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History as Advocacy

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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17 Responses

  1. Larry Rosenthal says:

    I am not a historian — although I did file an amicus brief in McDonald on behalf of the U.S. Conference of Mayors — but I have discussed this issue with a number of legal historians, and find the position taken in this post curious. Historians usually are distressed by the manner in which lawyers (and law professors) approach history, but it hardly seems appropriate to conclude that historians ought to flee the field of battle altogether and leave nothing but a set of one-eyed advocates’ briefs before the Court. Isn’t it better for historians to present a balanced account to the Court and hope that this produces a more realistic judicial response to historians’ arguments?

    Larry Rosenthal
    Chapman University School of Law

  2. Gerard Magliocca says:

    A brief, though, is generally not a “balanced” account. Scholars can write articles or books that criticize an opinion if that is appropriate.

  3. Are we really supposed to take seriously the notion that professional historians are that much more to be trusted than amateurs? It’s not so long, after all, since Bellesiles won the Bancroft award *after* many of the problems with his work had surfaced. And the pros had to be dragged kicking and screaming into reassessing it, by interested laymen.

    When it comes to politically charges subjects, “law office” history doesn’t seem to be much worse than “faculty office” history. Historians are only human, after all.

  4. Jim Maloney says:

    “A page of history is worth a volume of logic,” so using history in briefing helps a litigant conform to page and text limitations. Seriously, though, I have to agree with points made in comments (2) and (3) above: (2) a “brief,” by definition is not an unbiased or “balanced” account, and (3) historians (especially in a brief) are at least as susceptible as others to the temptation to ignore selectively the parts of history that don’t suit the purpose at hand. Take the amicus brief by the 34 professional historians, which contains the following point heading: “The Fourteenth Amendment Did Not Reduce States’ Robust Authority To Enact Non-Discriminatory Regulations Of Arms Or Outlaw Specific Classes Of Weapons.” But somehow the argument/history in that section missed a point made in the majority opinion in McDonald, i.e., that “if the 39th Congress had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers. In the years immediately following the Civil War, a law banning the possession of guns by all private citizens would have been nondiscriminatory only in the formal sense.” Slip Op. at 32. Of course, many Southern States’ “robust” statutes openly discriminated against freedmen in terms of their right to keep and bear arms.

    But today that is all just a dim memory, and prejudice, bigotry and racism are gone from the land, right? No vestiges remain, or do they? Well, baseball bats may be transported freely because they are all-American and have “legitimate use” in American sport. As for those nasty Okinawan sticks, the nunchaku, which may have legitimate use (but only in some “foreign” martial arts) two states’ “robust” statutes make it a crime even to possess them in one’s home, for martial-arts practice or home defense.

    And the history of that weapon points to some irony re: its being banned in the modern “liberal democracy” and “land of the free” known formally as the United States of America.

  5. Miguel Schor says:

    I agree with Professor Rosenthal. Does ideological bias matter in scholarship? You bet. But one of the distressing aspects of legal scholarship is how often it assumes that “it” is all about argument. That is simply not the case. There are better (and worse) interpretations of the historical record. Originalists often assume that the historical record dovetails nicely with their political views; historians can help problematize that view. A more nuanced view of what the past can teach us would do a world of good in our currently polarized legal atmosphere.

  6. Bruce Boyden says:

    For an earlier incarnation of this debate, see the chapter in Peter Novick’s That Noble Dream on the dueling testimony from Rosalind Rosenberg and Alice Kessler-Harris in the EEOC v. Sears case in the mid-1980s.

    My own take is that in history, just like in science, what makes compelling expert testimony or a persuasive amicus brief is inversely correlated with what makes good scholarship. I think that’s to some extent true of legal scholarship as well, but that’s a whole other kettle of fish.

  7. “Originalists often assume that the historical record dovetails nicely with their political views; historians can help problematize that view.”

    This is a regrettably tendency on the part of originalists, which non-originalists elevate to the status of an ‘interpretive’ rule, rather than a failing.

    The measure of one’s objectivity in interpretation is the willingness to acknowledge when a document says something you don’t like.

  8. Paul Horwitz says:

    Gerard, without taking sides on the all-or-nothing debate, I wonder why you don’t discuss a third possibility: that historians file an amicus brief in support of neither side, laying out the historical questions and discussing the extent to which the history does or does not answer those questions or raises new and different questions.

  9. Anon321 says:

    “[A] ‘brief,’ by definition is not an unbiased or ‘balanced’ account.”

    Is that right? It’s surely the case that most briefs — including most amicus briefs — are submitted by someone with a vested interest in the case. But is there any reason why, as a definitional matter, briefs couldn’t or shouldn’t be balanced and unbiased (at least to the extent that such a standard is achievable in human endeavor)? A recent example is the “Brief of Professors of Linguistics as Amici Curiae in Support of Neither Party,” submitted in Flores-Figueroa v. U.S. http://epic.org/privacy/flores-figueroa/amicus_pl.pdf

    In it, the linguistics professors “take no position on the ultimate legal question before the Court,” but write to provide information on how the English language is used. I don’t know very much about the case; perhaps the claim to independence is merely a ruse (though I have no reason to think so). But it seems possible that an academic might say to himself, “I take no position on the outcome of the case, but to the extent that the Court will rely on information that I have particular expertise in, I would like the Court to have the most accurate information possible.”

    Is there something improper about that? Or is it just that academics who take that view should use vehicles other than amicus briefs to express it?

  10. Vladimir says:

    Gerard,

    This is going to sound strange, but it captures my intuitive sense of what’s actually going on. I think it’s absolutely true that there is a sharp tension between canons of the historical profession and the practice of submitting a historian’s amicus brief to the Court. But only historians really, deeply know that! And because historians have political opinions and legal goals that they’d like to see put into law, they are willing to use history to try to do that. So when they write amicus briefs, they are more or less temporarily checking their core, internal guild credentials at the door, in the service of a achieving an important political/legal good. (After all, they realize that historically, history has been mobilized in legal argument.)

    If that’s right, one has to wonder why this works. I think the answer has to be because the historian’s craft is quite esoteric –and poorly understood outside the profession. Look at how many, if not most, lawyers, judges, and even legal academics confuse originalism with doing history, when the two are in fact fundamentally opposed. So, the thinking goes, why shouldn’t historians capitalize on this ignorance, and in the process get some results they like? Doing so still leaves open the opportunity for using formal academic writings to criticize the Court for doing bad history and for misunderstanding the nature of historical inquiry.

    To put the point another way, in an ideal world, most historians likely believe that one shouldn’t do much historical analysis in legal opinions, because history, done right, is always frustratingly messy and inconclusive and unlikely to lead to any firm conclusion. But as long as the Court is in the misguided business of doing originalism and relying on history, why not participate in the game, using your historians credentials, instead of sitting on the sidelines shaking your head in dismay? In a better world, the originalism / use-of-history-in-legal-argument game wouldn’t be played. But that’s not the world we now live in. A fitting analogy might be to Robert Nozick bring a complaint against his landlord (Erich Segal, if memory serves) for violating Cambridge’s rent control ordinance. Nozick was, of course, morally opposed to rent control, but until those unjust laws were repealed, Nozick thought it appropriate to play on the field as it was then configured.

  11. Gerard says:

    Paul,

    I think what you’re talking about is perfectly fine. I I I was referring only to briefs filed on behalf of one side or the other.

  12. Frank Pasquale says:

    I could understand this position if all other social sciences took a similar position of “epistemological abstinence.” But it seems unfair to ask history to unilaterally disarm.

    Two ideas Weber’s Science as a Vocation come to mind:

    “In the field of science only he who is devoted solely to the work at hand has personality. And this holds not only for the field of science; we know of no great artist who has ever done anything but serve his work and only his work.”

    “In contrast with these preconditions which scientific work shares with art, science has a fate that profoundly distinguishes it from artistic work. Scientific work is chained to the course of progress; whereas in the realm of art there is no progress in the same sense.”

  13. Dave Hoffman says:

    Yes, I don’t understand the argument exactly. You can write a brief that advocates a position without ignoring ambiguity or messy records. In fact, the best briefs embrace that the other position has merit (in places, but not where it counts) as a means to preserve credibility. It can’t be that historians are committed to “epistemological abstinence” in reality – how could they write books with narratives otherwise?

  14. Jeff Lipshaw says:

    For one of the best treatments of issues of history and historiography, read Thomas Haskell, Objectivity is Not Neutrality: Explanatory Schemes in History. The historians themselves don’t agree on whether history should be written with a background of epistemological abstinence (i.e. – “objectively”) or against some set of concepts that “explains” what was going on, as in a theory of history.

  15. Gerard N. Magliocca says:

    There are plenty of scientists who refuse to be expert witnesses because of similar epistemological concerns. I don’t know if that is right or wrong — I’m just curious to hear why people make the decisions that they do. It seems, though, that I am in the minority in thinking that historians should not be advocates in litigation.

  16. “Isn’t it better for historians to present a balanced account to the Court and hope that this produces a more realistic judicial response to historians’ arguments?”

    If historians present a balanced account, that’s fine, but what happened in D.C. v. Heller (2008) and McDonald v. Chicago (2010), two cases in which my work was cited by the majority, shows that a lot of political activists are quite prepared to use their official status as professors of history in ways that show that political activism took precedence over dispassionate history.

    I was quite entertained by some of the amicus briefs that cited, for example, work out of my book Concealed Weapon Laws of the Early Republic, and completely missed the larger points that the book made about the motivations of those laws, and the constitutional limitations that legislators felt obligated to follow.

  17. Thomas Zak says:

    Proponents of a non-biased historical brief in this thread have not come to grips with that most basic of human questions, “What’s in it for me?”

    If the historian is not being an advocate for either side, then who pays his bill? If the historian is willing to do it for free, then what is his agenda? Will his “donation” of a brief give him publicity, fame, or a guest spot on Nancy Grace?

    I consider it better to have historical context provided by an entity with a known bias and agenda. It will then be up to the authors to provide documentation and well reasoned arguments that will bring credibility to their work.

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