Dubber and Fernandez Place the Anglo-American Legal Treatise in Perspective

As publication editor of a national law encyclopedia managing authors and writing certain legal articles myself, I thought that the following passages of text, co-written by one of my law school professors (Markus Dubber), were quite relevant to the uncertain direction of the digital legal world in 2014. Dubber and Fernandez make an attempt at explaining the formalism of the traditional legal treatise and the challenge to its integrity by the rise of legal realism and critical legal theory (these words are more my own description than that of Dubber and Fernandez in Law Books in Action: Essays on the Anglo-American Legal Treatise [Hart Publishing, 2012]). You can view the SSRN version of their manuscript here.

From Dubber and Fernandez (2012):

As rationalising and systematising works, legal treatises seem to be unlikely places to find out how the law was actually operating. Indeed, they would be much more likely to set out some kind of synthesising aspiration, a kind of plea to judges, legal practitioners and students to think of things in the way that the treatise-writer recommends, drawing on hints to that effect in whatever cases can be found.


Joel Prentiss Bishop, an extremely prolific American treatise-writer of the late nineteenth century, was particularly vocal about highlighting the importance of the treatise-writer over the judge. And he was not very deferential. Yes, the judges get to decide the case, but the treatise-writer gets to say what the case really decides.


Instead of countering complexity with coherence, in the end the treatises recreated complexity.


And those ‘great treatises’ paved the way for the American Law Institute Restatement projects. How did the United States get from this ‘Age of the Treatise’ to the study of doctrine being seen as passé by the late 1970s and early 1980s? Simpson identified the lack of enthusiasm for doctrine in the United States with the rise and effects of legal realism. There is clearly some truth to this observation, although there are many jurisdictions that had significant ‘realist’ or ‘sociological’ movements in which treatises continued to be produced. Treatise-writing was not just an outmoded vestige of ‘Langdellian formalism’, or ‘Classical Legal Thought’, if you prefer. Corbin, for instance, saw his treatise as a Legal Realist alternative to Williston’s formalism, one that drew on inductive case analysis rather than deductive reasoning from higher principles to lower doctrines. Corbin’s treatise, after all, appeared only in 1950, long after Legal Realism had replaced formalism as the orthodoxy in American legal thought….Farnsworth’s contracts treatise, first published in 1982, can be seen as a more explicitly normative, if not to say neo-formalist, alternative to Corbin’s Realist project. 

-and the editors conclude-

Given the treatise’s shape-shifting resilience over the past few centuries and its intimate connection with ideas of legal scholarship, legal education, and even of law itself, it would be foolish to count it out, now or in the future, in civil law countries or in the common law world. Perhaps even in an apparently hostile environment such as American legal scholarship, where ‘doctrine’ has for some time been a four-letter word, a fundamental and widespread reassessment of the very project of so-called interdisciplinary (‘law and’) legal scholarship may usher in a renaissance, or at least a reassessment, of the treatise in one form or another, as the disciplinary pendulum swings back from the ‘and’ to the ‘law’ and the analysis of law reasserts itself, both chastened and complicated in the wake of insights gleaned from decades of peering into law from the outside.

My own question: Do the currently existing legal treatises (2014) properly balance the normative with the descriptive?

The Infamous Volume 7 of CJS in Cyberspace: Why One “Should Not Hire an Attorney”

Take a look at this website. This kernel of wisdom has been traveling about the “intertubes” for some time and is evidently designed to make people even more distrusting of lawyers than they already are (and perhaps should be).

At issue is section 4 of the Attorney and Client article in volume 7 of CJS. It includes the statement that an attorney’s first duty is to the court and to the public, and not to the client. Further, it is elsewhere stated that the client is a “ward of the court.”

While I believe that the internet writers are misconstruing it, I can understand the outrage over its implications since one would think that his high-priced attorney was working for him and not the court.

However, there is a problem. These internet references are to an out-of-date version of Volume 7. The most recent version is from 2004 and it does not contain quite the same language as the version cited on the internet.

In the 2004 version, this issue is covered in section 3 of the article which states, in summary, that the attorney has a dual obligation to both the court and to the client:

An Attorney acts not only as a client’s representative, but also as an officer of the court and, accordingly, has a duty to serve both masters.

The quotation above is based upon a 1991 case from Tennessee. Admittedly though, a 2001 Ohio case also cited in the footnote states that an attorney’s first duty is to the court “since the attorney assumed his or her obligations toward it before ever having a client.”

While the older text that is circulating around the internet is more inflammatory in tone, the newer text is more balanced (although nevertheless citing to certain decisions where the court does suggest that the primary obligation is to the court). Also, the “ward of the court” statement no longer exists whatsoever in the newer edition.

In the end, lawyers are regulated as any other profession and must serve the system in which they take part. The statement circulating the net isn’t much different than one holding that doctors must follow best practices or certain ethical rules even where it conflicts with a patient’s desires or demands. As officers of the court, attorneys must take care that certain rules are not violated despite the impression (or reality) to members of the public that these rules are serving ends that are political or otherwise self-serving.

Supreme Court Justices Using CJS or ALR?

John Shafer alluded (some time ago) on USF’s Law Library blog to Justice Kennedy stating, during an oral argument, that he would “look in Corpus Juris Secundum or ALR or something” to investigate a licensing issue.

Jason Wilson has written that the major publishers, having created and written some of the great common law and practice treatises, essentially abandoned (or were divested of?) their role as advisers to the bench and bar.

Are these publications still being written with the judiciary in mind or is Wilson correct?





Editing Law and Writing on the Law: Crime of Affray

Revising a treatise article on a legal topic provides an opportunity to examine how the law changes over time and the differing concerns of various legal eras.

I am currently having the opportunity to revisit the crime of “affray.” The notion of affray as a crime against the public peace appears to be a vestige of a time when even an assault had to occur in a public place to constitute a criminal, as opposed to a purely civil, offense. Interesting, as always. See Wharton’s original treatises for some coverage of this development in early nineteenth century American common law.