Guest Post by Steven A. Mitchell: History & Language in Practice

A New Course at Notre Dame Law School

I am happy to share this guest post by Steven A. Mitchell, a law library faculty member at the Notre Dame Law School. It's about an amazing new course that Steven has designed and is teaching this spring at Notre Dame. As the courts increasingly rely on arguments from historical and linguistic sources, I expect courses like the one Steven is teaching will start becoming more widespread.

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One of the delights of being a Research and Instruction Librarian at Notre Dame Law School is having the opportunity to teach legal research courses. In the fall semester, we research librarians — all of whom have both a J.D. and a Masters in Library Science — teach a section or two of 1L students on fundamental principles of legal research. Students learn about the nature of legal information and how to find it, gain experience working with legal databases, and begin to adjust the way they think about research to suit the particular demands of the practice of law.

Then in the spring semester, each librarian teaches a smaller Advanced Legal Research (ALR) elective to 2L and 3L students. Whereas the curriculum for the 1L course is the same across every section, one feature of the ALR courses is they each focus on a particular subject in legal research, building on the foundation of the 1L course (and a summer or two of practice experience) and allowing students to dig deeper into a topic of personal or professional interest. At Notre Dame, recent ALR topics have included: federal law; state and local law; tax law; transactional law; legal analytics; free internet resources; and administrative law.

This spring I am excited to be introducing a new Advanced Legal Research course entitled History & Language in Practice. It is not just a new course at Notre Dame, but it may very well be the first course on this topic at any American law school. To quote the blurb for the course:

In recent decades, judges have taken an increased interest in incorporating interdisciplinary research into their legal decision-making process. This course introduces students to the research sources and methodologies of two areas which have become particularly important with the increased influence of originalism: history and language. Through exercises, research projects, and discussions of readings, students will learn how to critically address the pragmatic and theoretical questions a practicing lawyer should consider in their research: how to identify, find, evaluate, apply, and ethically use historical and linguistic information in the context of legal advocacy.

The idea for the course first germinated over the summer, following the end of the Supreme Court's October 2022 term. As readers of the Volokh Conspiracy will surely be aware, the term closed with a number of decisions where majority, concurring, and dissenting opinions alike all relied on extensive use and analysis of historical sources. This isn't a particularly new development; the use of history to answer legal questions has been in use in our judiciary for decades. For example, in the 2008 Heller decision, Justice Scalia's majority opinion and Justice Stevens's and Justice Breyer's dissents were competing accounts of the history of arms and militias in Anglo-American history, and each took as a given that reference to history was both proper and necessary.

For what is probably a confluence of many socio-political reasons, however, this most recent term seemed to bring the question of the use of history more into public conversation. In the course of my reading through that conversation, two posts in particular got my wheels turning as a law librarian and professor, leading me to develop this course: a column in the Washington Post by William Baude and a post by Olivia Smith Schlinck on the RIPS blog for law librarians. Though they surely have different opinions on law and politics, I found they both identified a lacuna in the way lawyers are trained and think about the use of interdisciplinary research in the practice of law.

The goal of the course is to address that gap. The use of both history and language in judicial decision-making is here and is likely here to stick around for quite a while. Therefore, lawyers should know how to conduct research in these areas and know how to then use the information that their research turns up. With increasingly more judges considering historical and linguistic matters in their decision-making, a good attorney (or a good judicial clerk) should be equipped to make arguments that account for those factors.

Though historical and linguistic arguments are often associated with the theory of originalism, the course very intentionally takes no position on jurisprudence. Rather, the course poses more practical questions: if you are arguing before a judge who considers history in their decision-making, how can you make arguments that the judge 'has ears to hear' and which will be persuasive? If you are clerking for such a judge, how can you find the appropriate resources and present them in your bench memos? And what role does professional and ethical responsibility play in how you use and convey that information? Indeed, the course will ideally be composed of students from multiple perspectives, in order to enrich the class discussions.

The syllabus for the course is conceived as roughly two strains which intertwine throughout the semester. First, students will learn about the various available sources that exist, the context of their creation or compilation, and how to effectively find the sources that meet their research goals. Topics will include English legal documents, American colonial documents, Founding Era documents, 19th-century documents, dictionaries, and historical corpora. (The cutoff for the course is the 19th century mostly for reasons of time; a single semester is only so long! But that cutoff is not entirely artificial, since it allows us to cover material through Reconstruction and the early constitutional and legal histories of a majority of the states, including those which Notre Dame students are most likely to practice in, upon graduation.)

Second, we will discuss the use of those sources specifically in the context of legal advocacy and decision-making. Is historical research in this context different from what a historian is doing, even a legal historian? Should it be? If so, how and what impact does that have? Should courts appoint historians as experts? Or is the use of history in legal advocacy an illegitimate weaponization of the subject? What are the advantages and shortcomings of dictionaries for linguistic research? How should non-legal documents inform questions about legal language? Are historical corpora a reliable compilation of those documents? In short: what constitutes an ethical use of history and language in the practice of law? While the tension between Baude and Schlinck provides the initial framework for these questions, it will be further explored through recent scholarship on these questions, through readings, class discussions, and individual reflections. This practice-oriented approach is where the course diverges from a typical course on legal history, and it is what potentially makes the course the first of its kind.

To that end, the final assignment for the course will not be a typical research paper. Rather, the students will be presented with a fictional case, will be assigned to small groups, and will be tasked with drafting a court brief that draws on historical and linguistic research. Groups will write as advocates for one of the parties or as amicus curiae — something which also gives the us the opportunity to discuss the different roles of advocacy and responsibility between lawyers representing parties in the case and amici arguing on behalf of third parties who have their own distinct interests.

While the focus of this new ALR course is on historical and linguistic resources, its aim is ultimately to further foster in students the skills that librarians refer to as 'information literacy', which I summarize in the final line of the course listing: the ability 'to identify, find, evaluate, apply, and ethically use . . . information'. These are skills which all lawyers should have, but which not all law schools teach well, and which recent developments in our law are increasingly demonstrating a need for in contexts that reach beyond conventional conceptions of 'law'. And by teaching students how to navigate sources they are less accustomed to and to critically think about their research in areas that are less familiar, I hope to also cultivate those same habits in more routine legal research throughout their careers.

Comments

[Rev. Arthur L. Kirkland]

The cutoff for the course is the 19th century mostly for reasons of time

At Notre Dame, it seems mildly surprising the cutoff wasn't roughly the beginning (or perhaps end) of the Inquisition.

Although for Republicans and conservatives the 19th century seems a natural point of emphasis.

[Frank Drackman]

Still got some Butt-hurt from that 06' loss to the Irish???

[Rev. Arthur L. Kirkland]

I tend to dislike ostensible adults who indoctrinate children with nonsense; afflict children with lousy, superstition-based schools; and facilitate and conceal the widespread, longstanding sexual abuse of children to protect an institution’s people, prestige, and opulent wealth.

Some people, though, seem to love such people and institutions.

Similarly, there are still some Penn State fans, Baylor fans, and registered Republicans in America.

[Currentsitguy]

It amazes me that this is just happening. I can't see how anyone can practice law without understanding how language was used in the past.

[Noscitur a sociis]

It is entirely possible to have a successful and presitigious litigation career without ever engaging with a pre-20th century source; and the overwhelming majority of lawyers will need to do so, at most, a handful of times their careers.

I'm all for innovation in legal education, and I'd probably look into signing up for the course if I were a student, but I wouldn't expect a lot of practical skills development.

[Stephen Lathrop]

Currentsitguy — What source of expertise do you suppose will serve to construct valid inferences to disclose how language was used during a forgotten past?

[Dr. Ed 2]

"I can’t see how anyone can practice law without understanding how language was used in the past."

What amazes me is that learning that wasn't/isn't part of the undergraduate curriculum!

What's next, a course on remedial English?

[bernard11]

I'm pretty skeptical about this whole thing.

Lawyers are going to argue history and linguistics? Judges are going to rule based on their grasp of these subjects?

Frankly, it sounds like a recipe for even more results-oriented decisions, as courts engage ever-more vigorously in cherry-picking facts and plausible meanings to suit their preferences.

[Dan Schiavetta]

Both history and linguistics are outside their expertise. It used to be that at trial an attorney would have to bring in expert testimony, i.e., from professional historians or linguists. But now, whether or not these folks admit it, we are in the era of "originalism".

[Dr. Ed 2]

I see it as mission creep -- an attempt to expand the scope of the legal education to that of a universal (i.e. "university") education. And thus to expand the monopoly enjoyed by the law school.

To paraphrase what Cardinal John Henry Newman explicitly stated in his _Idea of a University_, law schools should ONLY teach law and nothing else.

[Stephen Lathrop]

Professor Bray, I welcome your course idea, but offer a suggestion. Your approach to history needs to be made with more caution and reticence than your OP suggests you bring to it. For instance this:

Though historical and linguistic arguments are often associated with the theory of originalism, the course very intentionally takes no position on jurisprudence. Rather, the course poses more practical questions: if you are arguing before a judge who considers history in their decision-making, how can you make arguments that the judge 'has ears to hear' and which will be persuasive? If you are clerking for such a judge, how can you find the appropriate resources and present them in your bench memos? And what role does professional and ethical responsibility play in how you use and convey that information?

Everything but that last question suggests you have constrained the question of historiography within the bounds of your own profession, without making the more appropriate attempt to reach out to academic historians to get their input. But make it a point to notice, an adequate answer to that last question will challenge almost the entire expertise of an academic historian. That is expertise which not only takes years to acquire, but also proves too great a challenge for many who attempt it.

It is typical for people outside the academic historical profession to oversimplify to the point of attenuation the unique research problems which must be mastered when subject matter in question dates back centuries. Only the slightest of those problems have to do with finding and deploying sources.

The challenging problems center on analytical methods required to test and use inferences drawn from historical survivals (including documents, but other presently-existing sources as well). The aim is to develop on the basis of those inferences an accurate interpretation of a forgotten passage of history which has not survived. Thus, to identify so-called survivals, and view their current existence accurately as manifestations of the present, and not of the past, clarifies and illuminates a major intellectual challenge of historical practice: to grasp that every part of the past of interest to historical interpretation will necessarily be based not on direct evidence, but instead on inferences developed by reference to incomplete evidence removed entirely from original context. Replacement of that missing context thus becomes an imposing part of the activity of historical analysis. To do that as completely and accurately as possible must be recognized as an ethical obligation of all historical interpretation, and one of its greatest challenges.

To better understand what I am getting at, contrast what I wrote above with what will inescapably happen if lawyers untrained in academic history attempt to interpret those same historical survivals. Their methods, even if even-handed with regard to selection of the survivals in question, will fill in all the inferences—which is to say the entire meaning in context of the sought-for forgotten passage of history—with conjecture drawn entirely from present-minded notions (people untrained in history have only present-minded notions to use)—and thus to deliver an almost entirely present-minded interpretation of the past, drawn mostly from a historical future—which is to say the interval between then and now—post-dating the period under study.

Of course, that was a future utterly unknown to the people who created the sources under study, and thus alien and unrecognizable to the historical figures under study, and largely irrelevant to our own accurate understanding of the creation of the sources which survived. What happened during that later interval informed their creation-context not at all. But at the hands of a present-minded interpreter, absolutely every inference brought to interpretation of a forgotten passage of history attributed to a bygone era will be brought from that alien future, which actually had no place in historically contemporary context.

Among people untrained in academic history (including lawyers), that kind of misinterpretation will happen every time, without the slightest inkling that anything is amiss. It is what happened to Scalia when he wrote Heller—which if you cared to do it you could teach as a case study in the abuse of historical analysis for present-minded purposes.

A bit of the language and reasoning I mentioned above I drew from an extended essay on historiography by the late philosopher and historian Michael Oakeshott. The essay is titled, On History, and a book with that in the title is for sale on Amazon.

If you would care to get a glimpse of some unexpected complexities with undoubted relevance to your ambition for your course, you could not do better than to buy and read Oakeshott. Perhaps presenting Oakeshott to your students would jar at least some of them out of present-minded complacence, while disabusing them of any notion that what they attempt is simple to do. If you could just do that, it would probably fulfill most of what you could reasonably expect your course to accomplish.

[Rev. Arthur L. Kirkland]

It's Notre Dame. I expect this is an exercise in preparing a few students to author briefs for a few partisan justices who like to cherry-pick old-timey sources in an attempt to justify decisions based on stale, ugly thinking and launched from our society's obsolete, stale, doomed fringe.

Those skills could come in handy. Not until replacement, but until Court enlargement, which is likely to occur much sooner than replacement for today's right-wing law students.

[Stephen Lathrop]

Oops, Professor Mitchell, not Professor Bray.

[The Margrave of Azilia]

You can find a historical source to back up any assertion you want to make.

As William Blackstone said, "history, schmistory."

[Stephen Lathrop]

You can find a historical source to back up any assertion you want to make.

Only if you are content to graft on a present-minded context. Insist on contemporaneous historical context and historical sources to support modern assertions become rare indeed. Mostly, you have to lie about history to make it seem to support your modern purpose. See Bruen and Dobbs.

[The Margrave of Azilia]

As James Madison once said, "I hope one day to see a disarmed population having free abortions."

[Rev. Arthur L. Kirkland]

I think clingers would tell you the quotation was "Boy, I hope our work provides refuge for half-educated bigots and superstitious, backwater hayseeds forever."

[Michael P]

I came for the "expert" criticism from our resident washed-out newspaper editor about how everything in this course is entirely wrong about history as an academic subject, but did not expect "hot take that misses the fact that this was a guest post" level of entertainment.

[Rev. Arthur L. Kirkland]

You are here for the unadulterated bigotry and partisan polemics.