Litigation-Driven History

Delafontaine, Ramses

doi:10.1007/978-3-319-14292-0_7

Litigation-Driven History

Ramses Delafontaine⁴

Chapter

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Part of the book series: Studies in the History of Law and Justice ((SHLJ,volume 4))

Abstract

In this chapter I discuss a selective list of American examples of historians serving as expert judicial witnesses. The chapter reviews the earliest mentions and debate of expert witnessing at the end of the nineteenth century, after which it turns to Brown v. Board of Education, the Sears case, and an example from toxic tort litigation. The following topic discusses a practical guide to expert witnessing in the American judicial system for historians. Legal as well as extralegal aspects are considered and elaborated on through examples from personal reports from former experts. Considerable attention is devoted to the Daubert ruling and rule 702 of the Federal Rules of Evidence which have envisioned the Judge to perform a gatekeeping role when reviewing expert testimony. In a final part of the chapter, I discuss the issues which are responsible for making expert witnessing into a controversial practice.

Gentlemen of the jury, there are three kinds of liars, the common liar, the damned liar and the scientific expert.

An American Attorney

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Notes

1.
The list of the AHA via http://www.historians.org/pubs/free/careers/advocate.htm. Accessed 31 Oct 2014.
2.
Judge Hand described cases from 1345, 1494, 1555, 1620, 1645, and 1678 see Hand, Learned. 1901. Historical and Practical Considerations Regarding Expert Testimony. Harvard Law Review 15, 40.
3.
Hand, as n. 2, 40.
4.
Hamlin, Christopher. 1986. Scientific Method and Expert Witnessing: Victorian Perspectives on a Modern Problem. Social Studies of Science 16, 485.
5.
Hamlin, as n. 4, 486–487.
6.
Foster, William. 1897. Expert Testimony, Prevalent Complaints and Proposed Remedies. Harvard Law Review 11, 170–171. & Hamlin, as n. 4, 488.
7.
s. n. 1909. Witnesses. Experts. Compensation Exceeding Regular Fee. Harvard Law Review 22, 235–236.
8.
Hand, as n. 2, 53.
9.
Edmond, Gary. 2002. Whigs in Court: Historiographical Problems with Expert Evidence. Yale Journal of Law & Humanities 14, 123–124.
10.
Kousser, Morgan. 1984. Are Expert Witnesses Whores? Reflections on Objectivity in Scholarship and Expert Witnessing. The Public Historian 6, 5–19.
11.
Foster, as n. 6, 169.
12.
Edmond, as n. 9, 171–172.
13.
Edmond, as n. 9, 170.
14.
Hamlin, as n. 2, 485, 504.
15.
Ms. Jones gave her presentation on April 19, 2013 at the conference of public history in Ottawa. Based on notes of the author.
16.
Hamlin, as n. 2, 504.
17.
Foster, as n. 6, 173.
18.
Edmond, as n. 9, 130.
19.
We will revisit this subject when discussing the Federal Rules of Evidence and the Daubert Standard for expert witnessing, see Part II, 7.3.6.3. The Daubert Standard: Popper & the Judge as Gatekeeper, cfr. infra.
20.
Edmond, as n. 9, 154–163, 166–169.
21.
See rule 706 of the FRE http://federalevidence.com/downloads/rules.of.evidence.pdf, 31–32. Accessed 31 Oct 2014.
22.
s. n. 1896. Expert Medical Testimony, Harvard Law Review 10, 305–306.
23.
Hamlin, as n. 4, 490. & Foster, as n. 6, 171. I discuss the advantages of ethical codes on several occasions see in particular: Part III, 5.4. Confronting Ethics with De Baets, cfr. infra.
24.
Hand, as n. 2, 50, 57–58. As we shall see this has become legally possible when the US Supreme Court rendered a verdict in Kumho Tire Co. v. Carmichael allowing the judge as a gatekeeper to impose certain rules of interpretation concerning expert testimony on the jury. See Part II, Sect.7.3.6.3. The Daubert Standard: Popper & the Judge as Gatekeeper, cfr. infra.
25.
Foster, as n. 6, 186.
26.
Edmond, as n. 6, 145.
27.
Rothman, Hal. 1993. Historian v. Historian: Interpreting the Past in the Courtroom. The Public Historian 15, 39.
28.
Bolton, Charles. 1982. The Historian as Expert Witness: Creationism in Arkansas. The Public Historian 4, 59–67.
29.
Quivik, Frederic. 2004. Of Tailings, Superfund Litigation, and Historians as Experts: U.S. v. Asarco, et al. (the Bunker Hill Case in Idaho). The Public Historian 26, 81–104. & Rothman, as n. 27, 39–53.
30.
Rothman, as n. 27, 39–53. & See the Complex Litigation blog of Frederic Joseph Aaronson LCC http://www.josephnyc.com/blog/?blogID=372. & http://josephnyc.com/blog/?blogID=1239. Accessed 31 Oct 2014.
31.
Cantelon, Philip, Ryan, Henry, Stern, Carole, and Gagen, Joseph. 1991. Performing a Superfund Site History: Time and Money Well Spent. Toxics Law Reporter, 595–600.
32.
See Historian Michael Brescia’s account on http://www.statemuseum.arizona.edu/research/historian_as_expert_witness.shtml. Accessed 31 Oct 2014.
33.
Kousser, as n. 10, 5–19. & Neuenschwander, John. 2002. Historians as Expert Witnesses: The View from the Bench. The Organization of American Historians Newsletter 30. https://archives.iupui.edu/bitstream/handle/2450/6017/A2010_11-016_Box13_OAH_Vol30No3_August2002.pdf?sequence=2. Accessed 31 Oct 2014.
34.
See part III of this book, cfr. infra.
35.
Becker, Carl. 1982. Professor for the Plaintiff: Classroom to Courtroom. The Public Historian 4, 68–77. & Soifer, Paul. 1983. The Litigation Historian: Objectivity, Responsibility, and Sources. The Public Historian 5, 47–62. Both were experts on the same case; namely The Miami Conservancy District v. Alexander. They witnessed for opposing sides.
36.
Rosner, David, and Markowitz, Gerald. 2009. The Trials and Tribulations of Two Historians: Adjudicating Responsibility for Pollution and Personal Harm. Medical History 53, 271–292.
37.
Petrovic, Vladimir. 2009. Historians as Expert Witnesses in the Age of Extremes, 152. http://www.etd.ceu.hu/2009/hphpev01.pdf. Accessed 31 Oct 2014.
38.
Petrovic, as n. 37, 153–154.
39.
Petrovic, as n. 37, 166. & For the verdict in Brown v. Board of Education see http://www.law.cornell.edu/supremecourt/text/344/141. Accessed 31 Oct 2014.
40.
Petrovic, as n. 37, 150–151.
41.
Kelly, Alfred. 1962. An Inside Story: When the Supreme Court Ordered Desegregation. U.S. News & World Report 5, 86–88.
42.
Kelly, Alfred. 1965. Clio and the Court: An Illicit Love Affair. The Supreme Court Review, 119–120.
43.
Kelly, as n. 42, 122–123.
44.
Kelly, as n. 42, 127.
45.
Kelly, as n. 42, 129.
46.
Kelly, as n. 42, 144.
47.
Kelly, as n. 42, 144.
48.
Soifer, as n. 35, 51–52.
49.
Franklin, John. 2004. To and from Brown v. Board of Education. Washington History 16, 12. John Franklin was the third historian working with the NAACP for Brown v. Board of Education.
50.
Kelly, as n. 42, 155.
51.
Kelly, as n. 42, 156.
52.
For an extended read on the Brown case by a Pulitzer prize-winning author see: Kluger, Richard. 2004. Simple Justice. The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Vintage.
53.
Petrovic, as n. 37, 170.
54.
I refer to Part III, Sect. 14.4. Confronting Ethics with De Baets, cfr. infra.
55.
Hall, Jacquelyn, and Cooper, Sandi. 1986. Women’s History Goes to Trial: EEOC v. Sears, Roebuck and Company. Signs, 11, 753–756. & Milkman, Ruth. 1986. Women’s History and the Sears Case. Feminist Studies 12, 380.
56.
Jellison, Katherine. 1987. History in the Courtroom: The Sears Case in Perspective. The Public Historian 9, 9–10.
57.
Kessler-Harris, Alice. 1987. Equal Employment Opportunity Commission v. Sears, Roebuck and Company: A Personal Account. Feminist Review 25, 46.
58.
Milkman, as n. 55, 376. & Jellison, as n. 56, 11.
59.
For the written testimony of Rosenberg see Hall and Cooper, as n. 55, 757–766.
60.
Novick, Peter. 1998. That Noble Dream. The “Objectivity Question” and the American Historical Profession. New York: Cambridge University Press, 502–510. & Kessler-Harris, as n. 57, 53–54, 56–62. For Kessler-Harris’ written testimony see Hall and Cooper, as n. 55, 767–779.
61.
Kessler-Harris, as n. 57, 46, 50–51.
62.
Jellison, as n. 56, 12–17. & Kessler-Harris, as n. 57, 46, 50–51.
63.
Kessler-Harris, as n. 57, 64–66. & quoted in Jellison, as n. 56, 18.
64.
Milkman, as n. 55, 394–395.
65.
Quoted in Jellison, as n. 56, 18–19.
66.
Petrovic, as n. 37, 199.
67.
Quoted in Petrovic, as n. 37, 199.
68.
Rosner and Markowitz, as n. 36, 275.
69.
Both have testified in cases on lead paint and silicosis litigation.
70.
Wiener, Jon. 2005. Cancer, Chemicals and History. The Nation, February 7. Via http://www.thenation.com/article/cancer-chemicals-and-history. Accessed 31 Oct 2014.
71.
Rosner and Markowitz, as n. 36, 279–280. Toxic tort cases on lead paint have many things in common with tobacco litigation which I discuss in part III of my research.
72.
Another book of Rosner and Markowitz, which was also based on their trial research, is Deadly Dust, which discusses the history on silicosis, commonly known as miners’ asthma.
73.
Rosner and Markowitz, as n. 36, 282.
74.
Rosner and Markowitz, as n. 36, 282. The same has happened in tobacco litigation. See Part III, Chap. 13 Tobacco Litigation, cfr. infra.
75.
Rosner and Markowitz, as n. 36, 275–276.
76.
Rosner and Markowitz, as n. 36, 288–291.
77.
I discuss this further in part III of my research, see Part III, Sect. 13.4.3. Game III: The Third Wave of Tobacco Litigation. & Sect. 14.2.1.1. Deposition, cfr. infra.
78.
Mr. Schachtman maintains a blog on his website see http://schachtmanlaw.com/blog. Accessed 31 Oct 2014. Schachtman is also a lecturer at law at Columbia Law School in New York.
79.
Schachtman, Nathan. 2003. On Deadly Dust And Histrionic Historians: Preliminary Thoughts On History And Historians As Expert Witnesses In Products Liability Cases. Mealey’s Litigation Report: Silica 2, 2.
80.
Schachtman, as n. 79, 1.
81.
Schachtman, as n. 79, 2–3.
82.
Schachtman, as n. 79, 2.
83.
Schachtman, Nathan. 2010. How Testifying Historians are Like Lawn-Mowing dogs. http://schachtmanlaw.com/how-testifying-historians-are-like-lawn-mowing-dogs. Accessed 31 Oct 2014.
84.
Schachtman, as n. 83.
85.
Schachtman, as n. 83.
86.
See also a more post by Schachtman: Schachtman, Nathan. 2010. Courting Clio: Historians and Their Testimony in Products Liability Litigation. http://schachtmanlaw.com/courting-clio-historians-and-their-testimony-in-products-liability-litigation. Accessed 31 Oct 2014. & Schachtman, Nathan. 2010. Counter Narratives for Hire. http://schachtmanlaw.com/counter-narratives-for-hire. Accessed 31 Oct 2014. & Schachtman, Nathan. 2010. Narratives & Historians for Hire. http://schachtmanlaw.com/narratives-historians-for-hire. Accessed 31 Oct 2014. I spoke earlier of these generalizations used by legal practitioners and historians to depict each other in Part I, Chap. 2: Introductory Theoretical Remarks on the Alleged Problematic Nature of the Interaction of History and Law, cfr. supra.
87.
Rosner and Markowitz, as n. 36, 286.
88.
Schachtman, Nathan. 2014. Hysterical Histortions. http://schachtmanlaw.com/hysterical-histortions. Accessed 31 Oct 2014.
89.
Schachtman, as n. 88.
90.
Personal correspondence with the author.
91.
Schachtman, as n. 88.
92.
Schachtman, as n. 88.
93.
Rosner and Markowitz, as n. 36, 284.
94.
Guterman, Lila. 2004. Peer Reviewers are Subpoenaed in Cancer Lawsuit Against Chemical Companies. The Chronicle of Higher Education, November 19.
95.
Wiener, as n. 70.
96.
Rosner and Markowitz, as n. 36, 289. & Wiener, as n. 70.
97.
Rosner, David, and Markowitz, Gerald. 2004. The Chemical Industry’s Attack on Historians. George Mason University’s History News Network, December 5. http://hnn.us/articles/8730.html. Accessed 31 Oct 2014. Scraton has been on the payroll of the tobacco industry at least since 2002, when his affiliation with Japan Tobacco had been uncovered after he had written a pamphlet attacking the WHO anti-tobacco campaign. According to the British Medical Journal, Scranton had told “Japan Tobacco that he was good value for money.” See Kmietowicz, Zosia, and Ferriman, Annabel. 2002. Pro-Tobacco Writer Admits He Should Have Declared an Interest. BMJ 324, 257.
98.
See Part III, Sect. 15.6. The Tobacco Companies v. Robert Proctor, cfr. infra.
99.
See http://www.deceitanddenial.org. Accessed 31 Oct 2014.
100.
See the database with the Chemical Industry’s Archives http://www.chemicalindustryarchives.org/search/default.asp?stemming=Yes&cmd=start&request=&i=vinyl&search=GO. Accessed 31 Oct 2014.
101.
See Part II, Sect. 7.2.1. Brown v. Board of Education, cfr. supra.
102.
The website of Public History Inc. can be visited via http://www.publichistory.ca. Accessed 31 Oct 2014.
103.
Mr. Mason gave his presentation on April 19, 2013 at the annual meeting of the National Council on Public History in Ottawa. Based on notes of the author.
104.
See Part I, Sect. 3.1.1. The Ghost of von Ranke, cfr. infra.
105.
See Expert Witness Profile No. 10, Elizabeth Cobbs Hoffman. & See Expert Witness Profile No. 14, Peter English. & See Expert Witness Profile No. 20, Jon Harkness. & See Expert Witness Profile No. 30, Kenneth Ludmerer. & See Expert Witness Profile No. 31, James Kirby Martin. & See Expert Witness Profile No. 36, Robert Norrell. & See Expert Witness Profile No. 39, Robert Proctor. & See Expert Witness Profile No. 40, Randy Roberts. See Expert Witness Profile No. 42, David Sansing. & See Expert Witness Profile No. 44, Michael Schaller. & See Expert Witness Profile No. 50, Theodore Wilson. All these historians have acknowledged to have made more than $500,000 for their work as an expert witness in tobacco litigation. See Appendix II, Table 6. Remuneration, cfr. infra.
106.
Lawyer T. Grossman is good example of such a repeat player. He has defended tobacco companies on multiple times in court and has been listed in the Chambers USA guide to leading lawyers of 2012 in tobacco defence, see his website at http://www.jonesday.com/tgrossman. Accessed 31 Oct 2014. Grossman is a partner in the Jones Day law firm, which has been hired on multiple occasions by tobacco companies. See the work of American legal scholar Marc Galanter on the subject of repeat players. Galanter, Marc. 1974. Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change. Law & Society Review 9, 95–160.
107.
We will examine other examples in the third part of my research when I discuss historians who are involved in tobacco litigation. See Part III, Chap. 16: Historians in Tobacco Litigation, a Conclusion, cfr. infra.
108.
See, for example, the site of the Round Table Group which contacted David Rosner: http://www.roundtablegroup.com/experts. Accessed 31 Oct 2014. The group has now merged with two other companies: Silicon Valley Expert Witness Group and Jury Verdict Research. They now form the Thomson Reuters Expert Witness Services. There new website is https://trexpertwitness.com. Accessed 31 Oct 2014.
109.
The website of History Associates Inc. can be found at http://www.historyassociates.com/services/historical-research. Accessed 31 Oct 2014.
110.
For a list of their articles http://www.historyassociates.com/services/historical-research/historical-research-articles-and-presentations. Accessed 31 Oct 2014.
111.
See Part II, Sect. 7.2.3. Toxic Tort Litigation: Lead Paint Toxic Tort Litigation, cfr. supra.
112.
Rosner and Markowitz, as n. 36, 273.
113.
Reis, Mike, and Wiseman, Dave. 2011. The Historian’s Valuable Role as Expert and Advisor in Environmental Litigation. The Environmental Litigator 22, 12.
114.
Reis and Wisman, as n. 113, 12.
115.
Reis and Wisman, as n. 113, 13.
116.
Reis, Mike. 2003. Searching in the Past: Dusty Documents that may Prove the Case can be Found by Historians. Legal Times 26, 1.
117.
Reis, as n. 116, 2.
118.
I argue that there is a distinct possibility this is happening, as we shall see with the tobacco cases. Without any codified ethical rules in the historical profession or considerable reflection on public history within the academic environment, public history can easily be used and abused.
119.
Novick, as n. 60, 185.
120.
Text of the presentation of Mr. Lawson is with the author.
121.
The website of Morgan Angel & Associates can be reached via http://www.morganangel.com. Accessed 31 Oct 2014.
122.
Colton, Craig. 2006. The Historian’s Responsibility in Litigation Support. The Public Historian 28, 111.
123.
The Operations Manuel of Morgan Angel & Associates is with the author.
124.
For more information on the Bates system, see http://edison.rutgers.edu/NamesSearch/glocpage.php3?gloc=CK300&. Accessed 31 Oct 2014. It is also used in the databases which contain the internal documents of the tobacco industry, and also in those databases that provide depositions and testimonies from tobacco litigation. See Part III, Sect. 13.4.3. Game III: The Third Wave of Tobacco Litigation, cfr. infra.
125.
Comment made at the NCPH conference in Ottawa in April 2013 where Ray presented his topic The ‘Expert is the Evidence:’ Theories and Facts as Evidence. Arthur Ray is professor emeritus of the University of British Columbia who has served in multiple Canadian court cases on native Indian rights as an expert witness.
126.
The precondition is that other historians are aware of their testimony. Peer review should be essential in ethical codes. Otherwise there is little or no repercussion for overstepping professional boundaries in testimony. This is exactly what is happening with historians working as expert witnesses for the tobacco companies in tobacco litigation. See Part III, Sect. 16.3.3. Transparency, cfr. infra.
127.
Cantelon, Ryan, Stern, and Gagen, as n. 31, 596–597.
128.
Informal conversation with the author at the NCPH annual meeting in Ottawa in April 2013. She has served in US v. Michigan State as an expert witness. For more information see http://www.justice.gov/enrd/4543.htm. Accessed 31 Oct 2014.
129.
Klein, Robert, Lott, Leslie, and Rojas, Jose. 2007. Expert Witnesses: When Are They Necessary and Does Daubert/Kumho Make a Difference? IP Litigator 13, 8.
130.
Bolton, as n. 28, 61.
131.
Burnham, John. 2010. In Defense of Historians as expert Witnesses: A Rebuttal to Jon Wiener. George Mason University’s History News Network, April 1. http://hnn.us/articles/124924.html. Accessed 31 Oct 2014.
132.
For a short introduction to the legal term of disclosure see http://www.law.cornell.edu/wex/disclosure. Accessed 31 Oct 2014.
133.
Quivik, as n. 29, 97. Quivik describes his deposition at 97–98. In Quivik’s case, a lawsuit brought by the Department of Justice against Asarco for polluting a river, opposing counsel tried to exclude his testimony claiming that his testimony was “uniformed by any of scientific disciplines that would qualify one to offer a credible expert opinion on the movement of tailings in watershed.” See page 98. Quivik’s testimony was admitted by the court. See page 99.
134.
Rosner and Markowitz, as n. 36, 278–279.
135.
Klein, Lott, and Rojas, as n. 129, 7.
136.
Exclusion of testimony and evidence involves the Federal rules of evidence 401, 402, & 403, see http://www.law.cornell.edu/rules/fre. Accessed 31 Oct 2014. The rules concentrate on the relevance, competence, and probative value of the expert testimony.
137.
For a short introduction to the legal term of the deposition, see: http://www.law.cornell.edu/wex/deposition. Accessed 31 Oct 2014.
138.
Klein, Lott, and Rojas, as n. 129, 7–8.
139.
Klein, Lott, and Rojas, as n. 129, 8.
140.
Klein, Lott, and Rojas, as n. 129, 9.
141.
Colton, as n. 122, 112.
142.
Kousser, as n. 10, 16.
143.
Becker, as n. 35, 75.
144.
Rosner and Markowitz, as n. 36, 279.
145.
Evidence is hearsay when it is not directly gathered by the witness.
146.
For a short introduction to the legal term of the expert witness see http://www.law.cornell.edu/wex/expert_witness. Accessed 31 Oct 2014.
147.
Masterson, Leslie. 1998. Witness Immunity or Malpractice Liability for Professionals Hired as Experts? The Review of Litigation 17, 394, 399–403, 413.
148.
Masterson, as n. 147, 414.
149.
For a short introduction to the Frye rule see http://www.law.cornell.edu/wex/frye_standard. Accessed 31 Oct 2014.
150.
For the judgment in Frye v. United States see http://www.law.ufl.edu/_pdf/faculty/little/topic8.pdf, 1. Accessed 31 Oct 2014. The Frye rule is still used in some American states but has been replaced by the Daubert rules at the Federal level and in most states.
151.
Klein, Lott, and Rojas, as n. 129, 5.
152.
Masterson, as n. 147, 395.
153.
The FRE can be consulted here http://federalevidence.com/downloads/rules.of.evidence.pdf. Accessed 31 Oct 2014.
154.
Masterson, as n. 147, 396, 413–414.
155.
Rule 702 of the FRE see http://federalevidence.com/downloads/rules.of.evidence.pdf, 30. Accessed 31 Oct 2014.
156.
Rule 703 of the FRE see http://federalevidence.com/downloads/rules.of.evidence.pdf, 30. Accessed 31 Oct 2014.
157.
An ultimate issue is a fact that has to be accepted–recognized as real–for a claim or defence to prevail. Crimes are legally defined, and if one of the properties of a crime is not accepted as a fact by the court, then it cannot rule there has been a crime. For example, one of the constitutional elements of the crime murder is that the accused had the premeditated intention to kill another person. When the accused has accidently killed a person, there is no intentional element, so there will be no murder verdict.
158.
Rule 704 of the FRE see http://federalevidence.com/downloads/rules.of.evidence.pdf, 31. Accessed 31 Oct 2014.
159.
Rule 705 of the FRE see http://federalevidence.com/downloads/rules.of.evidence.pdf, 31. Accessed 31 Oct 2014.
160.
For an example of such an attempt see Quivik, as n. 29, 98–99. Another example can be found in Rothman, as n. 27, 43.
161.
Masterson, as n. 147, 397.
162.
For a short introduction to the legal term of the Daubert Standard see http://www.law.cornell.edu/wex/Daubert_standard. Accessed 31 Oct 2014.
163.
Klein, Lott, and Rojas, as n. 129, 5.
164.
Masterson, as n. 147, 398.
165.
For the ruling in Kumho see http://www.law.cornell.edu/supremecourt/text/97-1709. Accessed 31 Oct 2014.
166.
Klein, Lott, and Rojas, as n. 129, 5.
167.
Klein, Lott, and Rojas, as n. 129, 5.
168.
Givelber, Daniel, and Strickler, Lori. 2006. Junking Good Science: Undoing Daubert v. Merrill Dow Through Cross-Examination and Argument. American Journal of Public Health 96, 33.
169.
Edmond, Gary, and Mercer, David. 2002. Conjectures and Exhumations: Citations of History, Philosophy and Sociology of Science in US Federal Courts. Law and Literature, 14, 325. & Givelber and Strickler, as n. 168, 36. As we saw earlier, Judge Learned Hand had advocated the introduction of this legal tool at the beginning of the twentieth century. See Part II, Sect. 7.1. Expert Witnessing Through the Ages, cfr. supra.
170.
For my discussion on the monopoly of the natural sciences on the idea of knowledge, see Part I, Sect. 3.1.2. The Professionalization of History & Science as The New Intellectual Gold Standard, cfr. supra.
171.
Edmond and Mercer, as n. 169, 309.
172.
Edmond and Mercer, as n. 169,310–313.
173.
Edmond and Mercer, as n. 169, 313–314.
174.
Edmond and Mercer, as n. 169, 317.
175.
Edmond and Mercer, as n. 169, 317.
176.
Edmond, as n. 9, 175.
177.
Edmond and Mercer, as n. 169, 320.
178.
Givelber and Strickler, as n. 168, 34–35.
179.
Edmond and Mercer, as n. 169, 320–321. Edmond and Mercer refer to the American philosopher of science Thomas Kuhn, who argued that science does not progresses in a linear way but through periodic revolutions, or paradigm shifts, which altered the nature of scientific inquiry. See Kuhn, Thomas. 2012. The Structure of Scientific Revolutions. Chicago: University of Chicago Press.
180.
Edmond and Mercer, as n. 169, 326.
181.
Edmond and Mercer, as n. 169, 341.
182.
Edmond and Mercer, as n. 169, 339.
183.
Edmond and Mercer, as n. 169, 329.
184.
Edmond and Mercer, as n. 169, 343.
185.
Caudill, David. 2002. Scientific Narratives in Law: An Introduction. Law and Literature 14, 269.
186.
For the “Complex Litigation Blog” of Mr. Joseph see http://www.josephnyc.com/blog/?blogID=372. Accessed 31 Oct 2014.
187.
For another example on the “Complex Litigation Blog” of Mr. Joseph see http://josephnyc.com/blog/?blogID=1239. Accessed 31 Oct 2014.
188.
See Part I, Sect. 3.1.1. The Ghost of von Ranke, cfr. supra.
189.
See for example: Colton, as n. 122, 111. & Martin, Brian. 2002. Working With Lawyers: A Historian's Perspective. The Organization of American Historians Newsletter 30. https://archives.iupui.edu/bitstream/handle/2450/6017/A2010_11-016_Box13_OAH_Vol30No2_May2002.pdf?sequence=3. Accessed 31 Oct 2014. & Soifer, as n. 35, 48–49.
190.
Colton, as n. 122, 111. & Kousser, as n. 10, 6 & 12–14. & Becker, as n. 35, 72.
191.
Neuenschwander, as n. 33.
192.
Neuenschwander, as n. 33.
193.
Rothman, as n. 27, 51.
194.
Rothman, as n. 27, 51.
195.
Schachtman, as n. 79, 3–5.
196.
Rosner and Markowitz, as n. 37, 276–277.
197.
Kousser, as n. 10, 19. & Novick, as n. 60, 516. See also Part I, Sect. 3.1.4. Descending the Ivory Tower, cfr. supra.
198.
Soifer, as n. 35, 50.
199.
Rothman, as n. 27, 51.
200.
See Part III, Sect. 14.4. Confronting Ethics with De Baets, cfr. infra.
201.
See the remarks by Edmond and Hamlin, Part II, Sect. 7.1. Expert Witnessing Through the Ages, cfr. supra.
202.
Rothman, as n. 27, 45.
203.
Kousser, as n. 10, 15.
204.
Colton, as n. 122, 111.
205.
See Part III, Sect. 14.4. Confronting Ethics with De Baets, cfr. infra.
206.
Bolton, as n. 28, 66.
207.
Kessler-Harris, as n. 57, 64–66.
208.
For the Brown case see Part II, Sect. 7.2.1. Brown v. Board of Education, cfr. supra.
209.
For my discussion on Schachtmans’ argumentation see Part II, Sect. 7.2.3. Toxic Tort Litigation: Lead Paint Toxic Tort Litigation, cfr. supra.
210.
Bolton, as n. 28, 66. & Martin, as n. 189. & Johnson, Leland. 1983. Public Historian for the Defendant. The Public Historian 5, 65–76. & Rosner and Markowitz, as n. 36, 274–275.
211.
Rosner and Markowitz, as n. 36, 279–280.
212.
Becker, as n. 35, 76.
213.
Becker, as n. 35, 68.
214.
Quivik, as n. 29, 103.
215.
Kousser, as n. 10, 17.
216.
Bolton, as n. 28, 67.
217.
Rosner and Markowitz, as n. 36, 282.
218.
Colton, as n. 122, 115.
219.
Becker, as n. 35, 77.

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FWO Fellow at Ghent University, Ghent, Belgium
Ramses Delafontaine

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Delafontaine, R. (2015). Litigation-Driven History. In: Historians as Expert Judicial Witnesses in Tobacco Litigation. Studies in the History of Law and Justice, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-14292-0_7

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