The thesis of this paper is that the legal treatise remains a pillar of our legal system and its Rule of Law, despite variations in its quantitate citation, and diversity of its qualitative usage in our jurisprudence, especially at the United States Supreme Court level. We support this claim with empirical data and qualitative analysis. First, as shown here, treatises have a significant and healthy presence in case law, briefs, and secondary sources. More importantly, they are a stabilizing influence in our evolving rule of law.
We have studied the citation of treatises in state and federal courts. In terms of raw numbers, there remain no clear pattern, other than that for many treatises, the most citations occur in the most recent decade we studied (2012-2021), and the least citations take place in the earliest decade we studied (1962-1971). A host of factors may affect the use of treatises over time. While as percentages of state and federal cases, there is some evidence of some gradual decline in the use of treatises over time, there still is significant usage that is foundational to our rule of law. This is especially true of usage in the U.S. Supreme Court, where some treatises are receiving increased usage in recent decades. However, the general decline is also true of citation of important treatises in law reviews and briefs, including Supreme Court Briefs. In recent decades, we hypothesize that because of originalist leanings, the U.S. Supreme Court, steadily relies upon what we call “proto-treatises” or “institutes” authored by luminaries such as Bracton, Coke, Blackstone, Hale, and Story. In other words, the U.S. Supreme Court increasingly, sees fit to rely upon those sources available to the founders and early Justices of Supreme Court, even in overturning long-established precedents establishing fundamental rights inexistent when our Founding Fathers lived, because their beneficiaries, such as women or slaves did not enjoy constitutional recognition at the beginning of our republic.
Thus, this article will first seek to define key concepts. It will define treatise incorporating its defining combination of skills, presentation and organization of knowledge -- its techné and part of law’s cognitive authority (both concepts will be elaborated). Then, the article will present our data, including the analysis, the methodology we use, the limitations of our methods and data, and areas for future research. Finally, it will conclude with argument supporting the continued prominence of the treatise, restate their important relationship techné, cognitive authority, and the rule of law, and call for their emphasis in the legal curriculum.
Dana Neacsu & Paul D. Callister,
The Persistent Treatise,
Available at: https://irlaw.umkc.edu/faculty_works/742