| 1. | Use historical facts to show a long-standing custom. Because the legal system in the United States was built around the English model, English cases from the eighteenth century and earlier can be especially illustrative when assessing common law principles. |
| 2. | Use history to show the original understanding of a provision, such as what the Founders wrote or said when they debated the U.S. Constitution. |
| 3. | Invoke the historical record to advance a policy argument. |
| 4. | Use history to show that a policy worked (e.g., historical evidence of dismal race or gender relations in the country before Congress enacted antidiscrimination laws might persuade courts not to disturb these laws). |
| 5. | History (like empirical evidence) is hard to rebut without finding counterevidence. If your adversary builds a strong historical argument, either dismantle it or counter it with historical evidence of your own. |
| 6. | As with some of the other types of arguments explored in Part 2, you will not need history in every case. But it is especially useful when text is scarce and doctrine is amorphous. |
| 7. | Learn some of the shortcuts to finding historical evidence (e.g., look in briefs, opinions, articles and books, doctoral dissertations, and research databases). When you lean on materials discovered by other lawyers or by researchers, check their work and corroborate their conclusions: don’t reinvent the wheel, but check the tires. |