The Persistent Treatise

The legal treatise remains a cornerstone of the American legal system, despite periodic assertions of its decline. This article, "The Persistent Treatise," by Dana Neacsu and Paul Douglas Callister, explores the enduring relevance of treatises in the U.S. legal tradition through both quantitative and qualitative lenses. The study tracks the citation patterns of 77 treatises over six decades, analyzing their presence in state and federal court cases, legal briefs, and scholarly articles. Although overall citation numbers show a gradual decline, the data reveal a nuanced picture: certain treatises continue to be heavily relied upon, especially in higher courts, including the U.S. Supreme Court. Notably, recent decisions by the Roberts Court, including Dobbs v. Jackson Women’s Health Organization, have shown an increasing reliance on historical treatises, such as those by Bracton, Coke, and Blackstone, to support judicial reasoning. The article argues that while the use of treatises has evolved, their role as authoritative sources of legal knowledge persists, with implications for both legal practice and education. The findings underscore the importance of treatises in shaping legal outcomes and highlight the need for further research, particularly in the context of emerging technologies like generative AI, which may influence the future of legal research and the role of traditional legal texts.