- n1. E.g., Jonathan Freedland, Court 73 Where History
Is on Trial, Guardian (London), Feb. 5, 2000, Home Pages,
at 3; see also David Cesarani, Irving Exposed as a Liar
with No Interest in Pursuit of Truth, Irish Times, Apr.
12, 2000, at 16 ("A common misconception about the libel
case brought by David Irving against the American
academic Deborah Lipstadt is that history was on
- n2. Gray wrote: I do not regard it as being any part
of my function as the trial judge to make findings of
fact as to what did and what did not occur during the
Nazi regime in Germany. It will be necessary for me to
rehearse, at some length, certain historical data. The
need for this arises because I must evaluate the
criticisms of or (as Irving would put it) the attack upon
his conduct as an historian in the light of the available
historical evidence. But it is not for me to form, still
less to express, a judgement about what happened. That is
a task for historians. Irving v. Penguin Books Ltd., No.
1996-I-1113, 2000 WL 362478, P 1.3 (Q.B. Apr. 11), appeal
denied (Dec. 18, 2000).
- n3. Richard J. Evans, Expert Witness Report, Irving,
2000 WL 362478 (Q.B.) [hereinafter Evans,
Report]. Evans was one of a number of expert
historical witnesses employed by Penguin Books. Richard
J. Evans, Lying About Hitler: History, Holocaust, and the
David Irving Trial 29-30 (2001) [hereinafter Evans,
- n4. Deborah E. Lipstadt, Denying the Holocaust: The
Growing Assault on Truth and Memory (1993).
- n5. Id. at 161 (quoting Martin Broszat, Hitler und
die Genesis der "Endlösung' [Hitler and the
Genesis of the "Final Solution'], 25
Vierteljahrshefte für Zeitgeschichte 739, 742
- n6. Id. at 181.
- n7. Irving, 2000 WL 362478, P 1.2.
- n8. See Dennise Mulvihill, Irving v. Penguin:
Historians on Trial and the Determination of Truth Under
English Libel Law, 11 Fordham Intell. Prop. Media &
Ent. L.J. 217, 221 (2000).
- n9. Vikram Dodd, How the Web of Lies Was Unravelled,
Guardian (London), Apr. 12, 2000, Home Pages, at 4.
- n10. Trial Transcript, Day 32, at 193 (Mar. 15,
2000), Irving, 2000 WL 362478; Evans, Lying, supra note
3, at 224; Dodd, supra note 9, at 4. One observer pointed
out that Gray once or twice referred to Irving as Hitler.
Ian Buruma, Blood Libel, New Yorker, Apr. 16, 2001, at
- n11. Irving, 2000 WL 362478, P 9.6; David Pallister,
"He Is a Holocaust Denier. He Misstated Evidence"; The
Judgment Judge Condemns Deliberate Falsification of
Historical Record, Guardian (London), Apr. 12, 2000, Home
Pages, at 6.
- n12. Irving, 2000 WL 362478, P 13.167.
- n13. See, e.g., Douglas Davis et al., British Court
Slams Irving as Holocaust Denier, Jerusalem Post, Apr.
12, 2000, at 1; Vikram Dodd, Irving: Consigned to History
as a Racist Liar, Guardian (London), Apr. 12, 2000, Home
Pages, at 1; Sarah Lyall, Critic of Holocaust Denier Is
Cleared in British Libel Suit, N.Y. Times, Apr. 12, 2000,
- n14. Cf. Carlo Ginzburg, Checking the Evidence: The
Judge and the Historian, in Questions of Evidence: Proof,
Practice, and Persuasion Across the Disciplines 290,
290-94 (James Chandler et al. eds., 1994) (noting the
long history of comparisons between history and law, and
between historians and judges). Gray tried to keep
distinct the roles of judge and historian. As he told a
journalist before the trial, "There is some risk of one's
being asked to become a historian. Judges aren't
historians." D.D. Guttenplan, Why History Matters,
Guardian (London), Apr. 15, 2000, at 1. Nonetheless, his
opinion is at its most assured when he criticizes
Irving's use of evidence. Not being a historian for Gray
seems to have amounted to not producing a historical
narrative; he did not shrink from evaluating historical
- n15. Richard J. Evans, In Defence of History 238-43
(1997); Lipstadt, supra note 4, at 24; Diane Purkiss, The
Witch in History: Early Modern and Twentieth-Century
Representations 70 (1996).
- n16. Evans, Report, supra note 3, P 2.5.35
(discussing an article by Prof. David Cannadine reviewing
Irving's work); see also Evans, Lying, supra note 3, at
106-07 (describing the "pseudo-academic" form of
Holocaust denier Arthur Butz's works, including his use
of footnotes, appendices, and plates and diagrams).
- n17. But see Tony Judt, Writing History, Facts
Optional, N.Y. Times, Apr. 13, 2000, at A31 ("But what of
the "objectivity' dilemma?"); Anne McElvoy,
Unfortunately, Holocaust Denial Will Not End Here,
Independent (London), Apr. 12, 2000, at 3 ("The most
intriguing question raised by the evidence was the
judge's claim that Mr Irving's increasing political
activism disqualified him from his claim to be a serious
"objective' historian. This is marshy ground on which to
pitch an argument and a sign that legal minds do not
always grasp the pitfalls of referring matters to the
deceptive higher court of objectivity.").
- n18. 3The Oxford English Dictionary 272 (2d ed. 1989)
(defining "Clapham"); see also Patrick Devlin, The
Enforcement of Morals 15 (1965) (equating the "man in the
Clapham Omnibus" with the reasonable man, and noting it
is an "archaism familiar to all lawyers").
- n19. Irving, 2000 WL 362478, P 13.140.
- n20. Id. PP 13.1-13.168.
- n21. In his report, Evans summarized these standards:
Does Irving give a reasonably accurate account of the
documents he uses; does he translate them in a reasonably
accurate and unbiased manner; does he take into account
as many other relevant documents as any professional
historian could reasonably be expected to read and cite
when he is using one particular source to substantiate an
argument; does he apply consistent criteria of
source-criticism to all the original material he uses,
examining it for internal consistency, its consistency
with other documents, its provenance, the motives of
those who were responsible for it, and the audience for
which it was intended; are his arguments, his statistics
and his accounts of historical events consistent across
time and based on reliable historical evidence; does he
take account of the arguments and interpretations of
other historians who have examined the same documents;
does he, in other words, advance his arguments in a
reasonably objective and unbiased manner? Evans, Report,
supra note 3, P 1.6.4.
- n22. See, for example, Irving, 2000 WL 362478, PP
13.13, 5.34-5.47, in which Gray faulted Irving for
uncritical reliance on crime statistics taken from the
work of Kurt Daleuge, an enthusiastic member of the Nazi
- n23. See, for example, id. PP 13.17, 5.40-5.72, in
which Gray reprimanded Irving for being "unduly
uncritical" of witness statements by Hitler's adjutants
supporting Irving's account, statements which were
contradicted by contemporaneous documentary evidence,
including Goebbels's diary and police telegrams.
- n24. See, for example, id. PP 13.24-13.25,
5.111-5.122, in which Gray criticized Irving's selective
treatment of the evidence regarding the shooting of Jews
in Riga. Irving relied on an order prohibiting future
mass shootings to argue that the Germans had called a
halt to the shootings, while ignoring evidence from the
same source that the order was limited to shootings "on
that scale" and called for increased discretion in
shootings, implying that the shootings were to
- n25. See, for example, id. PP 13.22, 5.90-5.110, in
which Gray found that Irving misled readers by presenting
Himmler's notes as incontrovertible evidence supporting
Irving's proposition that Hitler had prohibited the
general liquidation of Jews, and that this amounted to
speculation, rather than recitation of established
- n26. Id. P 13.31 ("Irving has seriously
misrepresented Hitler's views on the Jewish question. He
has done so in some instances by misinterpreting and
mistranslating documents and in other instances by
omitting documents or parts of them.").
- n27. See, for example, id. PP 13.117-13.125,
11.6-11.48, in which Gray condemned Irving for relying on
one document to support his claims for an inflated
casualty figure for the Allied bombing of Dresden, and
for ignoring "powerful reasons for doubting [its]
genuineness," including accusations of forgery and
internal evidence of alterations.
- n28. See, for example, id. PP 13.42-13.45,
5.199-5.214, in which Gray faulted Irving for failing to
consider Hitler's motives when using accounts of his
meetings with Antonescu and Horthy during which Hitler
was apparently motivated by a desire to control the fates
of Hungarian and Romanian Jews.
- n29. Laura Kalman, The Strange Career of Legal
Liberalism 132 (1996).
- n30. One manifestation of this shift has been the
historians' briefs, or historical segments of briefs,
directed at the Supreme Court. See, e.g., Brief of Amici
Curiae Self-Advocates Becoming Empowered at 3-10, Bd. of
Trs. of the Univ. of Ala. v. Garrett, 121 S. Ct. 955
(2001) (No. 99-1240); Brief of 281 American Historians as
Amici Curiae Supporting Appellees, Webster v. Reprod.
Health Serv., 492 U.S. 490 (1989) (No. 88-605). For the
debate regarding the historians' brief in Webster, see
Estelle B. Freedman, Historical Interpretation and Legal
Advocacy, Pub. Historian, Summer 1990, at 27; Michael
Grossberg, The Webster Brief: History as Advocacy, or
Would You Sign It? Pub. Historian, Summer 1990, at 45;
Jane E. Larson & Clyde Spillenger, "That's Not
History," Pub. Historian, Summer 1990, at 33; and James
C. Mohr, Historically Based Legal Briefs, Pub. Historian,
Summer 1990, at 19.
- n31. See, e.g., Pueblo of Santa Ana v. Baca, 844 F.2d
708 (10th Cir. 1988); United States v. Dupris, 612 F.2d
319 (8th Cir. 1979); Mille Lacs Band of Chippewa Indians
v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994), aff'd 124
F.3d 904 (8th Cir. 1997); United States v. Michigan, 471
F. Supp. 192 (W.D. Mich. 1979); Helen Hornbeck Tanner,
History vs. the Law: Processing Indians in the American
Legal System, 76 U. Det. Mercy L. Rev. 693 (1999).
- n32. See, e.g., Denson v. Stack, 997 F.2d 1356 (11th
- n33. See, e.g., EEOC v. Sears, Roebuck & Co., 839
F.2d 302 (7th Cir. 1988). The Sears case also gave rise
to heated controversy. See, e.g., Thomas Haskell &
Sanford Levinson, Academic Freedom and Expert Witnessing:
Historians and the Sears Case, 66 Tex. L. Rev. 1629
(1988); Alice Kessler-Harris, Academic Freedom and Expert
Witnessing: A Response to Haskell and Levinson, 67 Tex.
L. Rev. 429 (1988).
- n34. See, e.g., Kalejs v. INS, 10 F.3d 441 (7th Cir.
1993); United States v. Dailide, 953 F. Supp. 192 (N.D.
Ohio 1997); United States v. Lileikis, 929 F. Supp. 31
(D. Mass. 1996); United States v. Koziy, 540 F. Supp. 25
(S.D. Fla. 1982); United States v. Linnas, 527 F. Supp.
426 (E.D.N.Y. 1981).
- n35. See, e.g., NAACP v. City of Niagara Falls, 65
F.3d 1002 (2d Cir. 1995); Irby v. Fitz-Hugh, 693 F. Supp.
424 (E.D. Va. 1988); Dillard v. Crenshaw County, 640 F.
Supp. 1347 (M.D. Ala. 1986); Bolden v. City of Mobile,
542 F. Supp. 1050 (S.D. Ala. 1982); Peyton McCrary, Yes,
but What Have They Done to Black People Lately? The Role
of Historical Evidence in the Virginia School Board Case,
70 Chi.-Kent L. Rev. 1275 (1995); Peyton McCrary & J.
Gerald Hebert, Keeping the Courts Honest: The Role of
Historians as Expert Witnesses in Southern Voting Rights
Cases, 16 S.U. L. Rev. 101 (1989).
- n36. See, e.g., Romer v. Evans, 517 U.S. 620 (1996);
Commonwealth v. Wasson, 842 S.W.2d 487, 489 (Ky.
- n37. See, e.g., Peter Charles Hoffer, "Blind to
History": The Use of History in Affirmative Action Suits,
23 Rutgers L.J. 271, 272 (1992); N.E.H. Hull & Peter
Charles Hoffer, Historians and the Impeachment Imbroglio:
In Search of a Serviceable History, 31 Rutgers L.J. 473,
486 (2000); Tanner, supra note 31.
- n38. See, e.g., Lawrence Rosen, The Anthropologist as
Expert Witness, 79 Am. Anthropologist 555 (1977),
reprinted in Law and Anthropology 499 (Peter Sack ed.,
- n39. 509 U.S. 579 (1993).
- n40. Frye v. United States, 293 F. 1013, 1014 (D.C.
- n41. Daubert, 509 U.S. at 593.
- n42. Id.
- n43. Id. at 594.
- n44. Id. Although this factor is not listed
separately in many accounts of Daubert, I follow the most
recent Advisory Committee's note to Rule 702 in
describing it as a fifth factor. Fed. R. Evid. 702
advisory committee's note.
- n45. Daubert, 509 U.S. at 594.
- n46. Id. at 593.
- n47. Id. at 594.
- n48. Id. at 595; Raynor v. Merrell Pharms., Inc., 104
F.3d 1371, 1375 (D.C. Cir. 1997) (stating that the
inquiry as to the admissibility of expert testimony must
focus solely on principles and methodology, not on
conclusions that they generate (quoting Daubert, 509 U.S.
at 595)); see also Michael H. Gottesman, Admissibility of
Expert Testimony After Daubert, 43 Emory L.J. 867, 869
(1994) ("It's The Methodology, Stupid!"). But see Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (upholding
the trial court's inquiry into an expert's
- n49. See Edward J. Imwinkelried, The Next Step After
Daubert: Developing a Similarly Epistemological Approach
to Ensuring the Reliability of Nonscientific Expert
Testimony, 15 Cardozo L. Rev. 2271 (1994); see also
Teresa S. Renaker, Evidentiary Legerdemain: Deciding When
Daubert Should Apply to Social Science Evidence, 84 Cal.
L. Rev. 1657 (1996) (questioning the applicability of
Daubert to psychological evidence).
- n50. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150
(1999); Marc N. Garber, Opening Daubert's Gate: Testing
the Reliability of an Expert's Experiences After Kumho,
Crim. Just., Summer 2000, at 4; Michael H. Graham, The
Expert Witness Predicament: Determining "Reliable" Under
the Gatekeeping Test of Daubert, Kumho, and Proposed
Amended Rule 702 of the Federal Rules of Evidence, 54 U.
Miami L. Rev. 317 (2000).
- n51. 526 U.S. at 150. The Court went on to say that
it also consciously refrained from making a definitive
judgment of the applicability of Daubert factors "for
subsets of cases categorized by category of expert or
kind of evidence. Too much depends on the particular
circumstances of the particular case." Id.
- n52. The recent amendment of Rule 702 provides, in
part, for the admission of expert testimony if "(1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case." Fed. R.
Evid. 702. The Advisory Committee's note indicates that
the revision was prompted by Daubert and Kumho. Id.
advisory committee's note.
- n53. See, e.g., Tyus v. Urban Search Mgmt., 102 F.3d
256, 263 (7th Cir. 1996) (noting that the factors
mentioned by the Court in Daubert do not neatly apply to
expert testimony by a sociologist).
- n54. Also, the thorny question of distinguishing
between fact and interpretation limits the usefulness of
testing. Cf. H. Jefferson Powell, Rules for Originalists,
73 Va. L. Rev. 659, 683 (1987) ("History yields
interpretations, not uninterpreted facts."). Daubert's
mandated focus on methodology, not conclusions, would
tend to insulate conclusions from scrutiny. In the Irving
case, however, it was only by considering interpretations
in tandem with evidence that the Penguin team could
demonstrate Irving's errors.
- n55. Evans, Lying, supra note 3, at 8-9. Evans does
note, however, that few of these reviews came from
scholars whose expertise was precisely in Irving's
- n56. See Imwinkelried, supra note 49, at 2274;
Michael J. Saks, The Aftermath of Daubert: An Evolving
Jurisprudence of Expert Evidence, 40 Jurimetrics J. 229,
238-41 (2000); Standards and Procedures for Determining
the Admissibility of Expert Evidence After Daubert, 157
F.R.D. 571, 578-80 (1994); see also Hoffer, supra note
37, at 273 ("Judges should read historical evidence and
assess historical argument the way that historians
fashion historical evidence and construct historical
arguments."); Rosen, supra note 38, at 569, reprinted in
Law and Anthropology, supra note 38, at 513 (suggesting
discipline-authored standards for anthropological
- n57. See Evans, Lying, supra note 3, at 192 ("Despite
the fact that the defense case was conducted in masterly
fashion by one of Britain's top defamation
Q[ueen's] Counsels, who seemed to know what was
in the expert reports better than we did ourselves, the
main role in drawing up the defense case was ultimately
played by the historians.").
- n58. Gray rejected outright Evans's argument that
Irving was not a historian at all. Evans had argued that
Irving's abuses of evidence meant that he could not be
considered a historian. Evans, Report, supra note 3, P
1.6.11. But Gray instead gave Irving qualified praise for
his work in military history. Irving, 2000 WL 362478, P
- n59. Many commentators on the Irving trial expressed
discomfort with the spectacle of scholars resorting to
court. See, e.g., Evans, Lying, supra note 3, at 6
("Historians do not usually answer such criticisms by
firing off writs. Instead, they normally rebut them in
print."); Neal Ascherson, Holocaust Denial: The Battle
May Be Over but the War Goes On, Observer (London), Apr.
16, 2000, News, at 19 ("An English libel court is for
justice, not for history.").
- n60. Other scholars have attempted to teach courts
how to do history. See, e.g., Buckner F. Melton, Jr.,
Clio at the Bar: A Guide to Historical Method for Legists
and Jurists, 83 Minn. L. Rev. 377 (1998); Powell, supra
note 54; see also Martin S. Flaherty, History "Lite" in
Modern American Constitutionalism, 95 Colum. L. Rev. 523
(1995) (trying to teach constitutional scholars how to do
history). The "conscientious historian" standard,
however, directs attention to the specific details and
protocols of dealing with historical evidence, rather
than historical thinking on a more general level.
- n61. E.g., Irving, 2000 WL 362478, P 13.51.
- n62. See Peter Novick, That Noble Dream: The
"Objectivity Question" and the American Historical
Profession (1988); Ginzburg, supra note 14, at 294-96;
see also Joyce Appleby et al., Telling the Truth About
History 241-70 (1994) (discussing the "many-pronged
attack" on objectivity since the 1960s).
- n63. Cf. Guttenplan, supra note 14 ("Irving's problem
wasn't detachment but dishonesty.").
- n64. Evans, supra note 15, at 249-52; Evans, Lying,
supra note 3, at 249-50; Lipstadt, supra note 4, at 25-26
("There is increasing recognition that the historian
brings to this enterprise his or her own values and
- n65. Theoretically, it could be used both in the
decision whether an individual historian should be
considered an expert, and in the assessment of the
historian's testimony; however, it seems unlikely to be
used to prevent historians from testifying in the first
place. Under the Federal Rules of Evidence, the standards
for qualifying as an expert are extremely inclusive: "a
witness qualified as an expert by knowledge, skill,
experience, training, or education." Fed. R. Evid.
- n66. See, e.g., Carl M. Becker, Professor for the
Plaintiff: Classroom to Courtroom, Pub. Historian, Summer
1982, at 69, 77; S. Charles Bolton, The Historian as
Expert Witness: Creationism in Arkansas, Pub. Historian,
Summer 1982, at 59; Daniel A. Farber, Adjudication of
Things Past: Reflections on History as Evidence, 49
Hastings L.J. 1009 (1998); Peter Irons, Clio on the
Stand: The Promise and Perils of Historical Review, 24
Cal. W. L. Rev. 337, 349-54 (1988); J. Morgan Kousser,
Are Expert Witnesses Whores? Reflections on Objectivity
in Scholarship and Expert Witnessing, Pub. Historian,
Winter 1984, at 5; see also Paul Soifer, The Litigation
Historian: Objectivity, Responsibility, and Sources, Pub.
Historian, Spring 1983, at 47, 48-53 (discussing the
risks to objectivity of historians doing research under
contract to lawyers).
- n67. United States v. Virginia, 852 F. Supp. 471
(W.D. Va. 1994), aff'd, 44 F.3d 1229 (4th Cir. 1995),
rev'd, 518 U.S. 515 (1996).
- n68. Dianne Avery, Institutional Myths, Historical
Narratives and Social Science Evidence: Reading the
"Record" in the Virginia Military Institute Case, 5 S.
Cal. Rev. L. & Women's Stud. 189, 279 (1996)
(describing the judge's decision to disregard Michael
Kimmel's testimony in the remand hearing of the Virginia
Military Institute case); see also NAACP v. City of
Niagara Falls, 65 F.3d 1002, 1020 (2d Cir. 1995)
(agreeing with the district court's decision to disregard
the evidence of plaintiff's expert historian based, in
part, on her "vehement opposition to at-large districts
under any circumstances").
- n69. See infra note 78 and accompanying text.
- n70. McCrary & Hebert, supra note 35, at
- n71. For a description of how the selection of expert
witnesses reinforces and inculcates one-sidedness, see
Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113,
- n72. Freedman, supra note 30, at 28-31.
- n73. Alfred H. Kelly, Clio and the Court: An Illicit
Love Affair, 1965 Sup. Ct. Rev. 119, 122 n.13. See
generally William Wiecek, Clio as Hostage: The United
States Supreme Court and the Uses of History, 24 Cal. W.
L. Rev. 227 (1988) (expanding Kelly's typology).
- n74. Gross, supra note 71, at 1165-76.
- n75. Alice Kessler-Harris, a prominent women's
historian, complained after the controversial Sears case
that opposing counsel had tried to discredit her analysis
of gender relations in the 1970s with quotations from
Kessler-Harris's previously published work. Those
quotations, however, described American society in the
antebellum period. Kessler-Harris, supra note 33, at
- n76. Cf. Randall Kennedy, Reconstruction and the
Politics of Scholarship, 98 Yale L.J. 521, 538 (1989)
(praising Eric Foner for refusing to draw politically
convenient but simplistic conclusions from a historical
record that is "muddled and provides no clear answer in
favor of either side"); Suzanna Sherry, The Indeterminacy
of Historical Evidence, 19 Harv. J.L. & Pub. Pol'y
437 (1995) (suggesting that history does not yield
- n77. One of Irving's ambivalent defenders, Donald
Cameron Watt, a retired professor of diplomatic history
at London School of Economics and editor of Mein Kampf,
raised this specter in an editorial published immediately
after the verdict suggesting that no historian's
scholarship could stand up to the searching examination
directed at Irving's publications. Evans argued in
response that Irving's errors were distinctive in their
pattern of manipulation, and outstripped mere
carelessness. Evans, Lying, supra note 3, at 245-48.
- n78. Penguin's solicitors emphasized that evidence of
a pattern of distortions, "all tending in one direction -
the exculpation of Hitler and the sanitisation of the
Nazi regime," was crucial to supporting Lipstadt's
writings. Anthony Julius & James Libson, Losing Was
Unthinkable, the Rest Is History, Independent (London),
Apr. 18, 2000, Features, at 11. Their evaluation was
confirmed by Lord Justice Stephen Sedley in his refusal
of Irving's appeal. Sedley noted that "what might, in
another historian have been casual misreadings of
evidence, emerge in the applicant's case as sedulous
misinterpretation all going in the direction of his
racial and ideological leanings. Hence the verdict for
the defendants." Denial of Permission To Appeal, Irving
v. Penguin Books (Dec. 18, 2000), available at
- n79. Evans, Lying, supra note 3, at 190. Evans also
noted, however, that his observation applied specifically
to civil suits. Id. The experience of recent war crimes
trials suggests that historians may find a greater
disparity between legal and historical standards
regarding evidence in criminal trials. See David Bevan, A
Case To Answer: The Story of Australia's First European
War Crimes Prosecution 223-26 (1994); Vera Ranki,
Holocaust History and the Law, 9 Cardozo Stud. L. &
Literature 15, 32-35 (1997).
- n80. One addition to the "conscientious historian"
standard might read "(8) she must be aware of the
specific time frame of all evidence, and must not support
propositions solely with evidence derived from other time
periods." Irving, for all his flaws, largely maintained
such a sensitivity to chronology. Unfortunately, the same
cannot be said for all American judges and lawyers. E.g.,
supra note 75.
- n81. See, e.g., William E. Forbath, Martha Minow
& Hendrik Hartog, Introduction: Legal Histories from
Below, 1985 Wis. L. Rev. 759. See generally Robert W.
Gordon, The Past as Authority and as Social Critic:
Stabilizing and Destabilizing Functions of History in
Legal Argument, in The Historic Turn in the Human
Sciences 339, 350-53 (Terrence J. McDonald ed., 1996)
(describing the "bottom up" perspective of
radical-populist historians and radical legal
historians); Neil M. Richards, Clio and the Court: A
Reassessment of the Supreme Court's Uses of History, 13
J.L. & Politics 809, 817 (1997) (discussing the
influence of "hidden histories").
- n82. One historian who frequently testified as an
expert witness in Indian cases offered an example of how
an attentive approach to historical methodology might
have led to a more progressive outcome: In Indian cases,
courts have frequently expressed a preference for
government documents over other sorts of historical
evidence, apparently heedless of government agents'
tendency to conceal misbehavior in these reports. Tanner,
supra note 31, at 698-99. Attention to motive, as well as
to the range of available evidence, as called for by the
"conscientious historian" standard, would enable courts
to avoid this pitfall.
- n83. Dodd, supra note 9.
- n84. See, e.g., Pnina Lahav, Judgment in Jerusalem:
Chief Justice Simon Agranat and the Zionist Century
131-32 (1997) (noting that "the judge in the courtroom
differs from the historian in one fundamental aspect: he
is not in charge of the research. The parties decide
which materials are presented").
- n85. See Garber, supra note 50, at 6.
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