Readers of this blog will be aware of my interest in the long-term predatory practices of academic journal publishers – see here and here. Back in November 2018 my fellow editors Catherine Easton (general editor, EJCLI) and Abhilash Nair (editor-in-chief, EJLT) and I in November 2018 published a post summarising our article in the EJLT on the subject that ended with the following call to arms:
The waste of public money, the pay-for-access charges that line corporate shareholder pockets while vital legal information is withheld from open access for private profit – we have similar results in access to case law as in access to journal literature. This must end, and if academics are to retain credibility as researchers and guardians of justice, the law and legal data we must be in the front line of those demanding that it ends and working to offer alternative solutions.
Since then, very little positive has happened. Except of course that the pandemic presented textbook publishers with an unbelievable opportunity for price-gouging on textbooks that has proved irresistible. Fiona Cownie’s recent letter to the SLS on the subject references a Guardian report on it that describes increases of up to 500% in online book prices. Cownie writes that ‘University librarians are reporting that very high prices are being charged for e-books (MUCH higher than print copies) making them unaffordable for most university libraries’.
First journal articles, now books. But it gets much murkier. Over at Michael Feldstein’s blog posting on eLiterate, about Chegg and the practice of ‘chegging’, we get a flavour of the future. Have you heard of Chegg? It describes itself as ‘the leading student-first connected learning platform, [where] our mission is to help every student achieve their best, in school and beyond’.[1] It also, very kindly, assists students with their homework. Alternatively, in the words of the Forbes report on the corporation, ‘This $12 Billion Company Is Getting Rich Off Students Cheating Their Way Through Covid’. Chegg does so, in Feldstein’s summary, as follows:
-
- Publishers, after selling expensive textbooks to students, sold the answers to the homework questions in those expensive books to Chegg.
- Chegg sells the answers to the questions to the students, who often use them to cheat.
- To combat this problem [in examinations], universities pay for proctoring software, which is apparently more effective at preventing students from going to the bathroom than it is at preventing cheating.
This is where the marketisation of knowledge leads us. Now you might say, yes but Chegg is really all about STEM disciplines, not Law; and the practice of standardised testing makes those disciplines more vulnerable to such corruption. Give it time – Business and Accounting are already up there, and Chegg will already be eyeing the lucrative online Bar Exam assessment market, already facing issues (just go to #barpocalypse on Twitter or Jordan Furlong who is eloquent on the subject in this article in the Canadian Bar Association Magazine – thanks to Alan Treleaven for the link), and waiting for law schools to follow suit in the provision of MCQ-style exams.
In that good English/Gaelic hybrid, the situation is a clusterbùrach. I’ve added my name to the list at the Campaign to Investigate the Academic Ebook Market and like Cownie, urge you to do the same. Regulation, after all, is the business of responsible professions, and we’re a great and noble profession, aren’t we, not just a bunch of salaried hacks?
But we’re well beyond open letters and petitions, and probably well beyond regulation – the evidence out there is so stark, blatant and ongoing, and we’ve allowed the market such entrenched control.[2] It’s time to take serious action ourselves. Professional bodies need to become involved in the absence of serious regulatory activity by government or other so-called responsible stakeholders. We need to organise and provide long-overdue alternative, innovative solutions. Online academic journal and book publishers thrive in the capitalist academic market. We need to usurp that market, for it will always work against us. And why shouldn’t it? For we students and academic faculty are not the clients in the market place: investors and shareholders, who care nothing for legal education or students, only profit, are the real clients. The first two icons at the foot of the Chegg page are listed as ‘Corporate Development’ and ‘Investor Relations’ – the true priorities of the Chegg initiative.[3]
Which is why Feldstein’s analysis doesn’t go far enough, in my view. He quotes an interesting analogy with iTunes, in response to the inevitability of student cheating:
A common response to all of this is, “Hey, students are going to cheat. We fight it as best we can.” To which I reply by quoting Steve Jobs on why he thought the iTunes Music Store would beat out Napster-style piracy:
We believe that 80% of the people stealing stuff don’t want to be, there’s just no legal alternative. So we said, ‘Let’s create a legal alternative to this.’ Everybody wins. Music companies win. The artists win. Apple wins. And the user wins, because he gets a better service and doesn’t have to be a thief.
But Feldstein is wrong and Jobs was misleading us to benefit Apple. It’s not the case that everybody won in the music streaming model – certainly not artists. Apple won, disproportionately, just as Spotify and every other streaming service does. They do so because they position themselves to control the market, just like book publishers do in the pandemic – that’s what their investors and shareholders want. Feldstein is still working within a marketised, neoliberal solution that will always be dominated by predatory practices where the creativity of artists as well as academics (who are paid derisory royalties by publishers for writing their copy), libraries and students are forced to line shareholders’ pockets. We can’t let that happen. We need to revolutionise academic production for the benefit of society and especially for our students.
What might this revolution look like? Imagine a piece of software that allows us to create our own textbooks, free at point of use, published by Creative Commons licences so that students and others can adapt them, not just as whole books but shareable also by section amongst us all. The books would be reviewed in the normal way in journals, and could be adopted in part or in whole by law school teachers, or anyone else, including students.
No need to struggle to imagine – it’s already been created and for over a decade now (by my reckoning) by the wonderful CALI team over in the US. CALI’s eLangdell software is both a bookstore and the portal to a new mode of online legal education publishing. Sure, it has nothing of the comprehensive coverage of any of the commercial legal education publishers, but this is only a start in a much larger historical movement. And it’s a revolution that is attempting to overturn the hugely powerful market forces and hegemony (and I use the word with Gramscian overtones) of commercial & corporate publishers that have existed since the Renaissance.[4] It’s an amazing resource, and should be replicated in UK law schools for the benefit of all.
And there are more radical solutions, with roots much deeper in our histories as law schools. Back in 2014 and at the invitation of students running a journal at ANU, I wrote an article on the unlikely bedfellows of the Scottish independence referendum and the founding of universities. It seemed to me that there were at least a number of parallels between the two concepts, nearly a millennium apart. Both of them were grounded in the concept of new constitutionalities. In the case of Scotland, the development of the ‘community of the realm’ in thirteenth and fourteenth century Scotland was seminal to a nascent and developing sense of medieval nationhood; and Scotland is now re-discovering a sense of what it might be to have a constitution and the freedom to exercise it. Similarly the new corporate body called a universitas, the earliest of which began in Bologna in the late eleventh century, constitutionality was critical: the very first subject was Law, the course founded on the study of Justinianic law, the texts of which had been recently discovered, and which opened up radical new understandings of almost every aspect of legal relationships.
In this new gathering of scholars, entirely different from the scholastic gatherings in monasteries or cathedral schools, the students themselves ran the university, in the midst of the city. It is worth repeating this: students ran the university. Over the next century they argued for their rights with Bologna city; they set up collective bargaining and regulatory structures by which they could exist as a corporation. They were the universitas, within the city, and with rights to travel freely to and fro. They hired and fired expert scholars and teachers (who took the hint and formed their own organisation); they organised themselves into self-sustaining groups called nationes, supported each other financially and disciplined themselves and their course structures, resources, assessments.[5] As historians point out, they developed sophisticated systems to protect themselves from sharp practices – for example limiting booksellers’ profits on second-hand manuscripts.[6] The result was a respublica of learning.
What a difference in power differential to the position of students today, where in England students are merely consumers of programmes organised by universities, and loaded with debt by government to pay for that consumption. Where is there space for radical creativity here, and for student power and co-partnership in learning? Nearly a millennium later, what have we learned from our beginnings at Bologna? The struggle to discover our identity in nations and what we want our future to be is a political struggle that needs to take place in our universities, too. It is time to re-imagine the constitutionality not just of small nations such as Scotland, but of universities too, and to re-build both along the lines of a true common weal that in place of the austerities and predations of market economies celebrates the dynamic activism and social community of res publica.
- [1]Here’s an image important enough to them to be splashed on their home page, celebrating listing on the NY Stock Exchange…
Barnes & Noble has a similar site differently configured.↩
- [2]Chris Skidmore, the former UK universities minister is introducing a Ten Minute Rule Bill in Parliament this week to make essay mills, such as Essayshark illegal in the UK. They are so already in other countries, eg Australia. But the fact that we have to rely on a minority-interest TMRB shows how much interest there is among regulators, and his bill really only focuses on the more visible part of the problem and does nothing to change the infrastructure and its culture.↩
- [3]Feldstein quotes the Forbes article on what keeps the CEO of Chegg Dan Rosensweig up at nights, and it’s not the quality of service or product to the academy but that ‘”You live in Silicon Valley, and everybody is a billionaire, and you’re not. Everybody goes public and at least has the one moment where their stock goes up—and yours didn’t.” It got so bad, he said, “I had a moment of sucking my thumb in bed”‘. Yep, we’ve all been there haven’t we, 4am worries about our portfolios and our stock options…↩
- [4]I give a historical instance of this in my article on ‘Disintermediation‘ in The Law Teacher (paywall if you’re heading over there). And as I point out in the example from the early history of book production, it was students who were left out of the process, even though their role was seminal in producing that new object, the printed textbook.↩
- [5]Verger, J. (1992). Patterns. In A History of the University in Europe, General Editor Walter Ruegg. Volume 1, Universities in the Middle Ages, edited by H. de Ridder-Symoens, Cambridge, Cambridge University Press, 35-65; 47-49.↩
- [6]See, eg, de Hamel, C. (2013). The European medieval book, in The Book: A Global History, edited by Michael F. Suarez, S.J. & H.R. Wooudhuysen, Oxford, Oxford University Press, 59-79; 67-8. In other ways we can learn from the control exercised in medieval law over staple goods. It was a stated crime to hold back and sell dear staple foodstuffs in times of dearth – in Scotland, those who did it were called regratars or foirstallaris. Here’s an example from the Acta Parliamentorum Regis Jacobi Sexti, 10th November 1579, at pp.101-2, a prologue (more like a proemium) which I quote in full for the pleasure of the baroque Middle Scots prose:
26. ITEM, our Soverane Lord and three estaitis of parliament hes ratifeit and apprevit, and be this act ratifeis and apprevis all actis and constitutionis maid be his Hienes maist noble progenitors in tyme bigane, specialie the acts maid be umquhile his Hienes dearest guidschir King James the Fyft, of worthie memorie, anent foirstallaris and regrataris of victuallis, tiesche, pultrie, and utheris vivers cummand to mercattis, and makis and constitutis the provestis, aldermen and baillies of all his hienes burrowis his Majesties justices for executioun of the saidis actis within the boundis of thair awin fredomes and jurisdictionis, and to uptak the panes content thairin, to be applyit after the forme and tennour thairof.
The morality behind the law was pretty straightforward in principle – medieval societies depended for their lives upon staples, and those who profiteered from them were committing a crime against God and humanity. Digital information is a staple for us now in our society. It is essential to us as social beings, and to almost every aspect of our twenty-first century lives.↩