Historians and Rhetoric

[Paul Finkelman]

Randy:

I think it is not "rhetoric" to talk about "law office history."  I will give
you a classic example.  In discussion a forthcoming book on the history of
these issues with a law professor, I suggested he look at a very fine article
in a history journal.  His answer was, "I read that article, but why would I
want to use it, it does not help my argument."  That scholar is well respected,
has a casebook in Con law and teaches at a top law school.  But, his response
was of someone writing  law office history.  He wanted to "prove a point"
rather than try to better understand the past as it actually developed.  At
conference some years ago a very well respected historian accused  a law
professor  of "rummaging and pillaging" for the facts and sources that
supported his point and ignoring everything else.  Sandy Levinson,  with good
humor jumped in declaring  "that is what law professors are allowed to do" (or
something close to that, I don't quote him exactly, it was about 10 years ago).

The fact is that historians look at evidence in ways quite different, and I
must say often with more nuance and sophistication, than many people do who are
only trained in law.  This is not true for all historians or all lawyers.
But, the learning process in graduate school is really quite different from law
school.
--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu




Randy Barnett wrote:

> Saul Cornell wrote:
>
> > It seems that this is one of the main problems with law office
> > history and recent legal scholarship on the Second Amendment.
>
> He also wrote:
>
> > When you add all of this together it seems clear that describing such a
> > right as an individual right is so misleading as to border on
> > deception.
>
> Is it not possible to have a reasonable disagreement with a historian about
> the proper interpretation of evidence without this sort of rhetoric?  Or
> would it be wrong of me to generalize to all historians from these sorts of
> posts, not to mention recent articles taking the same tone?
>
> Randy
> __________________________________________
> Randy E. Barnett
> Austin B. Fletcher Professor
> Boston University School of Law
> 765 Commonwealth Ave.
> Boston, MA  02215
> mailto:rbarnett at bu.edu
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> http://www.bu.edu/rbarnett
> http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
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