Treatises

Treatises in United States

Treatises are scholarly secondary sources, which provide the readers or users with an analysis of the law in an area, the background to the law’s development, and more detailed examples to the various possible alternative developments for a particular area. They will often argue the direction the law should be developed, pushing it to the cutting edge. How respected or authoritative a particular treatise is will depend on the respect a court will have for that author.

Future

Prof. Richard Danner’s made a foreword to the Michigan Law Review, titled Oh, The Treatise! Danner does a wonderful job (in 13 pages no less) of tackling the broad question: Why should law professors write?

Beginning with Judge Harry Edwards critique of legal scholarship in The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992), Danner says,

“Edwards characterized the legal treatise as “[t]he paradigm of ‘practical’ legal scholarship,” …. 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.”

With this backdrop, the essay works its way through history to address the more narrow question: “Would today’s practicing bar benefit from more of the prescriptive and doctrinal writing that Edwards’s “paradigm of ‘practical’ legal scholarship” once provided?”

I won’t reveal the good stuff in between, but merely skip to the end and say that Danner makes good use of the space, quickly arriving at the early 20th century problem of multiplicity of cases and the rise of “case lawyers.” He concludes by noting that throughout the 19th and much of the 20th centuries, treatises “provided context and structure to the flood of published cases” and they are needed even more now as:

“Today’s lawyers have ready access not only to cases and other forms of legal authority, but also to masses of other information, legal and law-related, generated each day and competing for their attention. Is not the lawyer’s need for context and structure more urgent now than when the first great treatises were written and commentators were worried about how quickly the courts had generated the first few hundred published volumes of American reports? [¶] Where will lawyers and judges find new forms of interpretive frameworks? Electronic search engines, despite their power and sophistication at aggregating data, are less successful at providing structure and context for information and continue to rely on the research skills of searchers and the knowledge they bring to the task.”

I fear that Danner’s call to action will fall on deaf ears as the academy seeks to move towards more “practical” skills training. I doubt any law professors or scholars are looking to become the next Blackstone or Williston, and if they were, what publisher would be there to reward him or her for the effort?

Author: Jason Wilson (A)

California Miller and Starr Plus Database

This is a database related to interests in and transfers of real estate, in the following material: State Treatises, Forms, and Practice Guides. A description of this real estate database is provided below:

All documents from the California text and legal forms databases related to real property, and selected documents from the California Jurisprudence database (CAJUR). Coverage varies by source.

Further information on United States legal research databases, including real property databases, are provided following the former link.

Louisiana Civil Law Treatise: Real Property Database

This is a database related to interests in and transfers of real estate, in the following material: State Treatises, Forms, and Practice Guides. A description of this real estate database is provided below:

Materials from the Louisiana Civil Law Treatise Series relating to real property.

Note: This real estate database is only relate to the jurisdiction of LOUISIANA. It lacks relevance and is not useful for other U.S. States.

Comments

4 responses to “Treatises”

  1. International Avatar
    International

    Ronald J. Cappuccio

    I think the answer would be found if a survey of lawyers in private practice asked these simple questions:

    1. What law reviews do you currently maintain subscriptions?
    2.How many law review articles did you read last year?
    3.When is the last time you used a law review article in your practice?

    The answers would probably be very few to question 1 (i get the ABA Tax Section journal as part of my section membership,) none to question 2 and 3 for most practicing lawyers. We need to make law school practical as well as theoretical. The Medical School model of 2 years of theory and 2 years of practical training should be considered by Law Schools. The mantra for law professors should be changed from “publish or perish” to “practice or perish.”

  2. International Avatar
    International

    C. T. Bush
    In legal publishing, the Big 3 (TR, LN and WK) at least no longer describe themselves as publishers anyway, and they are very sincere about this. Content is merely a component to their high-price-tag “workflow tools,” and in and of itself somewhat of a commodity. Because of the way content is integrated into these tools, I certainly agree with your point that many of the indicators of quality are lost. Whether anyone will notice is another question (though I make the latter statement at the risk of sounding like an old grouch).

  3. International Avatar
    International

    Even though big legal publishers have become “solutions providers”, they still control the largest collection of secondary sources in the country, and the predictions that law blogs and other firm-generated material (open source) would slowly take their place has not come to fruition. So how to combat entropy? One way is as you suggest, stick parts of it into the “workflow”, where it seems to make sense. As alluded in the post, that only really works if editors are retooling the content for the task, not the machines.

  4. International Avatar
    International

    Mike

    Hopefully, the editorial component in legal treatises will not be overlooked. I think there is some realization that technology alone will not suffice to create the new content-based products that lawyers want.

    However, I am afraid that editorial staffs aren’t going to retooled to fix what’s currently wrong with large treatise sets. They will still update them, but there won’t be fundamental restructuring of the works to accommodate modern research practices.

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