JUDGE EASTERBROOK: I’ll follow up on my own observation. I’m not as enthusiastic about law review articles as Judge Sutton because many law review articles are just amicus briefs published under another name and they have the same problem of slant. I, for example, praised Philip Hamburger. He will often write articles aboutout legal history but not with any case in mind. I get really suspicious of law review articles that say I’m going to tell the judiciary how to handle the following problem, which is now pending some place. They come across as amicus briefs by another name. Legal history is much more apt to be reliable when somebody is just trying to gather the history about some event, some clause, without regard to what use anybody might make of it, without regard to what dispute there is because then there’s no reason to be selective. I’m similarly very suspicious of things that are becoming more common: self-described scholars’ briefs, briefs signed by people who identify themselves as “I’m a professor here and here’s a list of 100 professors there.” There was a famous bunch of warring scholars’ briefs in the case about the Solomon Amendment some years back, which said that if you take federal money, you can’t discriminate against military recruiters. And hundreds of people at America’s top law schools put their name to a number of amicus briefs filed in that case, which contained bizarre, implausible assertions about what the First Amendment meant. They couldn’t find a Justice—they not only could not find a single Justice to agree with them; they couldn’t find a single Justice who would say a favorable thing about those briefs. So I’m fundamentally suspicious of scholars when they turn to advocacy either in briefs or in advocates’ articles as opposed to the kind of analysis you get when there does not appear to be anything on the line other than the historical analysis.
From the excellent GW Law Review Symposium on Farrand’s records.
Judge Sutton had an interesting rejoinder:
JUDGE SUTTON: I want to respond to Chief Judge Easterbrook.
PROFESSOR TYLER: Okay, please.
JUDGE SUTTON: I’m not going to let him get away with that.
PROFESSOR TYLER: As I said, we hoped for a spirited discussion.
JUDGE SUTTON: Of course, there can be junk history in the same way there can be junk science. That’s the way it goes, and that’s all that’s going on here. Yes, we should be skeptical of law office history, supposed historians claiming to be real historians, or history written in the context of, and for, a specific case. But sometimes that’s all you have. And judges, it has been my experience, generally know how to ferret out what’s worth relying on and what’s not. I am not going to say there ought to be a Daubert test for historian amicus briefs. But some historians are better, and more disinterested, than others. Gordon Wood would pass, and so would many others.
Dauberts for historians–this is a point I have made before: (see also Patrick Charles’s ground rules for originalism).