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 [Analysis of the Lipstadt trial from the Yale Law Journal by Wendie Ellen Schneider. ]

Yale Law Journal
June, 2001 • 110 Yale L.J. pages 1531 et seq.


Past Imperfect

Irving v. Penguin Books Ltd., No. 1996-I-1113, 2000 WL 362478 (Q.B. Apr. 11), appeal denied (Dec. 18, 2000).

DURING the course of Holocaust denier David Irving's libel action against American historian Deborah Lipstadt and her publisher, Penguin Books, press coverage frequently referred to the spectacle playing out in England's High Court as "history on trial." n1 It would be closer to the mark, though undeniably less catchy, to call it "historical methodology on trial." The judge hearing the case, [Mr] Justice Charles Gray of the Queen's Bench, stressed this distinction in his opinion, n2 where he relied on an "objective historian" standard in judging Irving's scholarship. This standard had no legal precedent; instead, it was based on the report submitted by one of the defendants' expert witnesses, Richard J. Evans. n3 While this standard was crafted for a British libel suit, I argue here for its rebranding as a

[*1532] "conscientious historian" standard and for its application in American cases employing historians as expert witnesses.


David Irving, a British historian of Nazi Germany, brought a libel suit against Deborah Lipstadt, Dorot Professor of Modern Jewish History and Holocaust Studies at Emory University, and her publisher, Penguin Books, based on references to Irving in Lipstadt's book, Denying the Holocaust: The Growing Assault on Truth and Memory. n4 In her book, Lipstadt quoted other scholars who have described Irving as "a "Hitler partisan wearing blinkers' and accused him of distorting evidence and manipulating documents to serve his own purposes." n5 Irving, Lipstadt concluded, "is one of the most dangerous spokespersons for Holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda." n6 Irving went to court, claiming that the book was part of a "concerted attempt to ruin his reputation as an historian," and sought damages. n7 Under the peculiar libel law regime that makes England a libel plaintiff's paradise, Irving's action shifted the burden to Lipstadt and Penguin to demonstrate the truth of their assertions. n8 Penguin invested £ 2.5 million in an ambitious research project to prove Lipstadt's accusations, employing a team of historians to scour Irving's works. n9

The trial was extremely controversial. At one point, Irving, who represented himself in this bench trial, referred to Justice Gray as "Mein Führer," apparently unconsciously. n10 Other testimony dealt with a nursery rhyme Irving composed for his daughter:

"I'm a Baby Aryan/ Not Jewish or Sectarian/ I have no plans to marry-an/ Ape or Rastafarian." n11

While congratulating Irving for skillful presentation of his case (and politely


[*1533] overlooking his Freudian slip), Gray nonetheless resoundingly found in favor of Lipstadt and Penguin in a lengthy opinion, concluding:

Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence; that for the same reasons he has portrayed Hitler in an unwarrantedly favourable light, principally in relation to his attitude towards and responsibility for the treatment of the Jews; that he is an active Holocaust denier; that he is anti-semitic and racist and that he associates with right wing extremists who promote neo-Nazism. n12

The worldwide relief following Gray's verdict was almost palpable. n13

The verdict was widely interpreted as a defeat for Holocaust denial, but the defendants' strategy at trial emphasized Irving's methodology, not his conclusions. By focusing narrowly on Irving's evaluation of evidence, the defense laid the groundwork for Gray's sweeping verdict. First, the defense's concentration on interpretation resonated with the affinity of the judge and the historian as evaluators of documentary evidence. n14 By presenting Irving's failure as a systematic misjudgment of the historical record, the defendants encouraged Gray to contrast his own experience and instincts as a trial judge with Irving's use of evidence.

The result, not surprisingly, was unfavorable to Irving. Second, by stressing evidentiary standards, the defense engaged Irving, and by extension the Holocaust deniers as a group, on his own territory. Holocaust denial over the past three decades has often presented itself in pseudoscholarly garb, clothed in footnotes and other academic niceties. n15 In particular, Holocaust denial has specialized in spurious assertions that it applies a more rigorous standard to historical evidence than do scholars who assert the Holocaust occurred. n16

[*1534] By attacking Irving's use of evidence, therefore, the defense struck at the very heart of Holocaust denial.


While Gray's opinion has received extensive praise for its definitive rebuke of Holocaust denial, the route by which he reached this end has scarcely been discussed. n17 Drawing on Evans's report, Gray created an "objective historian" standard, a fictional embodiment of common sense somewhat reminiscent of the "man on the Clapham omnibus" standard traditionally used in English law. n18 Gray found that Irving's departures from the "objective historian" standard were substantial:

"Irving has misstated historical evidence; adopted positions which run counter to the weight of the evidence; given credence to unreliable evidence and disregarded or dismissed credible evidence." n19

Justice Gray did not explicitly formulate a test for "objective historian" status separate from his criticisms of Irving's conduct in particular instances. n20 Nonetheless, by putting together Gray's criticisms of Irving and Evans's summary of "generally accepted standards of historical scholarship," n21 one can distill a code of conduct for the objective historian:


  1. She [sic] must treat sources with appropriate reservations; n22
  2. she must not dismiss counterevidence without scholarly consideration; n23
  3. she must be even-handed in her treatment of evidence and eschew "cherry-picking"; n24
  4. she must clearly indicate any speculation; n25
  5. she must not mistranslate documents or mislead by omitting parts of documents; n26
  6. she must weigh the authenticity of all accounts, not merely those that contradict her favored view; n27 and
  7. she must take the motives of historical actors into consideration. n28

This "objective historian" standard may in fact be more useful in America than in its country of origin. The "turn to history" in American jurisprudence n29 has created an increase in the number of prominent cases employing historical arguments. n30 This Case Note focuses on the testimony

[*1536] of historians serving as expert witnesses at the trial level. Historians have testified in a range of cases: Indian rights; n31 land claims; n32 gender discrimination; n33 deportation of alleged Holocaust participants; n34 voting rights; n35 and gay rights, n36 among others. Yet, historians called upon to testify claim that the standards applied by courts in assessing their testimony are contradictory or irrational. n37

Historians are not alone among social scientists and other non-scientific experts in confronting an absence of coherent standards. n38 The judicial guidelines for evaluation of expert testimony have undergone substantial redefinition over the past decade. Beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc. n39 in 1993, the Court abandoned the longstanding Frye test, which looked to "general acceptance in the particular field." n40 Instead, the Court proposed a list of factors for the trial court to consider including: whether a technique or theory can be (or has been) tested; n41 whether it has been subject to peer review and publication; n42 its known or

[*1537] potential rate of error when applied; n43 existence and maintenance of standards and controls; n44 and general acceptance. n45 These factors, however, were not presented as a "definitive checklist" but rather as "observations" for the trial court to consider. n46 The inquiry, the Court noted, should be a "flexible one." n47 Moreover, it should focus on methodology rather than conclusions. n48

The Court's decision in Daubert, as commentators quickly pointed out, left unresolved the question of whether the new test for expert testimony encompassed specialized knowledge or social science evidence as well as scientific evidence. n49 In Kumho, the Court expanded trial courts' "gatekeeping" function to all expert testimony, n50 but again emphasized the flexibility of the inquiry, concluding "we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert." n51 Most recently, the December 2000 amendment of Federal Rule of Evidence 702 codified the focus on methodology present in both Daubert and Kumho. n52

While Kumho may have resolved the debate over Daubert's scope, it did little to clarify how Daubert's factors might be applied to social science evidence. In some cases, lower courts have been frustrated in their attempt [*1538] to apply the Daubert factors to certain disciplines, including the social sciences. n53 The listed factors appear to be particularly ill-suited to evaluation of historical expert testimony.

Consider, for a moment, an evaluation of Irving's work under the Daubert factors. The decision in Daubert was motivated in part by a desire to exclude "junk" science. Would its factors exclude "junk" history as well? Testability, the first factor, does not apply to historical scholarship in anything like the traditional controlled laboratory sense no doubt envisioned by the Court. At best, another historian could (as the Penguin team did) revisit all of the sources a colleague cited. In the Irving case, testing of this sort revealed a pattern of questionable interpretations, but did so at an impractically great cost, in both time and money. n54 Daubert's second factor, publication and peer review, does not help separate Irving's work from acceptable historiography. Irving's books have been released by reputable publishing houses and have received favorable reviews from other [sic] German historians. n55 The third factor, a known or potential rate of error, meanwhile, is completely inapplicable as a standard for evaluating historical scholarship. History's focus on past events means that it does not generate predictions that can be verified or disproved. The fourth Daubert factor, existence of standards, requires further development before it can be used to distinguish Irving's work. History, unlike professions such as law or medicine, does not have widely recognized codes of conduct. Its methodological standards are more implicit than explicit. The Irving case, however, showed that it is possible to arrive at a serviceable definition of these standards for legal purposes. Finally, the fifth factor, general acceptance, raises further questions. While scholarly reviews may be pressed into service as a gauge of general acceptance, the Irving example demonstrates their failings as a test for methodological reliability.

This exercise reveals that the Daubert factors cannot be applied to historical scholarship without a great deal of assistance from historians. As in the Irving case, Daubert inquiries would depend on participation by members of the historical profession, who would need to make their own methodological standards explicit, and to enumerate specific instances in which the testimony in question departs from those standards. Making

[*1539] sense of Daubert, in short, requires discipline-centered methodologies and standards. n56 The standard developed in Irving v. Penguin Books, therefore, can fill a new niche in American evidence law because historians, particularly Evans, were instrumental in shaping it. n57

But to use the standard developed in the Irving trial necessarily transforms it from an expert witness's testimony in a libel trial about a historian's reputation to a standard for evaluating expert evidence on historical questions. While Gray's "objective historian" standard may have been used to judge Irving as a historian, n58 that is not the use I envision for it in cases in which historians appear as expert witnesses. Gray's standard should not be used for settling scholarly controversies n59 or for establishing a benchmark outside which historians might fear legal liability. Instead, as presented in this Case Note, it is intended as a guide for judges. Given that Daubert places increased responsibility on judges to serve as gatekeepers by excluding questionable expert testimony, Gray's standard would enable them to make better-informed assessments of historical evidence before them. n60 Application of Gray's standard should have inclusionary, not exclusionary, consequences: As long as a historian's methodology satisfies its criteria, his or her testimony should be considered by the judge.

Like many immigrants of an earlier era, however, Gray's standard may find its passage into American society eased by a name change. In keeping with Gray's own language, a better name would be the "conscientious

[*1540] historian" standard. n61 The quest for absolute historical objectivity has been called into question convincingly, n62 and, as a result, the label "objective" appears both naïve and misguided. But the idea of objectivity is not at all central to Gray's standard. Gray's use of the word "objective" results from the specific requirements of the libel defense in the Irving case. The components of Gray's standard do not, in fact, call for the historian to be without personal opinions or inclinations; they merely require him or her to make a balanced assessment of the evidence. n63 Moreover, in their own scholarly publications, both Evans and Lipstadt make it clear that historians can and will have political convictions regarding their fields of study. n64


How might the newly rebranded "conscientious historian" standard work in practice? Its main benefit would be to focus analysis of historical testimony more clearly on the historian's use of evidence. n65 In this capacity, the "conscientious historian" standard could serve several purposes: It would discourage dismissal of evidence based simply on the historian's holding convictions about his or her subject matter; it would give judges a more nuanced understanding of what historians should and should not be expected to testify to on the stand; and it would combat the tendency of historians on either side of a case to present unduly one-sided conclusions. Most of the abuses described below are no doubt outliers, but they suggest the dangers inherent in operating without any type of standard at all.

American historians and legal scholars have wrestled with the question of whether serving as an expert witness inevitably compromises a historian's objectivity. n66 Some judges, meanwhile, have taken a particularly

[*1541] stringent approach to the question of objectivity, rushing to discount the testimony of historians as expert witnesses based on their political commitments. In the remanded Virginia Military Institute case, n67 for example, it appears that the judge completely disregarded a prominent and well-qualified historian's testimony on women's history because he admitted membership in a profeminist group on cross-examination. n68 The "conscientious historian" standard would caution judges against such an approach, directing attention away from the historian's political convictions. Given the prominence of Irving's political and racial beliefs at his trial, this result may appear paradoxical. The decision in Irving, however, turned on the pattern of Irving's errors. n69 His personal beliefs and political engagements were never taken as conclusive evidence of historical unreliability. Similarly, in the absence of any demonstrated errors, the feminist historian's testimony should have been considered.

The "conscientious historian" standard would also prevent confusion resulting from the multiple roles historians play in the witness-box, ranging from authenticators of old newspapers to experts testifying on the basis of years of wide-ranging research in the sources of a particular historical period. While newspaper authentication is one role performed by historians, historical expertise should not be misinterpreted as a generalized ability to recreate the past from isolated clippings. In a particularly egregious abuse of expert testimony in one voting rights case, a historian, whose specialty was Civil War and Reconstruction-era constitutional history, concluded, solely on the basis of newspaper clippings shown to him on the stand, that the adoption of at-large elections in the 1960s was not racially motivated. n70 The "conscientious historian" standard would have barred this testimony on several grounds: First, the testimony violated the principle of consideration of as much of the relevant evidence as possible; second, it invited speculation; and, third, it failed to give due consideration to the motives of historical actors.

[*1542] Another benefit of the "conscientious historian" standard would be to discourage historians from being unduly one-sided in their interpretations. One-sidedness in historical testimony need not result from an attempt to mislead; it may very well represent an understandable response to the perceived adversarial norms of the courtroom that are reinforced through the process of selecting expert witnesses. n71 One historian who participated in writing the Webster brief, for example, recounted deliberately avoiding topics that would complicate the historical narrative being presented. n72 The critique of one-sidedness has a long history in American legal scholarship. Alfred Kelly, in one of the pioneering discussions of historiography in the Supreme Court, famously called it "law-office history," explaining that

"by "law-office history,' I mean the selection of data favorable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the data proffered." n73

Irving's manipulation of history, by this standard, represents a paradigmatic example of law-office history. Traditionally, cross-examination has been advanced as the proper counterweight to one-sidedness in expert testimony. n74 But cross-examination itself is likely to encourage violation of the "conscientious historian" standard; for example, by pulling quotations out of context for impeachment purposes. n75 Moreover, Daubert seems implicitly to move the obligation to ensure reliability away from cross-examination and toward the judge.

Responsibility for law-office history in the form of expert testimony should not be placed on the litigants and their expert witnesses alone, however. As long as judges expect a winner-take-all adversarial presentation of history, they must share the blame. Judges and litigants alike must revise their expectations of what a historical narrative would look like under the "conscientious historian" standard. Taking into account all of the evidence, and eschewing cherry-picking, means that parties should not be expected to present cases in which all the historical evidence unproblematically supports their legal position. n76



Adopting any standard of this sort would raise questions. Some of these can be considered fairly briefly. For example, it is worth considering what the standard would not do. It would not transform the trial into a witch hunt through a scholar's footnotes in search of the inevitable error. n77 The Irving trial was not about making mistakes; it was about the pattern of those mistakes and what it revealed about Irving's intent. n78 Nor would the standard involve evaluation of scholarship by canons of interpretation entirely different from those employed within the academy; in fact, Evans concluded that "as it turned out, the rules of evidence in court were not so different from the rules of evidence observed by historians." n79 Nor, finally, should it be taken as an exhaustive listing of possible methodological problems. n80 Other criticisms, however, merit more extended consideration, including a possible bias toward the status quo and against progressive uses of history, and doubts about the standard's practicality.

The decision in Irving validated a widely accepted conventional history and criticized an idiosyncratic and controversial challenge to that account. Is the "conscientious historian" standard therefore biased in favor of maintenance of the status quo? To the extent that recent progressive use of history in legal controversies has often been "history from below," that is,

[*1544] attempts to recover overlooked narratives and the historical experience of the less powerful, n81 the "conscientious historian" standard may impede the use of historical evidence for progressive causes. This conservative tendency, however, could and should be counterbalanced by an equally rigorous application of the standard to "traditional" narratives. The "conscientious historian" standard calls for the searching consideration of all the evidence a historian can feasibly consult - not simply all the evidence that supports the dominant narrative. Irving embodies the danger of illegitimately excluding evidence that may conflict with a researcher's hypothesis. By contrast, the "conscientious historian" should embrace complexity, and courts should follow suit. n82

One might also wonder how easy it would be to apply the "conscientious historian" standard in practice. Penguin's research effort took some four years. n83 While the extent of Irving's collected works (thirty books and numerous articles and speeches) and the difficulty of the sources involved (Nazi documents, for example, deliberately employed euphemism to conceal the extermination program) arguably made the Irving case particularly complex, other cases would doubtlessly pose thorny issues as well. The judge's ability to inquire into these questions is also limited by a dependence on the parties to provide a documentary record. n84 Faced with practical dilemmas on this scale, trial courts may very well revert to pre-Daubert practice, n85 and restrict their investigation to the question of the expert's formal qualifications. Indeed, the imperative of inquiry into methodology may prove to be a millstone for the Court's attempted reform in Daubert and Kumho.

Until the moment of retrenchment arrives, however, the Irving trial's "conscientious historian" standard represents one of the only judicially [*1545] recognized guidelines for evaluating historical research. While not specifically designed for the purpose of evaluating expert testimony, the "conscientious historian" standard could serve a pedagogical function even if it were rarely employed as a do-it-yourself guide to historical investigation. Encouraging judges to follow historians' own standards would both realize the methodological focus of Daubert and prevent ill-conceived exclusion of historical evidence.

Copyright (c) 2001 Yale Law Journal Company


FOOTNOTES: [for convenience of use we have posted the footnbotes in a separate window which will open when you mouse-over the link]


See also on this website:

Richard Evans index
Guttenplan Index

© Focal Point 2003 F Irving write to David Irving