John Cannan, Villanova University Charles Widger School of Law, on Joel Bishop's Reign as King of the Treatise Writers and What it Means for Persuasive Authority:
What does this say about law practice and legal education, which has long embraced and professed a perception of persuasive authority, mostly ruled by a rigid source hierarchy, that does not work and likely never did? Recently, there have been challenges to this status quo. The most comprehensive was made by Professor Amy Griffin in her article, Dethroning the Hierarchy of Authority, in which she demonstrated the necessity for a new understanding of persuasive authority and how to go about making one. This paper buttresses and strengthens her arguments by examining a persuasive authority case study-an authoritative biography, or rather a biography of the authority of Joel Prentiss Bishop, one of the greatest treatise writers of the 19th century. This biography is a concrete example to bolster Griffin's critique that persuasive authority is a vast and shifting field, with multiple influences and impacts that must be described in a new and more flexible way. The course of this article is as follows. First, it describes the nature and current understanding of persuasive authority and Griffin's challenge to the existing order. Griffin's call for a more pluralistic framework is combined with the observations of librarian and philosopher Patrick Wilson to suggest a means to better understand persuasive authority. Parts II-IV tell the history of Bishop's rise as a treatise writer and authority; the slow decline of his authoritative status after his death; and his recent resurrection as an authority, primarily by the United States Supreme Court. Part V demonstrates how Bishop's history as an authority supports Griffin's imperative for a new understanding of persuasive authority, especially as legal research and practice are increasingly influenced by new artificial intelligence (AI) tools.
Joel Prentiss Bishop (wiki)
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--Dan Ernst
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