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T. LaBadie


eBooks 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

                                   
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T. LaBadie




Abstract:
        The electronic interactive book (“eBook”) is an emerging technology that can potentially
change the face of legal education. Proponents and developers of the technology argue that
eBooks can offer a wide range of benefits. They can help students learn material better, and
collaborate with other students and instructors better, inter alia. This paper will argue the
following: although some level of legal encouragement of eBooks is a reasonable option for
policymakers, particular with the ABA using its accreditation powers as a vehicle for
encouragement, the better course is to leave individual law schools to adopt the technology (or
not), as they see fit. In other words, leave it to the “market” as to the question of whether to
adopt eBooks.
        The major pitfalls to any law or program that would formally encourage eBook adoption
are threefold: (1) policymakers face inherent difficulties in effectively encouraging nascent and
emerging technologies like eBooks; (2) policymakers face a limited range of effective options in
choosing 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 schools
will vary in the extent to which they can overcome real-world barriers to adoption and to
effectively implement the technology on the ground.
        The report goes on to argue that, if policymakers, however, feel compelled to formally
encourage the technology, they should do so through an award or prize system that would give
modest remuneration (and perhaps more importantly, public attention) to top developers and
adopters 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 do
actually insist on formally encouraging adoption of eBooks.
       







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The 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 are

creeping into, the legal “supply chain”—especially, law schools. As many young lawyers are

struggling 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 legal

education. Indeed, many law graduates already have or will have “underwater degrees”, where

the debt and expenditures will not translate into a profitable enough investment, as the ABA

Journal recognized at the beginning of 2012 in its headline story about the “Law School

Bubble”.2
          




       Even worse, some law schools seem to have been aware that their school’s educational

offerings would not make economic sense for many (perhaps most) of their students, and tried to

hide the fact with questionable post-graduation employment statistics. In fact, over 10% out of

the 200 ABA-approved law schools are facing class-action law suits for tortuously misleading




1“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. Henderson
and 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/) on
2/12/12.

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T. LaBadie


students 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 of

legal academia. The New York Times for instance has run a series of very critical articles about

the 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 education

in 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 ameliorate

legal 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 the

classroom. 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 a


3 Law School Transparency. A web site launched in the past several years that rank most law schools in
the 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 York
Times. 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 as
much, but this seems very unlikely.

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T. LaBadie


necessary one. At the very least, it is a primary ancillary force that can increase the quality of

legal education. At any rate, “technology is not enough” is the premise from which this paper

will proceed. Given that a legal education is so expensive (vis-à-vis the return), surely that

education ought to be of high quality. A Mercedes, an iPad, or a Rolex may not be cheap, but

one 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 improve

the 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 the

fat off the law-school business model—i.e., cutting the costs. If, however, accreditation

standards were liberalized, then technology could play a much more potent, innovative role in

bringing down the high price of legal education.7
                                                           




            A good example of regulations bridling technology (and, in turn, quality and cost) is

online or distance learning. Distance-learning technology would allow law schools to conduct,

where appropriate, legal education online. This would free law schools from expensive

buildings, 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 decrease
quality, 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 industry
and the legal education markets would probably fall into this category. See Co-Opetition. Adam Brandenburger, et
al. Chapter 5. Doubleday. 1997.
8   Ibid.

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T. LaBadie


learning during their second and third years (including night classes and summer terms allowing

students to gain practical experience). This, in turn, might lower demand for professors or might

allow the hiring of cheaper adjunct instructors. Although this sounds like a worthwhile

experiment, the ABA restricts distance learning to a mere 12 credit hours (total) for each student

and 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 on

a radical change, the current regulatory milieu would allow technology to make incremental

changes to the quality, and even convenience, of legal education.

Enter “eBooks”

       With this background in mind, one of the more interesting and relevant pieces of

technology are eBooks. eBooks are still in a largely incipient, nascent stage vis-à-vis legal

education, 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 the

whole 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 no

additional 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, but

that is about it. Indeed, digitized books are available already by Westlaw, Lexis, and other

publishers that serve the law-school market.

Defining terms—eBooks


9See ABA Standard 306(d) [Distance Education] of the 2011-2012 Standards and Rules of Procedure for
Approval of Law Schools.

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T. LaBadie


       In contradistinction to merely digitized facsimiles of traditional books, eBooks can offer

interactive learning experiences, such as embedding videos within the “book”, or real-time

sharing of notes and comments by a whole class of students and professor. So although digitized

books are relevant and are increasingly being offered at most law schools, the real subject of the

paper concerns the interactive, novel, and disruptive nature of interactive books, or “eBooks ” for

short. When this term is used for the remainder of this paper, “eBooks” will refer to books that

offer interactive learning experiences beyond a merely digitized copy of the existing textbook

already on the market.

eBooks face the Chasm

       eBooks are still in a very early stage of development in law schools. Applying the

product-lifecycle model, one would probably place eBooks at the early adopter stage (see

schema 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 (which

numerically translates to 80% of a market. For example, in consumer electronics the mainstream

currently includes smart phones and laptops. The product lifecycle model as embodied and

adapted 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 and

emerge much later or not at all; and (b) some technologies very much need a “push” to help them

cross that chasm.

The Early Adopters – Distinguished Company


10
 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.

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T. LaBadie


           Moreover, it is important for policymakers to keep in mind that, as with many emerging

technologies, 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 are

experimenting aggressively with eBooks, some of which are by any measure world-class

companies. Apple, for instance, has recently entered the market, and hopes to use its notorious

powers 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 law

schools. 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 calls

its program “Hack the Casebook” and is looking at a variety of novel approaches, including

developing eBooks and software that would allow law students to learn and collaborate with




11“An Apple for teacher? Textbooks are next target for tech giant.” Rob Waugh. Jan. 17, 2012. Daily
Mail. 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 Over
Textbooks” 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 (arguing
Amazon is entering the school-textbook industry, including college-level textbooks, and aggressively
competiting against existing textbook publishers).
13   For the current free legal textbook offerings, see the e-Langdell Bookstore at: (http://elangdell.cali.org/).

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T. LaBadie


other 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 eBooks

with other professors and legal-education professionals in order to promote scholarship and

pedagogy.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 to

be when it grows up. There are many exciting possibilities and benefits that eBook can

potentially offer, but no company or law school has cracked (or hacked) the casebook. The vast

majority (the mainstream) of law school, professors, and students still use traditional textbooks

or their digitized counterparts. Thus eBooks fit neatly into the early adopter category in the

Crossing the Chasm model: getting across the chasm into mainstream adoption is perilous. It

requires change and adaptation of the technology; determining where the technology works and

where it does not so it can produce benefits for the mass of consumers—a painstaking and

delicate process.

When policy follows a technology down the Chasm…

             Not only do companies and technologies fall into the chasm, but public spending and

law-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, to


14See “The Future of Law Libraries: The Future is Now?” John Palfrey’s Blog at Berkman Center, Harvard
Law 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 Innovation
Laboratory 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.

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T. LaBadie


humans, independence from unsavory suppliers and governments, such as Iran, Venezuela, and

so forth. Yet, policymakers who have encouraged specific ‘winners’ have watched public

resources follow many green technologies into the chasm.

        Thus, policymakers are faced with a dilemma: (1) emerging, nascent technologies are

renowned for falling into the chasm (and the public resources with them) and so this is

notoriously 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 a

policymaker 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 the

technology beats the current offering—the traditional casebook. Though one can list various

benefits in the abstract (better content, accessibility, etc.), probably the best way to illustrate

some of the more predictable or likely benefits, uses, and application of eBooks is through a brief

narrative. This narrative will also serve to illustrate both the likely demand from both students

and professors; and why on the supply side companies such as Amazon, CALI, Apple, and

Harvard 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 likes

technology 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 40

pounds of books around on any given day. Today, instead, she throws her three-pound laptop (or


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T. LaBadie


even 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 accessed

for free on Google Scholar, or if they preferred, other sites (FindLaw, Justitia, Scotus, etc.). She

actually read a good portion of the case on her smartphone while in the waiting area at her

doctor’s office yesterday. She was glad she was able to do so study and read in situations like

this without conspicuously and perhaps awkwardly carrying around an 800-page red Evidence

casebook 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 the

syllabus. 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 she

have to wait in line at a bookstore or wait for shipping; she was able to access it instantly when

the 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’t

have to waste time searching through emails, papers, or her desktop to find these key reference

materials as the semester progresses. She realizes that she actually wasted a lot of time doing so

during her first year.

        The professor concludes the “administrivia”, and begins the substantive discussion. The

class discusses the case. Near the close of the discussion, the instructor directs the class’s

attention to an article in the ABA Journal that Amelia had “tagged” while reading the case, which

discussed the recent use and possible impact of fMRI (or neurological lie detection) and its

admissibility in courts. The instructor had previously urged eBook adoption for reasons such as

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this: in the past with a regular book, it was difficult to stay on top of recent developments in the

law 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 simple

questions, such as: “How, if new brain-scan technology came about, would this affect the legal

rule and application thereof.” In contrast, this article can be incorporated immediately into the

course or into subsequent iterations of the e-book. Further, the professor thought it might engage

students more if they could take a more active role in contributing content to class discussions

via eBooks. Lastly, the professor thought that eBooks would increase her own knowledge

sharing and collaboration with colleagues.

       Later that night, as Amelia is studying for the next day, she comes across a 15-minute test

designed to pinpoint a particular students strongest and weakest learning styles. She thinks this a

little odd based on her law-school experience so far, but decides to do the exercises. She finds

out that that visual learning is actually how she learns best, and is a bit weaker on reading—the

far-and-away standard of learning legal content. She finds helpful, interactive schematics within

the eBook. Accordingly, she works with this visual presentation of the material initially to get a

handle on it before moving on to the actual text of the case. Over the course of the semester, she

finds 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 professor

has provided to direct students to the primary significance of the material. At the end of the

each case or schema, there is a summary or takeaways section. So she can jot down her

thoughts, brief the case, or whatever which will methodically build her outline and help her

study. The eBook software even allows her to quickly produce note cards of the summaries

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T. LaBadie


quickly, so students can adapt them to their purposes. For example, she writes, “What does

Daubert stand for?” and writes her summary of the case. She then bookmarks the schematic for

future studying reference if she is having trouble grasping the case when she returns to review it

and when preparing for finals, which are a full three-and-a-half months away. There is also a

link in the eBook for a forum, which can range from “comments” on a case that you might find

in reading a New York Times article, to more social-media or Facebook-like platforms, where

questions can be posted, resources tagged, and so forth. Further, she can annotate, highlight text

with the colors of her choice, and even “draw” lines and schematics on the page (e.g., a matrix or

flow chart).

        Lastly, throughout the term, she completed exercises based on bar-prep software that

showed her which areas she was strong and weak in. She found that she was weak on character

witnesses in evidence, so she allocated her study time accordingly. She remembers that during

her first year, she experienced realizing that she was weak on products liability only when

studying for finals during the last two weeks of the course. Further, she can save this

information when later studying for the bar, in about a year-and-a-half’s time. Moreover, the

professor and administrators can also access this information to see what students are learning

well, or are not. Later on that semester, her car was broken into. But she was still able to access

the technology in the cloud. By the end of the term, she also realized that she used a lot less

paper (not only book-wise), but also in terms of printing and copying. She liked the thought of

leaving 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.

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T. LaBadie


eBooks offer an array of potential benefits

           It is clear that eBooks have great potential to increase the quality and convenience of

legal education. Again, the potential benefits are so substantial that some policymakers may

want 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 and

secondary school level. In a rather aggressive move, the Florida legislature has mandated that

all 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 and

champion the adoption of eBooks. First, the technology is yet too young and incipient for

policymakers to encourage it effectively. Second, even if policymakers can target the right kind

of eBook technology to encourage, the mechanisms or channels (e.g., subsidies, incentives, tax

breaks, all-out mandates) are not as effective as other market-based options. Third, even

assuming these threshold hurdles at the policy level can be overcome, there are many reasons to

believe that many law schools will face numerous pitfalls in implementing eBooks successfully

on the ground. As with so many things, good conception is not enough. Implementing is where

the devil of it is.


17 “Follow Florida's Lead: Why More States Should Switch to Digital Textbooks in Schools Now”. Liz
Dwyer. 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.

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T. LaBadie


   I. Difficulties in Encouraging eBooks at the Policy-making Level – Picking Winners

           and the Policymaker’s Hippocratic Oath

Defining Terms: “subsidy”

   There are a number of options and mechanisms for encouraging law schools to adopt

eBooks, 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 encouraging

technology. 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 hurt

innovation 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 is

young and nascent, the danger that policymakers will not be able to anticipate what direction a

technology take is great. Such early technology subsidies can risk distorting, stunting, or

blighting the development of the nascent technology.

   Proponents of subsidizing eBooks may rightly point out that, in view of this danger, a more

general subsidy might fix the problem; why not gently push the adoption of eBooks, thus

avoiding the pitfalls of constricting the development of eBooks at this early stage? In such a


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T. LaBadie


broader 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, as

described 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 the

requisite ROI. This again underscores the difficulty of encouraging nascent, emerging

technologies. For example, would policymakers define “eBooks” as merely digitized books? If

so, what is the value there? A human standing at a scanner with a stack of papers can produce a

digitized book. Further, Westlaw and Lexis already produce digitized books, albeit with

rudimentary annotative capabilities for students. Perhaps one could mandate that the eBooks

must be “interactive.” But how far does interactive go? Does it include video? Real-time

collaboration and annotation between students and professors? Does it include a social media

component?...And so on. The point is that no one at this point can be sure exactly what eBooks

ought to look like, or whether a given vision of an eBook will garner the requisite return on

investment (ROI).

       Thus, the incipient nature of eBooks at this point should make policymakers very reticent

to formally encourage eBooks at this point.

   II. Legal Mechanism and Vehicles to Push Adoption




                                                                                                16
T. LaBadie


            If, however, some policymakers are confident enough that they can actually accurately

and effectively encourage eBooks at this early stage, what are the best legal mechanisms

available to spur eBook adoption?

            From the outset, it should be kept in mind the range of mechanisms to “force” law

schools are limited compared to most public or educational institutions. Most law schools are

private, 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 are

becoming 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 mandating

all-out adoption for several reasons. There is little precedent for political intervention in

intervening in pedagogical aspects of graduate schools, unlike with primary and secondary

education. But perhaps the biggest problem with actually channeling subsidies to law schools to

adopt 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 be

the political and public-relations (PR) problem that would result. The Great Recession has

resulted in protracted high unemployment and squeezed very many public institutions, notably

primary and secondary public education. Negative PR or public perception is an important force

because 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 by
2020”. Matt Leichter. Dec. 5, 2011.

                                                                                                             17
T. LaBadie


passes, may result in bad press and a backlash. Is it really likely that the public would support

subsidies to law students and law schools in this economic milieu? One could try to explain that

it helps students learn more effectively, which in turn, could mean better legal services for the

public. In theory the public could endorse that round-about benefit. But the far more likely

outcome is that the public would see it as pork to a special interest. Add to the fact that the vast

majority 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, in

terms of job creation or stimulus.

       In sum, at a time when lawyers are not exactly seen in a kindly light by the public, yet

another blemish against the profession should be avoided. This factor militates against delivery

of a subsidy though tax credits, grants, and so forth. It’s hard to imagine a political climate more

inclement 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 the

ABA is it has public-like power as an accreditor, but is not directly funded by taxpayers. So it

can insist or push eBook adoption (or technology forcing) without all the PR problems or

political 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 are

squarely within its jurisdiction, so to speak. As such, the ABA is a sound vehicle. And quite

reasonably, it may be argued that the ABA can effectively encourage eBook adoption by feasible




                                                                                                    18
T. LaBadie


means, such as requiring law schools to adopt eBooks in five years or to require a certain

percentage 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. But

policymakers 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 Implementation

Many a slip twixt the cup and the lip…

        Assuming the foregoing policymaking hurdles can be overcome, and a sufficient subsidy

or 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 opportunities

law school will share with any other type of institution or business, and some are unique. What

every institution shares, however, is that substantially changing an organization is extraordinarily

difficult.

        But there are additional reasons why eBook adoption will be especially difficult for a

very many law schools. The first reason is the governance structure of law schools. Governance

is divided between administrators and faculty. Hence, even if it were an advisable strategy, it is

practically impossible for administrators or even key law professors to impose eBooks on

unwilling or lukewarm colleagues in top-down, command fashion. So though change is


                                                                                                 19
T. LaBadie


notoriously 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 their

disposal 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 the

chasm. In the law-school context, chief among those are faculty law professors. Not all law

schools will be able to secure this buy-in to adopt and experiment with eBooks. Of course, even

the 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 that

a law school will implement well. Quite the contrary, faculty members can drag their feet, make

the 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 adoption

terribly.

          And even if most faculty and administrators do buy in, not all schools will have the same

technological abilities, nor will all schools have the same or even adequate technological

infrastructure. New software is well-known for going through often lengthy beta processes

before it is “fit for widespread consumption.” Subsidies may induce certain schools to bite off

more 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 the

opposite 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
T. LaBadie


If 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 least

not now, nor probably in the short term. Therefore, a modest spur is a very reasonable option to

either overcome institutional inertia. Therefore, policymakers who do not trust market-like

solutions, competition, and emulation to ensure that eBooks cross the chasm, should opt for a

prize or award.

       An advantage of this quite modest approach is that it answers the concern that time is of

the essence, and that debt-heavy law students need speedy relief. Precisely because an award or

prize is a modest, even one-time, encouragement it can be implemented much more quickly than

the slow churn of bureaucracies (such as the ABA) or, even slower, the machinery of

government. Although it is far from certain that timely relief is really any longer needed (law

school admissions are dropping sharply, which, cet. par., will force law schools to compete very

harder 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 by

a cross-section of general educators, law professors, practicing lawyers, judges, students,

technologists, and others. Media attention would be essential, even if only limited to trade

publications, 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 of

23“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
T. LaBadie


penalties. So a school would be better off even if they didn’t receive a gold, silver, or bronze

medal, so to speak. It may also encourage or jumpstart market innovations by encouraging law

schools to bring in consultants or partners. For example, a school or a group of schools might

launch a pilot program with Apple’s eBooks offering. It might also generate awareness of the

potential 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 eBooks

to cross the chasm. This would also minimize the negative PR risk as the prize or award could

be quite modest, in all probability raised with private funds (perhaps through the ABA and other

legal or trade organizations). Perhaps the main incentive would be publicity, the opportunity for

law schools (especially for mid- and low-tier) to differentiate themselves, given that the vast

majority of schools are in the “undifferentiated middle”.26
                                                                 




Concluding and Summary Remarks

          eBooks are a potentially valuable, worthwhile technology that can substantially increase

the quality and delivery of legal education for students, professors, and administrators. But, in


24   Credit to Professor Vincent Chiappetta at Willamette University College of Law for the term.
25   Rapoport, p. 362.
26   Rapoport, p. 365.

                                                                                                           22
T. LaBadie


considering whether and how to encourage eBooks, policymakers should be cautious of doing “a

good thing foolishly.” This essay has argued that there a variety of such pitfalls attendant upon

encouraging eBook adoption. Therefore, especially at this incipient stage, the question and

means of adoption should be left to the market, or to individual law schools. But entropy is a

powerful force. Hence, if policymakers insist on encouraging the technology, they should limit

themselves, and do so by means of a modest award or prize to counteract the institutional

lethargy of some law schools.










                                                 
                                                 
                                                 
                                                 
                                                 
                                                 
                                                 
                                                                                                 23
T. LaBadie







           24

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eBooks in Law Schools - Crossing the Chasm?

  • 1. T. LaBadie eBooks 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. T. LaBadie Abstract: The electronic interactive book (“eBook”) is an emerging technology that can potentially change the face of legal education. Proponents and developers of the technology argue that eBooks can offer a wide range of benefits. They can help students learn material better, and collaborate with other students and instructors better, inter alia. This paper will argue the following: although some level of legal encouragement of eBooks is a reasonable option for policymakers, particular with the ABA using its accreditation powers as a vehicle for encouragement, the better course is to leave individual law schools to adopt the technology (or not), as they see fit. In other words, leave it to the “market” as to the question of whether to adopt eBooks. The major pitfalls to any law or program that would formally encourage eBook adoption are threefold: (1) policymakers face inherent difficulties in effectively encouraging nascent and emerging technologies like eBooks; (2) policymakers face a limited range of effective options in choosing 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 schools will vary in the extent to which they can overcome real-world barriers to adoption and to effectively implement the technology on the ground. The report goes on to argue that, if policymakers, however, feel compelled to formally encourage the technology, they should do so through an award or prize system that would give modest remuneration (and perhaps more importantly, public attention) to top developers and adopters 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 do actually insist on formally encouraging adoption of eBooks. 2
  • 3. T. LaBadie The 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 are creeping into, the legal “supply chain”—especially, law schools. As many young lawyers are struggling 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 legal education. Indeed, many law graduates already have or will have “underwater degrees”, where the debt and expenditures will not translate into a profitable enough investment, as the ABA Journal recognized at the beginning of 2012 in its headline story about the “Law School Bubble”.2   Even worse, some law schools seem to have been aware that their school’s educational offerings would not make economic sense for many (perhaps most) of their students, and tried to hide the fact with questionable post-graduation employment statistics. In fact, over 10% out of the 200 ABA-approved law schools are facing class-action law suits for tortuously misleading 1“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. Henderson and 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/) on 2/12/12. 3
  • 4. T. LaBadie students 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 of legal academia. The New York Times for instance has run a series of very critical articles about the 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 education in 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 ameliorate legal 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 the classroom. 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 a 3 Law School Transparency. A web site launched in the past several years that rank most law schools in the 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 York Times. 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 as much, but this seems very unlikely. 4
  • 5. T. LaBadie necessary one. At the very least, it is a primary ancillary force that can increase the quality of legal education. At any rate, “technology is not enough” is the premise from which this paper will proceed. Given that a legal education is so expensive (vis-à-vis the return), surely that education ought to be of high quality. A Mercedes, an iPad, or a Rolex may not be cheap, but one 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 improve the 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 the fat off the law-school business model—i.e., cutting the costs. If, however, accreditation standards were liberalized, then technology could play a much more potent, innovative role in bringing down the high price of legal education.7   A good example of regulations bridling technology (and, in turn, quality and cost) is online or distance learning. Distance-learning technology would allow law schools to conduct, where appropriate, legal education online. This would free law schools from expensive buildings, 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 decrease quality, 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 industry and the legal education markets would probably fall into this category. See Co-Opetition. Adam Brandenburger, et al. Chapter 5. Doubleday. 1997. 8 Ibid. 5
  • 6. T. LaBadie learning during their second and third years (including night classes and summer terms allowing students to gain practical experience). This, in turn, might lower demand for professors or might allow the hiring of cheaper adjunct instructors. Although this sounds like a worthwhile experiment, the ABA restricts distance learning to a mere 12 credit hours (total) for each student and 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 on a radical change, the current regulatory milieu would allow technology to make incremental changes to the quality, and even convenience, of legal education. Enter “eBooks” With this background in mind, one of the more interesting and relevant pieces of technology are eBooks. eBooks are still in a largely incipient, nascent stage vis-à-vis legal education, 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 the whole 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 no additional 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, but that is about it. Indeed, digitized books are available already by Westlaw, Lexis, and other publishers that serve the law-school market. Defining terms—eBooks 9See ABA Standard 306(d) [Distance Education] of the 2011-2012 Standards and Rules of Procedure for Approval of Law Schools. 6
  • 7. T. LaBadie In contradistinction to merely digitized facsimiles of traditional books, eBooks can offer interactive learning experiences, such as embedding videos within the “book”, or real-time sharing of notes and comments by a whole class of students and professor. So although digitized books are relevant and are increasingly being offered at most law schools, the real subject of the paper concerns the interactive, novel, and disruptive nature of interactive books, or “eBooks ” for short. When this term is used for the remainder of this paper, “eBooks” will refer to books that offer interactive learning experiences beyond a merely digitized copy of the existing textbook already on the market. eBooks face the Chasm eBooks are still in a very early stage of development in law schools. Applying the product-lifecycle model, one would probably place eBooks at the early adopter stage (see schema 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 (which numerically translates to 80% of a market. For example, in consumer electronics the mainstream currently includes smart phones and laptops. The product lifecycle model as embodied and adapted 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 and emerge much later or not at all; and (b) some technologies very much need a “push” to help them cross that chasm. The Early Adopters – Distinguished Company 10 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. T. LaBadie Moreover, it is important for policymakers to keep in mind that, as with many emerging technologies, 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 are experimenting aggressively with eBooks, some of which are by any measure world-class companies. Apple, for instance, has recently entered the market, and hopes to use its notorious powers 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 law schools. 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 calls its program “Hack the Casebook” and is looking at a variety of novel approaches, including developing eBooks and software that would allow law students to learn and collaborate with 11“An Apple for teacher? Textbooks are next target for tech giant.” Rob Waugh. Jan. 17, 2012. Daily Mail. 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 Over Textbooks” 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 (arguing Amazon is entering the school-textbook industry, including college-level textbooks, and aggressively competiting against existing textbook publishers). 13 For the current free legal textbook offerings, see the e-Langdell Bookstore at: (http://elangdell.cali.org/). 8
  • 9. T. LaBadie other 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 eBooks with other professors and legal-education professionals in order to promote scholarship and pedagogy.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 to be when it grows up. There are many exciting possibilities and benefits that eBook can potentially offer, but no company or law school has cracked (or hacked) the casebook. The vast majority (the mainstream) of law school, professors, and students still use traditional textbooks or their digitized counterparts. Thus eBooks fit neatly into the early adopter category in the Crossing the Chasm model: getting across the chasm into mainstream adoption is perilous. It requires change and adaptation of the technology; determining where the technology works and where it does not so it can produce benefits for the mass of consumers—a painstaking and delicate process. When policy follows a technology down the Chasm… Not only do companies and technologies fall into the chasm, but public spending and law-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, to 14See “The Future of Law Libraries: The Future is Now?” John Palfrey’s Blog at Berkman Center, Harvard Law 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 Innovation Laboratory 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. T. LaBadie humans, independence from unsavory suppliers and governments, such as Iran, Venezuela, and so forth. Yet, policymakers who have encouraged specific ‘winners’ have watched public resources follow many green technologies into the chasm. Thus, policymakers are faced with a dilemma: (1) emerging, nascent technologies are renowned for falling into the chasm (and the public resources with them) and so this is notoriously 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 a policymaker 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 the technology beats the current offering—the traditional casebook. Though one can list various benefits in the abstract (better content, accessibility, etc.), probably the best way to illustrate some of the more predictable or likely benefits, uses, and application of eBooks is through a brief narrative. This narrative will also serve to illustrate both the likely demand from both students and professors; and why on the supply side companies such as Amazon, CALI, Apple, and Harvard 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 likes technology 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 40 pounds of books around on any given day. Today, instead, she throws her three-pound laptop (or 10
  • 11. T. LaBadie even 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 accessed for free on Google Scholar, or if they preferred, other sites (FindLaw, Justitia, Scotus, etc.). She actually read a good portion of the case on her smartphone while in the waiting area at her doctor’s office yesterday. She was glad she was able to do so study and read in situations like this without conspicuously and perhaps awkwardly carrying around an 800-page red Evidence casebook 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 the syllabus. 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 she have to wait in line at a bookstore or wait for shipping; she was able to access it instantly when the 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’t have to waste time searching through emails, papers, or her desktop to find these key reference materials as the semester progresses. She realizes that she actually wasted a lot of time doing so during her first year. The professor concludes the “administrivia”, and begins the substantive discussion. The class discusses the case. Near the close of the discussion, the instructor directs the class’s attention to an article in the ABA Journal that Amelia had “tagged” while reading the case, which discussed the recent use and possible impact of fMRI (or neurological lie detection) and its admissibility in courts. The instructor had previously urged eBook adoption for reasons such as 11
  • 12. T. LaBadie this: in the past with a regular book, it was difficult to stay on top of recent developments in the law 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 simple questions, such as: “How, if new brain-scan technology came about, would this affect the legal rule and application thereof.” In contrast, this article can be incorporated immediately into the course or into subsequent iterations of the e-book. Further, the professor thought it might engage students more if they could take a more active role in contributing content to class discussions via eBooks. Lastly, the professor thought that eBooks would increase her own knowledge sharing and collaboration with colleagues. Later that night, as Amelia is studying for the next day, she comes across a 15-minute test designed to pinpoint a particular students strongest and weakest learning styles. She thinks this a little odd based on her law-school experience so far, but decides to do the exercises. She finds out that that visual learning is actually how she learns best, and is a bit weaker on reading—the far-and-away standard of learning legal content. She finds helpful, interactive schematics within the eBook. Accordingly, she works with this visual presentation of the material initially to get a handle on it before moving on to the actual text of the case. Over the course of the semester, she finds 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 professor has provided to direct students to the primary significance of the material. At the end of the each case or schema, there is a summary or takeaways section. So she can jot down her thoughts, brief the case, or whatever which will methodically build her outline and help her study. The eBook software even allows her to quickly produce note cards of the summaries 12
  • 13. T. LaBadie quickly, so students can adapt them to their purposes. For example, she writes, “What does Daubert stand for?” and writes her summary of the case. She then bookmarks the schematic for future studying reference if she is having trouble grasping the case when she returns to review it and when preparing for finals, which are a full three-and-a-half months away. There is also a link in the eBook for a forum, which can range from “comments” on a case that you might find in reading a New York Times article, to more social-media or Facebook-like platforms, where questions can be posted, resources tagged, and so forth. Further, she can annotate, highlight text with the colors of her choice, and even “draw” lines and schematics on the page (e.g., a matrix or flow chart). Lastly, throughout the term, she completed exercises based on bar-prep software that showed her which areas she was strong and weak in. She found that she was weak on character witnesses in evidence, so she allocated her study time accordingly. She remembers that during her first year, she experienced realizing that she was weak on products liability only when studying for finals during the last two weeks of the course. Further, she can save this information when later studying for the bar, in about a year-and-a-half’s time. Moreover, the professor and administrators can also access this information to see what students are learning well, or are not. Later on that semester, her car was broken into. But she was still able to access the technology in the cloud. By the end of the term, she also realized that she used a lot less paper (not only book-wise), but also in terms of printing and copying. She liked the thought of leaving 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. T. LaBadie eBooks offer an array of potential benefits It is clear that eBooks have great potential to increase the quality and convenience of legal education. Again, the potential benefits are so substantial that some policymakers may want 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 and secondary school level. In a rather aggressive move, the Florida legislature has mandated that all 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 and champion the adoption of eBooks. First, the technology is yet too young and incipient for policymakers to encourage it effectively. Second, even if policymakers can target the right kind of eBook technology to encourage, the mechanisms or channels (e.g., subsidies, incentives, tax breaks, all-out mandates) are not as effective as other market-based options. Third, even assuming these threshold hurdles at the policy level can be overcome, there are many reasons to believe that many law schools will face numerous pitfalls in implementing eBooks successfully on the ground. As with so many things, good conception is not enough. Implementing is where the devil of it is. 17 “Follow Florida's Lead: Why More States Should Switch to Digital Textbooks in Schools Now”. Liz Dwyer. 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. T. LaBadie I. Difficulties in Encouraging eBooks at the Policy-making Level – Picking Winners and the Policymaker’s Hippocratic Oath Defining Terms: “subsidy” There are a number of options and mechanisms for encouraging law schools to adopt eBooks, 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 encouraging technology. 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 hurt innovation 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 is young and nascent, the danger that policymakers will not be able to anticipate what direction a technology take is great. Such early technology subsidies can risk distorting, stunting, or blighting the development of the nascent technology. Proponents of subsidizing eBooks may rightly point out that, in view of this danger, a more general subsidy might fix the problem; why not gently push the adoption of eBooks, thus avoiding the pitfalls of constricting the development of eBooks at this early stage? In such a 15
  • 16. T. LaBadie broader 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, as described 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 the requisite ROI. This again underscores the difficulty of encouraging nascent, emerging technologies. For example, would policymakers define “eBooks” as merely digitized books? If so, what is the value there? A human standing at a scanner with a stack of papers can produce a digitized book. Further, Westlaw and Lexis already produce digitized books, albeit with rudimentary annotative capabilities for students. Perhaps one could mandate that the eBooks must be “interactive.” But how far does interactive go? Does it include video? Real-time collaboration and annotation between students and professors? Does it include a social media component?...And so on. The point is that no one at this point can be sure exactly what eBooks ought to look like, or whether a given vision of an eBook will garner the requisite return on investment (ROI). Thus, the incipient nature of eBooks at this point should make policymakers very reticent to formally encourage eBooks at this point. II. Legal Mechanism and Vehicles to Push Adoption 16
  • 17. T. LaBadie If, however, some policymakers are confident enough that they can actually accurately and effectively encourage eBooks at this early stage, what are the best legal mechanisms available to spur eBook adoption? From the outset, it should be kept in mind the range of mechanisms to “force” law schools are limited compared to most public or educational institutions. Most law schools are private, 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 are becoming 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 mandating all-out adoption for several reasons. There is little precedent for political intervention in intervening in pedagogical aspects of graduate schools, unlike with primary and secondary education. But perhaps the biggest problem with actually channeling subsidies to law schools to adopt 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 be the political and public-relations (PR) problem that would result. The Great Recession has resulted in protracted high unemployment and squeezed very many public institutions, notably primary and secondary public education. Negative PR or public perception is an important force because 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 by 2020”. Matt Leichter. Dec. 5, 2011. 17
  • 18. T. LaBadie passes, may result in bad press and a backlash. Is it really likely that the public would support subsidies to law students and law schools in this economic milieu? One could try to explain that it helps students learn more effectively, which in turn, could mean better legal services for the public. In theory the public could endorse that round-about benefit. But the far more likely outcome is that the public would see it as pork to a special interest. Add to the fact that the vast majority 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, in terms of job creation or stimulus. In sum, at a time when lawyers are not exactly seen in a kindly light by the public, yet another blemish against the profession should be avoided. This factor militates against delivery of a subsidy though tax credits, grants, and so forth. It’s hard to imagine a political climate more inclement 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 the ABA is it has public-like power as an accreditor, but is not directly funded by taxpayers. So it can insist or push eBook adoption (or technology forcing) without all the PR problems or political 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 are squarely within its jurisdiction, so to speak. As such, the ABA is a sound vehicle. And quite reasonably, it may be argued that the ABA can effectively encourage eBook adoption by feasible 18
  • 19. T. LaBadie means, such as requiring law schools to adopt eBooks in five years or to require a certain percentage 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. But policymakers 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 Implementation Many a slip twixt the cup and the lip… Assuming the foregoing policymaking hurdles can be overcome, and a sufficient subsidy or 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 opportunities law school will share with any other type of institution or business, and some are unique. What every institution shares, however, is that substantially changing an organization is extraordinarily difficult. But there are additional reasons why eBook adoption will be especially difficult for a very many law schools. The first reason is the governance structure of law schools. Governance is divided between administrators and faculty. Hence, even if it were an advisable strategy, it is practically impossible for administrators or even key law professors to impose eBooks on unwilling or lukewarm colleagues in top-down, command fashion. So though change is 19
  • 20. T. LaBadie notoriously 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 their disposal 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 the chasm. In the law-school context, chief among those are faculty law professors. Not all law schools will be able to secure this buy-in to adopt and experiment with eBooks. Of course, even the 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 that a law school will implement well. Quite the contrary, faculty members can drag their feet, make the 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 adoption terribly. And even if most faculty and administrators do buy in, not all schools will have the same technological abilities, nor will all schools have the same or even adequate technological infrastructure. New software is well-known for going through often lengthy beta processes before it is “fit for widespread consumption.” Subsidies may induce certain schools to bite off more 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 the opposite 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. T. LaBadie If 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 least not now, nor probably in the short term. Therefore, a modest spur is a very reasonable option to either overcome institutional inertia. Therefore, policymakers who do not trust market-like solutions, competition, and emulation to ensure that eBooks cross the chasm, should opt for a prize or award. An advantage of this quite modest approach is that it answers the concern that time is of the essence, and that debt-heavy law students need speedy relief. Precisely because an award or prize is a modest, even one-time, encouragement it can be implemented much more quickly than the slow churn of bureaucracies (such as the ABA) or, even slower, the machinery of government. Although it is far from certain that timely relief is really any longer needed (law school admissions are dropping sharply, which, cet. par., will force law schools to compete very harder 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 by a cross-section of general educators, law professors, practicing lawyers, judges, students, technologists, and others. Media attention would be essential, even if only limited to trade publications, 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 of 23“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. T. LaBadie penalties. So a school would be better off even if they didn’t receive a gold, silver, or bronze medal, so to speak. It may also encourage or jumpstart market innovations by encouraging law schools to bring in consultants or partners. For example, a school or a group of schools might launch a pilot program with Apple’s eBooks offering. It might also generate awareness of the potential 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 eBooks to cross the chasm. This would also minimize the negative PR risk as the prize or award could be quite modest, in all probability raised with private funds (perhaps through the ABA and other legal or trade organizations). Perhaps the main incentive would be publicity, the opportunity for law schools (especially for mid- and low-tier) to differentiate themselves, given that the vast majority of schools are in the “undifferentiated middle”.26   Concluding and Summary Remarks eBooks are a potentially valuable, worthwhile technology that can substantially increase the quality and delivery of legal education for students, professors, and administrators. But, in 24 Credit to Professor Vincent Chiappetta at Willamette University College of Law for the term. 25 Rapoport, p. 362. 26 Rapoport, p. 365. 22
  • 23. T. LaBadie considering whether and how to encourage eBooks, policymakers should be cautious of doing “a good thing foolishly.” This essay has argued that there a variety of such pitfalls attendant upon encouraging eBook adoption. Therefore, especially at this incipient stage, the question and means of adoption should be left to the market, or to individual law schools. But entropy is a powerful force. Hence, if policymakers insist on encouraging the technology, they should limit themselves, and do so by means of a modest award or prize to counteract the institutional lethargy of some law schools. 23