Matthew J. Festa (South Texas College of Law) has posted Applying a Usable Past: The Use of History in Law (Seton Hall Law Review, Vol. 38, 2008) on SSRN. Here is the abstract:
This Article explores issues raised by the controversial uses of historical evidence to interpret the law, both in legal practice and in scholarship. I argue that instead of requiring lawyers to wholly incorporate the professional standards of academic historiography, the most likely way (as a practical matter) to increase the quality of "lawyers' history" is to pay greater attention to principles of evidence law in historical analysis. Many have criticized the practice of writing "law office history," where lawyers not trained in historical method appeal to the authority of history for the purpose of making persuasive legal arguments. Conversely, others have aimed criticism at the historical profession for cloaking advocacy as scholarship. But the fact is that from judges to law professors, from practicing attorneys to laypersons, and from all areas on the political and ideological spectra, many Americans do conceive of the law in historical terms. Because of this, the use of history in law will never go away.
Historians and legal professionals have also clashed over whether and how history can be used to interpret the law. I conceive of the issue as one of disciplinary "jurisdictional" boundaries, where the legal and historical professions are each faced with the question of what to do when their subject matter overlaps. The apparent tension is easier to understand when it is cast as a contrast between competing professional standards: the historians' teleological goal of determining truth through objectivity, versus the legal system's goal of arriving at truth through adversarial practice. But advocacy and objectivity - seemingly at cross-purposes - both are in the larger sense systemic endeavors to gain the most just and accurate understanding of past events, based on appeals to authority and interpretation. Placing the issue in that framework helps us understand that jurisdiction over historical evidence need not be a turf battle or a zero-sum game, but an overlapping, or at best, collaborative venture.
There are several possible approaches for reconciling the standards of history with law, but most that have been suggested before are generally unrealistic or implausible. We already have a workable analytical tool, however, for evaluating historical claims at law: the law of evidence. While one possible approach toward improving the quality of historical evidence might be to use only court-appointed historical experts (in pursuit of objectivity), such a practice might only exacerbate the existing problems associated with using history in law. Rather, the legal system should treat historical evidence just like evidence from other areas of expertise: as evidence that a party may offer, which the court can determine whether it meets baseline criteria of professional reliability, and then consider and evaluate for admissibility, credibility, and persuasiveness; if another party disagrees, it is free to challenge that historical evidence on the merits or to offer its own more persuasive interpretation. A combination of both adversarial and objective historical expertise, constrained by basic principles of evidence law, along with a greater attention to professional historical standards, can give us a workable (if not perfect) framework for using history reliably in legal interpretation. This can be applied in the litigation process and, by extension, in scholarship.
