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.