The thesis of our paper is that the legal treatise, despite some decline in citation, persists as part of the cognitive authority of our legal system. We support this claim with promising empirical data and qualitative analysis, which if not definitively proving our thesis, certainly supports its plausibility. Besides quantitative research supporting the persistence of the treatise, the terms, treatise, techné and cognitive authority are defined and described in relation to each other as part of our paper to illuminate the treatise’s significance. Treatise has a well-delineated definition in the article resulting from our rules for selection of treatises for study and our own definitional exercise. We use the term, techné to express the art and craft of the law, including treatise writing and its objective in establishing, if not principles to organize the law, a means to find the law through a rational and pragmatic scheme. Cognitive authority denotes that, upon which, the legal profession places trust as authoritative.
The empirical data gathered for this article covers 81 treatises and their citations for the last six decades. The citations come from cases at the federal and state level and from trial through courts or last resort. It also covers citations found in legal briefs and law review articles. The data shows that treatise-citation has remained significant and healthy—they persist. However, when analyzed, the data, even at this non-granular level, shows a very complex story that needs further research and analysis. Indeed, the percentage of all state and federal cases citing treatises shows gradual decline in the use of treatises over time. But, this undifferentiated data, when taken apart, shows that treatise citation encompasses many variables, including the author’s reputation, the area of law, and especially the court level and especially the case, whether it follows stare decisis, or breaks with it. In the latter situation, it appears that treatises are cited as authority for what represents the tradition of our legal system. Furthermore, treatise citations in U.S. Supreme Court Citations are often increasing.
The article first presents the data, including the analysis, the methodology we use, the limitations of our methods and data, and areas for future research. Then, it illustrates the qualitative use of treatise citation by the United States Supreme Court in two cases: Roe v. Wade, establishing a new federal right for women, and Dobbs v. Jackson Women's Health Org., taking that federal right away from women by finding it didn’t exist in the first place. Finally, it will conclude with argument supporting the continued prominence of the treatise, while calling for further research to understand the role of legal treatises in our common law tradition and correct misperception of its use across various legal traditions (common law vs. civil law).
Dana Neacsu & Paul D. Callister,
The Persistent Treatise,
Available at: https://irlaw.umkc.edu/faculty_works/742