A Mixture Containing More Snares Than Rewards

In 1994, the legal scholar John Phillip Reid published a somewhat cynical article on forensic history in the Loyola of Los Angeles Law Review.  It contains some real zingers on the intersection between law and history, how practitioners of each perpetrate mutually abusive disciplinary transgressions, and the meaning (and substance) of forensic history. Here are some bits and pieces, for flavour. These are by no means representative of Reid’s entire argument – you’ll have to read the article yourself for that.

From the introduction (p. 193):

A venture into cross-disciplinary legal studies may be a mark of scholarly sophistication for the law academic, but it does not do to assume the benefits without understanding the risks. Serious problems result from the crossing of disciplines. Take the crossing of history with law: It is a mixture containing more snares than rewards, as it risks confusing rules of evidence basic to one profession with canons of proof sacrosanct to another.

On implied similarities of method:  (p. 193-194):

The implication – one that is shared by lawyers perhaps even more than by historians – is that there is a similarity between the methodology of law and the methodology of history…  the argument goes much further than process. It is not just techniques or procedure that the two disciplines have in common; they share substance as well. Certainly there have been times when first-year law students thought so.

On the difference between what lawyers and historians do (p. 196):

The lawyer and the historian have in common the fact that they go to the past for evidence, but there the similarity largely ends. Some historians, such as Kelly, believe that common-law methodology requires the lawyer to play “the role of historian” and to go “to the ‘primary sources.’ For such historians, Maitland warned there is a temptation “to mix up two different logics, the logic of authority, and the logic of evidence.” The differences in the logics are the differences that Kelly missed. They are so basic that they make the ways that the two professions interpret the past almost incompatible. In discovering the past, the historian weighs every bit of evidence that comes to hand. The lawyer, by contrast, is after the single authority that will settle the case at bar.

On “lawyer’s law office history” (p. 197):

The way that lawyers think about history is an eccentricity foisted on them by their professional training and, although it may amuse historians who stumble over lawyering anachronisms,  it is not a matter of controversy among lawyers. What has been controversial is the way that lawyers argue and use history. Critics of their methodology have coined terms to describe it. They call it lawyer’s history or law office history. Lawyer’s history and law office history are really the same despite the variety of definitions they have been given. Lawyer’s history has been called “a stark, crabbed, oversimplified picture of the past, developed largely to plead a case,” and law office history has been described as “the selection of data favorable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the relevance of the data proffered.” 18 “The ‘law office historian,'” one critic has argued, “imbued with the adversary ethic, selectively recounts facts, emphasizing data that supports the recorder’s own prepossessions and minimizing significant facts that complicate or conflict with that bias.”

On “forensic history” (p. 203):

Historians understand that criticism of law office history is criticism of forensic advocacy; that lawyers practicing lawyer’s history use it as advocates; that the complaint is that they are too much the lawyer and not enough the historian. Historians know lawyers are beyond reformation, but wish judges would adopt a more acceptable standard.

On judicial abuse of history (p. 204):

Although their opinions may often be confused, the judges generally are not. When they tell their law clerks  to find them some “history” supporting a point of law they plan to promulgate, their interest lies in authority, not in evidence. This use of history is not to learn about the past, but merely to support an outcome. Law office history does not lead the judge to a decision. In almost every instance when history is employed, the decision has already been formulated. Unprofessional history is used to explain the decision, to make the decision more palatable, or, in most cases, to justify the decision.

Again, on “forensic history” (p. 205):

According to the academic canons of the historical method, there is no need to consider instances of the proper use of history either to prove a fact” or to establish a point of law – if such instances can be found. Instead, attention should be given to a species of history that does not meet the canons of historians’ history, but for centuries has made legitimate contributions to Anglo-American law, especially to Anglo-American constitutional law. It is forensic history.

A way forward? (p. 220):

The legitimacy of forensic history cannot be left to the professional standards of academic historians. A different measure is needed, one turning on the restraint historical adjudication clamps on judicial discretion. Our problem is to separate history used to screen a judge’s activism from history that fixes the limits of decision. Perhaps the distinction cannot be tested, but at this stage of our knowledge we cannot be sure.

From John Phillip Reid, “Law and History,” Loyola of Los Angeles Law Review 27 (1993-1994): 193-223. URL: https://heinonline.org/HOL/P?h=hein.journals/lla27&i=229.