During a period when so much is governed by statutes,5
one is continually
amazed at how much of our daily work involves the common law made by
courts. As I remarked earlier, the common law, and the rules of precedent and
stare decisis which accompany it, constitutes a system that looks backwards.
Still, the common law has never been considered a static code.6
It has always
been understood that common law evolves over time to meet the demands of the
day, in what Justice Brent E. Dickson has called: “the march of Indiana common
law.”7
The best advocates in this sort of legal environment are those who know that
urging a court to move the law somewhere new is best undertaken when you
know where the law has been. As Judge Robert Grant once said during a
ceremony admitting new lawyers, “Never move a fence until you understand why
it was built there in the first place.”
The benefit of being so equipped is all too easy to overlook. In the late
1980s, the Indiana Supreme Court set for oral argument a civil case in which thetrial 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.
During a period when so much is governed by statutes,5 one is continuallyamazed at how much of our daily work involves the common law made bycourts. As I remarked earlier, the common law, and the rules of precedent andstare decisis which accompany it, constitutes a system that looks backwards.Still, the common law has never been considered a static code.6 It has alwaysbeen understood that common law evolves over time to meet the demands of theday, in what Justice Brent E. Dickson has called: “the march of Indiana commonlaw.”7The best advocates in this sort of legal environment are those who know thaturging a court to move the law somewhere new is best undertaken when youknow where the law has been. As Judge Robert Grant once said during aceremony admitting new lawyers, “Never move a fence until you understand whyit was built there in the first place.”The benefit of being so equipped is all too easy to overlook. In the late1980s, the Indiana Supreme Court set for oral argument a civil case in which thetrial court and the court of appeals had both issued similar rulings based on a lineof common law decisions running from the 1880s forward. The appealing partywrote an excellent brief about the reasons for adopting a new rule. He arguedwith some persuasiveness that society had changed in the intervening century andthat the goals of the law in this particular field could be best met by moving onto 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.
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