The organization of american historians hosted this 90minute event at their annual meeting in new orleans. Ok. Ok, so, i think we are ready to get started. Sorry for the delay, but welcome to the first Plenary Session of the 2017 annual meeting of the organization of american historians. Our session is called historians in court. It examines the complex roles of historians applying their scholarly skills to courtroom litigation. Thanks, first, to the o. A. H. For organizing this session and, in particular, to the president , nancy cott, for her support of our endeavor here today. Today, we will address a timely topic the participation of historians in courtroom proceedings. Theres no systematic study, but the evidence we have indicates that the use of, for instance, scholarly amicus briefs, where scholars file amicus briefs in court proceedings, has been increasing. Theres a long history of scholarly input into Appellate Court cases stretching back at least to the famous brandeis brief in the muller v. Oregon Supreme Court case in 1908, but for our purposes, our pedigree as historians might be traced back to the brown v. Board of education litigation in which the distinguished historians helped the naacp make the case against School Segregation. More recently, 400 historians signed an amicus brief in the case of webster v. Reproductive services, the abortion rights case from 1989. And our panelists will tell you about things that are both older and more recent. In addition, historians testify as Expert Witnesses at trial. As a quite long pedigree. Stretchesrposes, it at least back to the 1970s, historians such as jay morgan causer began testifying in Voting Rights cases. It has a more recent history that goes through a bunch of different kinds of cases, which you will find out a little bit about today, including things like tobacco litigation, in which the role of historians has proven quite contentious. Finally, we should understand that this is a practice and a problem that extends beyond the nationstate of the United States. In fact, there is a long history of this outside the bounds of the United States, stretching back at least to the testimony of historians in the Adolf Eichmann trial in 1961. In france, the famous frankfurt auschwitz trials, in which former vichy officials and a distinguished french historian declined to participate in the proceedings because he thought it compromised his role as historian. You might know professor russo, more recently, as the person who was stopped for 10 hours at the houston airport by immigration authorities a couple of months ago. So there is a long and contentious history of this practice. We have four quite distinguished historians who will explain it for us today. We will first do each one of them will do a short presentation, talk a little bit about their work in this area and some of the issues raised by it, and then we will do a little bit of a roundtable discussion. And after that, we will open and broaden the discussion to the audience. Our panelists do not really need much introduction, so i am going to, quite briefly, go through their quite long and distinguished cvs. We will go in the order they are presented in the program. First, we will have linda gordon, who is the University Professor in humanities and Florence Kelly professor of history at new york university. She is the author of, among other things, cossack rebellions turmoil in 16th century ukraine. Heroes of their own lives the moral property of women, pitied but not entitled, single mothers and the history of welfare, the great arizona orphan abduction, which when the bank or prize for the best book in u. S. History, and her latest book is called the Second Coming of the kkk the ku klux klan and the american political tradition. Forthcoming. Second, we will hear from rigid right, the Margaret Burns professor of American History at stanford university. Professor white is a recipient of numerous honors, as are all of our panelists today. Twice, he received jury selection finalist for the pulitzer prize. And he is also the past president of this organization, the organization of american historians. He has been a macarthur fellow. Various other awards and prizes, including a guggenheim fellowship. He has a forthcoming book entitled the republic for which it stands the United States during reconstruction and the gilded age, 18651898, which is part of the oxford history of United States series. He was the author of, among other noted works, railroaded the transcontinentals and making of modern america, remembering ahanagran is that right . Thank you. Storytelling and a familys past, the organic machine, and the shaping of island county. Next, we have professor george chauncey, a professor at yale university. He is the author of gay new york gender, urban culture, and the making of the gay male world, which won the oah award, and why marriage the history shaping todays debate over gay equality. In 2012, he was awarded yales teaching prize in the humanities, primarily for his lecture course on u. S. Lesbian and gay history. And after professor chauncey, we weave will hear from tomiko brownnagin professor of , constitutional law at harvard law school. And professor of history at the arts and sciences. She has published articles and book chapters on the Supreme Court with jurisdiction jurisprudence civil rights history, and among other places, the yale law journal, the harvard law review, the columbia law review, and the journal of law and education. Her 2011 book, courage to dissent atlanta and the long history of the civil rights movement, won the bankrupt bankroft prize in u. S. History. And i am kenneth mack, the lawrence d. Beal professor of american law. We will start with presentations by each of our panelists, who will either stand or sit at their discretion. Starting with professor gordon. Prof. Gordon thank you all so much for coming, for finding the right room. Thanks to nancy cott for having this idea. Charles dickens wrote that the law is an idiot. Now, i have taken this idea entirely out of context. It was actually mr. Bumble who said that in oliver twist, but i think the point is sometimes on the mark. I have learned that law has only a partial overlap with justice. That fact, however, has greatly increased my respect for the many lawyers whose creativity works to try to bring law and justice closer together. People i have learned an enormous amount from. Im going to talk about three experiences of my own, and one that was not my own but led to a notorious decision and a great deal of activism. I got involved, thanks to sylvia law, in writing several amicus briefs. In worst cases. My novice experience was in webster case, 1989. We wrote a brief that was eventually signed by 400 historians in an attempt to overturn a missouri law, which began with a preamble stating that the life of each human being begins at conception and that unborn children have protectable interests in life, health, and wellbeing, and then it went on to install many, many regulations to make it harder to get abortions. Im not going to name them, but it was really a wakeup call about how difficult it can sometimes be to translate history into legal arguments. The group of us creating this brief developed arguments based on evidence from our research. We argued that, in a 19thcentury campaign to outlaw abortion it was legal before this arose in part from physicians, newly organized into a professional organization who sought to prohibit services that had traditionally been provided by laywomen you know, the midwives. There was also, possibly, a racial motive behind the ban on abortion that had to do with fear that the white birthrate was threatened by the birthrate of people of color. But most importantly, we all knew that the real, main impetus toward the ban on abortion was gender, because it was a result it reflected a great anxiety about women trying to leave their godgiven place as housewives and mothers. But what we tried to show in this brief, at first, was that prior to this ban on abortion, which took place throughout the state and in 1873 at the federal level, abortion had been fairly common and not prohibited. The problem was it was not easy to fit that argument into categories appropriate to legal argumentation because of what courts considered as authority. We think of primary sources as our authority. But the court, by contrast, deferred, if at all, not to primary sources but to the scholarship of experts. That was a problem for us, because at that time, to the best of my knowledge, only one existed, james moores 1978 book about abortion. A second difficulty came from the fact that we were reluctant to treat the practice of abortion before it was prohibited as an either or legal or not legal matter. The absence of laws specifically banning abortion did not necessarily mean that all americans saw it as legitimate. Opinions differed. But such a nuanced conclusion would not work in our brief. Third, second, behind our emphasis on the frequency of abortion prior to its prohibition, rested on an assumption that was very difficult for us, because we would have rejected it in another context the assumption that what was traditional should be respected. We had to get into this question of traditional because of antiabortion activists were calling for traditional family values. But tradition does not, of course, always lead to good policy, nor is it something we all would like. 27 years later and i might point out that in the webster case, none of us would have predicted that this country would still be fighting about abortion 27 years later in 2016, a smaller group, that included nancy cott, linda kerber, and alice kester harris, as well as me, came together to write an amicus brief in a texas case, whole womans health, with texas following the same strategy as missouri. It had installed a series of regulations on abortion providers, and again, i will not go into what they are, but what is important here is that texa claim was these regulations were designed to protect womens health. Just one example they wanted abortion clinics to upgrade their building safety, parking, and staffing to meet the standards of a hospital. These laws, collectively, are known as trap laws, targeted regulation on abortion providers, and what is, of course, striking about them is that these abortion clinics work to meet work and are required to meet Higher Standards than many even ambulatory surgery clinics. We work very fast. We worked through email, and we demonstrated that such allegedly protective laws had historically been motivated by discriminatory assumptions about women. That what was called protection, in fact, disadvantaged women and served to confirm their subordination. They included laws that shielded women from the corrupting influence of politics and voting, that sheltered them from hearing sordid evidence by keeping them off juries, by protecting them from dangerous work, such as being pharmacists. We even pointed out the contradictions, for example that , women were allowed to serve as waitresses in bars, even sleazy bars, but they were not allowed to serve as bartenders. We also had some precedent on in side, because in 1970 frontiero v. Richardson, the Supreme Court had recognized that such laws were rationalized by an attitude of romantic paternalism, which in practical effect put women not on a pedestal but in a cage. The Supreme Court ruled 53 on our side and i want to make it clear that i have no reason to believe that our historians brief had any great influence. There were hundreds of briefs, and evidence from the present day was probably more important. But still, at least i in particular, constantly came up against the advice of our very wonderful and distinguished lawyer, kevin fong, who kept rejecting arguments that we wanted to make, because they did not raise constitutional issues. His help was absolutely invaluable, and i wish i had understood before i started some of the things i now understand. And i wish i had understood, before i started, some of the things i now understand. My worst experience with the law is from a very, very individual case, a case of race discrimination in which, to my horror, i was cornered into supporting the discriminator. A graduate student of mine, to whom i was very close, an africanamerican women this was at the university of wisconsin she went to look at a University Apartment listed as available for rent but was told it was taken. It happened that she was married to a white man who went to see the apartment, and it was offered to him. So they sued. The damages they claimed include the fact that the humiliating and stressful experience of discrimination, on top of her long experience, as a person who came from arkansas, as a victim of discrimination and harassment throughout her childhood, that these two things combined had slowed her progress toward a phd. When then, to my absolute shock and amazement, the defendants lawyer, that is the landlords lawyer, subpoenaed all my records pertaining to this student, and i was completely astonished to learn that i had to turn them over. He was a landlord with very deep pockets. They deposed me. And between what my records showed and the questions put to me, i was forced to acknowledge that before this discriminatory event, my student was already progressing more slowly than was standard among phd students. My attempt to argue that race discrimination contributed to her stress made no impact. My testimony and records became part of her losing her case. The same kind of legal blindness appeared, i think, in a far more friedmantial case in v. General motors in 1977. It has become notorious. Five africanamerican women allege they had been denied promotions because of the seniority system and the lasthired, firstfired layoff policy perpetuated the long history of previous race and sex discrimination. But the federal court issued a against the complaint ands, because their complaint said neither race discrimination because black men were not being , barred from jobs, nor sex discrimination, because white women were not being barred from higherpaying jobs. A quote from the court this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or either, but not a combination of both. Happily, this decision infuriated legal scholar kimberly crenshaw, as it did several others. In crenshaws critique, she created the term intersectionality, which has now become a term i have studied recently, so i know it is not only an academic term but is used by activists all over. It points to an understanding of social identity in which different categories are not simply additive but also transformative. That is, a black womans sumtity is not simply the of blackness and womanness. A range of social movements, from black lives matter to the used as 15, is uses that as the concept. It also offers an opportunity for historians to interrogate the social categories and understand these categories as dynamic and interactive. One of the things i have concluded from all of this, at least from my experience, is that when lawyers want to use experience and the knowledge we provide, they need to instruct us. In fact, i sometimes wonder if it might not be a good idea for all historians to take at least one course in a law school. Asking them to instruct is a tall order for litigators who do not often have the leisure to proceed slowly, but i think many of us historians would actually be eager students if the outcome could help bring law closer to justice. Thanks. [applause] prof. White im actually surprised to find myself here. I have turned down previous invitations that involved my participation in discussing previous cases because of the danger that the opposing counsel could use whatever i said to oppose the case in which i was working on. This is one of the complexities of being an Expert Witness. Eventsers to historical at issue, which i try to craft my answers as rigorously as possible to the standards of academic history, can fall victim to my reflections on the process of presenting those evaluations in a court of law. I could destroy the utility of my account by speaking about it. The price of articulating a past becomes silence. Im now old enough, and the treaty cases take long enough, to make it unlikely that i will do any further reports, so this is no longer a pressing concern. I have enormous respect for the lawyers with whom i have worked over the years. And it has been over 40 years. If you ever need humbling, have a skilled lawyer prepare you for crossexamination. But as much as i respect them, we belong to different tribes, and both tribes are ruledown. And the rules for what counts as truth under the law and what counts as truth as historians are not the same. We want Different Things from the past, and in a treaty case, we need to find a place where our concerns converge. They only narrowly converge on what counts as evidence. The only narrowly converge in what we regard as the utility of the past. And they do not converge at all as to whether historians, as well as counsel and judges, should have a say in determining the meaning of a law or treaty. My work as an Expert Witness can seem, to my academic self, narrowly empirical and theoretically naive. I have to answer quite specific questions about what happened in the past and how the people involved understood it. I have produced, over the course of the last 40 years, a body of unpublished shadow scholarship nearly equal in bulk to my published output. Ive worked with the ottawa and chipola, the various tribes of puget sound, and more. In some cases, i have worked for the federal government. I have written reports for tribal recognition cases. And once at the end of the case, i was told that the report was being paid for by donald trump. I was also told i should demand payment before i delivered the report, because otherwise i would get stiffed. [laughter] my report had not said what those paying for the report wanted. I will never publish word of those reports, at least on my own, even though im proud of the work. Why . One major report concerned tribal treaty rights to shellfish in puget sound. It involves analyzing a phrase in the treaty clause that rim less than a sentence. I have to explain the contemporary meaning of the terms usual and accustomed places and the term except in places state and cultivated. I parlayed those few words into a report that ran several hundred pages. The research led me to my considering myself, for a time, the countrys leading historian of oyster cultivation. Its a title to which ive never aspired and to which i did not have much competition. [laughter] as an Expert Witness, i have experienced some of the most gratifying moments of my career, putting historical knowledge to work in ways that made our professional standards allowed our professional standards to make an immediate difference in the world. 40 years of this has left me weary of the endeavor. A new book by one of my colleagues at stanford has made me recognize my work as an expert has its own history. It is a relic of the old courts of equity. It has been awkwardly grafted on to the adversarial tradition of american jurisprudence that overthrew and replaced the old equity courts. I am implicated for the best of motives in a set of practices of which i would rather not be part. I do not regard feebased governance as a good thing, but as an expert, i am part of it. I do not think adversarial procedures are the best way to settle matters of historical facts and interpretation. But that is what i engage in as an expert. I am always uneasy forcing sometimes conquered and impoverished peoples to defend their rights, land, and very identity in forms that are not of their own choosing, but that is what the tribes have to do. Yet, i do these things willingly, because they are better than the available alternatives. Federal courts have, over the last century, done the tribes some good. But i am not naive. This can change very, very quickly. The native American Rights Fund and the National Congress of American Indians are actually cautiously supportive of judge Neil Gorsuchs nomination to the Supreme Court. Whatever his faults, ignorance of indian treaty rights is not one of them. But at a time when indian treaty rights teeter on the edge, im conscious that what i discuss, what i discover, and what i say means far less than those i say it to. And that is worrisome. Thank you. [applause] prof. Chauncey im going to stay seated. I have been involved in more than 30 cases at this point, and i can second richards comment about feeling like i have as much unpublished work as i do published, probably more at this point. But most importantly, five gay rights cases have reached the Supreme Court. Including romer v. Evans in 1996. And one that overturned the countrys actually before going any further, i would like to take this opportunity to thank the leadership of the oe h. It was not an easy decision for them. They have not been a lot of this before. In doing so they provided the organizations for a generation of historical scholarship fights members that were working in a field for a long time that was not supported by its profession. I meant a lot to the court want to thank our president s nancy cant nancy cott for doing that. She has dedicated an unbelievable amount of time working on these cases ever since she testified. I want to honor nancy cott for doing that. We can talk in the discussion about the different ways historians participate in a legal cases, the different challenges associated with each way. In many cases, i prepared an affivadit or a declaration about the history of antigay discrimination, usually with local references relevant to where ever the case was being heard. I have also prepared by myself or been the lead author of briefs that other historians have joined in signed, or that the oeh has submitted, and i have also signed amicus briefs prepared by nancy cott. I have also testified at trial in two cases that reached the Supreme Court, and have been deposed by opposing counsel in many others. I have found that to be different than supporting an amicus brief. We can talk about those differences and talk about some of the complexities of what it means for historians to engage with lawyers, but in my opening remarks, i would really like to address the question of how much history has mattered to the courts by discussing two of the cases, the sodomy case, lawrence versus texas, and the final marriage case. Obergefell. The main point i want to make today is i do think historical narratives, competing historical narratives, have played a very significant role in these cases and others. Certainly in the give and take of crossexamination, i have seen the validity and relevance of particular bits of historical evidence be closely disputed. But in the decisions themselves and even in the trial, it has been the broad contours of historical narratives that have mattered the most. This makes sense to me in a way, though i will be curious to see this particular genre of cases, particularly with reproductive and gay rights. But i am not a lawyer or law professor or even a legal historian, but when i read legal decisions in these realms of constitutional law, they often read to me like history essays, or more precisely like historiographical essays, where we are looking at some key sources, the constitution, and looking at various trends of interpretation. Historic accounts that develop various genealogies to try to understand and make arguments about the meaning of the law. Historical matters historical narratives matter also because courts rely not just on what i will call historiographical analysis of the constitution and legal precedence, but because they also Pay Attention to tradition and history, which means a wide ranging and precise narrative of how constitutional principles have been interpreted, what laws have been passed, how actively they have been applied, and the social attitudes they represent. But of course, different justices understand the role of history differently. A selfdescribed originalist like scalia might focus on what he thought the framers meant when they wrote the constitution, and history might stop there. Or at the various historical junctures when various amendments were passed. But Justice Anthony kennedy, who has written all of the courts gayrights decisions since 1993, is one of those justices who concedes that the constitution is a living document, and believes our collective understandings of the liberties and equality it guarantees has expanded over time, often in response to protest and new social conditions. He is very much a historical thinker, and has responded to historical arguments and incorporated them in his decisions. But in the courts, as in scholarly journals, there are always competing historical narratives, and we see the significance in these competing narratives in sodomy decisions in bowers versus hardwick, the 1987 case in which the Supreme Court upheld the right of the states to criminalize homosexual intimacy. Because the majority opinion insisted it was facetious, as they said, to imagine a right to engage in homosexual sodomy could be found in the constitution, history, or traditions which it instead characterized as from the lysing criminalizing homosexual conduct for centuries, indeed millennia. History also mattered when the courts reversed bowers just seven years later. Justice kennedy cited and submitted several pages developing the arguments made by historians in briefs that the history of sexual regulation was more complicated than this. First, because the nations history and traditions showed relatively little concern about sodomy, since such laws had been rarely enforced, and almost always in cases involving coercion and youth. Second, historically sodomy laws penalized most forms of nonprocreative sex, they penalized more than homosexual conduct since they penalized most forms of nonprocreative sex. And less than homosexual contact. They often did not penalize sexual intimacy between women, so they were not equivalent. Third, they were different from the 1973 texas homosexual conduct law, which singled out homosexual conduct for a penalty after the state had eliminated its more capacious sodomy law. In fact, we argued that it reflected a peculiarly 20th century form of discrimination. Justice kennedy developed a similar analysis in his opinion, but equally important was the historical narrative that we tried to develop in the brief, about how the laws and social understandings had been changing in the last halfcentury, which Justice Kennedy took in a very different direction, not citing our brief or talking about the examples we used. But that he used to develop a more and also drawing on privacy cases from griswold to casey and so forth to develop a more robust interpretation of the scope of liberty protected by the due process clause of the 14th amendment. As he later put it, citing the 10th circuit, equality has always meant the same thing. But we have come to recognize the humanity and full citizenship of people who had been excluded from that equality before. It is a deeply historical analysis. History also played a key role gerbefell, but not any way i had anticipated. In the past, the court had said the laws that single out a particular group for differential treatment should receive heightened scrutiny if that group had historically been subjected to a history of discrimination, and has not had the political power needed to fight it. That history makes singling out that group suspect, as the courts put it. That means the state has to provide more evidence for those laws. I thought the courts, and i think the lawyers hoped the court would draw on the history of antigay discrimination that we outlined in the amicus brief, to argue that laws singling out gay people need to receive such scrutiny. It did not. A couple of circuits have made that stand, but the Supreme Court has not. It hasnt introduced any new groups and called them protected classes since the 1970s, i think. But once again, kennedy did embrace and develop the historical narratives in the briefs. In fact, the first section of rgefellrg are felt obe decision is dedicated to the history of marriage and to the history of antigay discrimination. And shifting attitudes in American Society about homosexual persons. He drew extensively on a brief that nancy cott had prepared to show that historically marriage had survived as an institution because it had changed before in fundamental ways. Many of those changes were seen as revolutionary and frightening in their own time, as the prospect of allowing homosexual couples to marry now seem to some. And he drew on our brief to trace the changing status of gay people in American Society, and how long history had denied their dignity, and how social changes and the insistence of gay people and gay couples themselves had set in motion a debate which would help people appreciate the injustice of previous policies. I think i have already gone on too long. I will end there to say that my sense is that history plays out differently in different kinds of law and different kinds of cases. But it has been my sense that in the constitutional law cases about gay rights, historical narratives have been absolutely central to the way the court has understood what is at stake in these cases. Thanks. [applause] ms. Brownnagin good afternoon. Thanks for inviting me to participate on this panel with distinguished historians, talking about this very timely and important issue. Fortunately, the question that i want to talk about was foreshadowed perfectly by professor chauncey. That is the question of what accounts for the Supreme Courts disparate treatment of historical evidence, and disparate treatment of historians amicus briefs and other submissions. Now on one account, the quality and the truthfulness, you might say, of the historical evidence presented determines the courts response to the evidence. That is not quite my view. I would not say that the quality or the truth of the historical evidence is most important to the court. Which i should emphasize is to take nothing away from historians scholarly production. Ive admired much of what comes before the court and what is cited by the court. Instead, it is to talk about the Legal Process itself. And to say that judicial theories about the proper modalities and sources of interpretation, when considered in the context of a particular legal question, determines how and whether History Matters in courts of law. And in particular, in the Supreme Court, where i have some experience and thus where i will focus on. By interpreted sources and approaches, i need to refer to judges preferences to stay close the text. Perhaps as originally understood by the framers or by the public. Or to privilege constitutional structure relationships. Or to view precedent as particularly authoritative in certain cases. These approaches and sources impact justices views about issues that rise again and again in the cases where historians are called upon to discuss the meaning of the equal protection of the law. I mean matters such as federalism, the proper conception of states roles in our legal and political systems. Concerns about carving out areas that are protected from federal incursion. A worldview that privileges or sees certain social and economic heirarchies as normal. It is these issues that are the true domain of lawyers and the courts as they litigate and adjudicate cases. Including in cases that involve history. As i see it, history is an addon. It is a source of evidence or context to which most judges and lawyers turn to. To the extent that it is useful in the case. Judges are trying to answer a question, they are not actually trying to write an article to be accepted in the journal of American History for its careful scholarship. Also, when judges and lawyers invoke history, they do so without due regard for the professional guidelines for historians. Such as due regard for nuance or qualification of claims for consideration of contrary evidence and other ways of proceeding that were taught way back in graduate school. So that is to say that the legal approach to history is functional, which is why some have called lawyerss History History light. That is a descriptor that seems more or less on point. Now, i want to talk for a few minutes on the notion of history lite on race cases. The impact of legal professionals views are especially apparent on these cases. In race cases, in particular. Cases where the court is called upon to meditate upon and mediate enduring questions about social and political inequalities that are rooted in this nations history of slavery and jim crow. Areas that lawyers and judges generally have little expertise, and sometimes are not that interested in talking about. The cases are brought to them by civil rights lawyers, for instance. These internal factors are almost always outcome determinative, not the history. I want to emphasize that this seems particularly true in race cases where the outcome often reflects the ideological bend of justices, and the time with our nations evolution with respect to race. Take for example, the affirmative action cases. In the early decades when the court addressed those cases, there were justices who alluded to the long history of reconstruction. Also, the history behind legislation to justify upholding affirmative action. And yet, justices who were opposed to those policies as they came down that way tended not to dig into that history. Frankly, because of the work of Reconstruction Congress tended to not support deep skepticism about remedial racial programs. Over time, in affirmative action cases, there is a tendency to ignore the Historical Records or dismiss the relevance of the history of past discrimination, except to invoke it to stand for the principles that government has erred in the past when it discriminated on the basis of race. This is reasoning about history at a very high double of generality. Another approach is actually to read into history very specifically. That is so that it is impossible for a plaintiff to prevail in a race discrimination case, unless there is a very neat fit between the alleged claim and historical evidence. And so what one sees in those cases, particularly the ones where justices reason at a very high level of generality, is that the history of discrimination against, say, African Americans is invoked as an example of what was wrong in the past. Taking race into account, end of discussion. Instead of the more nuanced discussion about perpetrators and victims. Now, i want to spend a few minutes talking about my participation in a few cases as amicus, or as counsel of record. So in other words, when i meditate on how history does matter on the occasions when it does in fact matter. The first case i will mention is parents involved versus community schools. This is a 2006 case where i submitted a brief, along with a number of historians of the civil rights era, about the history of discrimination in louisville and in seattle. The point of the exercise was to try to break down the distinction between de jure and de facto segregation. A distinction that tends to inoculate northern and western cities from liability in School Segregation cases. So, seattle was really the focus of that work. Everybody knows about or many people know about louisvilles racial history. Not everyone knows about discrimination in housing and schools in seattle. The land of starbucks. The long and short of it is that that kind of approach that we are talking about didnt work. History was leveraged in that case, but for an entirely different purpose. For what you might call historical gloss. Here is what i mean. Chief Justice Roberts and his plurality opinion cited arguments by naacp lawyers in brown vs board of education out of context, many would say, to argue against the policies that were adopted by the school systems. He said, when it comes to using race to assign children to schools, history will be heard. And then referred to the arguments made by the lawyers to say that colorblindness was more faithful to the heritage of brown. And chief Justice Roberts in that case ends with, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. That is how he uses that history. That is an idea that has the virtue of being rhetorically forceful, but not i would argue, and as many would argue, appropriately attentive to the context in which marshall made his arguments, or to marshalls later arguments in support of raceconscious remedies, including on the basis of history. Another case in which i participated was prouder versus bollinger it was a Law School Affirmative Action case involving the university of michigan where, along with others, i supported a party in that case that was supportive of the affirmative action policy, using a blend of history and precedent. The litigants were on the winning side in that case due to the decisive votes of justice oconnor, who was deeply committed to the concept of diversity embedded in the case. The thing to note is that the concept of diversity as used by Justice Powell was conceived to move beyond the complexities of our countrys racial history. In other words, it is not so much the history that mattered in that case. It was the precedent and the context. Finally, in fisher versus texas, again, i was cocounsel for a party in this other case. We relied on the blends of history and social science to argue in support of the idea of diversity. Which is to say that the way in which we advocated evolved in keeping with the courts preference for not really discussing history. We discussed history, but mostly it was in keeping with Justice Kennedys power on the court, his swaying vote. I should note that given professor chaunceys discussion on kennedy, he is not really interested in the history of discrimination very much at all. Except to reason at that very high generality of the harms that can flow from taking into account the race. That is a lesson that one could draw, but it is not the only lesson. In conclusion, what is to be done about the very real methodological differences between law and history . Should historians refuse or be skeptical about participating in the legal enterprise . I would say no. Some of us have to engage. Because courts will turn to history. We just as well offer up the best history that we can offer. In keeping with our professional standards in hopes that on the margin, it will matter. I will go back to brown versus board of education, the way to think about historians in the court engaging with history is usefully made in that case. Where John Hope Franklin and other historians as professor mack noted did it reason about history in that case, that but ultimately, it was conceded that the history couldnt decide the case. Chief Justice Warren and the courts conceded that history could not decide the case. Because there is that question of at what level to reason. Should the 14th amendment history be understood as supporting a broad theory of equality, or is it that 14th amendment history can be understood as supporting a ban on School Segregation . Those are very different questions. In admitting that the history could not ultimately be decisive, there is a commendable intellectual honesty in brown, and perhaps historians should aim for that middle ground between being useful to advocates and being true to the profession when we engage the Legal Process. Thank you. [applause] mr. Mack we will have a brief roundtable among the panelists. I can see three sets of questions emerging from the various presentations. First, there is the question surrounding what we might call ethics. That historians participating in briefs or trials, expert testimony in trial, are you being called upon something that clashes with your role as a historian, and how to navigate that. Second, there is this question of effectiveness. At the end of the day, was the participation effective . Did it matter . How did it matter . Why did it matter . Third, theres this question about litigation and the role of the professional historian primarily producing scholarship and teaching. Being custodians of archives, but litigation is a different enterprise. How do you navigate the fact that this is what you are doing and what you do in your professional life and what youre doing in litigation are sort of different enterprises. If i could put you on the spectrum, i might say that professor chauncey is probably more optimistic on all three of those dimensions. I hear a lot of skepticism. Various degrees of kinds of skepticism from the three of you. But i just thought, and i am divided about this myself. I may be the only person on the panel that has been on both sides. When i was a lawyer, i hired Expert Witnesses, i hired historians to testify at trial. We had the person produce a report, and we wanted the report that was favorable to our side. And that is what we wanted. We wanted the person to be an ethical historian, but we wanted a report that was going to be favorable to our side. Anything else, we would not be satisfied with. At the end of the day, i felt we were being ethical and the historian we hired had been ethical. I had to cross examine the historian on the other side, there are all kinds of complicated things. I signed one of professor brownnagins amicus briefs. At the end of this process, having participated, how do you all feel about this . Why dont we start on the satisfiction of the effectiveness of what you have done. Do you feel like it was worthwhile . Would you advise other historians to do this in the future . Elaborate a bit. If anybody wants to jump in. Ms. Gordon i would like to say that certainly, i am entirely in favor i would do what ever i could if i was asked. Even if i thought it was not useful, it is a matter of principle. But i do see one conflict that you might describe as ethical. When i am working with graduate students and writing things, i insist that if they are writing about a policy or a person that they dont like, it is their responsibility to present that without caricaturing it as supporters of that policy might. I would not be asked to do that. Not in an amicus brief, i would be asked to present one side of an argument. I dont know what to do with that. I dont think that tension is resolvable. I think it is there. I see my role a little differently. One of the most useful things i can do is give lawyers that is give lawyers the bad news before the hearing in court. They want to know what the weak part of the case is. When i say i cannot argue this, if you argue this, if there is anybody decent on the other side, it will be shot down. I am doing my job. If i was working for donald trump and i didnt give donald trump what he wanted, that is a good thing. That is not a bad thing. What im trying to be is an ethical historian. If i give good news or bad news, i am doing my part. The lawyers need to make the case on what i have said. It is not my job to make the case. My view is more optimistic. I have been working in cases where the court has made a series of rulings for gayrights, rather than stepping back on affirmative action, Voting Rights and a whole host of other issues. As i said at the beginning, i think it depends a lot on the kind of cases that youre talking about. I have found that i would come down on different sides on many cases in which Justice Kennedy has ruled. In this particular set of cases, i think he has paid attention to history now. Would i have written history the way he did . Of course not. I usually write 400 or 500 page books. Not 30 page amicus briefs or short Supreme Court decisions which collapsed in ole miss collapse and enormous amount. In terms of the ethical issue let me say that in my own work, i am constantly struggling with evidence. But i do make large arguments as well, and i think we are expected as scholars to make large arguments with proper attention to the nuance and the contradictions. They often get lost in litigation, to be sure. The idea that we are making broad arguments doesnt seem to me to be particularly unique to the litigation process. In terms of the ethical issues, i am not naive. I am aware that litigators come to me because i have a record of publication that suggests i think x, y, and z about the historical record. I dont think we are selling to the highest bidder depending on which side might want to hire us. Although there is always a delicate negotiation with litigators who would typically like us to make they have often asked if i could make an argument about x or y, i think it is not sustained by historical evidence. I have said that to them. If i said no a second time, they accepted that. Their primary interest particularly for experts that will test fight in a series of cases is protecting our credibility as experts. I have been very clear about what i think is a reasonable historical argument and what is not, and have drawn a line. At the same time, i agree with richard white. The pressure much more from opposing counsel, particularly in depositions, crossexamination, and the trial itself, they will try to use anything you have ever written or have ever been quoted as saying against you. This to me has brought home the betweenerences historians and lawyers approach to the evidence. Lawyers want it to be black and white. If you say anything that could shade over to the black or white, they will call you on it. Scholars actually appreciate it when a historian engages with evidence and changes his or her thinking over time as more evidence comes to light. Opposing counsel will argue, you said this once and you are now saying that, doesnt that mean you are contradicting yourself . You are just being an advocate . There are enormous tensions involved in doing this kind of work. At the same time, how can we not do this kind of work . History matters in these cases. So, to present as reliable and accurate, if certainly condensed versions of history will be helpful to the court, i feel an obligation to do so. Mr. Mack i think what we should do now, i am wondering if any of you want to respond to anything that anyone else has said. Did something jump out at you . Something that provoked you to think about an issue . I think we will open up to the audience after that. I want to give the panel a chance to respond, to elaborate on things they have said. Anything that has jumped out at you . I want to point to the salience of other types of participation in these cases. For instance, i would consider participating as counsel in certain types of cases, although probably not race cases. I think that the Supreme Court doesnt use the history in a way that is in keeping with all of the time and energy that it takes to work on these cases. You dont want to do all of work and feel like the court isnt taking it seriously. On the other hand, i would do that. I have often turned down the opportunity to participate where lots of people are signing on to an amicus brief. In an area where i know something, but i dont know that much about what is being asserted in the brief. I think that is a different kind of animal, and im pretty skeptical of those sorts of endeavors. Even where i am very supportive of the legal issue that is being argued. I think she raises some interesting issues. In the amicus brief context, some of the briefs are assigned by a large number of people. There is a brief circulating, it comes to you, and you have to decide if youre going to sign it. Somebody else wrote it. My colleague has an article that says that we should be skeptical about signing these things, in part because they are not our work. We dont know all of the authorities cited in the brief. We are citing as scholars. I struggle with that. Sometimes i have just said no. I feel like i dont know enough. You have to leave it at that. Let me open up to the audience. We started a little late. We may go a few minutes over. This is a hot and provocative topic. Historians have refused to participate in litigation, they have participated almost never unscathed, as the panel can attest. Some of you may have done this, some may have questions about it. Do we have microphones in the audience . I think we do. So, questions . All right. Go ahead. I will shout. [indiscernible] it seems very nerveracking to be on the stand. [indiscernible] mr. Mack the question is asking the panelists to reflect on what brought them some degree of satisfaction. What brought them some degree of pause . Does anybody want to tackle that . That is pretty easy. The satisfaction is that it is incredibly rewarding to see the kind of historical scholarship you have dedicated your life to reducing having influence in a way that i never imagined might happen. It has mattered to the court. The details of history. A kind of particular argument about the history of sexual relation mattered to the court. Two downsides. One, it takes an incredible amount of time. And although we certainly get recognition from our colleagues for having done this work, the first question i get, if not directly, i can see it in their eyes, is why havent you finished your next book . It has taken a lot of time to do this work instead. I have decided that this work seemed more important to do at the moment. It is deeply distressing to me that my book is not out yet. The second thing is to say is that it is not much fun to be crossexamined. I have used this analogy before but i will repeat it. Being deposed or crossexamined is like taking your orals. You know you can be asked about anything. You dont know where the conversation will go except that unlike in most oral exams, the person questioning you does not have your best interest at heart and would like to see you fail. Mr. Mack others want to jump in . Ms. Gordon i think the pleasure of working together to write something and pool Historical Information is not an experience that we have very often. One of the things about history compared to other disciplines is we dont often coauthor things. I think it is a great experience. The other part of it was we are learning a tiny bit about the law. I wouldnt have gotten that otherwise. I think the other part of the problem, i have been on the losing end so much that it has been important to me to see the courts as completely political and responding to what is going on in the country. Otherwise, i would think that my coworkers and i have been failures. I dont think that. Ms. Brownnagin i want to second the reference to the Community Building aspect of this work. It is really something that makes it worthwhile to work with your colleagues in support of an issue, a cause trying to find an answer. I really have fond memories of doing that in a number of instances. As to the downside, i have to say that the worst thing is having your work cited for a proposition that you dont think it stands for. Particularly in a court case. One of the briefs i wrote was cited by a justice, and not in the way i meant it. That was not fun. I second. The community i work with is less other historians than lawyers. I have worked with a set of lawyers. I have enjoyed working with them, that is worthwhile. The most worthwhile thing the work we do will eventually make a difference in the world. Nothing else i do makes a difference as quickly in the world. The world can change when you win these cases. On most of the cases i have been involved with, they have won. I would also say that i dont find being crossexamined unpleasant. I find it to be the one time where this person is your enemy. This person is not going to hurt your graduate students. This person is standing and trying to get me to Say Something untrue. I can go at that person as much as they go at me. I really enjoy it. If you have not been crossexamined, you have no idea how ridiculous the whole thing is. The judge is sitting here, the lawyers facing you, the other lawyer is doing this. Rolling his eyes. No one could see it but me and the judge. I was wondering if this was the third grade. There are real things at stake. So, i enjoyed that part of it. What i did not enjoy, is i dont care about the details of 18th century oyster cultivation. I thought why in the world am i spending all these hours learning this stuff . It was critical to the case, and i had to do it. Being involved in the kind of trivia that only a court case can force you to examine the most uninteresting part of it. I want to mention, this is a bibliographical suggestion. Because i have found something i learned that not many people know about. A historian of medicine had a testimony in cases against the Tobacco Companies about this is back when Tobacco Companies were shown that they knew that tobacco smoking was carcinogenic and were denying it. There is a book that is an analysis it presents the whole text of the crossexamination that ellen was subject to. It was really vicious, and an analysis. It is an interesting book if anybody is generally interested in this kind of thing. Another question, go ahead. [inaudible] mr. Mack let me repeat the question. The question, he used the term shadow scholarship and asked if any of the panelists had a given thought to publishing some of what they have produced in the cases. Ms. Gordon i think a scholar at penn state published as a book, some of the amicus briefs filed in the fisher case. Which i thought that was a great idea. The idea is to say what the court left out in many instances. To see what kind of conversations the scholars were having. The ones that the court was not having. That was a useful endeavor, i think. For me, no, you would not want to read it. There are parts that might be useful that are available. If the tribe wants to post it, or publish it, that is not my decision. A lot of the stuff is detailed, i am talking about things that the families involved would just as soon forget. Im not going to be the one that intervenes. I produced it for them, they can do what the they want with it. I can assure you that virtually nothing i have ever written for a court case will hold your attention for five minutes. Mr. Mack the question over there. Thank you so much for this panel. I am a graduate student, i have gotten a law degree. I had this vision of amicus briefs is a way i was going to contribute to society as a historian. I feel like this panel has had a very sobering effect on that attitude. I was wondering if you could speak a little bit about the havec duty that historians inclined by their participation, even though, you have all acknowledged the consequences. Mr. Mack the question was about the civic and public duties of the historian, with regard to the participation of the panelists and the cases they have been involved in. I tend to think of it as a responsibility a citizenly responsiblity. Not so much because we are historians, but because if one has some expertise that could be useful in the pursuit of justice, i think people should do it. I think it is really difficult in a lot of cases because being a good historian has a lot to do with being able to handle complexity, tensions in the material. And that is very hard to do in a court case. I also do want to say one thing about it has not been mentioned, which has to do with the time that they subpoenaed my records. First of all, i want to say that if i had known it, i would have thrown them away. It would have been illegal but i would have done it. I think we all need to be very concerned about most of our records are probably now online. I think this is an issue about which academics should be better informed. If you know that litigation is possible, dont throw away your records. Because you may have committed a crime. [laughter] mr. Mack others . Lets do an exit question. I want to give everybody a chance to wrap up and deliver some final words. You can either respond to my question or deliver final words of your own choosing. But the question i had was about justice, actually. Part of what you have all been talking about, as long as we have had a legal system, we have had many people who experience it as an alienating process. It had existed in some tension with the word justice. All of you have had substantial experience in the legal system in your roles as historians. At the end of the day, do you feel as though your participation promoted justice, however you define it . Maybe you might want to define it. How would you describe your participation along those grounds . Or pick any other exit comments you would like to make. Ms. Gordon i will say that if justice is voice, or if conception of justice is voiced, giving voice to the people in the margin, the history of the people on the margin, perhaps some of what i have done has been in the interest of pursuing justice, even if the side that i advocated for did not actually prevail. I think that as a social historian, it is very important to me. I can say because the case is over. I was involved with litigation. Puget sound. We first became involved with these drives when i was 20 years old. I was intimately involved. That actually hurt me when i became an Expert Witness, but that i managed to get around. I testified in a case where they won. They won a fairly substantial judgment. At the end of that, i realize that far more than anything, my testimony in the court had actually done them some good. That was gratifying. I felt that it certainly didnt make up for the 150 years between the treaty and what was happening in between. But it was something. At the time, i realized that something is sometimes all you will ever get. I have to answer obliquely. In addition to writing five being involved in writing five amicus briefs, i have been on numerous panels with law professors or litigators around reproductive rights issues. I often have one difference with the lawyers. This is a case where i think i am right and they are wrong. I think that the lawyers can get into this mindset that if only we can come up with the right argument that can convince this particular swing judge, then we can win the case. And if we didnt get that argument, we didnt win. I have a much more political notion of what is behind judicial decisions. I will just say a couple of things, partly in response to your question as well. I dont go out looking for these cases. I would rather that i were not called anymore for these cases. They have taken a lot of time and energy. But when a lawyer does call and ask you to get involved with Something Like this, i think it would be impossible to say no. I feel it is a duty of citizenship to be able to participate in some way in this process. I hope that it helps illuminate the more we talked, the two of us, richard and myself have been involved in cases where we have been on the side where they have won. The other two have been involved mostly in cases that have lost. But to have been involved in that is extraordinary. For all of the complaints that i can make about lawyers, the pressures that i felt under various points from lawyers, the different ways that we want to use evidence, i have to say that i mostly come away from this process with enormous respect for the lawyers. And i am talking about the lawyers with the aclu and glad and elsewhere. They really dedicated their lives to this sort of work and bring a kind of incredible empathy and often a very capacious social justice vision to the work that they do as well as amazing strategic brilliance. As others have said, i have learned so much from them. I think that should be said, along with all of the other differences we might have an problems we might have and that translation between litigation and historical scholarship. Mr. Mack thank you to the panelists. [applause] mr. Mack thank you to the oeh. Thank you to all of you for coming. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. This weekend on American History tv on cspan three, tonight at 8 00, Messiah College professor on the ideas that shaped the pennsylvania constitution. Congressnstitutional have instructed after the july 4 a declaration instructed all of the colonies, now states, to form new governments. On sunday at 4 30 p. M. Eastern, protecting president reagan after the assassination attempt. I immediately went to my weapon, because i recognized that shots were fired. The smokeme, you saw from the weapons, you saw individuals moving toward the potential assailant. Thehen at 8 00, on presidency, the relationship between Thomas Jefferson and the enslaved hemings family. People as property that could bought and sold. They all lived with the specter of the possibility that, that could happen, because the law construed them as property. And at jefferson construed them as property. For our complete schedule go to cspan. Org. Tv was at ahistory meeting in new orleans where we spoke with kate epstein about the relationship between the u. S. Military and the private sector. Ms