History of Legal Treatises

In the United States

While the earliest law treatises predate the systematic dissemination of court opinions, by
the early twentieth century this form of legal commentary had become an essential tool
for lawyers and judges seeking to organize and understand the growing quantity of
published case law. That was a period of monumental treatises, books that brought order
to large sectors of the common law and caused authors’ names to become synonymous
with their fields – evidence (Wigmore), contracts (Williston), trusts (Scott), and so on.

Brian Simpson’s history of the legal treatise, first published in 1981, documented the
importance of those works but concluded that they marked a culmination (A.W.B. Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. CHI. L. REV. 632 (1981). The essay was subsequently republished in a compilation of Simpson’s historical writings. See A.W.B. Simpson, LEGAL THEORY AND LEGAL HISTORY: ESSAYS ON THE COMMON LAW 275-319 (1987)). The title of his essay, “The Rise and Fall of the Legal Treatise,” summarized Simson’s view of the status and future of the genre. Undoubtedly he was right to conclude that individual works of such dominance were not likely to be seen again.

It is also true that even at the time Simson wrote other forms and outlets for scholarship were attracting more of the creative energy of U.S. legal academics. But empirically he was flat wrong. Law treatises proliferated during the latter half of the twentieth century. Many were summoned by new fields grounded upon statute rather than common law. Securities Regulation by Louis Loss first appeared in 1951. It grew into the 11-volume third edition (with Joel Seligman) published in 1989 by Little Brown & Co. Boris I. Bittker’s influential Federal Taxation of Income, Estates, and Gifts was first published in 1981; the second edition (with Lawrence Lokken), in 1989, publisher Warren Gorham & Lamont. The first edition of Nimmer on Copyright, Melville B. Nimmer’s major treatise in that field appeared in 1963, published by Matthew Bender & Co. It has since 1985 been sustained and revised by his son David. (See generally Ann Bartow, The Hegemony of the Copyright Treatise, 73 U. CINN. L. REV. 581 (2004).

The new titles did not necessarily supplant old ones. Existing treatises were sustained through
successive editions. In time these became the responsibility, in whole or part, of second
and third generation authors and revisers. Reference works of this type expanded in
scope and detail. Because of their very number individual works and their authors grew less conspicuous. In time most legal fields, from admiralty to zoning, were covered by multiple treatises marketed by the (United States) country’s then still numerous law publishers. Admiralty was covered by Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty (2d ed. Foundation Press 1975), Erastus C. Benedict, Kanught’s Benedict on Admiralty (7th ed. Matthew Bender & Co. 1950), and Theodore M. Etting, The Admiralty Jurisdiction in American (Littleton Co. 1986). Treatises on zoning law were more numerous. For an historical survey of judicial citation practice in England, see Alexandra Braun, Burying the Living? The Citation of Legal Writings in English Courts, 58 AM. J. COMP. L. 27 (2010). (1)

Cross-Platform Synergy

During the 1980s as the competition between Westlaw and Lexis became heated, the West Publishing Company saw opportunity for cross-platform synergy. It had a line of treatises. Mead Data Central, then the owner of Lexis, had none. Mead Data Central’s acquisition of the Michie Company, a major print publisher, in 1988, brought a number of treatises to its portfolio. The prime target, however, was Michie’s catalog of primary material (state statutes). At that point both Westlaw and Lexis had announced their intention to provide comprehensive primary law coverage for all fifty states. (See Peter W. Martin, Reconfiguring Law Reports and the Concept of Precedent for a Digital Age, 53 VILL. L. REV. 1, 20 (2008)).

West began inserting Westlaw references at the conclusion of treatise sections. Prepared by its editors, not the treatise author, these held out promise of breaking through two limitations of the print work. While the treatise author’s citations might include few or no cases from the jurisdiction or circuit of particular concern to a researcher, these pre-formulated queries keyed into the relevant Westlaw database and appropriately modified could fill the gap.

The added queries also dealt with a researcher’s need for the most recent authority. Even
with systematic supplementation, treatises lagged primary law developments by months, if not years. Use of embedded Westlaw references offered greater currency. By the mid-1990s West had shifted from a section by section approach to treatise integration with Westlaw to the insertion of appendices that explained how Westlaw could be used to extend treatise coverage. (2)

CD-ROMs

The 1990s also saw publishers experimenting with straightforward ports of individual treatises to CD-ROM. By 1995 Matthew Bender had issued most of its treatises in this format as an alternative to print. CCH offered several of its loose-leaf services on disc and West had produced a number of CD-ROMs combining commentary and primary authority in federal law fields. (See KENDALL F. SVENGALIS, LEGAL INFORMATION BUYER’S GUIDE & REFERENCE MANUAL 127-29 (1996)). … While not designed for the medium, they offered distinct advantages over the original print form. Importantly, they enabled full-text search. Some of their references could be followed with a mouse-click. Copy and paste functions facilitated easy extraction of passages for insertion in notes or a brief. And to the extent the authors or publisher personnel took advantage of the medium’s fluidity, electronic treatise editions could be kept dramatically more up to date. Nonetheless, these electronic works remained tightly conformed to the print original. (3)

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.
3. Id.

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