Lawprofs and historians

[Michael Curtis]

I like the spirit of Paul's post.

It seems to me that lawyers and historians have strengths and weaknesses they bring
to legal history.  Both groups often argue a thesis and give inadequate attention
to evidence that conflicts with the thesis.  (I am sure most of us have that
failing.  Psychologists tell us that this is a human shortcoming so it is not
surprising to find both groups afflicted with it.)  I could give what I see as
examples of shortcoming by both, but I leave that to you.  Historians may be
happier with a recognition of the indeterminacy of the past and how answers to our
questions are muddled.  But I am  not sure most historians write that way.  Most I
have read in legal history have pretty clear theses & sometimes--in the areas I
know best-- the thesis seems clearer to me than the evidence which is more
contradictory.  But, if so,  that is a broader human failing that I am sure I
share.

All of us operate within our culture and the view of the past we produce is
influenced by more than the cold historical record.  Any doubts on that score can
be cured by looking at how historians have treated Reconstruction at different
times in our history or womens' history or the role of class in historical
analysis.

Lawyers (at least trial lawyers) and historians both have experience in handling
evidence and reconstructing past events.  Historians do have a special relevant
training here and lawyers can no doubt benefit from it.  There may be something to
be said for the lawyer here too.  Obviously, lawyers should look at the purpose of
the reconstruction differently if they looking for historical truth as opposed to
presenting a case with a predetermined outcome.

Lawyers doing history are likely to see legal issues that historians not trained in
law might miss or be less concerned with.  Lawyers doing history are likely to give
too little emphasis to the historical context of events, etc. and to miss things
historians would see.  There are many exceptions to these generalizations.

In writing about historical legal questions, courts will come to a definite answer
and judicial history has somewhat different purposes and functions from pure
history.  For example a judge might see the course of American constitutional
development as the repudiation of slavery and racism and read the 14th amendment,
etc. in light of that understanding.  The first Justice Harlan is an example.  The
history is at least less clear than he suggests, but perhaps a judge is in part
creating a story out of the best from our past and giving it a direction and
purpose clearer than simple history warrants.  Is this wrong?

When a lawyer writes history it seems to me the purpose should be different from
that of the judge, but all of us write history in part because of things we
consider important today.

Of course we might decide the question as a sort of jurisdictional dispute.
Lawyers should not write history; historians should not write about law and no one
but legally trained historians should write about legal history.  I think if we
adopted that approach we would lose many valuable works and insights.

I understand the appeal of peer reviewed journals, but I suspect they may also we
more inclined to support an orthodox approach to questions.  I am not sure about
this.  But there is probably a tension between quality control and openness to new
and divergent approaches.  Some law publications are peer reviewed; most are not.
Some are informally peer reviewed. I understand the Harv. L. Rev has professor
review articles before a decision is made and other journals do also.

Of course as a lawyer who attempts to write about constitutional history I have a
clear bias.  But I would prefer that the tired and largely useless jurisdictional
dispute would disappear from discussions.  Instead, I would suggest focusing on
specific shortcomings without suggestions that they are typical of the group from
which the writer who has committed the sin comes.  In short I would prefer a focus
on the argument and the evidence and not the background of the person asserting
it.  But I doubt the jurisdictional dispute will ever end.  Even mistaken theses
often make substantial contributions to the inquiry; even factual mistakes can lead
to new insights as a result of their refutation.

So I would suggest tolerance and inclusiveness and a presumption that people who
have spent a long time studying and writing about a topic have a useful
contribution to make and that multiple perspectives (and backgrounds) can add
richness to the discussion.

Perhaps in noting alleged shortcomings one could say as a historian I would
emphasize....; as one trained in the law, I see it this way.

Michael Kent Curtis
Paul Finkelman wrote:

> I don't want to prolong this debate, but it is not entirely clear that
> "Bellesliles got the factual record
> wrong and the lawprof (Lindgren) got it right" as Frank Cross asserts.  What is
> clear is that both  are looking at different records (as well as some
> overlapping ones) and that the "record" may be confused and muddled.  Lindgren
> has not looked at the manuscript sources; he has not gone through 100,000 pages
> of probate records as Bellesiles has (Lindgren asked for the data Bellesiles
> used, not knowing, I think, that  Bellesiles had about 100,000 pages of
> notes).  Lindgren has looked a few printed records and found some
> discrepencies.   I am not defending Bellesiles or attacking Jim (both are
> friends of mine); and I am not sophisticated enough in counting and higher math
> to know who is right on certain technical issues.  I suspect that in the end
> they may both be right; that is the data is mixed and may be read in very
> different ways.  The data also requires careful reading.  Is a "guon" of "gun"
> or a "gown" when it appears in a 17th century record?  Simply reading the hand
> written record from the 17th or 18th century is a skill that is not quickly
> acquired.
>
> I think the very fact that historians recognize the ambiguity of some
> documentary records (and even thrive on it) is what makes it sometimes
> difficult for scholars in the two fields to communicate.
>
> I have given papers at meetings where law professors ask "what data base on
> Westlaw did you get that from," not knowing that the "database" was hundreds of
> boxes of archival records.  One difference between the two fields is that
> lawyers often take the facts of a case as stated in the record to be "correct,"
> when in fact the records are often wrong, sometimes intentionally so.  Lawyers
> "stipulate" to incorrect facts to get a legal issue before a court; historians
> want to understand the context of the case.
>
> Step Feldman writes in another posting:
>
> "An inappropriate response would be the following:  Professor So-and-so is
> wrong because she is a lawyer who does law office history.
>
> The first and appropriate response is what I think of as engaging in and
> advancing a scholarly discussion.  The second and inappropriate response is
> a type of ad hominem argument that does not advance scholarship at all."
>
> I agree completely with Step that historians should not simply dismiss lawyers
> history as "law office" simply because  the historian disagrees with it; but at
> the same time, lawyers often "argue" their case rather than attempting to
> understand the complexity and ambiguity of the past.  Law professors *do* often
> write "law office history" and certainly lawyers do in briefs.
>
> I also think that both Step and David Bernstein are correct in noting that
> legal scholars are often more prescise in their definitions, and sometimes more
> logical in their analysis of evidence.
>
> In the end we can learn from each other's craft and methodology but in doing so
> lawyers may have to concede that historians have some skills, training, and
> knowledge that they do not have, and that reading hundreds of books and
> articles in graduate school and then going years of primary archival research
> may give you greater insight into the past and how to understand it that law
> school training, which at best has a legal history course or two; similarly,
> historians need to understand that when doing legal and constituitional history
> it is very important to understand the nature and limitation on law and nature
> of legal argument.  I am also amused when some historian asserts that the
> "judge decided the case because he was a ..." (and here you can fill in the
> blank, with racist, capitalist, democrat, republican, white male, property
> owner, slaveowner, etc)  when in fact a legal scholar looks at the decision as
> a fairly routine application of precedent, stare decisis, statutory
> construction, or as stemming from the rules of procedure.
>
> On a more positive note, the very fact that we are having this discussion on a
> con law listserve suggests how far people with training in both fields have
> come in trying to communicate with each other.
>
> --
> Paul Finkelman
> Chapman Distinguished Professor
> University of Tulsa College of Law
> 3120 East Fourth Place
> Tulsa, OK  74104
>
> 918-631-3706
> Fax 918-631-2194
>
> E-mail:  paul-finkelman at utulsa.edu
>
> Frank Cross wrote:
>
> > In partial response to Graber and Cornell.
> >
> > I don't attempt to do much history and don't find the intent of the framers
> > to be of overwhelming significance.  But it's interesting.
> >
> > Mark's point about the ability of historians v. lawprofs is surely right,
> > behind a veil of ignorance.  But these disputes don't arise there.  They
> > are fought out over particular historical events, with arguments being made
> > on the merits.  In this context, the source shouldn't matter so much as the
> > arguments.  Simply attacking the source looks ad hominem (though surely
> > lawprofs should be humble as they embark on history).
> >
> > And speaking of ad hominems, claims of malpractice or criminality or
> > absurdity don't advance the ball very much.  If the historians are correct,
> > as I'm prepared to believe they are, they should be able to respond
> > point-by-point and answer the arguments.  The discussion of Blackstone is
> > an example of this.  It would be foolish to put history off limits for
> > lawprofs, because this would constrain the dialogue.  Lawyers don't put
> > constitutional law off limits for discussion by political scientists
> > without law degrees.
> >
> > One quick example.  When it comes to guns and probate records, it seems
> > pretty clear to me that the historian (Bellesliles) got the factual record
> > wrong and the lawprof (Lindgren) got it right.  Maybe I'm incorrect, but
> > surely it should be resolved by data and argument, not simply by
> > authoritative position of the pronouncer.
> >
> > Frank Cross
> > Herbert D. Kelleher Centennial Professor of Business Law
> > CBA 5.202
> > University of Texas at Austin
> > Austin, TX 78712