FOOTNOTES [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.
CASE NOTE
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.
I 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.
II 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:
[*1535]
- She [sic]
must treat sources with appropriate reservations;
n22
- she must not dismiss counterevidence without
scholarly consideration; n23
- she must be even-handed in her treatment of
evidence and eschew "cherry-picking"; n24
- she must clearly indicate any speculation;
n25
- she must not mistranslate documents or mislead by
omitting parts of documents; n26
- she must weigh the authenticity of all accounts,
not merely those that contradict her favored view; n27
and
- she must take the motives of historical actors
into consideration. n28
III 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
IV 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
[*1543]
V 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:
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write to
David Irving