2024 Chapters (Layout Features)

The Persistent Treatise

Neacsu, Dana; Callister, Paul

This essay argues for the enduring nature and persistence of the legal treatise. Using quantitative and analysis and empirical data, it demonstrates an increase in reliance on and citation of treatises by state and federal courts. Perhaps more noteworthy, however, is the complexity of the question itself. Raw numbers showing a general upward trend since 1962 don't reveal the entire story. Most significant is the pronounced upward trend in U.S. Supreme Court citations of early treatises, institutes, and other sources of law available to the Founders and early justices, even while treatise citations in law reviews and briefs are noticeably down. Finally, the essay also embraces qualitative analysis to emphasize the Roberts Court's trend of increasing use of early treatises—both as evidence of law and in lieu of missing law—which should open the door to more sophisticated research regarding the evolution of the rule of law in the U.S. Such a shift prompts a necessary re-evaluation of the American legal identity, signaling a potential move toward the Continental tradition and its characteristic reliance on 'la doctrine.'