IMPORTANCE OF LEGAL HISTORY 3
8. I remember wondering what the appellee’s lawyer must have thought about why we
were holding a hearing. If you have won below, and the state’s highest court sets argument, the
logical thing would be to imagine that one should be ready to defend the status quo rather than to
take it for granted. (To the best of my recollection, the side with the argument for change
prevailed.)
9. Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review
Reconsidered, 70 NOTRE DAME L. REV. 1079 (1995).
10. We are now following The Bluebook, like every jurisdiction save California, but the vote
to change was close, three to two. IND. APP. R. 8.2(B).
trial court and the court of appeals had both issued similar rulings based on a line
of common law decisions running from the 1880s forward. The appealing party
wrote an excellent brief about the reasons for adopting a new rule. He argued
with some persuasiveness that society had changed in the intervening century and
that the goals of the law in this particular field could be best met by moving on
to a new formulation.
His opponent rose with only a single argument: the rule is “X,” and it means
we win. He did not respond to the arguments for change, even after several
questions from the bench. Exasperated, one of my colleagues threw him what I
thought was a final life preserver: “What would you like us to do in this field, Mr.
Jones?” “We’d like the court to follow the law.” This answer did not serve the
client well.8
We encounter topics which are susceptible to substantive evolution all the
time. Habeas corpus is a good example of a common tool used every day in the
nation’s courts. It has an enormous history, and judges, even judges in high
courts, are as capable as lawyers of litigating such cases without paying much
attention to the substantive law of the matter.9
Surely, it is plain that both lawyers
and judges make better law for the future if they understand what the law has
been.