Sunday, April 08, 2012

The Legal Treatise in Modern America

Angela Fernandez & Markus D. Dubber, "Introduction: Putting the Legal Treatise in its Place,", pp. 19-21 (April 5, 2012) (footnotes omitted) (introduction to Law Books in Action: Essays on the Anglo-American Legal Treatise):

"One question that we do not address in great detail is what happened to the treatise as a form of literature in the twentieth century. Roscoe Pound recounted this evolution in The Formative Era in American Law, where he gave a steppingstone story, casebooks were the ‘necessary forerunner[s] . . . of the great treatises’, the ‘ultimate’ or ‘mega’ treatises. And those ‘great treatises’ paved the way for the American Law Institute Restatement projects.

"How did the United States get from this ‘Age of the Treatise’ to the study of doctrine being seen as passé by the late 1970s and early 1980s? Simpson identified the lack of enthusiasm for doctrine in the United States with the rise and effects of legal realism.

"There is clearly some truth to this observation, although there are many jurisdictions that had significant ‘realist’ or ‘sociological’ movements in which treatises continued to be produced.

"Treatise-writing was not just an outmoded vestige of ‘Langdellian formalism’, or ‘Classical Legal Thought’, if you prefer. Corbin, for instance, saw  his treatise as a Legal Realist alternative to Williston’s formalism, one that drew on inductive case analysis rather than deductive reasoning from higher principles to lower doctrines. Corbin’s treatise, after all, appeared only in 1950, long after Legal Realism had replaced formalism as the orthodoxy in American legal thought. (Even the first edition of Williston was published in 1920, at the very end of the ‘heyday’ of legal formalism.) Karl Llewellyn, who regarded Corbin as his ‘father in the law’, complained bitterly about his fellow Legal Realists’ dismissal of doctrinal analysis, and of treatise and Restatement writing in particular.

"Although no treatise-writer himself, Llewellyn, like Corbin, played a central part in the American Law Institute’s work. His Uniform Commercial Code, more explicitly than Corbin’s Restatement of Contracts, implemented the core Legal Realist claim that it was impossible to deduce the resolution of every issue from a set of principles by leaving space for local legal communities (in this case communities of merchants) to frame and resolve issues based on their experience and expertise.

"Farnsworth’s contracts treatise, first published in 1982, can be seen as a more explicitly normative, if not to say neo-formalist, alternative to Corbin’s Realist project. Prosser’s torts treatise, first published in 1941, too was more intellectually ambitious – and in particular animated by then-dominant Legal Realist thought – than it would appear in hindsight, after a series of editions that, as in all such works, tend to dilute the conceptual clarity of the original vision. That said, 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, great or not so great. While short treatlets survive on the margins of the American legal textbook market, neither students nor teachers, not to mention courts or practising lawyers or, for that matter, legislators or their aides, feel the need to bury their noses in heavy tomes of treatise learning. The Great Treatise very much has gone the way of the Great Men of the Law; just as the American Law Institute is not what it once was, and ALI giants like Herbert Wechsler no longer roam the halls of American law schools, so Model Codes or even Restatements no longer demand the attention of the producers or the consumers of legal literature in the United States.

"Other common law countries, such as Canada, however, continue to generate  treatises on the standard range of topics, including – even – in criminal law, a  subject long neglected in its Neighbour to the South. In the Mother Country, too, scholars and practitioners continue to churn out treatises, though the name may have fallen out of favour, perhaps so as not to scare off students and lawyers eager for a quick hit of doctrine. In civil law countries, say Germany, the production of comprehensive – and heavy – tomes of doctrinal analysis continues, both in the form of Lehrbücher and (often multi-volume) treatises-cum-code-commentaries, though here too shorter forms of legal educational literature have found a willing market.

"Given the treatise’s shape-shifting resilience over the past few centuries and its intimate connection with ideas of legal scholarship, legal education, and even of law itself, it would be foolish to count it out, now or in the future, in civil law countries or in the common law world. Perhaps even in an apparently hostile environment such as American legal scholarship, where ‘doctrine’ has for some time been a four-letter word, a fundamental and widespread reassessment of the very project of so-called interdisciplinary (‘law and’) legal scholarship may usher in a renaissance, or at least a reassessment, of the treatise in one form or another, as the disciplinary pendulum swings back from the ‘and’ to the ‘law’ and the analysis of law reasserts itself, both chastened and complicated in the wake of insights gleaned from decades of peering into law from the outside."


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