Nancy caught, for her support of our endeavor here today. Today, we will address a timely topic the participation of historians in courtroom proceedings. Theres no systematic study, but the evidence we have indicates of, for instance, scholarly amicus briefs, where scholars file amicus briefs in court proceedings, has been increasing. Theres a long history of scholarly input into Appellate Court cases stretching back at least to the famous brandeis inef in a Supreme Court case 1908, but for our purposes, our pedigree as historians might be traced back to the brown versus board of education litigation in which the distinguished cptorians helped the in aa casee naacp make the against School Segregation. More recently, 400 historians signed an amicus brief in the case of webster versus reproductive services, the abortion rights case from 1989, tell youanelists will about things that are both older and more recent. In addition, historians testifying at trial has a quite long pedigree. As jay morganh cows are began testifying in Voting Rights cases. It has a more recent history that goes through a bunch of different kinds of cases, which you will find out a little bit about today, including things like tobacco litigation, in which the role of historians has proven quite contentious. Finally, we should understand that this is a practice and a beyond thet extends nationstate of the United States. In fact, there is a long history of this outside the bounds of the United States, stretching back at least to the testimony of historians in the Adolf Eichmann trial in 1961. In france, the famous frankfurt which az trials in distinguished french historian declined to participate in the proceedings because he thought it compromised his role as historian. You might know professor russo more recently as the person who thestopped for 10 hours at houston airport by immigration authorities a couple of months ago. So there is a long and contentious history of this practice. We have for quite distinguished historians who will explain it for us today. Its of them will do a short presentation, talk a little bit about their work in this area and some of the issues raised by it, and then we will do a little bit of a roundtable discussion. After that, we will open and broaden the discussion to the audience. Do not really need much introduction, so i am going to quite briefly go through there quite long and distinguished biographies. We will go in the order they are presented in the program. First, we will have linda gordon, who is the University Professor in humanities and Florence Kelly professor at new york university. She is the author of, among other things, cossack rebellions , heroes of their own lives the moral property of women, pitied but not entitled, single mothers and the history of welfare, the great arizona orphan abduction, which when the bank or prize for the best book in u. S. History, and her latest book is called the Second Coming of the kkk, the ku klux klan and the. Merican political tradition second, we will hear from richard wright, professor of American History at stanford university. Professor whyte is a recipient of numerous honors, as are all of our panelists today. Received jury. Election finalist hes also the past president of this organization, the organization of american historians. He has been a macarthur fellow. Various other awards and prizes, including a guggenheim fellowship. He has a forthcoming book entitled the republic for which it stands, the United States during reconstruction and the gilded age, agents exceed 51898, which is part of the oxford history of United States series. He was the author of, among other noted works, railroaded, the transcontinentals and making of modern america, remembering is that right . Thank you. Familysing and a past, the organic machine, middle ground, indians come in hires, and republic scum of the great lakes region, 165218 50. It is your misfortune and none of my own, a new history of the american west, the roots of dependency, subsistence, environment, and social change among choctaws, navajos, and cherokee. Next, we will have a similar night professor of history at yale university. He is the author of gay new york , gender, urban culture, and the making of the daily mail world, award, and whyeh marriage, the history shaping todays debate over gay equality. In 2012, he was awarded yale teaching prize to yale humanities primarily for his lecture course on u. S. Lesbian and gay history. After professor chauncey, we will hear from the daniel ps paul professor of constitutional. Aw at Harvard Law School she has published articles and book chapters on the Supreme Court it with jurisdiction jurisprudence civil rights history, and among other places, the yale law journal, the harvard law review, the Columbia Love review in the journal of law and education. Her 2011 book, courage to longnt atlanta and the history of the civil rights movement, won the bankrupt prize in u. S. History. Mack, thekenneth lawrence dbo professor of bealcan law lawrence d professor of american law. We will start with presentations by each of our panelists, who will either stand or sit at their discretion. Starting with professor gordon. Ms. Gordon thank you also much for coming, for finding the right room. Thanks to nancy off for having this idea. Charles dickens wrote that the law is an idiot. I have taken this idea entirely out of context. It was actually mr. Bumble who said that in all of her twist, but i think the point is sometimes on the mark. I have learned that law has only a partial overlap with justice. That fact, however, has greatly increased my respect for the many lawyers whose creativity works to try to bring law and justice closer together. People i have learned an enormous amount from. Im going to talk about three experiences of my own and one that was not my own but led to a notorious decision and a great deal of activism. To sylvialved thanks law in writing several amicus briefs. My novice experience was in webster case 1989. We wrote a brief that was eventually signed by 400 historians in an attempt to overturn a missouri law, which began with a preamble stating that the life of each human being begins at conception and that unborn children have protectable interests in life, health, and wellbeing, and then it went on to install many, many regulations to make it harder to get abortions. Im not going to name them, but it was really a wakeup call about how difficult it can sometimes be to translate. Istory into legal arguments the group of us creating this brief developed arguments based on evidence from our research. In a 19thcentury campaign to outlaw abortion it was legal before this physiciansrt from newly organized into a professional organization who sought to prohibit services that had traditionally been provided by lay women you know, the midwives. It was also possibly a racial motive that had to do with fear that the white birthrate was by the birthrate of people of color. Most importantly, we all knew the real main impetus toward the ban on abortion was was a resulte it of a great anxiety about women trying to leave their godgiven place as housewives and mothers. What we try to show in this brief at first was that prior to this ban on abortion, which took place throughout the state and in agencies to three, the federal level, abortion had been fairly common and not prohibited. The problem was it was not is it to fit that argument into categories appropriate to legal of whatation because courts considered as authority. We think of primary sources as our authority. But the court, by contrast, deferred if at all not to primary sources but to the scholarship of experts. That was a problem for us because at that time, to the best of my knowledge, only one such expert existed, james moore tossed 1978 book about abortion. A second difficulty came from the fact that we were reluctant to treat the practice of abortion before it was prohibited as an either or legal or not legal matter. The absence of laws specifically banning abortion did not necessarily mean that all americans saw it as legitimate. Opinions differed. But such a nuanced conclusion would not work in our brief. Third, second, behind our emphasis on the frequency of abortion prior to its on anition, rested assumption that was really difficult for us because we would have rejected it in another context, the assumption that what was traditional should be respected. We had to get into this question of traditional because of antiabortion activists calling for traditional family values, but tradition does not, of course, always lead to good policy, nor is it something we all would like. Later and i might point out that in the webster case, none of us would have predicted that this country would still be fighting about later in 27 years 2016, a Smaller Group that included nancy caught, linda kerber, and Alice Kester Harris as well as me came together to a texas amicus brief at case, with texas following the same strategy as missouri. It had installed a series of regulations on abortion providers, and again, i will not go into what they are, but what is important here is that the texas claim was these regulations were designed to protect womens health. Just one example they wanted abortion clinics to upgrade their building safety, parking, and staffing to meet the standards of a hospital. These laws collectively are known as trap laws, targeted regulation on abortion providers, and what is, of course, striking about them is that these abortion clinics work the and required to meet Higher Standards than many even ambulatory surgery clinics. We work very fast. We worked through email, and we demonstrated that such allegedly protective laws had historically been motivated by discriminatory assumptions about women, that what was called protection, in fact, disadvantaged women and served to confirm their subordination, including loss that shielded women from the corrupting influence of politics and voting, that sheltered them from hearing sorted evidence by keeping them off juries, by protecting them from dangerous being pharmacists. We even pointed out the contradiction such as that women were allowed to service waitresses in bars, even sleazy bars, but were not allowed to serve as bartenders. We also had some precedent on because the Supreme Court had recognized that such by anere rationalized attitude of romantic paternalism, which in practical effect put women not on a pedestal but in a cage. On Supreme Court ruled 53 our side, and i want to make it clear that i have no reason to believe that our historians brief had any great influence. There were hundreds of briefs, and evidence from the present day was probably more important. At least i in particular, constantly came up against the advice of our very wonderful and distinguished lawyer, kevin fong, who kept rejecting arguments that we wanted to make because they did not raise constitutional issues. His hope was absolutely wish i had and i understood before i started some of the things i now understand. My worst experience with the law is from a very, very individual case, a case of race discrimination in which to my horror, i was cornered into. Upporting the discriminator a graduate student of mine, to whom i was very close, and africanamerican woman this as when she went to look at University Apartment listed as available for rent but was told it was taken. It happened that she was married to a white man who went to see the apartment and it was offered to him, so they sued. The damages they claimed include the fact that the humiliating of a stressful experience discrimination on top of her long experience as a person who came from arkansas, the victim discrimination and harassment throughout her childhood, that these two things combined had slowed her progress toward a phd. Then, to my shock and amazement, the defendants lawyer, that is the landlords lawyer, subpoenaed my records on the student, and i was astonished to learn that had to turn them over. He was a landlord with very deep pockets. What my records showed in the questions put to me, i was forced to acknowledge that before this discriminatory event, my student was already progressing more slowly than was standard among phd students. My attempt to argue that race discrimination contributed to. Er stress made no impact my testimony and records became part of her losing her case. The same kind of legal blindness casered, i think, in a in 1977. Eneral motors it has become notorious. Five africanamerican women allege they had been denied promotions because of the seniority system and the last hired first fired layoff policy perpetuated the long history of previous race and sex discrimination. Their complaint fit neither racist coronation because black men were not being barred from jobs, nor sex discrimination, because white women were not being barred from higherpaying jobs. The court said the lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or either, but not a combination of both. Happily, this decision infuriated legal scholar kimberly crenshaw, as well as several others. In crenshaws critique, she created the term intersection analogy intersectionality, which is a term i have studied recently, so i know it is not only an academic term but is used by activists all over. It points to an understanding of social identity in which traits are not simply additive but also transformative. That is, a black womans identity is not simply a sum of blackness and woman this. It also offers an opportunity for historians to interrogate the social categories and understand them as dynamic and interactive. One of the things i have concluded from all of this, at least from my experience, is that when lawyers want to use experience and the knowledge we to instructy need us. In fact, i sometimes wonder if it might not be a good idea for all historians to take at least one course in a law school. Asking them to instruct is a tall order for litigators who do not often have the leisure to proceed slowly, but i think many of us historians would actually if the outcomets could help bring law closer to justice. [applause] mr. White im actually surprised to find myself here. Because of the danger that opposing counsel could use whatever i said to oppose the case arose working on. This is one of the complexities of being an Expert Witness. I try to craft my answers as rigorously as possible to the. Tandards of academic history i could destroy the utility of my account. The price of articulating a past becomes silence. Im now old enough and the treaty cases take long enough to doe it unlikely that i will any further reports, so this is no longer a pressing concern. I have enormous respect for the lawyers with whom i have worked over the years. We belong to different tribes, both of which are ruledown and the rules for what counts as truth under the law and truth as historians are not the same. We want Different Things from the past, and in a treaty case, we need to find a place where our concerns converge. They only narrowly converge on. Hat counts of evidence my work as an Expert Witness can seem to my academic self narrowly empirical and theoretically naive. I have to answer quite specific questions about what happened in the past and how the people involved understood it. I have produced over the course a body oft 40 years unpublished shadow scholarship in the equal in bulk to my published output. Ive worked with the ottawa and chipola, the various tribes of puget sound, and more i have worked with the ottawa and chipola chippewa. I have written reports for tribal recognition cases and once at the end of the case, i was told the report was being paid for by donald trump. I should demand payment before i delivered the report does otherwise i would get stiffed. My report had not said what those paying for the report wanted. Ofill never publish lord those reports, at least on my own, even though im proud of the work. One major report concerned tribal tribal treaty rights to shellfish in puget sound, and it involved analyzing a phrase. I have to explain the contemporary meaning of the terms usual and accustomed laces and the term except in laces state and cultivated. I placed those few words into a report that ran several hundred pages. The research led me to my considering myself for a time the countrys leading historian of oyster cultivation, a title to which ive never aspired and to which i did not have much competition. As an Expert Witness, i have experienced some of the most gratifying moments of my career, put a historical knowledge to work in ways that made our professional standards allowed our professional standards to make an immediate difference in the world. Using this has left me wary of the endeavor. A new book i one of my colleagues at stanford has made me recognize my work as an expert has its own history. Of the old courts. It has been awkwardly grafted onto the adversarial tradition of american jurisprudence that overthrew and replaced the old equity courts. I am implicated for the best of motives in a set of practices of which i would rather not be part. I do not regard feebased governance as a good thing, but as an expert, i am part of it. I do not think adversarial procedures are the best way to settle matters of historical facts and interpretation. That is what i engage in as an expert. Forcingays uneasy sometimes conquered and impoverished peoples to defend their rights, land, and very identity in forms that are not of their own choosing, but that is what the tribes have to do. Yet, i do these things willingly because they are better than the available alternatives. Federal courts have over the last century done the tribes some good. Ut i am not naive this can change very, very quickly. The native American Rights Fund and the National Congress of American Indians are actually cautiously supportive of judge Neil Gorsuchs nomination to the Supreme Court. , ignorances faults of indian treaty rights is not a time when but at indian