Thursday, December 4, 2014

Toss the Pocket Parts, Here Comes the "Streaming Digital Treatise:" Welcome The Bloomberg Law: Bankruptcy Treatise

Bloomberg is on an innovation roll. It was only two weeks ago that BloombergBNA announced the
release of their new Banking Law platform. Today they  announced the  release of Bloomberg Law: Bankruptcy Treatise which  is now available to all Bloomberg Law subscribers in the Bankruptcy Practice Center.  David Perla, President of Bloomberg Legal  stated in an interview  that The Bloomberg Law Bankruptcy Treatise is  "redefining legal  treatises by using 21st Century journalism techniques."

Breaking the Treatise Paradigm or Was the Paradigm Already Broken?

The “streaming treatise” (my terminology not Bloomberg's)  will  be forcing everyone to acknowledge what has been obvious to law librarians for years...  traditional  treatise publishing is still producing products which are  hopelessly out of date by 21st century standards. Anyone with a smartphone lives in world of instant tweets, texts and news alerts about breaking legal developments… so why are law firms still paying for print supplements which contain news that was “new” six months ago?  Part of the reason  is that some treatises have achieved an almost talismanic status and lawyers almost fear to practice law without them... and have been willing to overlook their shortcomings.
Bloomberg's bankruptcy treatise is authored by a an editorial team consisting of Bankruptcy judges and practitioners. "The treatise represents thousands of hours of research and writing by skilled bankruptcy lawyers,” said The Honorable D. Michael Lynn, U.S. Bankruptcy Court for the Northern District of Texas and Editor-in-Chief of the Treatise.  “I believe it to be an important and useful addition to bankruptcy literature." The editorial board includes 12 legal professionals including 5 Bankruptcy judges.  A complete list of editors and contributors is listed below.

According to the press release the treatise "contains  over 600 chapters and more than 13,000 pages of content and expert analysis from over 60 renowned judges, law professors, and practitioners.  The Bloomberg BNA editorial team, with input from outside contributors, will update the material as bankruptcy rules change and courts apply and react to them, ensuring that all aspects of federal bankruptcy law and local rules are current.  For example, the latest amendments to the Federal Rules of Bankruptcy Procedure, which went into effect on December 1, 2014, appeared in the Treatise, with their first annotations, that same day." 

 Can the Bloomberg Treatise Compete with the Collier Brand From Matthew Bender?
Traditional legal treatises have been historically associated with the "Herculean" efforts of a single scholar. In Bankruptcy, Matthew Bender's Collier on Bankruptcy has been the "gold standard" for decades.Bloomberg's 13,000 page bankruptcy treatise is tipping  into Encyclopedia Britannica territory. Maybe the law is too large to be digested by a single authority. Maybe the  era of the  treatise “branded” under the name of a single scholar is  at an end. A search of all federal opinions indicates that the “Collier on Bankruptcy” has been cited in  US court opinions over 10,000 times. The Volokh Conspiracy blog includes several posts on the nature of legal treatises. One commentator asked if anyone really knew who Collier was and another  questioned whether any of the original scholarship written by the named authors even survive in the present day treatises. Embarrassed that I had no idea who Collier was myself,  I did some digging and located a brief entry in Wikipedia.

The brief bio indicates that William  Miller Collier  didn’t attend law school, he  "read the law" and wrote the first edition of Colliers in 1898,  6 years after he was admitted to practice in New York State. The  revered Colliers treatise is now in it's 16th edition and one can safely assume that Collier's is now an aggregation of content authored by a series of editors who  over the years have edited away a significant proportion  of the contributions of William Collier.

 Will the" Real Time" Treatise Kill the Ebook Treatise?

Lawyers who rely on print treatises are not looking for absolute timeliness. The latest pocket part or supplement to a print treatise is at best six months old.  Supplements to treatises often include only new citations to cases and have little editorial revision. Ebook treatises give the impression of timeliness because they are well .... digital. But digital does not necessarily assure access to the latest legal precedents and commentary.  Lexis and Westlaw both allow ebook subscribers to link out to the current versions of cited  statutes or regs but they aren't reissuing the main body of the text on more than a quarterly or an semi-annual and sometimes annual basis.

Bloomberg’s “streaming treatise” is raising the ante and exposing one of the more significant shortcomings of the legal ebook treatise-- ebooks are not all that current. I elaborate at length on additional  shortcomings in an earlier post about ebooks. Why are legal publishers pouring digital content into 19th century wineskins?.

I asked Perla why Bloomberg seemed to have skipped over ebook technology completely. According to Perla the first objection to ebooks is that they will be less current than the online treatise they are now able to offer. In addition he sees ebook platforms as trapping publishers in the logistical  complexities of supporting  muliti-distribution platforms on a wide variety of mobile devises. Blaw has  an app which works on all the major mobile platforms and that is all they need.

Bankruptcy Law -Features and Functions include:
  • Case analysis tab  which include an algorithm generated headnote summaries the parts of the legal opinion which interpret in a bankruptcy code section. These can be sorted by date or relevance.
  • The most complete access to local bankruptcy rules available from any source.
  • Keyword searching. Blaw is "tri-lingual" You can use the search syntax for Westlaw, LexisNexis or BLaw
  • Statement of currency and proper citation format appear in a sidebar
  • Live links to all cases, statutes and court rules
  • Alerts - Now this may be  a first. You can set up alerts to be notified of changes to the treatise.
  • Workflow enhancements include queues and  folders

POSITIONING: Is Blaw aiming at the market for  Thomson Reuters  Practical Law and  Lexis Nexis  Practice Adviser?
There are certain features in the Bankruptcy treatise that look like the beginnings of a workflow and drafting tool. If Bloomberg is going to target the "process improvement" and drafting component of lawyers' work, they  will enjoy one major advantage over their competitors.  LexisNexis and Westlaw are hampered by their bifurcated approach to research and workflow platforms. Both vendors have maintained their "cost recovery " model for their online research products and developed separate platforms based on the "unlimited use" model for their drafting and workflow products. Out of the gate, Bloomberg has been building a totally integrated system,  everything is available on a single platform.  One has to assume that when they build out their workflow tools these will be fully integrated and available within the research environment.

Some Questions to Consider on the Future of Legal Treatises

 Bloomberg is going where legal publishing needs to go, but they are leaving  some gaps in our understanding of  both authority and precedent.
  • Is Bankruptcy Law  really a treatise? Or is it an encyclopedia? Does it matter?
  • Has Bloomberg invented a completely new publication form? It reads like a treatise but it is updated like a newsletter? To parody an advertising slogan... Is it "a breath mint and a candy mint?"
  • Has the law become too big to be mastered and digested by a single author?
  • Is it sufficient for a digital treatise to have a date stamp or should the citation include a time stamp?
I suspect  we are witnessing the transformation of treatises from being the long incubating child of scholarly contemplation into the treatise as hyper kinetic prodigy--  spouting an endless stream of commentary  drawn from the roiling river of new cases, rules and statutes which inform our understanding of the law. The stakes have never been higher and the speed of change has never been faster. Practitioners need and clients demand that lawyers have resources which can keep them informed using 21st Century technologies. Bloomberg is once again out in front pushing the envelope of change.

List of Bankruptcy Law Editors and Authors





HON. JEFFERY P. HOPKINS, U.S. Bankruptcy Court for the Southern District of Ohio, Chief Judge


PROF. DAVID A. SKEEL, University of Pennsylvania Law School, S. Samuel Arsht Professor of Corporate Law

PROF. CHARLES J. TABB, University of Illinois, Mildred Van Voorhis Jones Chair in Law

STEPHEN YOUNGMAN, Weil Goschal & Manges

Contributing Authors

OMAR ALANIZ, Baker Botts L.L.P.

RACHEL EHRLICH ALBANESE, Akin Gump Strauss Hauer & Feld LLP


CLAUDE R. ‘CHIP' BOWLES, Bingham Greenebaum Doll LLP

JASON S. BROOKNER, Gray Reed & McGraw, P.C.

CANDACE M. CARSON, Weil, Gotshal & Manges LLP

HON. CHARLES G. CASE II, U.S. Bankruptcy Court for the District of Arizona (retired)

RYAN COPELAND, Kirkland & Ellis LLP





MATTHEW L. HARTE, Term Law Clerk to the Hon. Jeffery P. Hopkins, U.S. Bankruptcy Court for the Southern District of Ohio

MARGARET HOWARD, Washington & Lee University

WILLIAM R. HOWELL, JR., Borehole Seismic, LLC

TOBIAS S. KELLER, Keller & Benvenutti LLP


ANDREW M. LEBLANC, Milbank, Tweed, Hadley & McCloy


STEPHEN LERNER, Squire Patton Boggs

KEVIN LEWIS, Law Clerk to the Hon. Kathleen Cardone, U.S. District Court for the Western District of Texas

PAUL LOPEZ, Law Clerk to the Hon. D. Michael Lynn, U.S. Bankruptcy Court for the Northern District of Texas

PROF. STEPHEN J. LUBBEN, Seton Hall University School of Law

DOUG MAGNUSON, Law Clerk to the Hon. Brenda Martin, U.S. Bankruptcy Court for the District of Arizona




SAMIR D. PARIKH, Lewis & Clark Law School

ANDREW PARLEN, O'Melveny & Myers LLP

IAN T. PECK, Haynes and Boone, LLP

CHARLES M. PERSONS, Weil, Gotshal & Manges LLP

AARON POWER, Porter Hedges LLP

DANIEL J. SAVAL, Brown Rudnick LLP


FREDRIC SOSNICK, Shearman & Sterling LLP

JEFF VAN NIEL, Law Clerk to the Hon. August B. Landis, U.S. Bankruptcy Court for the District of Nevada


1 comment:

  1. Will the streaming treatise destroy historical research? In 2020, if someone wants to know what the prevailing wisdom was in 2014, will they be able to do so?