Self-Publishing Legal Scholarship

I read with great interest Professor Bainbridge’s post a few weeks ago about self-publishing legal scholarship. The discussion Bainbridge linked to in that post by Joe Konrath and Barry Eisler about self-publishing (and expanded upon here) is even more interesting. (Eugene Volokh’s posts from 2009 are also quite useful.)

Self-publishing of fiction appears to be the wave of the future. On the other hand, self-publishing non-fiction works, including academic scholarship, is just now on the horizon. SSRN is the first great wave of self-publishing legal scholarship, but it complements rather than replaces traditional publications. Is the next great wave of legal scholarship going to be self-published books? I would not be surprised.

Bob Mayer’s post today about self-publishing his latest book of historical fiction, Duty, Honor, Country, only reinforces that impression. Much of what he says could apply with equal force to books of non-fiction, including legal scholarship. Here’s a few choice excerpts:

I appreciate the opportunity to blog here today, as it’s a very special occasion, not only being the 150th Anniversary of the start of the Civil War, but the continuation of a new era for myself and other authors.

In the military, it’s a maxim that every army is always prepared to fight the last war, not the next one. That gets a lot of people killed. In the Green Berets, we were always looking ahead, preparing for what would be, rather than what was. That was my Special Forces experience and I’m applying it to my writing career. Instead of looking at was, I’m looking forward at will be.

That’s the reason I’ve made the switch from traditional publishing to self-publishing. My next book, the epic Duty, Honor, Country, a Novel of West Point & the Civil War is live today on Amazon Kindle….

[One] reason I made the decision to publish Duty, Honor, Country myself was timing. As noted, today is the 150th Anniversary of the start of the Civil War. There’s no way a traditional publisher could have gotten the book out by today. They’re still working on the same business model they had before computers became household items, where their production schedule is normally at least a year once they contract for a book. I’ve had it take as long as 8 months just to get the contract in hand….

I’m pricing Duty, Honor, Country at $4.99 because it’s epic, almost twice the length of my other books, at 175,000 words and took me two years to write….

Joe says, “Last year I predicted that legacy publishing wouldn’t be done in by technology, or by readers retreating from print and embracing digital. It would be authors who kill the Big 6 by deciding to self publish”….

Publishers still don’t understand that they aren’t going to have anything to publish if they don’t immediately change their ways. Once again, for all those industry folks who read my blog but are too chicken to leave comments, here’s what you need to do:

1. Give authors fair e-royalty rates. 50% should be the ground floor, and it should go up from there using various escalators.

2. Share the e-wealth with authors by offering them higher rates on contracts that are still active.

3. Drop the prices of ebooks. If anyone in New York has been paying the slightest bit of attention to me for the last two years I’ve made it painfully clear how cheaper ebooks make more money than expensive ones, with reams of data and dozens of examples to support this.

4. If you are an agent, begin to morph your business into an estributor model, or you’ll sink along with the Big 6.

In some respects legal scholars have different incentives to self-publish than fiction writers. We earn a nice living from our scholarship, although almost none of that income comes from royalties. We do not need royalties to survive in this business. What we strive for in legal scholarship is to be part of the marketplace of ideas. Our ideas–at least those published in books–are hidden behind a giant paywall established by legacy publishers. We currently reach hundreds of readers when we could reach thousands if the price were right.

Legacy publishers are loathe to reduce the price of ebooks despite the fact that the marginal cost of each additional download is nil. They do so because they don’t want ebooks to cannibalize hard-copy and paperback sales. That makes perfect sense if you are a publisher. But authors don’t care about cannibalizing print sales, because royalties are of no consequence to most scholars. They just want their stuff to be read.

Legacy publishers of legal scholarship assume that they can continue to pay authors fifteen percent royalties, regardless of whether the book is published digitally or in print. But that pay structure actually creates incentives to self-publish.

Why should established legal scholars agree to put up artificial barriers between themselves and their readers? For example, how many more readers would purchase Mary Ann Glendon’s latest book, The Forum and the Tower, if it were available on Kindle for $4.99 instead of in hard copy priced at $27.95 (or on Amazon for $18.45)? Do we really need the OUP label to tell us that Mary Ann Glendon’s books are worth reading? Glendon’s wonderful book, A World Made New, costs $11.99 for downloading on Kindle. If she were in control of the pricing, she could drop the price of her ten-year-old book down to $2.99 or $0.99, so that it would actually be cheaper to buy digitally than purchasing it used for $10.33 ($6.34 plus $3.99 shipping) on Amazon. How many more people could learn about Eleanor Roosevelt and the Universal Declaration of Human Rights if they could purchase Glendon’s book without a tinge of financial guilt?

I don’t know what the future holds for self-publishing of legal scholarship, but I doubt the status quo will prevail for much longer. Law professors are lemmings. They follow the crowd. Once it is professionally acceptable to self-publish books in digital format, established law professors will do so, because the benefits far outweigh the costs. We want to be widely read, so why should we opt-in to a system that muffles our voices when we have technology that offers a megaphone?

Ten years ago none of us had ever heard of SSRN. What SSRN did to law review articles, self-publishing could do to casebooks, treatises and law-related non-fiction. The new age of self-publishing is fast approaching the world of legal scholarship. It will just take a few legacy scholars to create a norm cascade that will rock the world of legacy publishing.