Building Officials & Code Adm. v. Code Technology Inc., 628 F.2d 730, 734-35 (Ist Cir. 1980) (discussing administrative regulations adopted wholesale from a private model code).
95. In Veeck, the operator of a non-commercial informational website had cut and pasted the text of local building codes from a version of the codes (as model codes) he purchased on a disk. Veeck, 293 F.3d at 793. The court held that such use did not violate the copyright of the organization that had put the codes on the disk.
96. Id. at 800.
97. These contracts arc generally proprietary and confidential, but several sources have indicated that such clauses exist.
98. See Legal Information Institute, Cornell University, available at 〈http://www.law.cornell. edu〉 (last visited May 15, 2007).
99. ALI Request for Reprint Permission Form, available at 〈http://www.ali.org/index. cfm?fuseaction=contact. reprintpermissionform〉 (last visited May. 15, 2007).
100. Veeck, 293 F.3d at 800 n.14 ("Our decision might well be the opposite, if [the user] had copied the model codes as model codes... .").
101. See Neustadter, Rethinking Electronic Casebooks, supra note 19 (discussing how electronic casebooks could have outline forms for each state).
102. See, e.g., Policy of the Permanent Editorial Board (PEB) for the Uniform Commercial Code Governing Permission to Reproduce or Quote from the Statutory Text and Official Comments of the Uniform Commercial Code (Code) and from the PEB Commentaries to the Code, available at 〈http://www.ali.org/index.cfm? fuseaction=contact.peb〉 (last visited May 15, 2007) (allowing unlimited use of draft codes and commentaries as well as use for "[r]easonable, limited, and selective quotation in scholarly, analytical, and critical discussions, e.g., in law reviews and texts").
103. For example, American Law Institute Publishers is a joint venture between ALI and the West Group.
104. 17 U.S.C. § 107(2000).
105. Id.
106. Id. § 107(1).
107. However, the amount and substantiality of the use might be significant if, over the breadth of the site, substantially all of the code or restatement is posted.
108. Again, however, if users have posted substantially all of the code or restatement to the site, the concern about market effects would be increased.
109. AALS Special Committee on Copyright, Photocopying of Copyrighted Materials in Law Teaching 8 (Spring 1994) (hereinafter AALS Report) (on file with author).
110. Id. at 8-9 and 13-15 (Appendix. B).
111. Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals, H.R. Rep. No. 94-1476, at 68-70 (1976) (hereinafter Classroom Guidelines).
112. AALS Report, supra note 93, at 14.
113. Id. at 8.
114. See also Kenneth D. Crews, The Law of Fair Use and the Illusion of Fair-Use Guidelines, 62 Ohio St. L.J. 599, 605 (2001) (arguing that "guidelines that purport to interpret fair use in fact bear little credible relationship to the law, and that the guidelines of the past are a weak foundation for developing new interpretations for the future").
115. Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381,1391 (6th Cir. 1996);
116. Basic Books Inc. v. Kinko's Graphic Corp., 758 F Supp. 1522, 1526 (S.D.N.Y. 1991).
117. Princeton Univ. Press, 99 F.3d at 1386 ("What the publishers are challenging is the duplication of copyrighted materials for sale by a for-profit corporation that has decided to maximize its profits-and give itself a competitive edge over other copyshops-by declining to pay the royalties requested by the holders of the copyrights.");
118. Basic Books, 758 F. Supp. at 1531.
119. Princeton Univ. Press, 99 F.3d at 1384-85 (discussing the six excerpts ranging between 17 and 95 pages;
120. the length of the average excerpt was 60 pages);
121. Basic Books, 758 F. Supp. at 1526 (discussing 12 excerpts between 14 and no pages).
122. As the court noted in Princeton University Press: The writings of most academic authors, it seems fair to say, lack the general appeal of works by a Walter Lippmann, for example. (Lippmann is the only nonacademic author whose writings are involved in this case.) One suspects that the profitability of at least some of the other books at issue here is marginal. If publishers cannot look forward to receiving permission fees, why should they continue publishing marginally profitable books at all? And how will artistic creativity be stimulated if the diminution of economic incentives for publishers to publish academic works means that fewer academic works will be published? Princeton Univ. Press, 99 F.3d at 1391.
123. See Dan Hunter, Walled Gardens, 62 Wash & Lee L. Rev. 607 (2005).
124. See lessig blog, never again, available at 〈http://www.lessig.org/ blog/archives/002780. shtml〉 (last visited July 10, 2007) ("I will not agree to publish in any academic journalthat does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.") (last visited May 18, 2007).
125. Other periodical publications, such as newspaper or magazine articles, would fall into the same set of possibilities, albeit with less chance of blanket permission.
126. See Benkler, Freedom in the Commons, supra note 48, at 1276 (discussing how the legal frameworks for the use of new technologies are often established quickly after their introduction).
127. See Pamela Babcock, Thinking Differently, Technology Goes to School, Duke Mag., May-June 2002, available at 〈http://dukemagazine.duke.edu/dukemag/ issues/050602/ thinking2.html〉 (last visited July 10, 2007) (discussing "The Contracts Experience," a DVDROM containing written materials along with eight hours of video presentations).