Customized casebooks vs. collaborative knowledge

Ready or not, here they come: electronic law texts are gaining momentum. A conference in Seattle this weekend on the future of the legal casebook will discuss how these books can be made widely available in electronic format (here are Gene Koo’s submissions for the workshop). The growing popularity of Amazon’s Kindle, especially the book-sized version on the horizon, has made the long-mooted concept of law school e-books a sudden possibility.

Judging from these articles, it seems there are two main concerns about law school e-books. The first is that students can’t scribble on and highlight a Kindle the way they can a textbook. Not to be too blasé about it, but I tend to think that’s only a matter of time and technology. Adobe already allows you to make highlights and place notes on PDF documents, and lets you copy-and-paste sections of relevant text when tagging an article for future reference; either of these approaches could point the way forward.

The second concern is that authors’ copyrights will be violated if their words can be copied and circulated by anyone with an e-book version of their works. I’m pretty sure this ship has already sailed: if you make your living off anything that can be copied and e-mailed, you need to find another business model or another line of work. This isn’t a technology or copyright enforcement issue so much as it is the ongoing challenge to publishers to find another way to monetize good content.

But I think there’s a third concern that doesn’t appear to be getting a lot of attention yet: that e-books might lead us towards a siloized approach to legal education and scholarship.

What’s noteworthy about the push towards e-casebooks is that it’s coming not from publishers or from students, but from professors, who want more control over the content of the casebooks they use. This makes sense: courses that nominally teach the same subject matter can differ wildly among and even within law schools, because every prof has a different idea about what’s really important for students to know. There’s undoubtedly consensus on the core cases and statutes, but beyond that — well, we all remember law school profs who told the class, “We’ll skip Chapter 16 – it’s not that important.” Profs want the option of removing Chapter 16 from the casebook altogether.

But let’s say the day of the customized e-casebook arrives, and every prof designs her own version, mixing and matching from available sources. Students won’t care that much, because all they really want to do is score a vowel in this course, and if the prof’s casebook focuses solely on what she thinks is important and will eventually grade exams on, all the better.

But can graduates take that casebook into practice? Will it hold up to a court’s scrutiny if it misses something potentially relevant? Is it responsible for schools to certify law graduates and send them out to serve clients with just their profs’ specific ideas about what’s important? And what if the students further customize the book with their own sources and impressions? Do we end up with a unique mash-up law book on every lawyer’s desktop?

The rise of customizable e-books could unintentionally usher in the decline of the authoritative source — the general reference work that everyone agrees can be reliably consulted for guidance or resolution in a specific area of the law. One of the goals of knowledge management is to knock down information silos and get people talking to each other. Customizable e-books in law school could go against that trend, by creating and legitimizing individual islands of legal knowledge.

I don’t think customized casebooks are or ought to be the way of the future — they’re at best transitional. There’s a shift taking place in how legal knowledge is disseminated, and we have to make sure it ends up not at customization, but at collaboration.

Ronald Collins of the First Amendment Center refers to future e-law books as “databases in cyberspace where materials are downloaded onto electronic readers.” Taking this approach, we could make comprehensive legal information available “in the cloud,” accessible to anyone with a wireless laptop and a browser (which, within ten years, will be everyone in the law anyway). Then we’d start to invest that database with the richness of lawyers’ and law professors’ knowledge and analysis.

Profs would direct their students to all the cases they’re required to know, each of which links to other decisions it cites and by which it’s been cited. Each case is assigned a grade of significance by experts or users, to ensure no one misses out on relevant rulings — and the simple act of reading a case could increase that case’s relevance score for others. Each case would be annotated — either through subscription services offered by legal publishers of individual professors, or through a free wiki produced by the broader legal community. Students could download PDF versions of any caselaw document and mark up that document to their hearts’ content. Everyone would effectively have an e-book that meets their needs, but one that draws upon the collective legal community’s authority and consensus, rather than any one individual worldview.

For a prime example of a collaborative approach to legal knowledge in law school, check out Twistlaw. It’s a Montreal-based wiki where students are encouraged to post caselaw summaries (and, more recently, statute summaries) for anyone else to access free. The idea is to do away with the massive duplication of effort by which every student laboriously produces summaries that differ in hardly any material respect from anyone else’s. It’s a lot like law school study groups, except it uses the web as the distribution mechanism. Download these summaries to a laptop, take them to class — are we really that far away from an e-book?

At its heart, the e-book conversation isn’t really about technology, or legal publishers, or even law school pedagogy. It’s about how lawyers interact with legal knowledge — drawing upon it, adding to it, and changing it every day.

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