Oh, the treatise!(FOREWORD)

• Author: Danner, Richard A.

INTRODUCTION

In his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?" (1) In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992. (2)

Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. (3) He characterized "practical" legal scholarship as both prescriptive (aiming to instruct attorneys, judges, and other decisionmakers) and doctrinal (dealing with the sources of law that constrain and guide practitioners, decisionmakers, and policymakers). (4) Having served on the law faculties at Michigan and Harvard before joining the Court of Appeals for the District of Columbia,5 Judge Edwards was well positioned to critique the direction of legal scholarship, but he is not the only judge to have done so. In recent years Chief Justice Roberts has made clear his opinion of most academic writing, (6) and Justice Kennedy has pointedly expressed his concerns about the diminishing relevance of law reviews to appellate court decisionmaking. (7)

Edwards characterized the legal treatise as "[t]he paradigm of 'practical' legal scholarship," and listed several "classic examples" of treatises that answered his concerns. (8) For Edwards, all were works that "create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what 'the law' requires." (9) However, he neither discussed the individual treatises he cited before moving on to other matters, nor expanded on why the treatise has been so important to American lawyers.

Chemerinsky eloquently defended the value of scholarship written for academic audiences and others beyond the judiciary and the bar, (10) but agreed with Edwards that "doctrinal scholarship is much less valued today than in prior generations." (11) He noted that law professors still "continue to write legal treatises that describe and critique legal doctrines," (12) but also wondered when the editors of the Michigan Law Review had last chosen a casebook or legal treatise for inclusion in the annual Book Review issue. (13)

In the following year's foreword to the Book Review issue, Eugene Volokh described how electronic-book technologies would change books related to the law, but he explicitly omitted from his speculations such characteristically legal publications as treatises and other books aimed at practitioners. (14)

Edwards's comments regarding the continuing value of legal treatises likely raised a few eyebrows. A.W.B. Simpson and Morton Horwitz had each already chronicled the decline of the American legal treatise, (15) and Lawrence Friedman had written that "[m]ost 19th-century treatises were barren enough reading when they first appeared, and would be sheer torture for the reader today." (16) Friedman's writings on American legal history have generally offered only grudging acknowledgement of the efforts of treatise writers. In 2002 he pointed out that, although doctrinal research had been "the heart of legal scholarship" for most of the twentieth century, even the highly regarded major treatises were "elephantine works" that "tied together vast masses of cases, giving them some kind of coherence, real or imaginary." (17) Friedman also noted with apparent satisfaction that by the 1980s "there were law professors who actually wrote real books." (18) Most likely, these books were of the sort Edwards would view as being of little use to practitioners and judges.

In Law Books in Action, their 2012 collection of essays devoted to the Anglo-American legal treatise, Angela Fernandez and Markus Dubber conclude that while the form remains popular in other common law countries, "few if any legal scholars in the United States today wake up filled with a burning desire to devote their professional lives to the production of a treatise." (19) Yet the academy's lack of interest in writing treatises tells us little about the needs of twenty-first-century lawyers and judges. Would today's practicing bar benefit from more of the prescriptive and doctrinal writing that Edwards's "paradigm of 'practical' legal scholarship" once provided? (20) This Foreword takes a historical approach to this question by reviewing the history of the American legal treatise through the lens of several works that consider its place as a form of legal literature: Roscoe Pound's lectures on the "formative era" of American law, (21) A.W.B. Simpson's 1981 article on the rise and fall of the legal treatise, (22) and Fernandez and Dubber's recent collection of essays on the treatise and similar forms. (23) Part I examines the origins of the legal treatise and its early importance in the United States; Part II reviews the impact that the massive growth in published case law had on the treatise during the latter part of the nineteenth century; and Part III considers the implications for the treatise of shifts from print to electronic formats in the twentieth century. This Foreword concludes by speculating briefly on the continuing need for the treatise and its place in the digital legal-information environment.

1. AGE OF THE TREATISE

   Most considerations of the treatise exclude comprehensive or "institutional" works such as William Blackstone's Commentaries on the Laws of England and James Kent's Commentaries on American Law, each of which is distinguished by its attempt "to describe the private law of an entire legal system in a single work." (24) In his definition of the treatise, Simpson included only monographs dealing with a particular substantive area of law. (25) He relied on characteristics suggested by T.F.T. Plucknett, who had emphasized the significance of the treatise's deductive presentation of its subject and the prominence given to legal principles. According to Plucknett, the principles, once formulated, could be applied to specific questions, and the treatise could, "by its sheer intellectual weight ... impose those principles upon teachers, students, lawyers and the courts." (26) Simpson's approach accords with the definition outlined in 1868 by the prolific American treatise writer Joel Prentiss Bishop, who defined the treatise as "an orderly statement of those principles in which the law consists, whether drawn from the reports of law cases, from natural reason, or from any other source." (27) Simpson, Plucknett, and Bishop each identified characteristics of treatises that align with Judge Edwards's ideal of legal scholarship that is simultaneously prescriptive and doctrinal, providing instruction to legal decisionmakers while focusing on sources of legal authority.28 Others use the term more loosely. Fernandez and Dubber include chapters on institutional works, codes, and manuals in their recent book, arguing "that these works perform a similar rationalising and systematising function to the traditional legal treatise." (29) Standard textbooks on legal research generally lump together a full range of books about the law as "treatises" and then identify categories within that heading. (30) Here, I will concentrate on works fitting the characteristics listed by Edwards and fitting the traditional definitions.

   The early development of the common law treatise in England can be traced to Thomas Littleton's Tenures (31) in the fifteenth century, with little more being achieved in treatise writing until the eighteenth century. Michael Lobban notes that in the early part of that century, some "[w]riters did seek to write compendious, and systematic treatments on coherent areas of law." (32) But changes in English law and improvements in law reporting gradually led to publication of larger numbers of systematic, substantive treatises in the late 1700S. (33) The publication of Blackstone's Commentaries from 1765-1769 gave treatise writers impetus to focus on specific areas of the law and "put flesh, as it were, on Blackstone's bones." (34) Simpson also suggests that Blackstone's "discursive literary style" was considered a "better way to expound the principled science of the law" (35) than the lists of maxims which had been used to present the principles of the common law since the sixteenth century. (36)

   In North America there was little publication of law books prior to the American Revolution. Eldon James found that between 1687 and 1788 "not a single book that could be called a treatise intended for the use of professional lawyers was published in the British Colonies and the American States." (37) Pound concluded that, at the time of the Revolution, "[f]or practical purposes Coke's Second Institute and Blackstone are the repositories of the law." (38) One early commentator noted that in 1800, "the best library of American reports that could be summoned by money or magic ... might have been borne [in] the circuits in a portfolio." (39) In his classic legal research text, Frederick C. Hicks could identify only sixteen "more important volumes" of American reports published from 1789 to 1803. (40) Describing the conditions of legal practice after the Revolution, Anton-Hermann Chroust...