Washington Law Review


Forty-one years ago, the legend goes, Harvard-educated Interior Department Solicitor Felix Cohen brought order and light into what Justice Frankfurter called the "mish-mash" of Indian affairs law. Cohen's work was published by the government as a guide for Indian Bureau employees, but quickly assumed the role of an undisputed authority in litigation. Lawyers read Cohen instead of the cases, and judges quoted or paraphrased Cohen in their opinions. The treatise attracted almost biblical reverence, a Prosser in a rather arcane sub-discipline. It is in the nature of treatises to make a lawyer's task easier. Treatises locate and summarize the case record, making it more accessible to the unfamiliar, hasty, and inexperienced. Inherent in this is the tendency to establish more or less authoritative interpretations in gray areas, steering practitioners away from the disputed points that make new law. Treatises jeopardize critical thinking when they reconcile what judges have said and rationalize complexity into neat rules. This danger is greatest where the intellectual turf is truly perplexing, the subject political, and the bench and bar relatively unmotivated and ignorant. In such instances treatises become more than scholarly summaries. They become the law.

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