Is Your University Complying With the New Textbook Law?

Ian Ayres

Crosspost from Freakonomics:

University students are returning to campuses throughout the country. It is a migration that raises my spirits — seeing the energetic, eager faces tackling another course in contracts or intellectual property.

But this year something is different. For the first time, a federal law has taken effect which requires “institution[s] of higher education receiving Federal financial assistance” to provide students with information on textbook pricing. The key textbook provision (sec. 133(d)) of the Higher Education Opportunity Act mandates that schools disclose:

on the institution’s Internet course schedule and in a manner of the institution’s choosing, the International Standard Book Number and retail price information of required and recommended college textbooks and supplemental materials for each course listed in the institution’s course schedule …

Part of the idea behind the law is to give students better information so that they can shop around for a better textbook price. The mandated disclosure should reduce the monopoly power of the local college bookstore. Armed with a textbook’s title and ISBN, students can jump on the Internet and search for a retailer with a lower markup. Knowing the ISBN is key to making sure you have the right textbook, because different editions of the same book will have different numbers. The law might also shift students toward buying used editions of the same textbook at a fraction of the price.

The disclosure, however, might also promote other dimensions of competition. Students might start choosing courses in part based on the cost of course books. And professors who want to teach larger classes might feel some added pressure to assign cheaper books. (Of course, profs who want fewer exams to grade might have a perverse incentive to assign higher-priced books.)

The new law responds to several of the problems I wrote about in a 2005 New York Times op-ed, “Just What the Professor Ordered.” I worried about the high cost of textbooks uncovered in a GAO report:

We’re used to paying $25 for a hardcover novel, but my casebook on contracts now sells to students for $103 . . . . At state universities, textbooks and supplies account for 26 percent of all student fees, including tuition. At junior colleges, they are a whopping 72 percent.

High prices are still a problem. My contracts casebook is now being offered on Amazon for $141.67. In my original article, I blamed poor professorial incentives:

It’s easy for prices to drift upward when the person choosing the product doesn’t really care how much it costs. Instead of competing on price, publishers compete for professors’ attention with an excess of computerized bells and whistles.

But professorial ignorance is also to blame. I imagine that few of my colleagues could tell you the cost of the textbooks they assign. The new law helps here because some institutions are choosing to fulfill the requirement of secondary disclosure “in a manner of the institution’s choosing” by asking professors to add the required cost and ISBN information to their course syllabuses. For the first time, some professors will have to confront the marginal price of taking their course during the very process of creating their course syllabuses.

The new law also indirectly takes action against another inefficiency in the market — the scourge of edition churn. Publishers and authors have a strong incentive to arbitrarily churn out new editions of a textbook even with just minimal changes to kill off competition from used books of the previous edition. The key to successful edition churn is for the textbook author to change a few pages of material early in the book so that all of the remaining material will appear on different pages. That way, any student who buys an older edition will literally not be on the same page with the professor and will have a harder time following class discussion and assignments.

The new law contains a gentle nudge which is aimed at making edition churn more embarrassing. Publishers must provide faculty members (or any “entity in charge of selecting course materials”) with the copyright dates of the three previous edition of the textbook together with a “description of the substantial content revisions made between the current edition of the college textbook or supplemental material and the previous edition, if any.” (Publishers must also disclose the price at which the book will be available to the bookstore on campus.) Some publishers are complying with these new mandates by having the preface of new editions clearly describe all “substantial content revisions.” This new disclosure may serve a useful disciplining function. The more egregious the edition churn, the harder it will be to document substantial content revisions. Students may prefer to take on the work of translating pages numbers to an older and cheaper edition of basically the same material.

Is your school complying with the new law? Take a few minutes and see if you can find the required Internet course schedule webpage that includes the ISBN and prices for all required and recommended textbooks. If not, you might email a school administrator a copy of this post and ask if the school is currently in compliance. Either way, please post comments with the links or with the administrator’s response (and we’ll send some Freakonomics schwag at random to one of the responders).

I predict that many schools are not yet in compliance. You can’t sue if your school isn’t providing the required information. But the Secretary of Education “is authorized to take administrative action, including the imposition of fines, against institutions that do not comply.”

Stepping back, it’s not clear that all of these disclosure requirements are worth the costs of compliance. The textbook market has some serious inefficiencies and the industrial organization economist in me can see how the new rules might nudge us toward a better equilibrium. But I don’t expect seismic changes.

Posted 10:46 PM by Ian Ayres [link]

The President Takes a Stand Against Inequality

Frank Pasquale

Though I'm usually loath to comment on DC politics, I find the recent report that President Obama will "rule out any compromise that would extend the Bush-era tax cuts for the wealthy beyond this year" a possible turning point for this administration. It's easy to exaggerate the effect of any given announcement. But the President may just be realizing that the US is reaching a "point of no return" when it comes to inequality.

Thomas Pogge has described the self-reinforcing nature of extreme inequality. He explains that:

The most affluent understand very well that their future wealth is affected by the social rules. They will therefore generally use their influence on the design of the social rules towards defending and expanding their advantages. The richer the top 10 percent are relative to the rest of the population, the more their interests will differ from the interests of the rest and the greater their influence on the design of the social rules will be relative to the influence of the majority.

Political scientist Larry M. Bartels describes in detail the political dynamics here in the prize-winning book Unequal Democracy: The Political Economy of the New Gilded Age:
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Posted 9:16 PM by Frank Pasquale [link]

Is the Innovation Game Worth the Candle? Thoughts on Zittrain's Future of the Internet

Frank Pasquale

Jonathan Zittrain is a leading theorist of internet governance. This field has primarily been concerned with promoting innovation. In my view, Zittrain's greatest contribution to the field has been his willingness to take seriously the types of privacy, security, and fairness concerns raised by new networks and data analysis.

For example, other internet theorists have been quick to draw a bright line between Silicon Valley "good guys" and the dark forces of telecom, cable, Hollywood, and RIAA lobbyists who'd shut them down. Zittrain has never gone in for such naive dichotomies. It's no surprise that he's offered thoughtful commentary on the recent Google-Verizon proposal on net neutrality. I'm sure he'll continue to a be an excellent guide to future developments as social networks, search engines, carriers, and content owners engage in "co-opetition" to extract maximum revenues from customers.

But at some point, even technology enthusiasts must reconsider whether the current innovation game is worth the candle of ongoing privacy violations, industrial concentration, black box technology, and cozy relationships between Silicon Valley and DC elites. If the next "garage innovators" dream of building a new web utility so they can grab a billion dollars and destroy user privacy---who really cares? Ivan Seidenberg may well be as good a CEO for the "next Facebook" as a would-be Mark Zuckerberg.
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Posted 5:58 PM by Frank Pasquale [link]

Response to Adam Liptak on the Polarization of Supreme Court Clerks

Jason Mazzone

Adam Liptak has an article in today’s New York Times on what he calls the “polarization of Supreme Court clerks.” He contends that whereas in years past the Justices hired law clerks with a mix of political perspectives, today they tend to hire clerks who share their own political ideologies. How do the Justices know which applicants are conservative and which are liberal? According to Liptak, the Justices use a proxy: the party of the President who nominated the circuit court judge for whom an applicant previously clerked. Liptak explains: “These days the more conservative Justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal Justices are more likely than in the past to hire from judges appointed by Democrats.”

Although Liptak talks about hiring by both conservative and liberal Justices, the article’s goal is a criticism of the Roberts Court’s conservative members. The conservative Justices are presented as more likely to engage in ideological hiring (Justice Thomas is the poster child) than are the liberal Justices. And the conservative Justices’s ideologically-compatible law clerks are presented as tilting the law in an ever-more conservative direction. (Liptak has previously written pieces asserting that Chief Justice Roberts has been shifting the court rightwards.)

Liptak’s claim about increased ideological hiring is exaggerated because he misses an important background development. In addition, Liptak’s assessments of the effects of what ideological hiring has occurred are unpersuasive.

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Posted 4:57 PM by Jason Mazzone [link] (0) comments

Torture and Littering

David Luban

Today the Ninth Circuit Court of Appeals overturned the conviction of Daniel Millis, convicted of littering because he left sealed bottles of drinking water in a desert wildlife refuge. He explained that he left them "along frequently traveled routes for unlawful entrants to the United States." He belongs to a group called "No More Deaths," and the opinion quotes his testimony: "humanitarian aide [sic] is never a crime."

The majority overturned his conviction because a reasonable person might not understand that leaving drinking water for people dying of thirst is littering. The United States countered that the water bottles constitute "garbage" in the sense of the statute. After foraging through some dictionary definitions of "garbage" and "discarded," the majority concludes that the regulation is too ambiguous to enforce in this case.

Judge Jay Bybee - he of the torture memo - dissents. Littering is littering, and Bybee finds that the regulation is as clear as a sunny day in the desert. This is the same Jay Bybee who thinks that terms like "torture" and "severe suffering" are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.

Posted 9:57 PM by David Luban [link]

The Cost of Habeas?

Jason Mazzone

Virtually every proposal to reduce the workload of federal district court judges focuses on the burden of habeas petitions brought by state prisoners. Today, habeas petitions by state inmates account for one in fourteen of the civil cases filed in federal court. Habeas petitions, which are rarely granted, are commonly said to waste judicial resources. In their groundbreaking study of the costs and benefits of habeas litigation, Joseph Hoffmann and Nancy King conclude that federal habeas review of most non-capital state court cases should simply be abolished. The saved resources, they argue, should be directed to helping states provide better defense to criminal defendants.

I have a different perspective. While I don’t doubt that habeas litigation consumes resources that could be better used in other ways, I don’t view habeas petitions to be as burdensome as they are commonly perceived.
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Posted 6:04 PM by Jason Mazzone [link] (10) comments

A Public Reason Defense of Judicial Review

Guest Blogger

Ronald C. Den Otter

Americans have always had, and probably always will have, ambivalent feelings toward judicial review; they cannot live with it but they cannot live without it. Indeed, there used to be something characteristically American about turning the most divisive political questions --abortion, affirmative action, same-sex marriage, freedom of speech, separation between church and state, and capital punishment-- into legal questions with the hope that courts could answer them. The primary question that I address in my recent book, Judicial Review in an Age of Moral Pluralism, is whether judicial review can be justified in a country like our own that is committed to democratic self-rule. In the past, scholars have tried to defend judicial review by arguing that it makes our political system more democratic. By contrast, I defend judicial review because it ensures that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. I tie this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and describe how judges should decide the most difficult constitutional cases.
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Posted 11:55 AM by Guest Blogger [link] (31) comments

Gay Marriage and the Republican Consolation Prize

Jason Mazzone

Recently, a district court in California held that state’s ban on same-sex marriage unconstitutional. A district court in Boston also held unconstitutional the federal Defense of Marriage Act.

I share Jack’s skepticism about the likelihood of these decisions being upheld on appeal. My own guess is that both decisions will be reversed by the respective circuit courts.

I want to focus here on some broader implications.

President Obama vowed to end “Don’t Ask Don’t Tell,” the Clinton-era compromise on gay and lesbian soldiers serving in the military. But Obama’s window of opportunity for ending DADT is quickly closing. At the end of May, the House voted 234-194 to repeal DADT as part of a military spending bill. Just five Republicans supported the repeal and twenty-six Democrats voted in opposition. The Senate Armed Services Committee has also approved the proposed repeal. But the full Senate, which was expected to consider the repeal measure over the summer, has not yet taken it up and Republicans have threatened a filibuster when and if the Senate does.

With the 2010 congressional election two months away, the chances of repealing DADT before the election occurs are fast diminishing.

If, as expected, Republicans in November gain control of the House and gain seats also in the Senate, repeal of DADT in the next two years is extremely unlikely. Although Americans by a clear majority think gay and lesbian soldiers should be permitted to serve openly, Republicans have no interest in allowing Obama to fulfill his DADT pledge. And even if Republicans were otherwise inclined to vote for repeal at this time, the marriage cases now cast a chill. No Republican member of Congress wants to seem pro-gay when marriage is in the air.

(Dick Cheney, Laura Bush, and other prominent Republicans now publicly support same-sex marriage—easy to do when you no longer answer to the electorate.)

We have, then, a remarkable possibility. Within the next two years, federal appellate courts hold that a ban on same-sex marriage does not violate the Constitution and uphold the Defense of Marriage Act. Obama (who has said he opposes same-sex marriage) loses reelection in 2012. As a consolation prize, Congress repeals DADT and a Republican president signs the repeal into law.
Posted 9:57 PM by Jason Mazzone [link] (63) comments