HISTORY OF SUBSTANTIVE LAW
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 the