Weighing Treatises v. Restatements - Copyright Edition

In A Restatement of Copyright Law as More Independent and Stable Treatise, 79 Brooklyn L. Rev. 457 (2014), Ann Bartow considers the pitfalls of treatises as overarching guides to complex laws. These pitfalls include conflicts of interest, "pole positions" by a sole author, and lack of transparency. They also include overreliance on treatises and underreliance on other sources of analysis (such as academia). Some of these reflect arguments made in a prior paper. Ann Bartow, The Hegemony of the Copyright Treatise, 73 U. Cin. L. Rev. 581 (2004). She notes in several places that her concerns transcend content; she criticizes even places where she agrees with the underlying treatment of the law. Here is the abstract:

This article maps the problematic consequences of over reliance by judges, lawyers and policy makers on copyright law treatises, with a particular focus on the negative effects Nimmer on Copyright has had on the evolution of various copyright law doctrines. It proposes that an ALI Restatement of Copyright Law is needed to create a reference tool that is transparently authored and edited.

This article is, to me, fearless because it directly takes on David Nimmer and Nimmer on Copyright. My old firm used Nimmer, and we cited it to the court wherever possible. When it agreed with our view of the law, that is. Folks who like Nimmer and his work might not take so kindly to some of the sharper critiques. Articles like this, I think, are why we have tenure.

However, I'm still wary of the conclusion, that the solution should be a Restatement of Copyright. The ALI recently announced just such a project. I have immense respect for the participants in the project, many of whom I know. Even so, I believe they face an uphill battle.

My first concern is that restatements are sometimes statements of not only what the law is, but also how the members would like the law to be. Professor Bartow comments on as much in her paper but believes that transparency outweighs this concern, among other things.

I use a couple of examples from contracts. One is a Restatement (2d) section that is directly contrary to the Restatement of Contracts. I point out to my students how the members wanted the law to change, wrote it into the restatement, and then the restatement was cited by a court. On the one hand, this may have less conflict of interest and transparency issues. After all - the change could be traced. On the other hand, that seems like the hegemony of the Restatement to me.

A second example is Section 90. Perhaps no section is more cited by name than Section 90(1) - promissory estoppel. But perhaps no section is more ignored by courts than Section 90(2) - which states that a charitable subscription (a donation) is binding without reliance. Section 90(1) is a statement of the law as it is, and 90(2) is a statement of the law as it should be (and given professors involved, one can readily see their interest).

I've observed (and even been involved) with enough debates on academic listservs to know that there are some issues on which there is no agreement about what the law is, and maybe not even what the law should be. I worry that such areas will be solved no better in a Restatement than in a Treatise.
My second concern is that in many ways, restatements and treatises do different things. While in some areas there may be a single point of law in which the treatise (or the restatement) simply gets it wrong, there are other areas where the treatise offers more flexibility.

Restatements generally boil the law down to a single rule (or few) on a given topic. There may be comments for specific applications of the rule based on cases, but the ultimate goal is to provide a cohesive structure of the law. A well-written treatise, on the other hand, may recognize that there is no single rule. Quite often, referral to the treatise is really to the footnotes, looking for a case citation in a particular circuit. Treatises might present different rules in different circuits. In copyright, consider infringement: do we cover abstraction/filtration/comparison (2d), holistic (10th), extrinsic/intrinsic (9th), or ???? (3d). Do we use these tests for probative or illicit copying (which can depend on circuit and whether it is software). I haven't looked at Nimmer lately, but whatever its failings, I suspect it discusses all of these. I don't know how a Restatement would do it. I wish the members luck in the effort!

My own concerns about the endeavor aside, this paper is worth reading. At the very least, you'll think twice about simply citing to any treatise again.