The Impact of Alan R. Bromberg's Treatise on Securities Fraud

Wendy Gerwick Couture, University of Idaho College of Law, is publishing Professor Alan R. Bromberg and the Scholarly Role of the Treatise in the Southern Methodist University Law Review. Here is the abstract.

This essay is part of a symposium edition honoring the scholarly contributions of SMU Distinguished Professor Alan R. Bromberg. This essay focuses on the unique scholarly role of his treatise on securities fraud, which he first published as a single volume in 1967. In 1979, Lewis D. Lowenfels joined Professor Bromberg as a co-author, and in 2012, Michael J. Sullivan joined as a second co-author. Now, 48 years after the first volume was published, the treatise, re-titled Bromberg and Lowenfels on Securities Fraud, has reached eight volumes in length. The treatise has been cited nine times by the Supreme Court and extensively by lower courts and other scholars.

Treatises currently play a somewhat controversial role within legal scholarship. Historically, the writing of treatises was closely tied with American legal education. More recently, however, numerous scholars have documented the decline of treatise-writing by law professors, citing the rise of the realist movement and the waning prestige of treatises among legal academics. In addition, treatises often influence in the shadows, consulted but not cited by practitioners and courts. Finally, a treatise is uniquely ephemeral, with early insights lost as the treatise is updated to reflect primary authority, with the treatise’s role in shaping that authority lost in the process.

Against this backdrop, this essay argues that Professor Bromberg’s and his co-authors’ treatise on securities fraud demonstrates the important role that treatises can continue to play within legal scholarship. This essay revisits earlier versions of the treatise to identify factors that led to its importance and to trace its influence in shaping the modern law of securities fraud. In particular, Professor Bromberg created his treatise when securities fraud jurisprudence was in a dynamic state, and he promoted clarity by creating an interpretive framework and providing guidance therein. The treatise was thus poised to exert influence at pivotal moments in the development of securities fraud doctrine, such as in the creation of the widely-applied Cammer factors, and to serve as a springboard for other scholarly contributions.

Download the essay from SSRN at the link.