International Campaign for Real History

[back to article]


  1. 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 trial.").
  2. 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).
  3. 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, Lying].
  4. n4. Deborah E. Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (1993).
  5. 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 (1977)).
  6. n6. Id. at 181.
  7. n7. Irving, 2000 WL 362478, P 1.2.
  8. 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).
  9. n9. Vikram Dodd, How the Web of Lies Was Unravelled, Guardian (London), Apr. 12, 2000, Home Pages, at 4.
  10. 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 83.
  11. 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.
  12. n12. Irving, 2000 WL 362478, P 13.167.
  13. 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, at A1.
  14. 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 methodology.
  15. 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).
  16. 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).
  17. 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.").
  18. 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").
  19. n19. Irving, 2000 WL 362478, P 13.140.
  20. n20. Id. PP 13.1-13.168.
  21. 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.
  22. 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 party.
  23. 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.
  24. 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 continue.
  25. 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 facts.
  26. 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.").
  27. 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.
  28. 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.
  29. n29. Laura Kalman, The Strange Career of Legal Liberalism 132 (1996).
  30. 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.
  31. 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).
  32. n32. See, e.g., Denson v. Stack, 997 F.2d 1356 (11th Cir. 1993).
  33. 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).
  34. 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).
  35. 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).
  36. n36. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Commonwealth v. Wasson, 842 S.W.2d 487, 489 (Ky. 1993).
  37. 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.
  38. 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., 1992).
  39. n39. 509 U.S. 579 (1993).
  40. n40. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
  41. n41. Daubert, 509 U.S. at 593.
  42. n42. Id.
  43. n43. Id. at 594.
  44. 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.
  45. n45. Daubert, 509 U.S. at 594.
  46. n46. Id. at 593.
  47. n47. Id. at 594.
  48. 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 conclusions).
  49. 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).
  50. 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).
  51. 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.
  52. 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.
  53. 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).
  54. 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.
  55. 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 specialty.
  56. 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 testimony).
  57. 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.").
  58. 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 13.7.
  59. 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.").
  60. 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.
  61. n61. E.g., Irving, 2000 WL 362478, P 13.51.
  62. 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).
  63. n63. Cf. Guttenplan, supra note 14 ("Irving's problem wasn't detachment but dishonesty.").
  64. 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 biases.").
  65. 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. 702.
  66. 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).
  67. 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).
  68. 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").
  69. n69. See infra note 78 and accompanying text.
  70. n70. McCrary & Hebert, supra note 35, at 115-16.
  71. 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, 1126-36.
  72. n72. Freedman, supra note 30, at 28-31.
  73. 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).
  74. n74. Gross, supra note 71, at 1165-76.
  75. 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 432.
  76. 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 unproblematic conclusions).
  77. 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.
  78. 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 Appeal/refusal.html (Irving's website).
  79. 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).
  80. 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.
  81. 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").
  82. 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.
  83. n83. Dodd, supra note 9.
  84. 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").
  85. n85. See Garber, supra note 50, at 6.


See also on this website:

Richard Evans index
Guttenplan Index

© Focal Point 2003 F Irving write to David Irving