When explaining the legal rule in a brief, it’s often tempting for law students and lawyers to give a good deal of historical background, something like this:
In 1964, in New York Times v. Sullivan, the Court held that “actual malice” had to be shown in libel lawsuits by public officials. Then, in Gertz v. Robert Welch, it held that it also had to be shown in libel lawsuits by private figures seeking presumed and punitive damages. Then, in Dun & Bradstreet v. Greenmoss Builders, the Court limited that rule to speech on matters of public concern. Therefore, in this case, where the speech is on matters of public concern, plaintiff can recover presumed and punitive damages based on a showing of mere negligence. Dun & Bradstreet; [also citing a state law case].
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.