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Whose Book? Law Profs and Agency

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Florida International College of Law recently imposed a new rule on their professors: No reselling courtesy copies of text books.

FIU professor Howard Wasserman posted on the Prawf's Blawg, asking a number of questions on the new rule:

We are permitted to gift them, donate them, and take them home, and we can keep them if we leave the university to teach elsewhere; we just cannot sell them. The question is whether the university can impose this restriction. Obviously, the publishers can restrict what we do with these books (West and Foundation now place stickers on courtesy copies explicitly prohibiting resale). But can a third party, a stranger to the relationship between the faculty member and the publisher, do that?

So is this prohibition valid? What is the rationale or justification for such a rule? Does the rule interfere with property rights? Is the university impermissibly changing the terms of an employment contract without consideration?

Getting the easy question out of the way, odds are your school can change the terms of employment whenever they want. Most employers can. As for consideration, your continued employment is enough.

 

The bigger question of course is whether the school can interfere as a third party to the exchange between the professor and the publisher.

If you've studied agency law, a simple answer should become apparent quite quickly: the university is not a third party here. Publishers aren't just handing the books out because they think you're swell and deserve a copy. You're getting it because of your position as a law school professor. Gifts you receive by virtue of your position at the school are owned by the school, it doesn't matter whose name is on the package.

With most small gifts like this, the employer tends to not care. If you're an attorney at a firm, and a client sends you a bottle of Scotch after finishing a six month long merger, no one's going to care if you don't ask the employer first if you can keep it. But, if the client sends you a $20,000 "Thank You" check, you'd better believe you have to hand it over, or else face being fired and having the funds disgorged. (Your firm will also start looking in to your time sheets to see how much you had to under bill to get the check in the first place.)

So there's your answer, the school is well within its rights to tell you what you can and cannot do with the school's books. If you don't like it, try complaining to a waitress who has to split her tips with the hostess, bus boy, and bar tender at the end of her shift. (In his defense, Wasserman seems to not mind the rule, but just has some intellectual curiosity about it.)

 

There is one other interesting issue the rule brings up, why have the rule in the first place? Anyone who's ever resold a text book know that you don't get a whole lot of money, not even for a big, expensive, good-as-knew law school book. If you're lucky, it retails for $150, and you can pull $115 on Amazon; lower end you're getting $25 from the campus bookstore. For a student living on $800 a month, that's a lot of cheddar, but not for a professor hauling in $150,000 a year.

We think the reason for the rule is to avoid the appearance of corruption. The text book market is a huge racket and on extremely questionable moral ground.

Assume a professor teaches a 100 student lecture each semester and assigns his own case book. We'll assume the book sells for $100 a pop, and the professor takes home a 15% royalty on sales. That's $1,500 a semester, $3,000 a year, just from his own class. If a couple other professors use the book, sales will skyrocket. The used book market will make those numbers dwindle, until a new edition comes out. That new edition will have a lot of the grunt work done by research assistants earning $10 or $12 an hour, paid by the school, not the professor. And, sometimes that edition will contain no changes that affect the assigned readings.

Add to this the fact that the bulk of the case book is made up of material in the public domain, and with students' access to West and Lexis, they could get much of it for free. The cases aren't edited on West and Lexis, but a professor could just edit the cases, write up some notes, and distribute the materials as free PDFs, maybe even make a Kindle edition.

We don't know exactly how writing a text book fits in to the research and writing requirements of a law professor's job, but it's probably safe to assume that writing a text book is considered a big fracking deal. If so, if writing the text book is considered part of the professor's job, then students are paying twice. They pay their tuition which pays the professor's salary, and then they have to pay again for the product of his work.

Reselling courtesy copies of text books gifted to professors by publishers is chintzy and makes professors look like they're trying to squeeze every last penny they can out of their jobs. FIU, in looking out for the long term interests of its professors, is right to enact this new rule. Professors have a very strong interest in keeping ethical gazes away from the text book market.


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