Citing History in Support of Statutory Meaning (8/30/20)

This is an interesting post on history of legislation in arguing for or explaining the legislation.  Eugene Volokh, TMH (Too Much History), a Form of TMI: Advice for Law Students and Young Lawyers (The Volokh Conspiracy 8/23/20), here.  Professor Volokh laments that, in arguing or just stating a position, writers often provide too much history rather than stating what the law (statute) is. 

An excerpt (longer):

One should generally resist this temptation. Judges are busy people, whose main goal is to figure out the law that is currently applicable to these facts, and then to apply it. The history is sometimes relevant to understanding current law, but often it's not. Give no more history than necessary to show the current law; and that's often zero history, especially if there's a solid binding precedent you can quote for the current rule.

My sense is that such TMH often stems from what I call the "data dump" impulse: You've done a lot of research, learned a lot (including the history of how the law developed), and now you feel like putting it all down on paper. That's fine—but once you write it down, go back over it in your editing passes, and delete everything that's not really necessary to proving and applying the current rule.

Of course, sometimes there's Not Enough History; sometimes understanding how the law developed helps explain what some ambiguous term means, and how it applies in this case. (Perhaps, for instance, you might think that the judge could be distracted by the Gertz principle, which he might already know; if so, you might note that Dun & Bradstreet limited Gertz to speech on matters of public concern.)

But even then, I suggest stating the current rule at the outset, which may help you see just what history you need to include to supplement the current precedent. And in my experience, TMH is much more common in law students' work than Not Enough History.

JAT Comments:

1. Of course, briefs and other written arguments/statements should be carefully reviewed to eliminate anything that is not helpful, whether history or not.  Just because you can fit some interesting history into a position or argument doesn’t mean that you should.  It is all about persuasion.  (Persuasion is important in all written or oral discussions; persuasion to whatever the point is at hand that is prompting the utterance.)  Distractions are not persuasive, even when some readers may find them interesting.  (Confession: I tend to do some interesting, at least to me, distractions in my footnotes in the Federal Tax Procedure Practitioner Edition.)

2. I was a history major and continue that interest, so I like history that can be helpful in setting context and better understanding of the law in question.  I think Professor Volokh may take a more constricted view than I do of what is necessary or helpful in terms of history.

3. I like Justice Holmes’ aphorism that “a page of history is worth a volume of logic.” (From a tax case, New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921).)  A similar Holmes’ aphorism is:  "[t]he life of the law has not been logic: it has been experience."  Oliver Wendell Holmes, The Common Law 1 (1881).  Collective experience is recorded in history (and perhaps in myth sometimes recorded as history (or as if it were history), particularly as selective history to support the myth).  In studying (or arguing) the law, the collective experience recorded in history is, I think, important and critical in some cases.  And that context can be helpful in understanding where we are and where we ought to be.