FREQUENTLY ASKED QUESTIONS ABOUT HISTORICAL ARGUMENTS
| Q. | Should I regularly include historical arguments in my motion or brief? |
| A. | Many legal issues won’t require historical arguments. Of the arguments discussed in this book, this sort of argument will appear least frequently in your briefs or motions. But because your adversary is unlikely to raise these arguments, it gives you a great chance to outlitigate the other side in appropriate instances. |
| Q. | So what are the appropriate instances in which to present a historical argument? |
| A. | You need a historical argument only when your opponent advances one; you would then want to undermine the other side’s research and present your own historical evidence. Also consider using historical evidence to
· show the meaning of a constitutional provision, as the debate surrounding the provision may be probative of a term’s meaning or purpose; · prove that courts, legislatures, or executive officials were aware of a problem or acted in a certain way in the past; · convince a court that long-standing common law tradition requires, permits, disfavors, or prohibits a particular approach to a legal issue; · build a policy argument by showing what happened in the past when a given approach was followed or avoided; and · undermine the reasoning of a case (see Chapter 5’s discussion about discrediting versus distinguishing authorities). This list is just a starting point: use history whenever you think it will help your client— unless the costs of searching for it are too great. |
| Q. | How do I avoid relying on bad history? |
| A. | Reputable journals generally reveal the basic lines of historical consensus or dispute. Research whether subsequent articles criticized the accuracy of your sources. Moreover, those fault lines should allow you to decide whether you need to disclose adverse authorities. The duty of candor in most jurisdictions prevents lawyers from hiding bad historical evidence. Thus, you should generally deploy the evidence that best supports your case, while acknowledging (and strategically framing) enough of the opposing point of view so as to not be undermined later by a lack of disclosure. |
| Q. | Should I use historical evidence as an authority that compels a result or as a source of facts and policies that merely counsel for a result? |
| A. | The latter. History does not typically compel an outcome. |
| Q. | Some historical arguments seem really dry. Are they still effective? |
| A. | While you don’t want your arguments to bore readers, a convention has emerged at the Supreme Court of citing history in scholarly terms — almost like a passage from a book about history, rather than as an argument that follows or adapts CRAC. See Introduction to Part II (discussing CRAC). This academic approach makes the history seem objective. In courts that less frequently see historical arguments, follow CRAC so that readers see the significance of each historical detail. Presenting history as an argument will improve your brief’s flow and make the passage less dry and plodding (and will spare readers from feeling lost in detail). Just realize that your history will seem less objective when you are using it to argue a point. |
| Q. | How long or hard should I look for historical evidence? And will supervising attorneys get angry if I bill a lot of hours for obscure historical research? |
| A. | This issue applies to many legal research questions, not just historical issues. In general, discuss your research strategy with your supervisors and check in with them along the way to ensure that they feel like your incremental progress warrants further research. Historical research can be very time consuming, so the decision of whether your argument could benefit from historical evidence is tied to the larger strategic issues involved in crafting your motion or brief and to the stakes of the dispute. |
| Q. | Is history really relevant outside of constitutional issues? |
| A. | Not always, but often. For instance, shoe designer Christian Louboutin sued a competitor in New York to enjoin it from selling red-soled shoes. The competitor found a French judicial opinion which reported that “many models of women’s shoes with red soles were marketed by other designers and distributors before and after the company Christian Louboutin decided to appropriate this feature.” History weakened Louboutin’s suggestion that he invented the red-soled shoe. Similarly, in a dispute about federal securities laws, showing the historical context of the Great Depression can help to validate your client’s assessment of the statute’s purpose — what problems led Congress to regulate stock markets? |
| Q. | Are there shortcuts to conducting historical research? |
| A. | This book is not a research guide, but here are some tricks to find useful historical arguments efficiently. As a first step, use a library’s database or an Internet search engine to conduct some preliminary research. Two options include Google Books (http://books.google.com) and Google Scholar (http://scholar.google.com). Search for useful titles and relevant terms. Once you have gathered useful titles and some good search terms, supplement your search by combing research databases to find articles, books, briefs, and cases that have cited several or all of those books or articles. Why? Because anything that cites multiple relevant sources is likely to help you. You can conduct this follow-up research in numerous databases. HeinOnline is probably the best one-stop resource if you have access to it. You can also refer to the Making of Modern Law suite of legal archives, which compiles treatises, Supreme Court briefs, and various primary sources such as city charters and state constitutional conventions. For lawyers who have access to Westlaw/Lexis/Bloomberg, those electronic databases offer their subscribers access to journals and cases (which you can review and cite) and briefs (which compile useful resources that you can hunt down). You may also search databases that compile historical papers and other social science papers (such as JSTOR) or that compile old newspapers and dissertations (such as Proquest). Use free resources to help you gather the materials that will allow you to conduct efficient searches in subscription-based databases.Conducting original historical research — as opposed to finding existing resources — is more involved. Start by reading the University of Michigan Law School Library’s American Legal History Resources Research Guide (Feb. 21, 2006), available at www.law.umich.edu/library/students/research/Documents/am%20legal%20history%20resources.pdf. You will probably want to visit a library or a law library (depending on the topic). Consult a reference librarian who specializes in historical research. Or, if you cannot locate a specialist who will work with you, search the library’s database for books and microfiche (or microfilm) about your topic; go to that section of the library and flip through the table of contents and index of each seemingly relevant source that you find. And, of course, consult judicial opinions about your topic. |