Whigs in Court: Historiographical Problems with Expert Evidence

Abstract

At the beginning of the twentieth century, Learned Hand expressed concern at the assessment of expert disagreement by the lay jury. While the debate over jury competence has continued, Hand's disquiet would appear to apply equally to historians, lawyers, and judges commenting on litigation involving protracted disputes between experts. Hand's comment may actually raise the methodological question: how should historians and legal commentators approach and explain disagreements among experts and scientists during trials and appeals? This Article endeavors to sketch some tentative answers to that question, primarily through the review of several cases exemplifying the recent historiographical treatment of expert evidence. Recent approaches are conspicuous because, where they focus on the evidentiary contests, they invariably draw upon idealized images of scientific knowledge and practice and usually attribute putatively proper values to the evidence - values frequently based on popular or official rationalizations of the litigation - and use them to interpret the entire litigation presupposing the continued existence and availability of those purportedly stable values. This later tendency might be described as whiggish, for it involves the decontextualized comparison of evidence from earlier trials and appeals with an allegedly proper value subsequently attributed at the (apparent) conclusion of the litigation. These approaches might also be characterized as sociologies of error, for they exhibit a tendency to explain purportedly unreliable evidence in sociological terms and purportedly reliable evidence on the basis of its intrinsic epistemic worth. The tendency to accept the value accorded to the evidence at the close of proceedings, trivializing the contingent and strategic processes involved in its production, articulation, and assessment, tends to invest the entire proceedings with a particular moral configuration that often facilitates recrimination and proposals for procedural reform.