Treatises

Treatises as Secondary Authority and other Legal Research Sources

History

While coming in different sizes and formats, what distinguishes the legal treatise from other categories of commentary is that it aims to survey a complete field, providing organized, efficient, and relatively up-to-date access to the law on its many topics.
Examples range from multi-volume works covering the uniform commercial code, bankruptcy, or copyright to stand-alone books on practice under the civil procedure rules of a particular state. Such works may advocate a distinct view, favor one line of authority over another, or present greater clarity or certainty on a point than current case law. Yet, in theory, no treatise holds authority independent of the statutes, regulations, and judicial opinions on which it is based.

When written by a widely acknowledged and respected expert, lawyers and judges may, it is true, rely upon the legal analysis set out in a treatise without performing a comprehensive, independent review of the underlying primary law sources, or yield to its persuasion on a point to which such sources do not speak clearly. See, e.g., In re Beaubouef, 966 F.2d 174, 178 (5th Cir. 1992) (quoting Collier on Bankruptcy); Kelley v. Chi. Park Dist., 635 F.3d 290, 303-04 (7th Cir. 2011) (quoting Nimmer on Copyright and Patry on Copyright). 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)

On the other hand, when a treatise comes into direct conflict with statute or case authority
there is little doubt about which ought to prevail. (See, e.g., King v. Ill. Nat’l Ins. Co., 2008-1491, pp. 14-15 (La. 04/03/09); 9 So. 3d 780, 788 (La. 2009)).

These are not books written to be read from cover to cover in the manner of a work of fiction, history, philosophy or even a student introduction to the field. Their principal intended use is by the lawyer or other legal adviser, judge or other decision-maker -assessing a problem, confronting an unfamiliar, novel, or complex situation and needing a helpful starting point (See M.H. Hoeflich, The Lawyer as Pragmatic Reader: The History of Legal Common-Placing, 55 ARK. L. REV. 87, 88-89 (2002); D.W.M. Waters, Tribute to William F. Fratcher: The Role of the Trust Treatise in the 1990s, 59 MO. L. REV. 121, 144-45 (1994)). Some publishers marketed shorter editions of treatises to law students and law teachers who wanted to place the excerpted cases of a course book in larger context and to find answers to its relentless questions.

Standing between the relevant primary authority and the legal professional, when they work as intended, treatises save time and improve the quality of legal analysis and decision-making in some of the following ways (Explanations of the important role of treatises in the legal research process remained quite consistent throughout the twentieth century. See, e.g., FREDERICK C. HICKS, MATERIALS AND METHODS OF LEGAL RESEARCH: WITH BIBLIOGRAPHIC MANUAL 154-59 (1923); MILES O. PRICE & HARRY BITNER, EFFECTIVE LEGAL RESEARCH 266-67 (3d ed. 1969); CHRISTINA L. KUNZ ET AL., THE PROCESS OF LEGAL RESEARCH 86 (4th ed. 1996)):

• By providing overview, good treatises assist the researcher in placing a particular
  issue or problem in broader context.
• Unlike annotations appended to statutes or headnotes attached to decisions, they
  organize the primary authority from the outside (not being captive of either the
  statutory structure or any particular judicial schema). That is not to say that
  effective treatises do not strive to make it easy for researchers working from a
  statute or a judicial opinion to enter the work at the pertinent spots. Typically
  they do so by means of highly explicit analytic structures and indices keyed to the
  specialized terminology of the field.
• Treatises synthesize the multiple strands of primary authority by identifying,
  summarizing, and analyzing the points of intersection among the principal
  statutory provisions, regulations, and judicial decisions.
• On issues to which numerous judicial opinions speak, good treatises highlight the
  better reasoned or more persuasive, enabling researchers, through the use of
  citators and other up-dating methods, to trace their influence.
• Where differences in treatment or application exist among jurisdictions, judicial
  circuits or departments, thorough treatises array them, providing references.
• When opinions on a topic are confused, hard to reconcile, or conflicting, treatises
  are expected, at a minimum, to identify the difficulty. Generally they go further
  to attempt a synthesis or provide the authorÂ’s evaluation of competing approaches.

Finally, because law does not stand still, by the 1970s and 1980s most treatises had
moved to a regular updating cycle. Writing in 1969, Raymond Taylor (see New
Protection for Lawbook Users, 61 A.B.A.J. 1373 (1975)) complained that not all publishers then followed this practice: “While it is customary for reputable lawbook publishers to provide for appropriate supplementation of their books, some publishers seem unmindful of the fact that this custom is the only reasonable way of justifying a high initial cost for a book or set that soon will become obsolete if not kept up-to-date for a reasonable period of time.”

Whether by means of supplements designed to be slipped into the back of the original volumes, replacement pages that had to be inserted throughout loose-leaf binders, or periodic new editions, treatises were converted into ongoing information services. To the treatise user, updates offered currency. For publishers and authors they provided a way to convert previously sold books into continuing sources of revenue. Abuses in the sale of treatise updates were among the unfair trade practices which led the FTC to regulate the law publishing industry through a set of guidelines from 1975-2000. See 40 Fed. Reg. 33436 (Aug. 8, 1975), as corrected, 40 Fed. Reg 36116 (Aug. 19, 1975).

By the 1980s and early 1990s, the prime consumer concern was not the absence or infrequence of supplementation but the soaring cost of keeping treatises up-to-date. Over the five years from 1987 to 1992, for example, the publisher, Matthew Bender & Co., more than trebled the annual cost of supplements to MooreÂ’s Federal Practice, raising it from $834 to $2,693 (See KENDALL F. SVENGALIS, LEGAL INFORMATION BUYERÂ’S GUIDE & REFERENCE MANUAL 11-16, 30-35 (1996)).

The traditional publication model in which the author traded ownership and dissemination control for a share of revenue provided the framework for assuring that treatises could be maintained over lengthy periods of time. In varying degrees the publisherÂ’s editorial staff might assist in the updating of a work even while the initial author or authors remained actively involved. Later, when the original author or authors lost the interest or ability to produce revisions or subsequent editions, the publisher had both the authority and incentive to bring in successors. (1)

In the United States

Despite being tightly connected to primary authority, treatises were produced and marketed independently. There was no need for a treatise publisher also to put out the statutes and decisions to which its publications referred. True, firms that marketed editions of primary authority did generally use their line of treatises to promote them in minor ways. A common practice was to express citations within a publisherÂ’s treatises in terms of the same companyÂ’s editions of case reports or statutes. However, citation norms, which required, where necessary, the addition of parallel citations, allowed the purchaser of a treatise published by West Publishing Company to use it with statutes published by the Michie Co. or law reports published by Lawyers Cooperative Publishing.

This “interoperability” enabled a large number of companies including Little, Brown & Company, Warren, Gorham & Lamont, and Matthew Bender & Co. to publish highly successful treatises without having any involvement in the publication of primary authority. These included, for example: LOUIS LOSS, SECURITIES REGULATION (1951) (Little, Brown & Co.); BORIS I. BITTKER & JAMES S. EUSTICE, FEDERAL INCOME TAXATION OF CORPORATIONS AND SHAREHOLDERS (3d
ed. 1971) (Warren, Gorham & Lamont); WILLIAM M. COLLIER, COLLIER ON BANKRUPTCY (1940) (Matthew Bender). (2)

Types and Features of Treatises

There is more information about this subjet related to the field of legal research in the legal encyclopedia.

Research Using Treatises

There is more information about this subjet related to the field of legal research in the legal encyclopedia.

Computer-Aided Research

There is more information about this subjet related to the field of legal research in the legal encyclopedia.

Treatises as Legal Research Sources

See the Section below.

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

Treatises

Embracing mainstream international law, this section on treatises explores the context, history and effect of the area of the law covered here.

Resources

Further Reading

• The entry “treatises” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press