eBooks in Law Schools - Crossing the Chasm?


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eBooks in Law Schools - Crossing the Chasm?

  1. 1. T. LaBadieeBooks Approach the Chasm: What role, if any, should the law play in cracking the casebook? Timothy D. LaBadie J.D., M.B.A. April 2012 1
  2. 2. T. LaBadieAbstract: The electronic interactive book (“eBook”) is an emerging technology that can potentiallychange the face of legal education. Proponents and developers of the technology argue thateBooks can offer a wide range of benefits. They can help students learn material better, andcollaborate with other students and instructors better, inter alia. This paper will argue thefollowing: although some level of legal encouragement of eBooks is a reasonable option forpolicymakers, particular with the ABA using its accreditation powers as a vehicle forencouragement, the better course is to leave individual law schools to adopt the technology (ornot), as they see fit. In other words, leave it to the “market” as to the question of whether toadopt eBooks. The major pitfalls to any law or program that would formally encourage eBook adoptionare threefold: (1) policymakers face inherent difficulties in effectively encouraging nascent andemerging technologies like eBooks; (2) policymakers face a limited range of effective options inchoosing a vehicle or mechanism to encourage or incentivize law schools to adopt eBooks; and(3) even assuming these threshold difficulties can be overcome at the policy level, law schoolswill vary in the extent to which they can overcome real-world barriers to adoption and toeffectively implement the technology on the ground. The report goes on to argue that, if policymakers, however, feel compelled to formallyencourage the technology, they should do so through an award or prize system that would givemodest remuneration (and perhaps more importantly, public attention) to top developers andadopters of eBooks, under the auspices of the ABA. This “if you build it, they will come”strategy is the best available way of mitigating the three major pitfalls above, if policymakers doactually insist on formally encouraging adoption of eBooks. 2
  3. 3. T. LaBadieThe Law-School Milieu: Hard Times It is no secret that the legal industry and profession is undergoing a great deal of change.The Great Recession appears to have been a tipping point; changing client demand,globalization, and technological innovation are now disrupting the legal industry.1 In turn, it  appears that the fundamental changes occurring in the legal industry have trickled down, or arecreeping into, the legal “supply chain”—especially, law schools. As many young lawyers arestruggling to find adequate legal work after spending mortgage-like sums on their J.D. degrees,many have begun to criticize the traditional law-school model and the delivery of legaleducation. Indeed, many law graduates already have or will have “underwater degrees”, wherethe debt and expenditures will not translate into a profitable enough investment, as the ABAJournal recognized at the beginning of 2012 in its headline story about the “Law SchoolBubble”.2   Even worse, some law schools seem to have been aware that their school’s educationalofferings would not make economic sense for many (perhaps most) of their students, and tried tohide the fact with questionable post-graduation employment statistics. In fact, over 10% out ofthe 200 ABA-approved law schools are facing class-action law suits for tortuously misleading1“Law firms: A less gilded future” The Economist. May 5, 2011. Accessed at: (http://www.economist.com/node/18651114) on 2/27/12.2“The Law School Bubble: How Long Will It Last if Law Grads Can’t Pay Bills?” William D. Hendersonand Rachel M. Zahorsky. January 1, 2012. ABA Journal. Accessed at: (http://www.abajournal.com/magazine/article/the_law_school_bubble_how_long_will_it_last_if_law_grads_cant_pay_bills/) on2/12/12. 3
  4. 4. T. LaBadiestudents about employment figures upon graduation.3 Moreover, law schools in general are  perhaps at an all-time low in terms of student satisfaction and approval; even those outside oflegal academia. The New York Times for instance has run a series of very critical articles aboutthe efficacy and cost of a legal education over the past year or so.4 Whatever the ultimate merits  of these lawsuits and critiques, it does appear that much can be improved about legal educationin the U.S. Yet reform is in general extraordinarily time-consuming and difficult. Therefore,many within the legal community are actively considering technology as a way to amelioratelegal education and the current situation.Because of the current regulatory regime, technology is not enough This raises an important initial question: Is technology enough to solve these problems?Surely not. One of the biggest problems is that law school education is highly expensive. Why?Most of a law school’s costs are faculty wages.5 Assuming the current law-school model is  ineffective, any substantial changes will have to go beyond bringing, e.g., iPads into theclassroom. Technology, at this point, cannot bring costs down this much.6 So although  technology will not be a sufficient condition for improving legal education, it probably will be a3 Law School Transparency. A web site launched in the past several years that rank most law schools inthe U.S. based on the transparency of employment data, inter alia. Accessed at: (http://www.lawschooltransparency.com/2012/02/breaking-12-more-law-schools-facing-class-actions/;http://www.lawschooltransparency.com/2011/10/15-more-aba-approved-law-schools-to-be-sued/).4See “Is Law School a Losing Game?” David Segal. January 8, 2011. Accessed at: (http://www.nytimes.com/2011/01/09/business/09law.html?_r=1&pagewanted=all); and Law School Economics:Ka-Ching!” David Segal. July 16, 2011. Accessed at: (http://www.nytimes.com/2011/07/17/business/law-school-economics-job-market-weakens-tuition-rises.html?pagewanted=all).5“ForLaw Schools, a Price to Play the A.B.A.’s Way” David Segal. December 11, 2011. New YorkTimes. Accessed at: (http://www.nytimes.com/2011/12/18/business/for-law-schools-a-price-to-play-the-abas-way.html?pagewanted=all).!6 Of course, if legal wages were to rise substantially to previous levels, its costs would not need to come down asmuch, but this seems very unlikely. 4
  5. 5. T. LaBadienecessary one. At the very least, it is a primary ancillary force that can increase the quality oflegal education. At any rate, “technology is not enough” is the premise from which this paperwill proceed. Given that a legal education is so expensive (vis-à-vis the return), surely thateducation ought to be of high quality. A Mercedes, an iPad, or a Rolex may not be cheap, butone expects that the premium price confers first-rate quality.Incremental quality improvements to legal education versus radical changes to cut costs And at this point in time, law schools that apply technology incrementally can improvethe quality of legal education. For instance, law schools can incorporate podcasts, adaptive-learning modules such as CALI and Barbri to supplement their existing legal-education offering.In contrast, law schools are bridled from applying technology more radically in order to cut thefat off the law-school business model—i.e., cutting the costs. If, however, accreditationstandards were liberalized, then technology could play a much more potent, innovative role inbringing down the high price of legal education.7   A good example of regulations bridling technology (and, in turn, quality and cost) isonline or distance learning. Distance-learning technology would allow law schools to conduct,where appropriate, legal education online. This would free law schools from expensivebuildings, investments in fixed assets, and depreciation, which constitute the great bulk of law-school costs.8 Students might attend the traditional first-year classes, but then engage in distance  !7 Although the quality-versus-cost choice is often seen as a trade-off (you can decrease costs, only if you decreasequality, and vice versa), it is not uncommon, especially for recently deregulated industries, to achieve “trade-ons” (simultaneously delivering higher quality while making the service or good cheaper). Both the legal industryand the legal education markets would probably fall into this category. See Co-Opetition. Adam Brandenburger, etal. Chapter 5. Doubleday. 1997.8 Ibid. 5
  6. 6. T. LaBadielearning during their second and third years (including night classes and summer terms allowingstudents to gain practical experience). This, in turn, might lower demand for professors or mightallow the hiring of cheaper adjunct instructors. Although this sounds like a worthwhileexperiment, the ABA restricts distance learning to a mere 12 credit hours (total) for each studentand J.D. degree awarded.9 The case of distance learning is exemplary of how technology, for  better or worse, is currently constrained from deeply cutting costs. Despite these restrictions ona radical change, the current regulatory milieu would allow technology to make incrementalchanges to the quality, and even convenience, of legal education.Enter “eBooks” With this background in mind, one of the more interesting and relevant pieces oftechnology are eBooks. eBooks are still in a largely incipient, nascent stage vis-à-vis legaleducation, but they offer a variety of potential benefits to students, faculty, and administrators.Because eBooks is the topic of this paper, it should be made clear that eBooks can refer to thewhole range of options. For instance, eBooks are often understood as merely “digitized books”,or “books” that are merely reproduced into pdf format. Thus pdf, or facsimile, books offer noadditional interactivity, and are, at best, a small incremental improvement on regular books.Digitized books might result in cheaper prices for textbooks and some gains in convenience, butthat is about it. Indeed, digitized books are available already by Westlaw, Lexis, and otherpublishers that serve the law-school market.Defining terms—eBooks9See ABA Standard 306(d) [Distance Education] of the 2011-2012 Standards and Rules of Procedure forApproval of Law Schools. 6
  7. 7. T. LaBadie In contradistinction to merely digitized facsimiles of traditional books, eBooks can offerinteractive learning experiences, such as embedding videos within the “book”, or real-timesharing of notes and comments by a whole class of students and professor. So although digitizedbooks are relevant and are increasingly being offered at most law schools, the real subject of thepaper concerns the interactive, novel, and disruptive nature of interactive books, or “eBooks ” forshort. When this term is used for the remainder of this paper, “eBooks” will refer to books thatoffer interactive learning experiences beyond a merely digitized copy of the existing textbookalready on the market.eBooks face the Chasm eBooks are still in a very early stage of development in law schools. Applying theproduct-lifecycle model, one would probably place eBooks at the early adopter stage (seeschema on the cover page).10 This stage refers to the point at which a fairly small number of  institutions or people are using the technology, but has not yet entered the mainstream (whichnumerically translates to 80% of a market. For example, in consumer electronics the mainstreamcurrently includes smart phones and laptops. The product lifecycle model as embodied andadapted to technology in the Crossing the Chasm framework is useful because it reminds us that(a) not all technologies will be adopted by the mainstream. Many will fall in the chasm andemerge much later or not at all; and (b) some technologies very much need a “push” to help themcross that chasm.The Early Adopters – Distinguished Company10 See generally Crossing the Chasm: Selling High-Tech Products to Mainstream Customer. Geoffrey A.Moore. Harper Business Essentials. 2002, from which the model on the cover is based upon. 7
  8. 8. T. LaBadie Moreover, it is important for policymakers to keep in mind that, as with many emergingtechnologies, no one can be sure exactly how eBooks will ultimately develop and how they will“look” even if they do actually cross into the mainstream. Indeed, there are a lot of innovative companies in the eBook market that areexperimenting aggressively with eBooks, some of which are by any measure world-classcompanies. Apple, for instance, has recently entered the market, and hopes to use its notoriouspowers of disruption to transform the market for general textbooks, offering educators their own“textbook creation kit.”11 Another renowned innovator, Amazon, also appears to be positioning  itself as a competitor in textbook publishing market.12 Another example more central to legal  education is CALI, or Computer Assisted Legal Instruction, which already serves many lawschools. It has formed E-Langdell, which started offering open, free eBooks last fall.13   High-end institutions are also actively experimenting with the technology. Harvard callsits program “Hack the Casebook” and is looking at a variety of novel approaches, includingdeveloping eBooks and software that would allow law students to learn and collaborate with11“An Apple for teacher? Textbooks are next target for tech giant.” Rob Waugh. Jan. 17, 2012. DailyMail. Accessed at: (http://www.dailymail.co.uk/sciencetech/article-2087769/Apple-target-textbooks-area-Steve-Jobs-described-ripe-digital-destruction.html), on 3/7/12.12See “College Bookstores Learn Not to Mess with Amazon After Private Complaint Draws Lawsuit OverTextbooks” Johnathon Fitzpatrick. Seattle Weekly Blog. Mar. 5 2012. Accessed at: (http://blogs.seattleweekly.com/dailyweekly/2012/03/amazon_and_college_bookstores.php) on 3/7/12 (arguingAmazon is entering the school-textbook industry, including college-level textbooks, and aggressivelycompetiting against existing textbook publishers).13 For the current free legal textbook offerings, see the e-Langdell Bookstore at: (http://elangdell.cali.org/). 8
  9. 9. T. LaBadieother international law students.14 The Hack the Casebook movement is not limited to the  demand-student side. On the supply side, it also aims to create an online database of eBookswith other professors and legal-education professionals in order to promote scholarship andpedagogy.15 Thus, the technology is still quite young, and a lot of experimentation is occurring,  especially with top “brands” and leaders in the legal education market. So the eBook, at least with respect to legal education, is not exactly sure what it wants tobe when it grows up. There are many exciting possibilities and benefits that eBook canpotentially offer, but no company or law school has cracked (or hacked) the casebook. The vastmajority (the mainstream) of law school, professors, and students still use traditional textbooksor their digitized counterparts. Thus eBooks fit neatly into the early adopter category in theCrossing the Chasm model: getting across the chasm into mainstream adoption is perilous. Itrequires change and adaptation of the technology; determining where the technology works andwhere it does not so it can produce benefits for the mass of consumers—a painstaking anddelicate process.When policy follows a technology down the Chasm… Not only do companies and technologies fall into the chasm, but public spending andlaw-encouraging policies will of course fall with technologies that do not reach the mainstream.For instance, green technology, offers a plethora of potential benefits: less harm to the planet, to14See “The Future of Law Libraries: The Future is Now?” John Palfrey’s Blog at Berkman Center, HarvardLaw School. Accessed at: (http://blogs.law.harvard.edu/palfrey/category/elangdell/) on 2/8/12. See also“Robert Darnton on books, ebooks, Google Books, and the DPLA.” The Harvard Library InnovationLaboratory at Harvard Law School. Accessed at: (http://librarylab.law.harvard.edu/blog/2011/10/17/robert-darnton-on-books-ebooks-google-books-and-the-dpla/) on 3/5/12.15 Ibid. 9
  10. 10. T. LaBadiehumans, independence from unsavory suppliers and governments, such as Iran, Venezuela, andso forth. Yet, policymakers who have encouraged specific ‘winners’ have watched publicresources follow many green technologies into the chasm. Thus, policymakers are faced with a dilemma: (1) emerging, nascent technologies arerenowned for falling into the chasm (and the public resources with them) and so this isnotoriously hazardous territory to encourage a technology; while (2) as will be shown further,eBooks are extremely promising for a market that is hurting, and so it is difficult for apolicymaker to sit idly by and wait for the market to ameliorate legal education. A complicating factor for policymakers is that it seems certain enough that thetechnology beats the current offering—the traditional casebook. Though one can list variousbenefits in the abstract (better content, accessibility, etc.), probably the best way to illustratesome of the more predictable or likely benefits, uses, and application of eBooks is through a briefnarrative. This narrative will also serve to illustrate both the likely demand from both studentsand professors; and why on the supply side companies such as Amazon, CALI, Apple, andHarvard see eBooks as a huge opportunity.Potential Benefits: eBooks in Action Amelia, a second-year law student, leaves to attend the first day of her evidence class.She has recently transferred to a school that uses eBooks in most of its courses. She likestechnology in general, and this particular school attracted her in part because it is more tech-friendly than most other schools, and indeed, her old one. She remembers hauling up to 40pounds of books around on any given day. Today, instead, she throws her three-pound laptop (or 10
  11. 11. T. LaBadieeven her tablet computer on a “light” day) into a small satchel, and walks to class. She arrives,and the professor starts the discussion. The assigned reading was a case that students accessedfor free on Google Scholar, or if they preferred, other sites (FindLaw, Justitia, Scotus, etc.). Sheactually read a good portion of the case on her smartphone while in the waiting area at herdoctor’s office yesterday. She was glad she was able to do so study and read in situations likethis without conspicuously and perhaps awkwardly carrying around an 800-page red Evidencecasebook with her to her physician’s office or while waiting in a line at the grocery store. The instructor starts going over the administrative details for the class, starting with thesyllabus. The syllabus, built into the “textbook”, is conveniently on the first page of the eBook.Amelia is struck by several things: first, she did not have to pay for expensive casebooks(sometimes upwards of $150 per class), whether new or used. The eBook was free. Nor did shehave to wait in line at a bookstore or wait for shipping; she was able to access it instantly whenthe professor emailed her the link to access it. Next, the eBook includes sections for outlining,various schemas and graphics for concepts in the class, and more; she realizes that she won’thave to waste time searching through emails, papers, or her desktop to find these key referencematerials as the semester progresses. She realizes that she actually wasted a lot of time doing soduring her first year. The professor concludes the “administrivia”, and begins the substantive discussion. Theclass discusses the case. Near the close of the discussion, the instructor directs the class’sattention to an article in the ABA Journal that Amelia had “tagged” while reading the case, whichdiscussed the recent use and possible impact of fMRI (or neurological lie detection) and itsadmissibility in courts. The instructor had previously urged eBook adoption for reasons such as 11
  12. 12. T. LaBadiethis: in the past with a regular book, it was difficult to stay on top of recent developments in thelaw and technology, especially with fast-changing law, such as criminal procedure. Often,textbooks would be totally silent on emerging legal issues, and at best, would only pose simplequestions, such as: “How, if new brain-scan technology came about, would this affect the legalrule and application thereof.” In contrast, this article can be incorporated immediately into thecourse or into subsequent iterations of the e-book. Further, the professor thought it might engagestudents more if they could take a more active role in contributing content to class discussionsvia eBooks. Lastly, the professor thought that eBooks would increase her own knowledgesharing and collaboration with colleagues. Later that night, as Amelia is studying for the next day, she comes across a 15-minute testdesigned to pinpoint a particular students strongest and weakest learning styles. She thinks this alittle odd based on her law-school experience so far, but decides to do the exercises. She findsout that that visual learning is actually how she learns best, and is a bit weaker on reading—thefar-and-away standard of learning legal content. She finds helpful, interactive schematics withinthe eBook. Accordingly, she works with this visual presentation of the material initially to get ahandle on it before moving on to the actual text of the case. Over the course of the semester, shefinds this improves her understanding of legal material, while being a faster way to study. When she opens the text of the case, she finds several notes and queries that the professorhas provided to direct students to the primary significance of the material. At the end of theeach case or schema, there is a summary or takeaways section. So she can jot down herthoughts, brief the case, or whatever which will methodically build her outline and help herstudy. The eBook software even allows her to quickly produce note cards of the summaries 12
  13. 13. T. LaBadiequickly, so students can adapt them to their purposes. For example, she writes, “What doesDaubert stand for?” and writes her summary of the case. She then bookmarks the schematic forfuture studying reference if she is having trouble grasping the case when she returns to review itand when preparing for finals, which are a full three-and-a-half months away. There is also alink in the eBook for a forum, which can range from “comments” on a case that you might findin reading a New York Times article, to more social-media or Facebook-like platforms, wherequestions can be posted, resources tagged, and so forth. Further, she can annotate, highlight textwith the colors of her choice, and even “draw” lines and schematics on the page (e.g., a matrix orflow chart). Lastly, throughout the term, she completed exercises based on bar-prep software thatshowed her which areas she was strong and weak in. She found that she was weak on characterwitnesses in evidence, so she allocated her study time accordingly. She remembers that duringher first year, she experienced realizing that she was weak on products liability only whenstudying for finals during the last two weeks of the course. Further, she can save thisinformation when later studying for the bar, in about a year-and-a-half’s time. Moreover, theprofessor and administrators can also access this information to see what students are learningwell, or are not. Later on that semester, her car was broken into. But she was still able to accessthe technology in the cloud. By the end of the term, she also realized that she used a lot lesspaper (not only book-wise), but also in terms of printing and copying. She liked the thought ofleaving a lighter footprint during the last year. 16  16Assuming the pages not printed outweighs the energy and production costs of the e-content, software,and infrastructure. 13
  14. 14. T. LaBadieeBooks offer an array of potential benefits It is clear that eBooks have great potential to increase the quality and convenience oflegal education. Again, the potential benefits are so substantial that some policymakers maywant to formally encourage or “push” the technology. And even though eBooks are still young,there is already some precedent for aggressive adoption of eBooks, albeit at the primary andsecondary school level. In a rather aggressive move, the Florida legislature has mandated thatall of its public schools to adopt eBooks by 2015.17 The question is then raised: If the  technology is so great and given the environment in legal education, why shouldn’t policymakers“push”, however, law schools to adopt eBooks? “Potential means you ain’t done it yet…”18   There are three broad reasons why the law should not, at this point, intervene andchampion the adoption of eBooks. First, the technology is yet too young and incipient forpolicymakers to encourage it effectively. Second, even if policymakers can target the right kindof eBook technology to encourage, the mechanisms or channels (e.g., subsidies, incentives, taxbreaks, all-out mandates) are not as effective as other market-based options. Third, evenassuming these threshold hurdles at the policy level can be overcome, there are many reasons tobelieve that many law schools will face numerous pitfalls in implementing eBooks successfullyon the ground. As with so many things, good conception is not enough. Implementing is wherethe devil of it is.17 “Follow Floridas Lead: Why More States Should Switch to Digital Textbooks in Schools Now”. LizDwyer. June 17, 2011. Good Education. Accessed at: , http://www.good.is/post/follow-florida-s-lead-why-more-states-should-switch-to-digital-textbooks-in-schools-now/on 2/28/12.!18 Vince Lombardi. 14
  15. 15. T. LaBadie I. Difficulties in Encouraging eBooks at the Policy-making Level – Picking Winners and the Policymaker’s Hippocratic OathDefining Terms: “subsidy” There are a number of options and mechanisms for encouraging law schools to adopteBooks, including tax breaks, subsidies, prizes, grants, or all-out mandates to adopt (including“best available” or output-defined schemas). These technology-encouragement methods,whether, in the form of a tax credit or grant or otherwise will be termed “subsidy” or“subsidizing” herein. Policymakers often must steer between two dangers that are attendant to encouragingtechnology. One is the “picking the winner” problem (backing solar energy over wind turbines,e.g.). The second and related danger is that subsidizing a technology might unintentionally hurtinnovation and the development of a technology overall. Call this the “myopic subsidy” mistake.Once policymakers decide to subsidize, they could easily earmark improvements for a particular,often a too narrow or limited, use of the technology. When the subsidy becomes available,market participants often “rush in” to secure windfall. Particular, as here, when a technology isyoung and nascent, the danger that policymakers will not be able to anticipate what direction atechnology take is great. Such early technology subsidies can risk distorting, stunting, orblighting the development of the nascent technology. Proponents of subsidizing eBooks may rightly point out that, in view of this danger, a moregeneral subsidy might fix the problem; why not gently push the adoption of eBooks, thusavoiding the pitfalls of constricting the development of eBooks at this early stage? In such a 15
  16. 16. T. LaBadiebroader subsidy scheme, law schools or eBook developers might receive general “R&D”support, whereby institutions that adopted or developed eBooks in general would be rewarded.The problem with this approach is that the subsidy might produce the “token eBook” problem, asdescribed below.Here’s your token eBook. Although a broad subsidy for eBook adoption would avoid the “myopic subsidy”problem, it would run into the problem of giving away subsidies too lavishly—without therequisite ROI. This again underscores the difficulty of encouraging nascent, emergingtechnologies. For example, would policymakers define “eBooks” as merely digitized books? Ifso, what is the value there? A human standing at a scanner with a stack of papers can produce adigitized book. Further, Westlaw and Lexis already produce digitized books, albeit withrudimentary annotative capabilities for students. Perhaps one could mandate that the eBooksmust be “interactive.” But how far does interactive go? Does it include video? Real-timecollaboration and annotation between students and professors? Does it include a social mediacomponent?...And so on. The point is that no one at this point can be sure exactly what eBooksought to look like, or whether a given vision of an eBook will garner the requisite return oninvestment (ROI). Thus, the incipient nature of eBooks at this point should make policymakers very reticentto formally encourage eBooks at this point. II. Legal Mechanism and Vehicles to Push Adoption 16
  17. 17. T. LaBadie If, however, some policymakers are confident enough that they can actually accuratelyand effectively encourage eBooks at this early stage, what are the best legal mechanismsavailable to spur eBook adoption? From the outset, it should be kept in mind the range of mechanisms to “force” lawschools are limited compared to most public or educational institutions. Most law schools areprivate, with only a relatively small proportion being public.19 Moreover, there is a trend for  public law schools to “privatize” by foregoing state subsidies, so public law schools arebecoming rarer as time passes.20 That limits the degree, practically speaking, to which they can  be pushed into eBook adoption by public institutions by fiat, as in the case of Florida mandatingall-out adoption for several reasons. There is little precedent for political intervention inintervening in pedagogical aspects of graduate schools, unlike with primary and secondaryeducation. But perhaps the biggest problem with actually channeling subsidies to law schools toadopt eBooks is a political and normative issue.Hard Times for Law Schools, but Harder Times for the “99%” Perhaps the biggest practical threat to the channeling subsidies to law schools would bethe political and public-relations (PR) problem that would result. The Great Recession hasresulted in protracted high unemployment and squeezed very many public institutions, notablyprimary and secondary public education. Negative PR or public perception is an important forcebecause it might prevent passage of technology encouragement from the get-go. Or, even if it!19 There are roughly 255 active law schools in the U.S., 200 of which are accredited by the ABA.20“Law School Debt Bubble, Part II: Data Show Feds Will Lend $54.3 Billion to U.S. Law Schools by2020”. Matt Leichter. Dec. 5, 2011. 17
  18. 18. T. LaBadiepasses, may result in bad press and a backlash. Is it really likely that the public would supportsubsidies to law students and law schools in this economic milieu? One could try to explain thatit helps students learn more effectively, which in turn, could mean better legal services for thepublic. In theory the public could endorse that round-about benefit. But the far more likelyoutcome is that the public would see it as pork to a special interest. Add to the fact that the vastmajority of legislators are lawyers, and this perception seems even more likely still. Nor, even,can policymakers plausibly argue that benefits to law schools will redound to the average Joe, interms of job creation or stimulus. In sum, at a time when lawyers are not exactly seen in a kindly light by the public, yetanother blemish against the profession should be avoided. This factor militates against deliveryof a subsidy though tax credits, grants, and so forth. It’s hard to imagine a political climate moreinclement to publicly aiding law students and law schools.The best option: ABA as the Encouragement Vehicle How about the ABA as a vehicle to promote eBook adoption? The chief virtue of theABA is it has public-like power as an accreditor, but is not directly funded by taxpayers. So itcan insist or push eBook adoption (or technology forcing) without all the PR problems orpolitical hang-ups. Additionally, most states have handed over accreditation power to the ABA,and the ABA accredits almost 80% of the existing U.S. law schools. So most law schools aresquarely within its jurisdiction, so to speak. As such, the ABA is a sound vehicle. And quitereasonably, it may be argued that the ABA can effectively encourage eBook adoption by feasible 18
  19. 19. T. LaBadiemeans, such as requiring law schools to adopt eBooks in five years or to require a certainpercentage of classes (say 10 to 15%) must experiment with eBooks in a given timeframe. Thus, it appears that the ABA is a plausible, reasonable vehicle for encouraging eBooks,assuming that policymakers insist on encouraging eBooks at this very early, risky stage. Butpolicymakers still face one final obstacle: adequately planning for real-world implementation.This is perhaps the single biggest pitfall for policymakers. III. Barriers to Adoption and ImplementationMany a slip twixt the cup and the lip… Assuming the foregoing policymaking hurdles can be overcome, and a sufficient subsidyor push is fashioned and a workable mechanism in place, such as the ABA, will the pro-encouragement drive succeed on the ground? How is it likely to play out in the real world? Law schools are somewhat unusual creatures, and differ from your typical competitive,free-market firms a great deal. Of course, some implementation challenges and opportunitieslaw school will share with any other type of institution or business, and some are unique. Whatevery institution shares, however, is that substantially changing an organization is extraordinarilydifficult. But there are additional reasons why eBook adoption will be especially difficult for avery many law schools. The first reason is the governance structure of law schools. Governanceis divided between administrators and faculty. Hence, even if it were an advisable strategy, it ispractically impossible for administrators or even key law professors to impose eBooks onunwilling or lukewarm colleagues in top-down, command fashion. So though change is 19
  20. 20. T. LaBadienotoriously difficult in businesses generally, is a fortiori, even more so in a university setting,where faculty buy-in, consensus, and commitment are particularly crucial.21 Even schools that  have administrators or deans who are highly motivated to adopt have less incentives at theirdisposal than normal businesses to effect change.22 This again underscores the fact that good  technology is not enough. You have to convince the laggards and the conservatives to cross thechasm. In the law-school context, chief among those are faculty law professors. Not all lawschools will be able to secure this buy-in to adopt and experiment with eBooks. Of course, eventhe most stubborn professor cannot reasonably argue against rules imposed from the outside,such as accreditation. Rules may require that a law school complies, but rules cannot assure thata law school will implement well. Quite the contrary, faculty members can drag their feet, makethe adoption seem absurd and ludicrous to students, staff, and colleagues. And, as argued below,even if faculty is completely willing to give adoption a try, they may execute eBook adoptionterribly. And even if most faculty and administrators do buy in, not all schools will have the sametechnological abilities, nor will all schools have the same or even adequate technologicalinfrastructure. New software is well-known for going through often lengthy beta processesbefore it is “fit for widespread consumption.” Subsidies may induce certain schools to bite offmore than they can chew. If these beta-type difficulties are keen enough, it might sour students,staff, and administrators on eBooks for some time to come. This would manifestly be theopposite result of promoting eBooks.21Eating Our Cake and Having It, Too: Why Real Change Is So Difficult in Law Schools. Nancy B.Rapoport. Indiana Law Journal. Vol. 81:359. p. 362, fn. 9, 370.22 Rapoport, p. 363, fn. 11, 370. 20
  21. 21. T. LaBadieIf you Insist…A Modest Proposal The substantial barriers to implementation, outline above, raise an important point.Overall, many law schools are probably not well positioned to adopt the new technology, at leastnot now, nor probably in the short term. Therefore, a modest spur is a very reasonable option toeither overcome institutional inertia. Therefore, policymakers who do not trust market-likesolutions, competition, and emulation to ensure that eBooks cross the chasm, should opt for aprize or award. An advantage of this quite modest approach is that it answers the concern that time is ofthe essence, and that debt-heavy law students need speedy relief. Precisely because an award orprize is a modest, even one-time, encouragement it can be implemented much more quickly thanthe slow churn of bureaucracies (such as the ABA) or, even slower, the machinery ofgovernment. Although it is far from certain that timely relief is really any longer needed (lawschool admissions are dropping sharply, which, cet. par., will force law schools to compete veryharder for a shrinking pool of students23), this would answer the timeliness concern. How would  such this modest push—an award or prize—system work? The award could be conferred on a group of top schools. The schools could be chosen bya cross-section of general educators, law professors, practicing lawyers, judges, students,technologists, and others. Media attention would be essential, even if only limited to tradepublications, like the ABA, or on law-school or legal-technology Blawgs. Even if schools do not“win”, it could build up tech capacity and know-how, spur innovation, without the dangers of23“For 2nd Year, a Sharp Drop in Law School Entrance Tests”. David Segal. New York Times. March 19,2012. Accessed at: (http://www.nytimes.com/2012/03/20/business/for-lsat-sharp-drop-in-popularity-for-second-year.html) on 4/7/12. 21
  22. 22. T. LaBadiepenalties. So a school would be better off even if they didn’t receive a gold, silver, or bronzemedal, so to speak. It may also encourage or jumpstart market innovations by encouraging lawschools to bring in consultants or partners. For example, a school or a group of schools mightlaunch a pilot program with Apple’s eBooks offering. It might also generate awareness of thepotential benefits of eBooks, interest in eBooks, and perhaps a start a conversation regarding the“new normal” of legal education. This modest approach has the advantage of the “if you build it, they will come”strategy24, which demonstrates to other law schools and eBook providers that a technology can  actually work well in practice, on the ground. Perhaps because of the mimicking, “me too”nature of the law-school market in general25, the prize should include top tier schools as well.   Thus, priming the pump this way would probably be the most effective way for eBooksto cross the chasm. This would also minimize the negative PR risk as the prize or award couldbe quite modest, in all probability raised with private funds (perhaps through the ABA and otherlegal or trade organizations). Perhaps the main incentive would be publicity, the opportunity forlaw schools (especially for mid- and low-tier) to differentiate themselves, given that the vastmajority of schools are in the “undifferentiated middle”.26  Concluding and Summary Remarks eBooks are a potentially valuable, worthwhile technology that can substantially increasethe quality and delivery of legal education for students, professors, and administrators. But, in24 Credit to Professor Vincent Chiappetta at Willamette University College of Law for the term.25 Rapoport, p. 362.26 Rapoport, p. 365. 22
  23. 23. T. LaBadieconsidering whether and how to encourage eBooks, policymakers should be cautious of doing “agood thing foolishly.” This essay has argued that there a variety of such pitfalls attendant uponencouraging eBook adoption. Therefore, especially at this incipient stage, the question andmeans of adoption should be left to the market, or to individual law schools. But entropy is apowerful force. Hence, if policymakers insist on encouraging the technology, they should limitthemselves, and do so by means of a modest award or prize to counteract the institutionallethargy of some law schools. 23
  24. 24. T. LaBadie 24