Wednesday, May 10, 2017

Historians in court

Chronicle of Higher Education's Neil Gluckman writes about historians and the amicus brief, in which historians, as "friends of the court," file briefs interpreting the historical background of issues in dispute.

There's a literature about the horrors of being an historical expert witness, as in Arthur Ray's Taking It To the Judge, about testifying in land and treaty cases involving First Nations.  In Canada, as I understand matters, historians as expert witnesses are most often retained by one side or the other. They can only be independent "friends of the court" if requested by a judge to advise.  In the United States, if I am understanding this correctly, historians have more freedom to put themselves foreward as independent intervenors in legal disputes.  Evidently it is historians who also have legal credentials (there seem to be more of those than you might think) who find the amicus role particularly appealing.

Gluckman notes that the rise of the legal theory called originalism (mostly, little more than Republican policy made into legal judgments) in the United States, some historians have grown more concerned about seeming to endorse the idea that past legal determinations must determine present-day ones. Historian-journalist Jill Lepore recently took up this issue in the New Yorker  But some historians think if they don't present good history, judges will go ahead with bad history anyway
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