The 2017 annual meeting of the organization of american historians. Our session is called historians in court. It examines the complex roles of historians applying their scholarly skills to courtroom litigation. Thanks first for organizing this session and, in particular, to the president 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 that the use 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 brief in the Supreme Court case in 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 helped the naacp make the case 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, and our panelists will tell you about things that are both older and more recent. In addition, historians testify as Expert Witnesses at trial. That has a quite long pedigree. For our purposes, it stretches whento at least the 1970s historians 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 proved quite contentious. And finally, we should understand that this is a practice and a problem that extends beyond the 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 auschwitz trials in which a former officials were put on trial and the 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 was stopped for 10 hours at the houston airport by immigration authorities a couple of months ago. So there is a long and contentious history of this practice. We have four quite distinguished historians who will explain it for us today. Each one 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. Our panelists 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 bancroft 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 , american political tradition. Forthcoming. Second, we will hear from richard wright, professor of American History at stanford university. He is a recipient of numerous honors, as are all of our panelists today. Twice he received jury selection finalist for the pulitzer prize. Prizehe won the parkman and 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. Part of the oxford history of United States series. He was the author of, among railroaded orks, the transcontinental and making of modern america. Thank you. Storytelling and a familys past, the organic machine, middle ground, indians come in the best indian empires. 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 landuse and social change. Next, we have professor George Chauncey professor of history at , yale university. He is the author of gay new york, gender, urban culture, and maleaking of the gay world, and why marriage, the history shaping todays debate over gay equality. In 2012, he was awarded yale teaching prize in the humanities primarily for his lecture course on u. S. Lesbian and gay history. After professor chauncey, we will hear from the professor of constitutional law at harvard law school. And professor of history. She has published articles and book chapters on the Supreme Court on jurisdiction jurisprudence civil rights history. And among other places, the yale law journal, the harvard law review, and the columbia law the journal of law and education. Her 2011 book, courage to dissent atlanta and the long history of the civil rights bancroft won the prize in u. S. History. Mack. Am kenneth 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 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 oliver 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. I got involved thanks to sylvia 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 history into legal arguments. The group of us creating this brief developed arguments based on evidence from our research. We argued that in a 19thcentury campaign to outlaw abortion it was legal before this arose in part from physicians 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 threatened by the birthrate of people of color. But most importantly, we all knew that the real main impetus toward the ban on abortion was gender because it reflected a great anxiety about women trying to leave their godgiven place as housewives and mothers. What we tried to show in this brief at first was that prior to this ban on abortion, which took place throughout the state and at the federal level abortion , had been fairly common and not prohibited. Easyroblem is it was not to fit that argument into categories appropriate to legal argumentation because of what 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 s 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. Second, behind our emphasis on the frequency of abortion prior to its prohibition, rested on an 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. 27 years 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 abortion. 27 years later in 2016, a Smaller Group that included nancy linda kerber, and alice , kester harris as well as me came together to write an amicus case. In the texas 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 will be 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. They included laws 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 work such as being pharmacists. We even pointed out the contradiction such as that women were allowed to Service Serve as waitresses in bars, even sleazy bars, but were not allowed to serve as bartenders. We also had some precedent on our side because the Supreme Court in 1973 had recognized that such laws were rationalized by an attitude of romantic paternalism, which in practical effect put women not on a pedestal but in a cage. The Supreme Court ruled 53 on 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. But still, 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 help was absolutely invaluable, and i wish i had 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 supporting the discriminator. A graduate student of mine, to whom i was very close, and africanamerican woman this was at the university of wisconsin. She went to look at a 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 and stressful experience of discrimination on top of her long experience as a person who came from arkansas, the victim of 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 all my records pertaining to the student. And i was completely astonished to learn that had to turn them over. He was a landlord with very deep pockets. They deposed me. Between what my records showed and 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 her stress made no impact. My testimony and records became part of her losing her case. The same kind of legal blindness appeared, i think, in a case against General Motors in 1977. Some of you may know this case. 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. But the federal courts issued a Summary Judgment against the plaintiffs. Because it said their complaint but neither race discrimination because black men were not being barred from better 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. Including patricia williams. In crenshaws critique, she termed the 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 different categories are not simply additive but also transformative. That is, a black womans identity is not simply the sum. F blackness and womanness a range of movements have used the concept productively. I think the concept also offers opportunities 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 historians and the knowledge we can provide, they need to instruct 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 us 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 be eager students if the outcome could help bring law closer to justice. Thanks. [applause] mr. White im actually surprised to find myself here. I have turned down previous invitations that involved discussion of my work as an Expert Witness in cases because of the danger that opposing counsel could use whatever i said to influence the case i was working on. This is one of the complexities of being an Expert Witness. My answers to historical which i try issue, to craft my answers as rigorously as possible to the standards of academic history. Can fall victim to my reflections on the process of resenting those in the court of law. I could destroy the utility of my account by speaking about it. The price of articulating a past becomes silence. Im now old enough and the treaty cases take long enough to make it unlikely that i will do 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. It has been over 40 years. Humbling, haved a skilled lawyer prepare you for crossexamination. As much as i respect them, 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 what counts as evidence. They only narrowly converge on what we consider the utility of the past. They do not converge at all on whether historians and judges should have a say in determining the meaning of the law or a treaty. 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 of the last 40 years a body of unpublished shadow scholarship nearly equal in bulk to my published output. Ive worked with the ottawa and chippewas, the various tribes of puget sound, and more i have worked for the federal government. 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 was also told i should demand payment before i delivered the report because otherwise i would , get stiffed. [laughter] my report had not said what those paying for the report wanted. I will never publish those reports, at least on my own, even though im proud of the work. Why . One major report concerned tribal treaty rights to shellfish in puget sound, and it involved analyzing a phrase in a clause that ran less than a sentence. I have to explain the contemporary meaning of the terms usual and accustomed places and the term except in ked 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 as the countrys leading historian of oyster cultivation, a title to which ive never aspired and to which i did not have much competition. [laughter] as an Expert Witness, i have experienced some of the most gratifying moments of my career, putting historical knowledge to work in ways that made our professional standards allowed our professio