During my 1L year of law school I spent a good amount of time helping my dad with a construction project that had me making frequent trips up and down Rt. 128 to Home Depot. I felt like I could drive the route in my sleep. One thing that stuck out to me was a particular office building perched atop the highway—one of those blocky corporate stockades that line a particular stretch of Rt. 128, from Newton to Burlington, a liminal badlands of office parks and office buildings that are largely products of the 1980s—an area that at one point was referred to as the “Silicon Valley of the East Coast.” 

On the front of the building, glaring ominously down at the highway as if it were Wayne Enterprises or ExxonMobil or Waystar Royco, is the name “Wolters Kluwer”—a Dutch information services conglomerate, better known to us all as the maker of many of our casebooks. As 1L went on, and the brand name became an omnipresent feature of our daily studies (as well as the beneficiary of hundreds of dollars spent on textbooks per student per semester), I became curious as to what exactly this racket is all about.

The high cost of textbooks is not news to anyone. In college, in law school–and in activities and preparation for standardized tests–shelling out cold hard cash for the implements of education has come to resemble something of a rite of passage. Total expenditures on textbooks for public elementary and secondary schools in the United States were $800 billion for the 2018 academic year, according to the National Center for Education Statistics. One might recall the scene from Season 4 of The Wire, focusing on Baltimore’s troubled school system, when cop turned teacher Roland Pryzbylewski happens upon a storage room packed to the ceiling with new editions of textbooks and computers that had been purchased, but sat unused, wasting money and collecting dust—an exhibition in part of the many failings and perverse incentives of school economics.

According to the Education Data Initiative, the average full-time, in-state undergraduate student at a four-year public university pays $1,226 for books and supplies in one academic year. Twenty-five percent of students reported they worked extra hours to pay for their books and materials; 11% skipped meals in order to afford books and course materials. Textbooks tend to weigh between 2-8 pounds, and students in multiple classes are typically carrying several of them. 

From Vox:

“As a general rule, though, the amount of money students are expected to spend on course materials has rapidly outpaced the rate of inflation since the ’70s. Affordability advocates point to two major factors behind this: a lack of competition in the higher education publishing industry, and the fact that professors, not students, ultimately decide which texts get assigned. Four major publishers — Pearson, Cengage, Wiley, and McGraw-Hill — control more than 80 percent of the market, according to a 2016 PIRG report. Major publishers also tend to “avoid publishing books in subject areas where their competitors have found success,” which ends up limiting professors’ options for what to assign.

Digital textbooks, especially those that come with access codes, have also contributed to rising costs. When students buy a textbook, they aren’t just paying for the binding and the pages; they’re paying for the research, editing, production, and distribution of the book. And when that book comes with an access code, they’re also paying for the development of — and, as the name suggests, for access to — all kinds of supplementary materials, from lessons to videos to homework assignments.

Access codes, the PIRG report notes, also undercut the resale market. Since the codes can only be used once, the books are essentially worthless without them. They can also prevent students from turning to other cost-saving measures like sharing a book with a classmate.

Kaitlyn Vitez, the higher education campaign director at PIRG, told me she’s met students who couldn’t afford to buy books that come with access codes, even if they knew their grades would suffer. “One student at the University of Maryland had to get a $100 access code to do her homework and couldn’t afford it, and that was 20 percent of her grade,” Vitez said. ‘So she calculated what grade she would have to get on everything else to make up for not being able to do her homework.’

‘On a fundamental level,” Vitez said, “you shouldn’t have to pay to do homework for a class you already paid tuition for. You shouldn’t have to pay to participate.’”

While these accounts and data largely relate to the undergraduate realm and not specifically law school, the companies, the industry, the publishers, the business models, and the strategy are all the same.

While “Wolters Kluwer” at first glance seems like a boring, niche brand, it is actually a multinational conglomerate headquartered in Alphen aan den Rijn, Netherlands, founded in 1987 from a merger between Kluwer Publishers and Wolters Samsom. The company serves legal, business, tax, accounting, finance, audit, risk, compliance, and healthcare markets, operates in over 150 countries, and recorded revenue of $4.6 billion in 2020. Other textbook racketeers like Pearson, Cengage, and McGraw-Hill, dominate over 80% of the U.S. textbook market. In many ways, what is going on with law school textbooks (also referred to as casebooks) is even more preposterous than in other levels and fields of schooling. 

Law school casebooks are merely assemblages of cases—cases that are free, open source, public records that are almost entirely text. All of this text is then, in essence, appended together and stamped into a hardcover book, a book with no illustrations, not even the hallmark textbook industry cover stock photo of students reading or a picture of a courthouse. Our drab, ascetic casebooks look more like props from the set design of Judge Judy, or empty books from the bookshelves used to stage the leather furniture room at Jordan’s Furniture in Natick. There is no creativity, little intellectual property, little transformative work being done, besides the sort of formatting, annotating, and summation that students do in papers and legal research. These casebooks cost upwards of around $200-$300 each.

At least textbooks in business school or in STEM disciplines actually utilize teaching tools, apps, activities, assignments, and problems that the publisher created to justify (or at least try to justify) the high price tag, and involve the development and authorship of significant intellectual property, lessons, and teaching tools. Law school casebooks more often than not are nothing more than the seven-pound product of someone searching Lexis for every case the professor seeks to cover in the semester, adding many more cases that will not be used, selecting all of the text, hitting Control+C and Control+V into a Word document, and printing it all out.

Of course, the casebook publishers have tried to copy the software, or “courseware” strategy being deployed throughout the industry. In this all-too-familiar scheme, textbook companies hellbent on killing the used book market, where the first sale doctrine of course allows anyone to re-sell their old books, shrinkwrap the casebooks, include a single use access key to online materials of nebulous value as well as an online e-book so heavily burdened by copyright protection software that trying to read it is an exercise in patience—thus requiring a new book (and code) to be bought each term directly from the publisher.

Shortened book production cycles mean new versions every year or couple of years as opposed to every five or so years. Professors assigning the newest editions, which–as my professors have told me–often involve only minor changes in formatting and pagination, remind me of what I used to joke about in high school and college when it came time to purchase math or finance books: that there isn’t any new math—2+2 does not equal 5 this year.

Meanwhile, while law can change over time, or at least have new cases and analyses to offer, no rational professor or student could truly believe such changes require new physical casebooks for every student every term, to the tune of hundreds of dollars per class and semester.

Instead–as some professors do–merely providing in the syllabus the names of the cases that students are assigned enables us to easily retrieve them digitally in Lexis or Westlaw, which we already have free access to as students. We would be accomplishing the same thing, and reading the same cases, without the absurdity of paying hundreds of dollars for a 10 pound, 600 page, $300 instantiation of the same thing.

Of course, one might ask themselves why the current (read old) way of doing this is so heavily entrenched in law school. On the one hand, it isn’t shocking, as many things about law school are also old, entrenched, and pedagogically out of date. It’s also simply the fact that the publishers, the schools, and in numerous cases, the professors, make more money by doing it this way.

In recent years, as students (and society at large) pivot away from physical books and bookstores as no longer necessary in light of their digital counterparts, the commercial screws of the book business have been turned even tighter.

While we are all familiar with the common yet knavish practice of some professors requiring students to purchase the professor’s authored books for their classes, we have to look a bit deeper to understand what’s going on with Big Casebook. 

Look no further than education services leviathan Follett Corporation—a Westchester, Illinois-based company that provides a variety of educational products to schools, and is the principle “partner” of 80,000 schools in the United States, and the proprietor of a staggering 1,200 campus stores across the country (including BC Law’s bookstore).

Describing itself as a “gateway to knowledge,” Follett’s tentacles run well beyond the textbook business—wielding a powerful hand in the library business through its partnership with Baker & Taylor, a distributor of books to public and academic libraries and schools, the whale that is academic digital content delivery through its partnership with (and recent acquisition of) Willo Labs, and an endless amassment of “programs,” “retail operations partnerships,” and general, amorphously termed “partnerships” in the industry. In fact, anyone researching the textbook game quickly finds themselves floating in a sea of “partnerships.” The term partnership is used approximately 443 times on Follett’s website according to a search of the domain.

What are these partnerships? Who is partnering with whom? 

Zooming in more closely, what reveals itself is both a platform market (where players like Follett lock up exclusive distribution rights on school campuses on one side, and cut deals with textbook publishers on the other) as well as the market for control of the underlying intellectual property.

In 2017, Follett, along with familiar textbook players Cengage, McGraw-Hill, Elsevier, and Pearson, as well as newcomers Barnes & Noble Education, MBS, Chegg, and Ingram, announced they had joined forced in adopting shared “anti-counterfeit best practices of major educational publishers.”

The press release from Follett, heralding the collaboration of the textbook companies to fight what they label as “insidious counterfeit materials” [that are] “harmful to students, educators, publishers and distributors,” say that “[t]he rise of illegal counterfeit materials in the market results in reduced incentives for publishers to invest in new content and technology to improve learning.” The press release never explains what is meant by “counterfeit” textbooks, what these “best practices” are or how exactly such materials are harmful to students.

I don’t know of any experiences myself or other classmates have had encountering counterfeit books. I’ve certainly never come across what comes to mind when thinking of a “counterfeit” book—a bootleg casebook that looks to be the product of an inkjet printer, hastily paperclipped together and sold out of the trunk of somebody’s car.

Of course, what the companies are actually referring to is tightening ever further the battery of digital rights management software and tools that are used to prevent students from making illicit digital copies of materials, as well as restraining their ability to re-sell used physical textbooks by adding those single-use digital codes.

When a student buys a book from a campus bookstore, they are making a purchase from Follett, a portion of which goes back to the publisher. When they “rent” a book, they are paying Follett, a portion of which goes to the publisher, for a book that will be returned to Follett to rent again in a subsequent semester and so on.

The publishing business has long been a theater of anticompetitive business practices.

As recently as last week, the District Court for the District of Columbia, at the request of the US Department of Justice, blocked the megamerger of Penguin Random House and rival Simon & Schuster, finding that the merger would “substantially lessen competition.”

One of the most infamous modern antitrust cases is of course US v. Apple, Inc. (2013) in which the United States District Court for the Southern District of New York found that Apple conspired to raise the price of e-books in violation of the Sherman Act after it was alleged that Apple and five book publishing companies—Hachette Book Group, Inc., HarperCollins Publishers, Macmillan Publishers, Penguin Group, Inc., and Simon & Schuster, Inc. (remember them?) conspired to raise and fix the price for e-books in violation of Section 1 of the Sherman Antitrust Act.

Last year, Amazon.com and the “Big Five” publishers were sued again, with plaintiffs now alleging Amazon and the publishing houses colluded with the online giant to keep prices artificially high.

In fact, any teaching of antitrust law today is impossible without stumbling across many cases involving price-fixing and other schemes involving the large publishers. Time and again, the same companies are caught with the same hands in the same collection of cookie jars.

A quick Google search of textbook costs returns such pages as, “Students’ No. 1 Higher Education Obstacle May Surprise You,” “Surprise course expenses stress students,” “Swelling Textbook Costs Have Students Saying ‘Pass’,” and “30 Times US Students Were Shocked By Textbook Prices And Shamed Them Online”.

For their part, Follett published an article with the title “The Real Cost of Textbooks” with the heading, “Textbook sticker shock is all too familiar…”. On the one hand, while sticker shock at some of these prices is certainly a familiar experience, on the other hand, a textbook company expressing shock at its industry’s business practices is like the crooked police chief in Casablanca announcing he’s shocked to find illegal gambling at Rick’s Cafe while stuffing his winnings into his pocket.

So what can be done about all this? 

In law school, the answer is shockingly simple. Unlike other compartments of higher education in which the source material is complex, expensive, and heavily copyrighted, law schools can take advantage of the fact we teach and learn through the case method, and merely provide in the syllabus the names of the cases assigned for each class (again, as professors already often do) and allow students to look up these open source public records on their own to read for free.

While sure, we might lose some of the footnotes, sidenotes, and scribbled-in notes from the prior owner(s) of these books, the savings in money, backpack weight, and frustration more than make up for it.

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Tom Blakely is a third-year student at BC Law, and co-host of the Just Law Podcast. Contact him at blakelth@bc.edu.