The Golden Age of Treatises

From a 1997 obituary of law professor Louis Loss, the author of a widely-used treatise on securities law:

In shaping the field of securities law, Mr. Loss was known for efforts to apply common sense to statutes that were somewhat opaque. “He was the great codifier,” Mr. Seligman said yesterday. “He could see the field as a whole. He gave it shape and direction.”

In 1993, he told a reporter that he was proudest of his role as a treatise writer. “There are people at this faculty who scorn treatise writing and liken legal treatises to battleships — prime, prestigious stuff in their time, but not really worth their keep in the contemporary world,” he said. “They prefer to write about the sex lives of caterpillars. But what they don’t realize is that these books have shaped the law. They have made a field of law that didn’t exist before.”

One of Mr. Loss’s favorite anecdotes, Mr. Seligman said, dealt with a time in the 1960’s when he became overwhelmed and depressed by how hard he found it to keep up with new developments in securities law. He consulted a colleague, an eminent professor at Harvard, who said it was his own fault: he had given up his 13th Amendment rights when he chose to write a treatise on a broad field of law. The 13th Amendment barred slavery.

I have a very small role in a prominent treatise, and it’s true that such work isn’t considered valuable from a scholarly perspective any more. I tend to think of treatise work as more about service than scholarship: It’s a way to help explain the law to others, more like blogging than writing law review articles. Fortunately I haven’t experienced any 13th Amendment problems, but then I only cover a small part of the treatise.