As Karen Tani and Paul Horwitz have pointed out, the new Michigan Law Review book review issue is out. I think book reviews can serve a really importance function of getting people talking about ideas. And along those lines I have to say that I've been pleased to see that the Texas Law Review's reviewing a lot of books these days -- though spreading out the reviews over the entire volume. I like Texas' approach of getting multiple perspectives on books by having a couple of people review the volumes (as they did with my and Brian Tamanah'a's reviews of David Rabban's Law's History) -- that can really give a sense of range of responses to a book. And you can see what's common among reviewers as well.
Turning now to the Michigan Law Review. Several works of legal history are represented here. Kerry Abrams reviews Inside the Castle: Law and the Family in 20th Century America by Lawrence Friedman and Joanna Grossman. Mary Dudziak's War Time is reviewed, as is Susan Pearson's The Rights of the Defenseless: Protecting Animals and Children in the Gilded Age. One might also put the biography of Justice Brennan by Seth Stern and Stephen Wermiel on that list, though I usually think of biographies of recent justices as having more to do with contemporary politics than legal history. The entire issue is longer than several recent issues (there are about 360 pages of reviews by outsiders and a few other reviews by members of the Michigan Law Review.) I think the 2012 issue had about 300 pages and the 2009 issue was around 200 pages. We're still a long way from the glory days of the late 1980s -- and I'm guessing there are no plans to get back to book review issues of that size.
But what I want to talk about now is the Foreword, "Oh, the Treatise!" by my Durham neighbor Richard Danner, who's the senior associate dean for information services at Duke. Danner presents a history of the treatise in the United States (with some nods to Britain as well) -- though I read him as really addressing the question why legal scholars write books and how the structure/purpose of books has changed over time. The basic upshot is that treatises that synthesized cases served a function in the late 19th and early 20th century and that now we don't so much need the synthesis and so scholarship takes a different form. I guess my response to this is that some lawyers do need those kind of comprehensive treatises -- and that's why we have some of them, still. Others of us need other kinds of treatises -- I still use formbooks every now and then, and unsurprisingly I use monographs all the time.
Danner doesn't mention either of my two favorite treatises -- Francis Daniel Pastorius' Young Country Clerk's Collection, which I believe is the first treatise written in British North America. (Notice that I emphasize written rather than published, because it was a manuscript.) It was a formbook, so not much of synthesizing was in there, but I think it reflects well the nature of legal thought in late seventeenth century Pennsylvania. And for people looking for practical scholarship, that fit the bill. Need a will? A parternship agreement? A contract for sale of real estate? They're all in there.
Then fast-forward to the middle of the nineteenth century, which is the great era of the treatise. Thomas Cobb wrote a very important treatise on slavery that synthesized the southern, proslavery ideas about the history and economics of slavery and put them together with the southern case law on slavery. This was pointed at several audiences -- judge and lawyers as well as a more general audience of the proslavery public. For the treatise began with a long section on slavery's history and its centrality to the economy. Cobb built on that to interpret the law, but it had a use justifying slavery outside of the courts. If one is looking for the writings of lawyer that had an impact, unfortunately, Cobb's treatise is one of them. I saw unfortunately because I think it served to justify proslavery ideas and propelled proslavery jurisprudence forward. About that I'll have more to say soon.
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