Oh, the Treatise!

INTRODUCTIONIn his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?"1 In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992.2Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences.3 He characterized "practical" legal scholarship as both prescriptive (aiming to instruct attorneys, judges, and other decisionmakers) and doctrinal (dealing with the sources of law that constrain and guide practitioners, decisionmakers, and policymakers).4 Having served on the law faculties at Michigan and Harvard before joining the Court of Appeals for the District of Columbia,5 Judge Edwards was well positioned to critique the direction of legal scholarship, but he is not the only judge to have done so. In recent years Chief Justice Roberts has made clear his opinion of most academic writing,6 and Justice Kennedy has pointedly expressed his concerns about the diminishing relevance of law reviews to appellate court decisionmaking. 7Edwards characterized the legal treatise as "[t]he paradigm of 'practical' legal scholarship," and listed several "classic examples" of treatises that answered his concerns.8 For Edwards, all were works that "create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what 'the law' requires."9 However, he neither discussed the individual treatises he cited before moving on to other matters, nor expanded on why the treatise has been so important to American lawyers.Chemerinsky eloquently defended the value of scholarship written for academic audiences and others beyond the judiciary and the bar,10 but agreed with Edwards that "doctrinal scholarship is much less valued today than in prior generations."11 He noted that law professors still "continue to write legal treatises that describe and critique legal doctrines,"12 but also wondered when the editors of the Michigan Law Review had last chosen a casebook or legal treatise for inclusion in the annual Book Review issue.13 In the following year's foreword to the Book Review issue, Eugene Volokh described how electronic-book technologies would change books related to the law, but he explicitly omitted from his speculations such characteristically legal publications as treatises and other books aimed at practitioners.14Edwards's comments regarding the continuing value of legal treatises likely raised a few eyebrows. A.W.B. Simpson and Morton Horwitz had each already chronicled the decline of the American legal treatise,15 and Lawrence Friedman had written that "[m]ost 19th-century treatises were barren enough reading when they first appeared, and would be sheer torture for the reader today."16 Friedman's writings on American legal history have generally offered only grudging acknowledgement of the efforts of treatise writers. In 2002 he 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." 17 Friedman also noted with apparent satisfaction that by the 1980s "there were law professors who actually wrote real books."18 Most likely, these books were of the sort Edwards would view as being of little use to practitioners and judges.In Law Books in Action, their 2012 collection of essays devoted to the Anglo-American legal treatise, Angela Fernandez and Markus Dubber conclude that while the form remains popular in other common law countries, "few if any legal scholars in the United States today wake up filled with a burning desire to devote their professional lives to the production of a treatise. …