Vanderbilt Law Review


R. H. Helmholz

First Page



A distinguished commentator, Professor A.W.B. Simpson, recently observed that the legal treatise seems to be going the way of the dinosaur and the dodo bird.' To him, and indeed to other thoughtful ob-servers, the treatise's characteristic form appears to have outlived its natural span, or at least lost its reason for existence among serious academic writers. The treatise's focus on a particular and specialized area of the law and its inevitable concentration on the doctrinal analysis of appellate cases now appear quite out of date to these observers, something perhaps worthwhile in a simpler and more complacent era, but which one can no longer think profitable. In its place, stand other disciplines thought to be more useful in understanding how law works: statistics, economics, philosophy, history, even literary criticism. Rejecting the seemingly confining and pointless parsing of cases, members of the academy have come to prefer newer charms and loftier perspectives.

The appearance of The Law of Easements and Licenses in Lands therefore brings one up short. Devoted to a specialized area of the law,centered around doctrinal analysis, based on recent American case law,and written by two academics of reputation and ability, this treatise flies in the face of these trends in legal scholarship. It may of course be a "throwback." Perhaps it is nothing more than one of those counterexamples that can be produced in almost any area of the social sciences,but which does not seriously challenge the accuracy of the proposition being advanced. On the other hand, it may also be that the recent observers are mistaken about the direction of legal scholarship. To make a judgment, I thought it would be appropriate to compare the reasons commentators have given for the decline of the treatise writing tradition with the evidence found in this volume. The results, though neither profound nor startling, confirm several of Professor Simpson's observations, but they also suggest that there may yet be life in the tradition.