Originalist interpretations range between what might be called the “40-yard lines” of strict textualism and “original public meaning.” With the conspicuous exception of Justices Clarence Thomas and Samuel Alito, few Supreme Court justices appear to be comfortable anchoring their reasoning explicitly on old natural law doctrines. But there are some clues that the natural law tradition, and its long centrality in practice in the common law, is slowly making a meaningful comeback.
A possible indicator of the underlying direction of things comes from an unusual recent paper by Dana Neacsu of Duquesne Law School and Paul Douglas Callister of the University of Missouri–Kansas City School of Law, entitled “The Persistent Treatise,” currently available on the Social Science Research Network. The paper attempts a quantitative longitudinal analysis of the citations of legal “treatises” in federal court cases from 1962 through 2022.
There are some classification difficulties with the definition of what counts as a “treatise,” and the results of this study, which the authors admit are tentative and preliminary, would change depending on a different classification scheme. The paper defines “treatise” broadly and narrowly at the same time, with criteria for selection that many readers would rightly consider arbitrary. The starting point for defining a treatise is any work that attempts a systematic organization of the law or major aspects of the law, such as civil procedure. But restatements, hornbooks, texts, casebooks, most multi-author works, and treatments for very specific practice areas are mostly excluded. The authors identify a possible domain of 2,600 candidates to be considered a “treatise,” but settle on just 77 for their statistical analysis.
The main finding of the study, and hence the meaning of the title “the persistent treatise,” is that Supreme Court citations of classic or old treatises have been on the rise in the last two decades, after several decades of declining citation. That steady decline began, not coincidentally, in the heyday of the Warren Court era starting in the early 1960s, but reversed trend and started rising toward pre-Warren levels over the last 20 years. Neascu and Callister admit this was an unexpected result. They are not alone in thinking reliance on classic treatises should be increasingly obsolete in the age of Lexis, Westlaw, and other Internet research tools that bid to make treatises obsolete.
A sample size of just 77 treatises is likely too small for meaningful statistical analysis, but a wider scope and larger number of treatises might have produced an unwieldy result. One aspect of their findings, however, would stand out even if the study had included a larger number of possible treatises. Several classic treatises of the common law tradition have become important in cases that overrule precedents, most especially Roe v. Wade in the 2021 Dobbs v. Jackson Women’s Health Organization decision.