The Return of the Treatise: Blackstone’s Revenge?

An essay in the latest issue of the Michigan Law Review takes up the issue of the declining relevance of the legal scholarship that appears in most law reviews. Essentially, legal academics no longer value doctrinal works such as treatises and have not for several decades or more.

Richard Danner notes in his OH, THE TREATISE! essay that the legal treatise declined during the 20th century as academics favored writing more critical works largely directly toward their peers.

Danner describes how scholars have pointed out that, although doctrinal research had been-

“the heart of legal scholarship” for most of the twentieth century, even the highly regarded major treatises were “elephantine works” that “tied together vast masses of cases, giving them some kind of coherence, real or imaginary.”

The decline of the treatise was caused by the mountains of case reporters that became difficult to distill into a coherent explanation of law or doctrine. Also, the rise of legal realism discounted the importance of doctrine and the use of  formal rules and principles in analyzing law and legal practice.

As explained by Danner:

Many treatises were seen as hack work—produced by publishers for commercial gain, not by knowledgeable scholars devoted to their subjects.

Ouch. I agree that at their worst, some treatises do read as if they are incoherent digests of cases but many have been quality publications during much of their lifespan.

Danner concludes by asking if we “need a new Blackstone?” Do we need writers of “grand treatises” (befitting an electronic age) such as that by Williston?

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