In Praise of the Treatise Writer: Law's Special Knowledge

• Publication year: 2001
• Citation: Vol. 25 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1SUMMER 2001

In Praise of the Treatise Writer: Law's Special Knowledge

Ellen M. Bublick(fn*)

A few months after I began my academic career, Chief Judge Richard Posner, in a speech delivered at my new academic home, asked the question: What is the real knowledge that law has? So, I was very fortunate to think about the knowledge that law has at precisely the same moment that I was asking myself : What is the real knowledge that J have? Even compared to Judge Posner's low appraisal of the law's knowledge,(fn1) my own self-estimation was worse, and a path toward acquiring some valuable erudition only began to appear as I taught my first torts course.

The casebook I used (then as now) is Dan Dobbs and Paul Hay-den's Torts and Compensation Systems.(fn2) Dobbs, the author of the foremost treatise on tort law,(fn3) and Hayden, the author of a number of thought provoking articles,(fn4) have written a book with a clear structure-one that carefully and methodically elucidates the doctrinal framework of state tort law. The book also addresses problems in tort theory and practice and outlines major supplements and alternatives to existing tort remedies.

For many years, the idea that tort law had an articulable doctrinal structure would have been news to me. In my own legal education, my torts professor took a more theoretical view, never suggesting that negligence law had some formal internal structure, let alone that it might be useful in any particular way. In fact, I had not learned that negligence had five elements-duty, breach, actual harm, actual cause, and proximate cause-until I opened a study guide shortly before my final exam.

Imagine my surprise then, when teaching tort law through a doctrinal framework, I found that I understood not only tort doctrine, but also tort theory better than I had before. Granted, I had a few advantages the second time around: it was my second time around, I was learning the materials as a professor rather than as a student, and I had several years of legal practice behind me. Still, for me, the difference in the substantive orientation of the materials also had an impact.

Though I no doubt benefited from the repeated comparisons and contrasts between strict liability and negligence in my own legal education and am still awed by the historical richness of that course, theoretical comparisons of negligence and strict liability only go so far. For me, the limitations of those comparisons stem from that debate's lack of contextual cues,(fn5) its alienation from the contemporary culture in which political debates are as likely to be about negligence and something less as they are about negligence and something more,(fn6) and its failure to seriously consider tort law's non-legal competitors for the resolution of injury related problems.(fn7)

If "predictions of what the courts will do is really all there is to law,"(fn8) and what courts do is self grounding,(fn9) then what could be more helpful to a student of law than to read materials prepared by ingenious authors who are exhaustively versed in the intricacies of what courts and legislatures are actually doing in current disputes (as Dobbs and Hayden undoubtedly are)?

It was once said of Monet that he "is only an eye, but my God what an eye!"(fn10) That critique, which was never a fair appraisal of Monet's immense creativity,(fn11) is sometimes the view that even admirers take of treatise writers: helpful but only descriptive.

But the term "descriptive" does not begin to account for the value of the casebook that Dobbs and Hay den have produced, which although it is not a treatise, undoubtedly benefits from the authors' extensive treatise related knowledge. Words like "comprehensive" and "current," while invariably true, need to be matched with other terms like "insightful" and "provocative." Let me first speak to the contribution that the Dobbs and Hayden book makes to teachers and then to its direct value to students.

In an earlier version of the Seattle University Law Review's casebook series, it was noted that a casebook not only teaches students, it teaches teachers.(fn12) As a teacher who is a student, let me say that Dobbs and Hayden's book, with its one thousand page teacher's manual and exhaustive yearly update letter, is unparalleled in the support that it provides to teachers. Dobbs and Hayden's teacher's manual provides an outline of the materials in the book, brief summaries of the cases, ideas for discussion, and sometimes materials and thoughts about every single question presented in the casebook (which ameliorated my fear that I might have had to say "I don't know" to every substantive tort law question that my students asked in my initial year of teaching). To assist professors with syllabus preparation, the teacher's manual notes cases or even whole sections that might be skipped if coverage time is tight, as well as cases that must be skipped if prior ones are not covered. For example, if you don't teach the section 1983 cause of action, you might want to skip the DeShaney case(fn13) when you come to the nonfeasance section.

Since Torts was the first course that I ever taught from a casebook (I had previously taught a course in genetics and the law when all such course materials were homemade), I took for granted that casebooks came with such elaborate user's guides. It was not until I was asked to teach a new course only a few days before the term began that I realized to my shock and dismay that the garden variety teacher's manual not only skips...