Transcripts For CSPAN3 Historians In The Court 20170602

Okay. So i think were ready to get started. Sorry for the delay. But welcome to the first meeting. Our session is called historians in court, examines the complex role of historians applying their scholarly skills to courtroom litigation. Thanks first to the oah 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. There is no systemic study, but the evidence we have indicates that the use of, for instance, scholarly am kus briefs where scholarings filed briefs in Court Proceedings has been increasing. Now, there is a long history of scholarly input into Appellate Court cases stretching back at least to the famous brandis brief in 1908. But for our purposes, our pedigree as historians will be traced back to the brown versus board of education in which the distinguished historians helped the naac thrks make the case against School Segregation. More recently 400 historians signed a brief in the case of webster versus 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. That has a quite long pedigree for our purposes it stretches at least back to the 1970s when historians such as jay morgan 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 proved quite contentious. And finally we should understand that this is a practice and a problem that extends beyond the nation state of the United States and 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 adolph ikman trial in 1961. In france, the famous trials in which former officials were put on trial and distinguished french historian declined to participate in the proceedings because he thought it compromised his role as a historian. You might know the professor more recently as the person stopped for ten hours at the airport by immigration authorities a couple months ago. So there is a long and contentious history of this practice. We have four quite distinguished historians today that will explain it to us. We will first do each one of them is going to do a short presentation talking a little bit about their work in this area and some of the issues raised by it. Then we will do a little bit of a round table discussion and after that well open and broaden the discussion to the audience. Our panelists dont really need much introduction. So i am going to quite briefly go through their quite long and distinguished cvs. Were going to go in order that theyre presented in the program. So first were going to have linda gordon, who is the University Professor in history at new york university. She is the author of, among other things, rebellions, turmoil in 16th century ukraine. Heroes of their own lives, the moral property of women, pitied but not entitled. Single mothers in the history of welfare, the great arizona or fan abduction, which won the prize for the best book in u. S. History and the beverage prize and two works on dorothy lange. And her latest book is called the Second Coming of the kkk and the american political tradition. Forthcoming. Second were going to hear from richard white, who is a professor of American History at stamford university. Professor white is a recipient of numerous honors, as are all of our panelists today. Twice he won the he received the jury selection finalist for the pull lit ser price. Hes also the past president of this organization, the organization of american historians. Hes been a mccar thur fellow. Various other prizes. He has a fort coming book entitled the republic for which it stands, 1965 to 1898. He is the author of, among other noted works, railroads and the making of modern america, remembering the hanagran. Is that right . Yes. Thank you. Story telling and a familys past. Its your misfortune and none of our own, none of my own. A new history of the american west. The roots of dependency, environment and social change and land use and social change, the shaping of Island County washington, 1790 to 1940. Next were going to have a professor who is a professor of history at yale university. He is the author of gay new york, gender urban culture and the making of the gay male world, which one an 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. Then we are going to hear from a daniel law profession gnat at Harvard Law School. Shes published articles and book chapters on jury ris prudence. And among other places the harvard law review, the columbia law review and the journal of law and education. Her 2011 book, atlanta and the long history in the civil rights moment won the bang crock prize in history. And i am kenneth mac. I am the professor of american law and a professor of history at harvard university. Okay. So were going to start with brief presentations by each of our panelists who will either stand or sit at their discretion, starting with professor gordon. Thank you all so much for coming, for finding the right room. Thanks to nancy cot for having this idea. Charles dickens wrote the law is an idiot. 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, actually has greatly increased my respect for the many lawyers whose creatively 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 is both i had led to a notorious decision and a great deal of activism. I got involved in writing several amicus briefs in abortion cases. My 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 a really wake up call about how difficult it can 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 the 19th Century 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, notably mid wives. 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 among people of color. But most importantly, we all knew that the real main impetus toward the ban on abortion was gendered because it reflected a great anxiety about women trying to leave their godgiven places as housewives and mothers. But what we tried to show in this brief at first is that prior to this ban on abortion, which took place throughout the states and in 1873 at the federal level, abortion had been fairly common and not prohibited. The problem was it wasnt 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. That but the court, by contrast, referred 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 such expert 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 law, specifically banning abortion did not necessarily mean that activiss s 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 this country would still be fighting. 27 years later in 2016 a Smaller Group that included nancy kaut, and alice caster harris, as well as me, came together to write a brief in a texas case known as whole womens health. It had installed a series of regulations on abortion providers and again i wont go into what they are but whats important is that the texas claim was that 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 on abortion providers and whats striking about them is that these clinics will be required to meet Higher Standards than ambleatory surgery clinics. We work very fast. And we demonstrated that such alleg allegedly protective laws had been led by discriminatory assumptions by women. What was called protection disadvantaged women. They included laws that quote shielded women from the corrupting influence of politics and voting. That sheltered them from hearing sorted evidence by keeping them off juries. By protecting them from dangerous work such as being pharmacists. We even pointed out the contradictions, that for example women were allowed to serve as waitresses in bars but they were not allowed to serve as bar tenders. We also had some precedent on our side because in 1973 in frontier of richardson the Supreme Court recognized that such laws were rationalized by an attitude of romantic paternalism, which put women not on a pedestal, but in a cage. The Supreme Court ruled 53 for our side and i want to make it clear 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 hem was absolutely invaluable and i wish id understood 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 African American woman, this was at the university of wisconsin. She went to look at an apartment and told it was taken. It happens that she was married to a white man who went to see the apartment and it was offered to them. 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 child hood, that these two things combined had slowed her progress towards a ph. D. Then to my absolute shock and amazement the defendants lawyer subpoenaed all my records pertaining to the 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 ph. D. Students. My attempt to argue that race discrimination contributed to her stress made no impact. My testimony and records became part of her losing this case. The same kind of blindness occurred. Some of you may know this case which has become notorious. Five African American women allege they have been denied promotions because of the se seeniority system and it perpetuated the long history of preechbious race and sex discrimination. But the federal courts issued a Summary Judgment against the plaintiffs because as it said their complaint fit neither race discrimination because black men were not being laid off and barred from better jobs. Nor sex discrimination because white women were not being barred from higher paying jobs. I quote this because not a combination of both. Happily this decision infuriated a legal scholar Kimberley Crenshaw and as it did several others including Patricia Williams who soon weighed in. And crenshaws critique she created the term intersectionality which has now become a term i have studied recently. So i know its not only an academic term. Its being used all over. It points to an understanding of social identity in which different categories are not only additive but transformative. That is a black womans identity is not simply the sum of blackness and womanness. A really remarkable range of movements from black lives matter to 15 an hour has used the concept productively. But it offers them to interrogate the social categories they imply and understand them as dynamic and interactive. One of the things ive concluded from all of this, at least from my experience is that when lawyers want to use historians and the knowledge we provide, they need to instruct us. In fact i wondered if it might not be a good idea for all historians to take a course in a law school. Now asking them to instruct us is a tall order for litigators who do not often have the leisure to proceed slowly. But i think that many of us historian s would actually be eager students if the outcome could help bring law closer to justice. Thanks. [ applause ] im actually surprised to find myself here. Ive turned down previous invitations to discuss my work because of the danger that opposing counsel could use whatever i said to influence the case i was working on. This says much about the complexities of being an Expert Witness. My answers to the historical questions at issue, which i try to craft as rigorously as possible to the standards of academic history can fall victim to my reflections on the process of presenting those evaliations in the court of law. I could destroy the utility of my account by speaking about it. The price becomes silence. Im now old enough and the treaty cases take long enough to make it unlikely i will do any further reports. And so this is no longer a pressing concern. I have enormous respect for the lawyers with whom ysk rr woive over the years. If you ever need humbling have a skilled lawyer prepare you for cross examination. But we belong to different tribes. Both are rule bound and the rules for what counts as evidence and truth under the law and what counts as truth for 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. They only narrowly converge and will regard as the utility of the past and they do not converge at all as to whether historians as well as counsel and judges have a say in determining the meaning of a law or a 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. Ive produced over the course of the last 40 years shadow scholarership nearly equal in bulk to my published output. Ive work would chip waws and around the puget sound and more. In some cases ive worked for the federal government which is defending the treaty rights of the tribes and once at the end of a case i was told the report was being paid for by donald trump. I was also told i should demand payment because otherwise i would get stiffed. My report had not said what those paying for the report wanted. I will never publish a word of these reports, at least of my own, even though im proud of the work. Why . One included treaty rights to shell fish in puget sound. It ran less than a sentence. I h to explain the contemporary meanings of the term usual places and accustomed places stakes and cultivated. I put those few words in a report that ran several hundred pages. This led to me consideringing myself at a time the leading expert on oyster cultivation. Its a title to which i did not have much competition. And never aspired. As an Expert Witness ive experienced some of the most gratifying moments of my career. In ways that made our professional standards to make immediate difference in the world. Yet 40 years of this has left me weary of the whole endeavor. The new book by one of my colleagues at stanford has made me recognize my work as an expert has its own history. Its a relic of the old courts of equity. It has been awkwardly drafted on to american jurisprudence that over threw and replaced the old equity courts. Im implicated in a set of practices in which i would rather not be a part. I do not regard fee base governorance as a good thing but as an expert i am part of it. I do not thinked aver ed a vred earial procedure are the best way but i engage. I help impoverished people in rights 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 im not naive. This can change very, very quickly. The native American Rights Fund and a National Congress of american initdians are cautiously supportive of judge Neil Gorsuchs numination to the Supreme Court. At a time when indian treaty rights teeter on the edge, i am conscious that what i discuss, discover and what i say means far less than those i say it to. And thats worrisome. Thank you. Im going to stay seated. Ive 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 published. But most importantly five gay rights cases that reach the Supreme Court beginning in 1993 which i return colorados amendment to lawrence v. Texas in 2003 which established that samesex couples had a right to sexual intimacy and repealed the remaining saudomy laws and 2013 and 2015. And before going any further, id like to take this opportunity to thank the leadership of the oeh. Which agreed to submit briefs i prepared for them. It was not an easy decision for them. They hadnt done a lot of this before. But in doing so they really provided the organizations to a generation of historical scholarship by its members, many members working in a field that for a long time was not supported by the profession. Meant a lot to the court and me and to a lot of many other historians working in the field. I also want to thank our president , nancy caught who stood up for the right of gay couples to marry long before other people did and dedicated an unbelievable amount of time ever since she testified for the vermont in the civil union days. I want to honor nancy kot for that. We can talk about it different challenges associated with each way. In many cases i prepare a affidavit about discrimination, usually with local references relevant to the cases being heard and ive been the lead offer of briefs that other historians have joined in signing or the oeh submitted and i signed briefs signed by nancy cott. And roamer and perry and have been deposed by posing counsel and many others and i found that very different than submitting an ameeks brief. We can talk about those differences and the complenxitis of what it means to engage with lawyers. But id like to address the courts on two of the cases. The sodomy case and the main point i want to make is i do think historical narratives, competing historical narratives have played a significant role in these cases and others. Certainly in the give and take of cross examination. Ysk ive seen the validity and relevance. But in the decisions themselves and at trial its been the broad contours of historical narratives that have mattered the most. This makes sense to me in a way though ill be curious to see this may be that particular genre particularly on rep reproductive rights and gay rights. But im not a lawyer or law professor orlegal historian. But when i read legal decisions and these realms of kaurn constitutional law, they often read like essays where were looking at key sources, the constitution, blah blah blah and looking at various trends of intrpitation through accounts that try to understand and make arguments about the meaning of a law. Historical narratives matter also because courts rely not just on the sort of what ill call historical biographical analysis but because they Pay Attention to trudition and history by which they are a more precise narrative of principals and how actively theyve been implied and the social attitudes they represent. Of course a self described originalest 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 but Justice Anthony kennedy who has written all of the courts gay rights decisions since 1993 is one of those justicess that believes that th constitution is a living document and it has expanded over time, often in response to protest and new social conditions. So hes very much a historical thinker. And has responded to historical argiums and incorporated them in his decisions. But there are always competing historical narratives and we can see the significance in the courts two sodomy decisions. History clearly mattered a great deal in the 1987 case in which the Supreme Court upheld the right of the states to criminalize intimacy. Because the majority opinion insisted it was fuseeshs to imagine it can be found in the nations constitution, history or traditions which instead represented as condemning home Sexual Conduct for millennium. History also mattered when they reversed bowers 16 years later in lawrence v. Texas. The history of sexual regulation was more complicated than this. First because the nations history and tradition showed relatively little concern about sodomy. Since such laws have been rarely enforced before the end of the 19th century and almost always in cases involving coersion or youth and second because historically sodomy laws typically penalize most forms of non put it it they penlize more than home Sexual Conduct and less than home Sexual Conduct. Often between women. So they werent the equivalent and that third they were different from the 1973 conduct law which had singled out home Sexual Conduct after they lim limited the more cupaschs sodomy law and it reflected a peculiar form of antidiscrimination. So Justice Kennedy developed a similar analysis in his opinion but equally important was the historical narrative that we try to develop in the brief about how the laws and social understandings had been changing in the last half century which Justice Kennedy took in very different directions. Not siting our brief or talking about the examples that wed use but that he used to develop a more and also drawing on privacy cases from griswald and casey and so forth. And liberty protected by the 14th amendment. Much more cupaschs than the flowers had. Equality has always meant the same thing but wever come to recognize the humanity and full citizenship of people that have been excluded before. History also played a key role, although not in the way i anticipated. In the past the court has said laws which single out a particular group for treatment should receive heightened scrutiny if they have been historically subjected to discrimination and not had the political power needed to find it and that history makes any new law singling out that group suspect as the courts put it and that means the state has to provide a stronger justification for the laws. So i thought the court and i think the lawyers hope the court might draw on antidiscrimination history to argue that while singling out gay people needed 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 since the 70s i think. But once again kennedy did embrace and develop the historical narratives developed in the amika briefs. In fact the first session of the burg fell decision is dedicated to the history of marriage and to the history of antigay discrimination and shifting attitudes in American Society about home sexual persons. So he drew extensively on a brief that nancy cot trnt had prepared to show it changed before in fundament ways. That many of those changes were seen as revolutionary and frightening as the prospect of allowing samesex couples to marry seem to some. And change the status of gay people in American Society and how long history of discrimination had denied their dignity and how social changes and ininsistence of gay people and gay couples themselves let people appreciate the injustice of previous policies. I think ive already gone on too long. So ill say my sense is history plays out differently in different kinds of law and cases. But its been my sense that in the constitutional law cases on gay rights, historical narratives have been essential to understand whats at stake in those cases. [ applause ] 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 foreshadow perfectly by profe professor chaunsy. And thats the question of what accounts for the Supreme Court s treatment of historical evidence and ameeks briefs and other submissions. Now on one account the quality and the truthfulness you might say of the historical evidence presented determens the courts response to the evidence. Thats 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 historian scholarly production tear i admire much of what comes before the court and what is sited by the court. Instead its to talk about the Legal Process itself. And to say that judicial theories about the proper modalities and sources of intrpitation when considered in the context of a particular legal question determens how and whether History Matters in courts of law and in particularer the Supreme Court where i have some experience and thus where ill focus on. So by interpretive sources and approaches, i mean to refer to judges preferences to hew closely to the text. Perhaps as originally understood by the framers or the public or privilege constitutional constructive relationships as conceived in the federalist papers or for precedent as authoritative in certain cases. These approaches and sources impact justices views about fundamental matters that arise again and again where the many cases historians are called upon to discuss say the meaning of the equal protection of the laws. I mean matters such as federalism, the proper conception of states. Rolls in our legal and political systems. Concerns about carving out areas that are protected from federal incursion. A world view that they receive certain hierarchies as natural. So in my view its these inside baseball issues that are the true domain of lawyers and the courts as they litigate and ajute kate cases in oure ed ede adverse aerial situation. Its a context to which most judges and lawyers turn to to the extent its useful in a particularer case. Judges are trying to answer a question. Theyre 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 norms that guide historians. Matters such as due regard for nuance, for 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 lawyers history light. Which is a scripter that seems more or less on point. Now i want to talk for a few minutes about the notion of history light in race cases. The impact of the Legal Professions views about proper interpretive approaches and sources are parent in these cases, in race cases in particular. Cases where the court is called upon to medicate upon and to mediate and during questions about social economic and political inequalities that are rooted in this nations history of slavery and jim crow. Eras that lawyers and judges generally have little expertise and sometimes are not that interested in talking about the cases brought to them by lawyers. So in these cases, these internal factors almost always are outcome determinative, not the history. And i want to emphasize this seems to be particularly true in race cases. Where the outcomes often reflect the ideological bent of justices and the times the fits and starts with regards to race. In the early decade said when the courts addressed the cases, there were justices who eluded to the broad historical purposes and to the history behind particular amendments and legislation to justify upholding affirmative action and yet justices who were opposed to those policies, who came down that way, tended not to go into that history. Particularly because the reconstructed congress tends to not support reconstructive criticism about remedial programs. Over time there is a tendency to ignore the historical record or even dismiss the relevance of the history of past discrimination except to init voke it to stand for the principal that government has aired in the past when it discriminated on the basis of race. So in other words this is reading about history at a high level of generalality. It supports the color blind constitution. Another approach is read about history very specifically so its impossible for a plaintiff to prevail in a race discrimination case unless theres 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 high level of gen ralt is that the history of discrimination against say African Americans is evoked because of what was wrong in the past, taking race into account. End of discussion. Instead of a more nuance discussion about perpetrators and victims. Now, i want to spend a few minutes talking about my participation in a few cases as counsel of record. So in other words, i want to meditate on when it does in fact matter. The first case is parents involved verses community schools, which 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 dejury and defacto legislation that tends to inoculate northern and western cities from School Segregation cases. So seattle was really the focus of that work. Everybody many people know about louisvilles racial history. Not everyone knows about discrimination and housing and schools in seattle. The land of starbucks. The long and short of it is that kind of approach didnt work. And yet history was leveraged in that case. But for an entirely different purpose. For what you might call historical loss. Heres what i mean. Chief Justice Roberts and his plurality opinion sited rights in brown versus board of education out of context many would say to argue against the policies that were adopted by the school system. 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 color blindness was more faithful to the heritage of brown. And just as chief Justice Roberts and that case ends with the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Thats how he uses that history. Thats an idea that has the virtue of being rhetorically forceful and not to the context to marshals arguments in support of race conscious remedies, including on the basis of history. Another case in which i participated was gruda versus bo bollinger, the affirmative action case involving michigan. I supported a party in that case that was supportive of the affirmative action policy using a blend of history and precedent, particularly balky. Now the litigants were on the winning side of in that case due to the decisive votes of Justice Oconnor who was deeply committed to the concept of diversity embedded in the case of backy. The thing to note is that the concept of diversity as used by Justice Powell was conceived in part precisely to move beyond the complexities of our countrys racial history. So in other words, its 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 co counsel for a party in that case. Wrl we relied on a blend 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 dus cussed history but mostly it was in keeping with Justice Kennedys power on the court. His swing vote. And i should note given professor chaunsys discussion of Justice Kennedy that in the context of affirmative action and school deseg cases, hes really not interested in the history of discrimination very much at all. Except to reason at that very high level of gener reralality t the harm that can flow from taking account of race, which is a lesson one could draw but is not the only lesson. And so in conclusion whats to be done about the very real methological 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. So we just as well offer up the best history that we can offer. In keeping with our professional standards in hopes that on the margins it will matter. And ill go back to brown versus board of education and say that perhaps the way in which to think about historians in the court engaging with history is usually made in that case. Where john hope frank llin and other historians noted did reason about history in that case but ultimately it was conceded that the history couldnt decide the case. Justice warren and the court conceded that history could not decide the case. Because theres that question of at what level to reason . Are we talking about whether the 14th amendment history should be understood as supporting a broad the theory of equality . Or is is it that can be understood as supporting a ban on School Segregation. Those are very different questions. And so in admitting that the history could not ultimately be desiev desiev decisive, theres a commendment honesty in brown and perhaps historians should aim for that middle ground between being u useful to advocates and being true to the profession when we engage the Legal Process. Thank you. [ applause ] were going to have a brief round table among the panelists and i have see various sets of questions. First questions surrounding what we might call ethics, right . That historians participating in trial expert testimony, are you being called upon something that clashes with your role as historian and how tonavigate that . Second theres a question of effectiveness. At the end of the day, was the participation effective . Did it matter . Did it how did it matter . Why did it matter . And third theres this question of litigation and the role of the professional historian primarily producing scholarship and teaching being custodian of archives that litigation is a different enterprise and how do you navigate the fact these are kind of what youre doing and whats being called upon are sort of different enterprises. And if i could put you all on a spectrum, i might say and you all might correct me that professor chauncey is probably more optimistic on all three of dhoez mentions. I hear a lot of skepticism, various degrees and 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 whos been on both sides. When i was a lawyer i hired Expert Witnesses and we had the person produce a report and we wanted a report that was favorable to our side. We wanted the person to be an ethical historian but we wanted the report favorable to our side and anything else we were not going to be satisfied with and at the end of the day i felt we were being ethical and the historian we hired was being ethical. There are all kinds of complicated things and of course ive signed one of professor browns briefs. Im interested if at the end of this process, having participated, how do you all feel about this . Why dont we start in terms of satisfaction of the effectiveness of what youve done. Do you feel it was worth while. Would you advise people to do this in the future . Answer this a little bit but elaborate a bit. Anybody who wants to jump in. Well, ill just say certainly im entirely in favor. I would do whatever i could if i was asked. Even if i thought it was not useful because its a matter of principal. But i do see one conflict that you might describe as ethical. When im working with graduate students and writing things i insist that if they are writing about a policy or a person that they dont like, that it is their responsibility to present that without characterturing it in the most positive way or to present it as supporters of the policy might. I would not be asked to do that in a brief about an abortion case. I would be asked to present one side of an argument. I dont know what to do with that. I think its just there. Anybody else. I see my role a little differently. One of the most useful things i can do for lawyers is give them the bad news before they hear it in court. They want to know what the weak part of the case is and when i tell them i cannot argue this and if theres anybody decent on the other side i will be shot down, im doing my job. If indeed i was working for donald trump and i didnt give him what he wanted, thats a good thing, not a bad thing. Because im trying to be an ethical historian. So for me if i give good news or bad news, if its the good history, im doing my part. The lawyers have to make a case out of what i say. Its not my job to make the case. Ive been working on cases where the court has made a series of rulgz in support of gay rights rather than stepping back on affirmative action, Voting Rights and whole host of other issues. So as i said at the beginning i think it depends on the kind of cases youre talking about. And i have found, as i said, although i myself come down differently than Justice Kennedy has, which you referred. In this particular set of cases i think he has paid attention to history. Would i have written the history exactly as he did . Of course not. I usually write hundred pages book, not just a handful of paragraphs of history. Of course. In terms of the ethical issue let me say also that it is i mean of course im constantly struggling with evidence, blah blah blah. And i make arguments. I think were expected to make large arguments with proper attention to the nuance. Those often get lost in litigation to be sure. But the idea were making broad arguments doesnt seem to me unique the litigation context. In terms of the ethical issues, im not naive. Im aware litigators come to me because my records indicate i think x, y, and z. But i dont think were selling to the highest bidder. And although theres always a delicate negotiation with litigators who typically would like us to make have often asked if i didnt think i can make a argument about x or y that i thought is not sustained by the historical evidence and ive said that tothem and only one case have i been asked a second time and when i said no a second time i accepted that because their primary interest in us, particularly experts that are going to testify in a series of cases is protecting our credibility as experts. And eso ive been very clear on what i think is a historical argument and at the same time of course and i agree again with richard. The pressure much more from opposing counsel particularly in depositions or in cross examination or trial itself who will try to use anything youve ever written or quoted as saying against you and this has always brought home some of the key tifrances between lawyers and historians. Lawyers love shades of gray and if youve ever said anything that might shade over from the black or the white, they wul 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 now youre saying that. Doesnt that mean youre contradicting yourself . That youre just being an advocate . So there are enormous tensions involved in doing this kind of work and at the same time how can we not . History matters in these cases. So to present as reliable and accurate, if certainly condensed, version of this history will be helpful to the courts and thinking about an issue, i certainly feel an obligation to do so. Okay. I think what we should do now is first im wondering if any of you want to respond to anything that anyone else said. Did something sort of really jump out at you . Provoke you to think about an issue and after that i think well open up to the audience. But fist i want to give them a chance to elaborate what they said already or respond to something they heard somebody else say. Something thats jufmped out at you. Id like to point to the sailiance of different types of participation in these cases. For instance i would consider participating as counsel or amikas in certain types of cases, although probably not race cases because i think 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 up these cases. You just dont want to do all of that work and feel the court isnt really taking it seriously. On the other hand but i would do that. On the other hand, i often have turned down the opportunity to participate where lots and lots of people are signing on to a brief in an area where i know something but i dont know that much or i dont know that much about whats being asserted in the brief and i think thats a different kind of animal and im pretty skeptical of those sorts of indeavorses, even where im supportive of the legal issue thats being argued. I think they raises some really interesting issues. Some of the some of the briefs are signed by a large number of people. So theres a brief circulating. It comes to you and you got to decide whether youre going to sign it because somebody else wrote it. And my colleague, a constitutional law professor has an article saying we should be skemntical about signing these things. In part because theyre not our work, we dont know all the authorities that are sited in a brief and were signing as scholarers. And i struggle with that. And sometimes ive just said no because i feel i dont know enough. And you got to leave it at that. So let me open up to the audience. We started a little bit late. So we might go a few minutes over. But this is a hot and provocative topic. Historians have refused to participate in litigation, they have participated and i say almost never emerged unscathed as the panel can attest. Some of you may have done this, have questions about it. Do we have mics in the audience by the way . I think we do. So questions. All right. Oh, sorry, go ahead. [ inaudible ]. Its just asking the panelists to reflect on what brought them some degree of satisfaction, what brought them some degree of pause. Kwb want to tackle that . Well, thats pretty easy. The satisfaction. Of course its incredibly rewarding to see the kind of historical scholarship youve dedicated your life to producing having influence in a way that ini never imagined might happen. That its mattered to the court. Historical the detailed historical work and largely a pretty complicated argument about sexual regulation mattered to the court. Two down sides. One is that it takes an incredible amount of time and although we certainly get recognition for having, from our colleagues, from having done this work, the first question i usually get, if not directly i can see it in their eye sz why havent you finished your book yet . I decided this work seemed more important to do at this moment but its disterousing to me that my book is not out yet and its really not much fun to be cross examined. Ill repeat it for those that havent heard. Being deposed or cross examined for an academic is like taking your orals. You know that you can be asked about anything, you dont know where the conversation is going to go except that unlike in most oral exams, the person questioning you ultimately does not have your best interest at heart and would actually like to see you fail. Okay. Others want to jump in . Two is that since ive been so much on the losing end that its been very important to me to see the courts as completely political and as responding to what is going on in the country. Otherwise, i would think that i in my coworkers have been a failure, but i dont think that. Well, i want a second at lindas reference to the Community Building aspect of this kind of work. Its really something that makes it worth while to work with your colleague in support of an issue, a cause trying to find an answer. I really had fond memories of doing that in a number of instances. As to the downside, i have to say the worst thing is having your work cited for a proposition that you dont think it stands for, particularly in a court case, so one of the things i wrote was cite by a justice and not in the way that i meant it. That was not fun. Ive worked with a set of lawyers for a number of years now ajtd i very much enjoy working with them and thats worth while. As george says, the most worth while thing is very the work we do eventually will make a difference in the world but literally nothing else i do makes a difference as quickly, that the world can change once you see these cases. On most of the tribal cases ive been involved with, not all of them, they have won. I would also say far from being crossexamined, i dont find it unpleasant, patty, as you might guess. I find being crossexamined where this is the one time this person is your enemy. This person is trying to get me to Say Something untrue and i can go at that person as mump as they go at me. If youve never been crossexamined, you have no idea how ridiculous the whole thing is. The judge is sitting here. The audience is back this. The lawyers facing you and i have a lawyer doing this and rolling his eyes. Nobody could see but me and the judge. I thought what is this . The third grade. There are real things at stake. I enjoyed that part of it. What i dont enjoy is i really didnt care that much about the details of 18th century oyster cultivation and i thought why in the world am i spending valuable hours learning all this stuff but it was critical to the case and up had to do it. So being involved in only the kind of trivia that a court case can make you imagine is the most uninteresting part of it. I want to mention this is a bib liographic al entry. This is quite a little bit back when Tobacco Companies had been shown that they knew that tobacco smoking was carcinogenic and were denying it. Theres a book by a man called day la fontaine that is an analysis. It presents the whole text of crossexamination that alan was subject to, which was really vicious, and an analysis. Its an interesting book. Next . [ inaudible question ] let me just repeat the question. So the question he used the term shadow scholarship and asked if any of the panelists have given thought to publishing some of what they produced in the cases. I can say that the i think penn state, a scholar at penn state published as a book some of the amicus briefs filed in the fisher case, which i thought, you know, was a great idea. Wasnt at my initiative but the idea is to sort of see what the court left out in the many instances and what kind of conversations scholars are having that the court did not endpaj, so that was a useful endeavor, i think. Anybody else . For me, no, you want want to read it. There are parts that might be useful that are available and a lot of it, too, if the tribe wants to publish it as tribal history, thats up to the tribe but thats not my decision. A hot of this stuff, because its so details when youre in small communities, im talking about things that happened in way that is the families involved would just as soon forget so im not going to be the one who intervenes on this. Its their i produce it for them. They can do what they want with it and i can assure you that virtually nothing ive ever written for a court case would hold your attention for five minutes. Ok. Question over there. Thank you so much to this panel. Im [ inaudible ] before that, i got a law degree and i have this mission amicus briefs as a way to contribute and i feel like this panel has had a very sobering effect on that attitude but i was wondering if you could speak a little bit about the kind of civic or public duties thats combined p defined by the in 24 way even though you have some serious issues and potential consequences [ inaudible ] id like to get your thoughts on that. The question was about the civic and public duties of the historian with regard to the participation of the panelists have had on the occasions theyve been involved in. I tend to think of it as a responsibility, a citizenly responsibility, not so much because were 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 id really difficult in a lot of cases because to me, it has a lot to do withing with 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 just one thing about thats not been mentioned here that i mentioned which had to do with the time that they subpoenaed my records and that is that you know, first of all, i if id known it, ill tell you frankly, i would have thrown them away. It would have been illegal but i would have done it. But i think we all need to be very concerned about most of our records are probably on line, but i think this is an issue about which academics should be better informed. But if you know that litigation is possible, dont throw away your records, because you may committed a crime. Others . All right. So a 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. You know, parts of what you all have been talking about, there have been long as long as weve had a legal system weve had many, many, many people who experience its as an alienating process that had, i know, existed in some tension with the word justice. All of yall have had substantial experience in the legal system in your roles as historians. At the end to have 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 that youd like to make. So i would say if justice is voice, then or conception of justice is voice, giving voice to people on the margins, the history of people on the margins, then perhaps some of what ive done has been in the interest of pursuing justice even if in the courts the side that i advocated for or represented or tried to report did not actually prevail so i think as a social historian, that voice piece is really important to me. And i can say this, because the court the case is over. I was involved in litigation in puget sound where i first game involved with people, the fishing rights demonstrations. I was 20 years old. I was pretty angrily involved which hurt me as an Expert Witness but they won a substantial judgment. There was a day at the end of that where i realized far more than anything politically id done and far more any history id written about, my testimony in court actually did them some good and that was gratifying. I felt it certainly didnt make up for the 150 years between the treaty and what had happened in between, but it was something. Even at the time i realize something in some cases is about all youre ever going to get. I think im going to answer it obliquely. I in addition to these writing or being involved in writing five amicus briefs ive been on numerous panels with law or professors or i have often had one disagreement with the lawyers and this was a case in which i think im right and theyre wrong, which is i think often the lawyers can get into this mind set that if only we could come up with just the right argument that convinced this particular swing judge, then we can when 2 case and then the if we dont win, its because we didnt come up with the right argument, which i have a much more political notion of what whats behind judicial decisions. Id just say maybe a couple of things. Partly its in response to your question as well. Again, i dont go out looking for these cases and id rather that i werent called anymore for these cases. They avenue taken a lot of time and insuring. But when a lawyer does call and asks you to get involved in Something Like this, 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 and hope that it helps illuminate im struck, actually, the more we talk that two of us, rich and myself have been involved in cases where weve mostly been on the side thats won and the other two have been involved in cases where its lost but to have been involved in that is extraordinary. For all the complaints i could make about lawyers and the pressures i felt under at various points from lawyers and the different ways that we want to use evidence and so forth, i have to say i mostly come away from this process with enormous respect for the lawyers and im talking about lawyers at aclu, la lambda legal or whatever. Amazing strategic brilliance, and so as others have said, i feel ive learned so much from them. And i think that should be said along with allst differences we might have and problems we might have in that translation between litigation. Thank you to the panelists. [ applause ] thanks to the oah and thanks to all of you for coming. It resulted in a naval victory for the u. S. Over japan just six months after the attack on pearl harbor. Friday, American History tv will be live all day from the mcarthur Visitors Center in norfolk for the 75th anniversary of the battle of midway. Five star admirals won the war at see. El yod carlson, anthony actually, coarthur of shattered sword. And timothy orr, author of never call me a hero. Watch the battle of midways 75th Anniversary Special live at the mcarthur Visitors Center friday beginning at 9 00 a. M. On cspan 23. Cspan3. This weekend on American History tv, on cspan3, saturday at 8 00 p. M. Eastern on lectures in history, uft of kansas professor lewis on omaha beach and dday landings in normandy france. Norm and di was selected because it was poorly defended in 1943. So at least omaha beach, whats going to be called omaha beach, they had a couple optical battalions. Thats when its selected. A year later, all those fofrss, a lot of the forces weve talked about have been moved forward. At 10 00 on real america, a 1967 monthly film series on the activities of president lyndon johnson. He had often remarked that one of the chief executives most important jobs is attracting talented and able to Public Servants to washington. Alexander throwbridge would be apounced as secretary of commerce and Thurgood Marshall as justice of the Supreme Court. Sunday at 6 30 George Washington history university discusses the cold war competition between u. S. And china to influence african and asian countries. The rivalry intensified. This is a points where i think to many northernle policy makers, chinese activities in Southeast Asia and africa start to become as or more worrisome than soviet activities. At 9 00, Eric Buckland talks about john s moseby. A couple of times general lee complained to stewart that moseby was fighting in too many small groups. This decentralized way that he operated didnt make sense. He needed to mass his forces and pick one big target. That went completely against everything that moseby was doing. His effectiveness was the fact that he could have three, four, five, six different combat controls out on nil given night. For our complete American History tv schedule do to cspan. Org. Dont be afraid of your ambition, of your dreams, or evenly your anger. Those are powerful forces, but harness them to make a difference in the world. Stand up for truth and reason. Remember this. Nothing worth doing ever, ever, ever came easy. Following your convictions means you must be willing to face criticism from those who lack the same courage to do what is right. Remember what it felt like to gain that new perspective, to understand that new knowledge, to ace that test, to master a new skill or maximize your talents so that when live knocks you down and i promise you it will knock you down you will get back up because you know what it takes to rise. Saturday night at 8 00 eastern, 2017 commencement speeches. This weekend speakers include Hillary Clinton at Wellesley College in massachusetts. President donald trump at Liberty University in lynchburg, virginia. Senator Bernie Sanders at brooklyn dplej new york. Representative mia love. Former u. S. Deputy attorney general sally yates at Harvard Law School class day commencement in massachusetts. President and ceo of lieu let packer meg whitman and National Institutes of Health Director Francis Collins at