One of the most important tools in a lawyer’s toolbox is the legal treatise: an in-depth, almost encyclopedia-like book on a single legal topic. A wide range of people within the legal industry rely on legal treatises, including attorneys, legal historians/scholars, judges, and law students. Legal treatises can provide in-depth analysis of legal principles, which can help educate students, guide attorneys in practice, and assist judges in making decisions. Treatises differ significantly from other legal works, such as law review articles, legal encyclopedias, essays, or study guides.
Definition and Purpose of Legal Treatises
A legal treatise is a book or set of books that explain, analyze, or critique an area of the law or a specific legal subject. Legal treatises provide a detailed explanation of the principles of the legal subject discussed by the treatise, accompanied by examples to illustrate those principles. Legal treatises may take the form of hardcover or paperback books or ringed binders, although publishers also make treatises available electronically. A treatise may only take up a single book or may have dozens of volumes of books, primarily when covering broader areas of the law.
Legal treaties serve many different purposes. They can provide reference material to scholars, comprehensive analysis and guidance to practicing attorneys, or instruction to law students or other students in legal education.
Characteristics of a Treatise
Legal treatises have several characteristics that differentiate them from other legal writings, such as legal encyclopedias, American Law Reports, law review articles, legal newsletters and newspapers, casebooks, and outline-style legal study aids. Here are some of the major characteristics that make a legal writing a treatise:
- Comprehensive coverage: Whether regarding a broad area of law or a specific statute, legal treatises provide comprehensive coverage. Treatises typically cover the historical development of the law, relevant statutes and regulations, and case law/jurisprudence. Legal treatises can also provide examples of relevant forms or documents used in the area of law covered by the treatise or illustrations to help readers understand the legal principles discussed in the work.
- Structured format: Treatises use a structured rather than a more informal style, such as in a law review article or legal essay. A legal treatise may have a single volume or span multiple books. Treatises typically have an introductory portion that provides a high-level view of the subject of the treatise and outlines its structure. Sub-topics get broken down into volumes and chapters. Within subtopics, treatises will include analysis of relevant case law.
- Formal, scholarly tone: Legal treatises use a formal, academic writing style to ensure that readers understand the principles communicated by the treatise. The formal nature of treatises also ensures that attorneys, students, and scholars can cite treatises in essays, articles, legal briefs, and court opinions.
- Authoritative analysis: Although legal treatises serve as secondary sources for legal scholarship, they rely on primary sources such as statutes, regulations, and case law in their in-depth analysis of legal principles. Furthermore, because people rely on legal treatises to better understand legal principles, treaties should provide an authoritative, objective analysis of those principles rather than offering the author’s opinion or speculation about how the law should look.
Types of Legal Treatises
Legal treatises come in several forms. A legal treatise may provide a general treatise covering a broad area of the law, such as contract law, torts, or property law. One of the most common examples of general legal treatises is the Restatements, which attempt to synthesize the common law in the U.S. The 14 Restatements cover areas of law like Contracts, Property, and Torts.
Legal treatises may also take a specialized approach, focusing on more specific areas of law like environmental or intellectual property or niche topics such as specific statutes or court cases. Specialized treaties may also cover a broad area of law, like contracts under a specific state’s law, as opposed to the common law of the U.S. Specialized treatises can provide reference materials for scholars or give attorneys, judges, and law school students a deeper understanding of specific legal topics.
Finally, lawyers may rely on practice-oriented treatises that provide practical guidance for representing clients. These treatises help attorneys navigate legal matters or proceedings by explaining procedures, thoroughly analyzing the law, offering example forms or documents, or providing answers to frequently asked questions.
Uses of Legal Treatises
Various individuals may use legal treatises for different purposes. Some of the most common uses for legal treaties include:
- Educational tool: Law students and others in legal education may use legal treatises in their studies. Certain treatises, such as “hornbooks,” focus primarily on legal education. Hornbooks cover specific legal subjects. Students can use legal treatises to further their understanding of legal topics or obtain illustrations of legal principles, including applications of those principles to hypothetical factual scenarios. Treatises can give law students a higher level of detail or clearer explanation of legal principles than the casebooks they typically use in class.
- Reference material: Legal scholars and historians can use legal treatises for their scholarship. Treaties can provide secondary reference materials for further works, including other treatises, history books, or law review articles. Legal treatises can provide scholars with a detailed analysis of legal topics, including the development of laws or legal principles, how laws affect each other, and how courts implement laws.
- Practical guidance: Many legal treatises help practicing attorneys as they perform work for clients. Treatises can help attorneys better understand the areas of law they practice, explain legal processes, discuss specific statutes or regulations, and provide example forms that attorneys can use.
- Influence on legal decisions: Legal treatises can also influence court decisions. Attorneys sometimes cite legal treatises in support of their arguments to the court. Judges may also read treatises to understand the development of the law when ruling on novel issues and cite them in court opinions.
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