This Essay examines the use of history in judicial decisionmaking. Although Justice Holmes found the use of history "a necessity," it is increasingly under attack, particularly from Critical Legal Studies scholars. This Essay discusses the criticism of the historical method and concludes that while the criticism is valuable because it requires us to examine the use and misuse of history, it is also misguided because it overlooks the psychological demands on the judges and the public. This Essay argues that although historical answers" to legal problems are ultimately irretrievable, the use of history is necessary to reduce the cognitive dissonance created by a judicial decision. The use of history is both essential and unavoidable as we seek to connect the present decision with the past as it affects our future. Acknowledging this use of history allows us to use it more precisely and understand the role it can play in resolving legal disputes.
Theodore Y. Blumoff,
The Third Best Choice: An Essay on Law and History,
41 Hastings L.J. 537
Available at: https://repository.uchastings.edu/hastings_law_journal/vol41/iss3/2