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 for organizing this session and, in particular, to the president for her support of our endeavor here today. today, we will address a timely topic -- the participation of historians in courtroom proceedings. there's 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. there's a long history of scholarly input into appellate court cases stretching back at least to the famous brandeis brief in the supreme court case in 1908. but for our purposes, our pedigree as historians might be traced back to the brown versus board of education litigation in which the distinguished helped the naacp make the case against school segregation. more recently, 400 historians signed an amicus 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 whento at least the 1970's historians 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 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 a former officials were put on trial and the 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. 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. 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 there quite long and distinguished biographies. 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 at new york university. she is the author of, among other things, cossack rebellions 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 bancroft 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 richard wright, professor of american history at stanford university. he is a recipient of numerous honors, as are all of our panelists today. twice he received jury selection finalist for the pulitzer prize. prizehe won the parkman and he's 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." part of the oxford history of united states series. he was the author of, among "railroaded:orks, the transcontinental and making of modern america." thank you. storytelling and a family's past, the organic machine, middle ground, indians come in the best indian empires. it is your misfortune and none of my own, a new history of the american west, the roots of dependency, subsistence, environment, and social change among choctaws, navajos, and "land-use and social change. next, we have professor george chauncey professor of history at , yale university. he is the author of gay new york, gender, urban culture, and maleaking of the gay world, and why marriage, the history shaping today's debate over gay equality. in 2012, he was awarded yale teaching prize in the humanities primarily for his lecture course on u.s. lesbian and gay history. after professor chauncey, we will hear from the professor of constitutional law at harvard law school. and professor of history. she has published articles and book chapters on the supreme court on jurisdiction jurisprudence civil rights history. and among other places, the yale law journal, the harvard law review, and the columbia law the journal of law and education. her 2011 book, courage to dissent: atlanta and the long history of the civil rights bancroft won the prize in u.s. history. mack.am kenneth we will start with presentations by each of our panelists, who will either stand or sit at their discretion. starting with professor gordon. ms. gordon: thank you also much for coming, for finding the right room. thanks to nancy for having this idea. charles dickens wrote that the law is an idiot. 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. i'm 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. 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 well-being, and then it went on to install many, many regulations to make it harder to get abortions. i'm not going to name them, but it was really a wake-up 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 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 lay women -- you know, the midwives. it was also possibly a racial motive 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 reflected a great anxiety about women trying to leave their god-given place as housewives and mothers. 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 at the federal level abortion , had been fairly common and not prohibited. easyroblem is it was not 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 such expert existed, james moore 's 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. second, behind our emphasis on the frequency of abortion prior to its prohibition, rested on an assumption that was really 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 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 linda kerber, and alice , kester harris as well as me came together to write an amicus case.in the texas 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 the texas claim was these regulations were designed to protect women's 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 -- will be 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 sorted evidence by keeping them off juries, by protecting them from dangerous work such as being pharmacists. we even pointed out the contradiction such as that women were allowed to service -- serve as waitresses in bars, even sleazy bars, but were not allowed to serve as bartenders. we also had some precedent on our side because the supreme court in 1973 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 5-3 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. 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, and african-american woman -- 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, the victim of discrimination and harassment throughout her childhood, that these two things combined had slowed her progress toward a phd. then, to my shock and amazement, the defendant's lawyer, that is the landlord's lawyer, subpoenaed all my records pertaining to the student. and i was completely astonished to learn that had to turn them over. he was a landlord with very deep pockets. they deposed me. 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 case against general motors in 1977. some of you may know this case. it has become notorious. five african-american women allege they had been denied promotions because of the seniority system and the last hired first fired layoff policy perpetuated the long history of previous race and sex discrimination. but the federal courts issued a summary judgment against the plaintiffs. because it said their complaint but neither race discrimination because black men were not being barred from better jobs nor sex discrimination, because white women were not being barred from higher-paying jobs. the court said the 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 well as several others. including patricia williams. in crenshaw's critique, she termed the intersectionality, which is 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 traits -- different categories are not simply additive but also transformative. that is, a black woman's identity is not simply the sum .f blackness and womanness a range of movements have used the concept productively. i think the concept also offers opportunities for historians to interrogate the social categories and understand them 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 historians and the knowledge we can 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 us 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] mr. white: i'm actually surprised to find myself here. i have turned down previous invitations that involved discussion of my work as an expert witness in cases because of the danger that opposing counsel could use whatever i said to influence the case i was working on. this is one of the complexities of being an expert witness. my answers to historical which i try issue, to craft my answers as rigorously as possible to the standards of academic history. can fall victim to my reflections on the process of resenting those in the court of law. i could destroy the utility of my account by speaking about it. the price of articulating a past becomes silence. i'm 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. it has been over 40 years. humbling, haved a skilled lawyer prepare you for cross-examination. as much as i respect them, we belong to different tribes. both of which are rule-down and the rules for what counts as truth under the law and 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. they only narrowly converge on what we consider the utility of the past. they do not converge at all on whether historians and judges should have a say in determining the meaning of the 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. 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. i've worked with the ottawa and chippewas, the various tribes of puget sound, and more -- 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 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 those reports, at least on my own, even though i'm proud of the work. why? one major report concerned tribal treaty rights to shellfish in puget sound, and it involved analyzing a phrase in a clause that ran less than a sentence. i have to explain the contemporary meaning of the terms "usual and accustomed places" and the term "except in ked and cultivated." i placed those few words into a report that ran several hundred pages. the research led me to my considering myself for a time as the country's leading historian of oyster cultivation, a title to which i've 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. and yet 40 years of this has left me wary 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. it has been awkwardly grafted onto 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 a part. i do not regard fee-based 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 gorsuch's 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, i'm 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] mr. chauncey: i'm going to stay seated. i have been involved in more than 30 cases at this point, and i second richard's 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. colorado,in 1993, 2003, texas that established that same-sex couples had a constitutional right to sexual intimacy and overturned the remaining sodomy laws. and free marriage cases decided by the court in 2013 and 2015. before going any further, i would like to take this opportunity to thank the leadership of the oeh, which agreed to submit amicus briefs i had written for them. it was not an easy decision for them. they had not done a lot of this before. but in doing so, they provided the organization's premature to a generation of historical scholarship by its members, many members, working in a field for a long time was not supported by the profession. it meant a lot to the court, and it meant a lot to me. it meant a lot to many other historians working in the field. i also want to thank our president who stood up to the right of gay couples to marry long before many other people did and has dedicated an unbelievable amount of time to working on these cases ever since she testified below the -- before the vermont state legislature as it was wrestling i want to honor her for doing that. we can talk in the discussion about the different ways historians participate in a legal aces, the different challenges associated with each way. in many cases, i prepared a declaration about discrimination. referencesh local relevant to where ever the case is being heard. i have also been the lead author of briefs that other historians have signed, and i have also signed briefs prepared by nancy cott. trial also testified at in two cases that reached the supreme court, and have been deposed by opposing counsel. i have found that to be different than supporting an amicus brief. we can talk about those differences and the complexities of what it means for historians to engage with lawyers, but in my opening remarks, i would like to address the question of how much history has mattered to the courts by discussing two of the texas,lawrence versus and another. the point i want to make today is i think historical narratives, competing historical narratives, have played a significant role in these cases and others. the give and take of cross-examination, i have seen the relevance of particular piece is being disputed. in the trial, it has been the broad contours of historical narratives that have mattered the most. this makes sense to me and away, i will be curious to see, this particularlys, 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 like historiographical essays , where we are looking at key sources, the constitution, and looking at various trends of interpretation through historic accounts that develop genealogies to develop -- to understand the meaning of the law. some historical matters, historical narratives matter because courts rely not only on what i will call history but becausealysis, they also pay attention to tradition and history, by which they mean 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 represent. but different justices understand the role of history differently. a self-described originalist like scalia might focus on what he thought the framers meant when they wrote the constitution, and he might stop there. at the various -- or at the various junctures. but justice kennedy who has written all of the gay-rights decisions since 1993 is one of those justices who concedes that the constitution is a living document, and believes our collective understandings of liberty and equality has expanded over time, often in response to protest and social conditions. -- he is veryh much a historical thinker, and has responded to historical arguments and incorporated them in his decisions. but in courts as in journals, there are competing historical narratives, and we see that his inck -- the significance certain decisions. history clearly matters a great deal. a 1980 seven case upheld the rights of the states to criminalize homosexual intimacy. the majority opinion insisted it was facetious to imagine a right of homosexuality could be found in the constitution, history, or criminalizedhich homosexual conduct for centuries and millennia. history also mattered when the case was reversed years later. justice kennedy cited and submitted several pages regarding the argument that the history was more complicated than this. first, because the nation's traditions showed relatively little concern about sodomy ,.texas. -- about sodomy. cases dealing with coercion. second, historically sodomy was penalized. most forms of non-procreative se they penalized more than homosexual conduct since they penalized most forms of non-procreative sex. they often did not penalized sexual intimacy between women, so they were not equivalent. third, they were different from the 1973 texas homosexual conduct law from the case, which singled out homosexual conduct for a penalty after the state had eliminated its more capacious sodomy law. we argued that it revealed it strange form of dissemination. justice kennedy developed a similar analysis in his opinion, but equally up -- important was the narrative that we tried to develop in the brief about how the laws and social understandings had been changing in the last half-century. justice kennedy took it in a very different direction, not citing our brief were talking about the examples we used, but -- and to develop a more also drawing on privacy cases from griswold. to develop a more robust interpretation of the scope of liberty protected by the due -- ofs clause of the and the constitution. as he later put it, citing the 10th circuit, equality has always meant the same thing. we have come to recognize the humanity and full citizenship of people disqualified. it is a deeply historical analysis. history also played a key role in other cases, but not any way i had anticipated. in the past, the court had said the laws that single out a particular group or differential for differential treatment should receive heightened scrutiny if that group had historically been subjected to a history of discrimination. they had 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 fought the courts, and the lawyers hoped the court would draw on the history of anti-gay discrimination as we outlined in the 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 had not introduced any new groups and called them productive classes. not since the 1970's, i think. but once again, kennedy did embrace and develop the historical narratives in the briefs. the first section of the decision is dedicated to the history of marriage and to anti-gay discrimination. and shifting attitudes in american society about homosexual persons. he drew extensively on a brief that nancy cott had prepared. this showed that historically, marriage had survived as an institution because it had changed in fundamental ways. many of those changes were seen as revolutionary and frightening in their own time. the prospect of allowing homosexual couples to marry were changing the status of gay people in america. and how long, history had denied their ending 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 historical narratives have been absolutely central to the way the court has understood what is at stake in these cases. [applause] ms. brown-nagin: good afternoon. thank you for inviting me to participate on this panel with distinguished historians, talking about timely and important issues. the question that i want to talk about was foreshadowed perfectly by professor chauncey. that was the question of what accounts for the supreme court's treatment of historical evidence and disparate treatment of other submissions. now on one account, the quality and the truthfulness you might say of the historical evidence presented determined the court's response to this 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 historically scholarly productions. i've 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 that we are all -- and where i will focus on. as i interpreted sources and approaches, i need to refer to judges preference. perhaps as originally understood by the framers or by the public , or to privilege constitutional structure in relationships. or to view precedent as particularly authoritative in certain cases. viewsimpact justice's 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 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 add-on. 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. 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 lawyers's history lite. 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. 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 nation's history of slavery and jim crow. areas that lawyers and judges expertise,ave little and sometimes are not that interested in talking about. 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 timeof justices, and the with respect to race. take for example, the affirmative action cases. in the early decades when the court addressed those cases, there were justices alluded to -- 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 aired in the past when it discriminated on the basis of race. this is it 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 louisville's 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 didn't 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 color-blindness 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 marshall's later arguments in support of race-conscious remedies, including on the basis of history. another case in which i participated was prouder versus bollinger it was in 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 o'connor, 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 country's 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 co-counsel 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 court's preference for not really discussing history. we discussed history, but mostly it was in keeping with justice kennedy's power on the court, his swaying vote. i should note that given 's discussionuncey 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 m did it reason about history in that case, that ultimately, it was conceded that the history couldn't 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 14 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? how did it matter? how did it matter -- why did it matter? third, there's this question about litigation and the role of the professional historian primarily producing scholarship and teaching. that 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 you're 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 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. the historian on the other side, there are all kinds of complicated things. i signed one of professor brown -nagin's -- brown amicus briefs. at the end of this process, having participated, how do you all feel about this? why don't we start on 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 don't 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. amicus brief, i would be asked to present one side of an argument. i don't know what to do with that. i don't 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 before the hearing in court. they want to know what the week -- 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 didn't give donald trump what he wanted, that is a good thing. that is not a bad thing. what i'm trying to be the is an ethical historian. 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. >> i think i have been working in cases where the court has made a series of rulings for gay-rights, rather than stepping back on affirmative action, voting rights and a whole host of other issues. i said at the beginning, i think it depends a lot on the kind of cases that you're talking about. i have found that i would come down 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 ?what i have written -- i usually write 400 or 500 page books. i don't make supreme court decisions. in terms of the ethical issue -- let me say that in my own work , i am constantly struggling with evidence. arguments as large well, and i think we are expected as scholars to make large arguments with proper context to the nuance and the contradictions. they often get lost in litigation to be sure. , the idea that we are making broad arguments -- 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 don't think we are selling to the highest bidder. 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, if i think it is supported by historical evidence. i have said that i didn't think it was sustained by the historical evidence. if i said no a second time, they accepted that. their primary interest -- particularly in a first that would testify on 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, cross-examination, and the trial itself, they will try to use anything you have ever written or have ever been quoted as saying against you. there are key differences between 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, doesn't 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 that 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? to thent to point salience of other types of 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 doesn't 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 don't want to do all of work and feel like the court isn't 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 don't know that much about what is being asserted in the brief. i think that is a different kind of animal, and i'm 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 you're going to sign 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 don't 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 don't 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 d almost neverte 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. >> i will shout. [indiscernible] it seems very nerve-racking 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 producing. i never imagined might happen. it has mattered to the court. the details of history. 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 haven't you finished your next book? it has taken a lot of time to do this work instead. i had 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 cross-examined. i have used this analogy before but i will repeat it. being deposed or cross-examination to -- christ's -- cross-examined is like taking your orals. you know you can be asked about anything. you don't know where the conversation will go except that like 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 don't often co-author things. i think it is a great experience. the other part of it was we are learning a tiny bit about the law. i wouldn't 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 co-workers and i have been failures. i don't think that. ms. brown-nagin: 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 don't 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 -- thanss other historians 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 one. -- they have won. i would also say that i don't find big cross -- i do not find being cross-examined as being 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 cross-examined, you have no idea how ridiculous the whole thing is. the justice 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. enjoy, is inot don't care about the details of 18th century oyster cultivation. i thought why in the world and i spending all these hours learning this stuff? only a court case can force you to examine the most uninteresting part of it. >> i want to mention, this is a biographical suggestion. because i have found something i learned that not many people know about. testimony inad a 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 cross - examination that ellen was subject to. , and aneally vicious analysis. it is an interesting book if anybody is generally interested in this kind of thing. >> another question, go ahead. >> [indiscernible] 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. me, no, you would not want to read it. there are parts that might be useful and available. if the tribe wants to post it, or publish it, that is not my decision. detailed,he stuff is i am talking about things that the families involved would just as soon forget. i'm 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 bring closure in five minutes. mr. mack: the question over there. >> thank you so much for this panel. student, i have gotten a law degree. i was wondering how i could 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 in little bit about -- that is 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 of day -- 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, don't throw away your records. because you may have committed a crime. [laughter] mr. mack: others? let's 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. if gordon: i will say that justice is a voiced, 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 course -- because the case is over. i was involved with litigation. we first became involved with these tribes when i was young. i was involved. they heard 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 didn't 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. five --ion to writing 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 can convince this particular swing a judge, then we can win the case. and if we didn't get that argument, we didn't 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 don't 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 the y have won. 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. 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