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 an