Treatise in the United States

Treatise in the Context of Law Research

The Thurgood Marshall School of Law Library defined briefly Treatise as: A scholarly work which provides detailed treatment of a particular area of law.Legal research resources, including Treatise, help to identify the law that governs an activity and to find materials that explain that law.

Treatises and Online Primary Sources

advances in the Web technology available to the major legal research services, together with the widespread availability of high bandwidth Internet connections, have largely eliminated the technological advantages of having a treatise and its companion materials on disc. As a result CD- and DVD-based law publications have effectively disappeared from the market (See KENDALL F. SVENGALIS, LEGAL INFORMATION BUYER’S GUIDE & REFERENCE MANUAL 147-154
(2015)). By 2000 treatise content placed online as part of any of the major legal research services could be navigated through a graphical user interface. Programmatically inserted hyperlinks provided easyto-follow pathways from treatise citations to the referenced statute sections and case authority. Block and copy and print were only mouse-moves away.

Until Lexis and Westlaw began to break down their rigidly compartmentalized data
structures, however, a researcher had to know about a particular treatise, make her way to
it and select it for search, to access its pertinent material. Citations to treatise provisions
contained in judicial opinions did not provide a clickable path; they were not linked. It
was only when the two major services began working toward their present global search
paradigm, that discovery of relevant treatise content in the course of searching primary
authority became possible. Initially, this was accomplished through a window showing
commentary and other items of possible interest placed beside the search results drawn
from the database targeted by the user. On Westlaw this feature was called “Results Plus”. Lexis had a comparable “Related Content” window.

With today’s latest generation systems searches are launched by default against a full range of database content, including treatises. As run on Westlaw Next, LexisAdvance, or Bloomberg Law, a search … will retrieve commentary sources, including treatise sections drawn from works owned or licensed by the service provider, in addition to cases and statutes. And by default the selection among treatises and between treatise content and other sources of commentary such as journal articles and legal encyclopedias will be governed by the service’s ranking algorithm, not the user. (1)

Print Treatises

Despite loading the treatises they own onto their comprehensive data services the major
publishers still maintain and market the parent print editions. Indeed, it is possible that
some few treatises with active authors still generate more revenue for publisher and
author in print than in electronic format. Likely, little of that revenue is drawn from fresh
customers. Those, however, who have long relied on the print version of a treatise are
loath to let go. Among all types of legal research materials (case reports, statutes, journal
articles, etc.), treatises and their like are, in fact, the most likely to be consulted in print
rather than digital format.38 But “most likely to be consulted in print” should not be
confused with “more likely than not.”

Since these are works for which one must continue to pay in order to receive updates and revisions, online use is likely to be more economic for the occasional user. For a firm or practice group it avoids the challenge of sharing one or more physical copies. Furthermore, there is strong evidence that lawyers, particularly those recently graduated from law school, prefer to do nearly all their research at a computer, including review of treatises and similar secondary materials. Recent ABA technology surveys reveal that over twice as many lawyers use an online
source when researching a topic in a treatise or similar secondary reference as turn to
print and that the gap between the two is widening (ABA LEGAL TECHNOLOGY SURVEY REPORT: 50.1% versus 22.0% for 2013). At least one major publisher is reinforcing that preference with financial incentive through steep increases in the price of treatise supplements. That is the Svengalis report on Thomson Reuters (See KENDALL F. SVENGALIS, LEGAL INFORMATION BUYER’S GUIDE & REFERENCE MANUAL 36 (2015)).

Recall that these are not works to be read through. They are consulted, episodically, as
needed. In electronic form, full text search and hyperlinked navigation aids can dramatically speed access to the part or parts of a zoning treatise in point on any issue, such as the required amortization of a non-conforming use. Cross-references can be followed with a click. Once pertinent sections are found in an online work there is no need to leave one’s desk or computer to read the cited authorities. Electronic publication also permits better integrated and more frequent updates.

To recapitulate, over the past three decades the rights to existing treatises have been
gathered from the previous array of independent and competing publishers into large
portfolios held by two conglomerates (three if one includes Walters Kluwer, the owner of
Loislaw, Aspen Publishers, and CCH, four if one includes the most recent entrant,
Bloomberg Law). Wolters Kluwer’s treatment of its treatise inventory is, at present, more mixed. Only a relatively small number of the company’s legal titles are accessible through its LoisLaw service. Compare the full list at Wolters Kluwer Law & Business, wklawbusiness.com, with those available on Loislaw, loislaw.com. Some of its strongest titles are bundled with appropriate primary law materials and offered online as specialist information services.2 Bloomberg Law offers secondary sources alongside its primary law databases. These include a decade or
so of law journals and treatises published by the Practising Law Institute (PLI) and BNA. See generally Robert J. Ambrogi, Can It Be a Contender? Bloomberg Law, 70 OR. ST. B. BULL. 15 (2010). …The company launched a specialist service combining commentary and primary law material in the field of financial services law. See Bloomberg Law: Banking.

These companies have embedded the treatises they own within comprehensive subscription services. Online these commentary works have greater functionality but far less distinct visibility. And they are unavailable to non-subscribers.

The value of a Thomson Reuters treatise online cannot be separated from its Westlaw
context. Its Matthew Bender counterpart is available only as part of Lexis. And even for
subscribers, depending on the terms of their contract, consultation of treatise content may
trigger a substantial additional charge. If the title is not included in a subscriber’s flat
rate plan, accessing a single section may cost up to $80. (See Lexis Advance Price Guide for Commercial Markets (June 25, 2015); WestlawNext, Pricing Guide for Commercial Plans (June 25, 2015)).

In print treatises can be consulted without incurring incremental charges, they can be
shared by multiple researchers, and they can be used with the full spectrum of online
legal research services. These include the many smaller services in the U.S. (both free
and fee) that have in recent years succeeded in securing respectable market or use share
with collections of primary authority. While the likes of Fastcase, Casemaker, and
Google Scholar don’t have online commentary nor are they the targets of electronic
treatise links, they can be used together with print treatises published by others. (2)

Notes

1. Martin, Peter W., “Possible Futures for the Legal Treatise in an Environment of Wikis, Blogs, and Myriad Online Primary Law Sources” (2015). Cornell Law Faculty Working Papers. Paper 120.
2. Id.