"Historians’ Amicus Briefs: Practice and Prospect"

Michigan Law Authors
Publish Date
2018
Publication
Oxford Handbook of Historical Legal Research
Publication Type
Book Chapter
Abstract

This chapter seeks to understand why historians often find amicus brief writing so vexed and how they have navigated the challenges it poses. It starts with a conceptual analysis of the historians’ amicus brief, in two parts, focused on the problem of expertise. Courts permit historians to participate as friends of the court because they believe that scholars’ knowledge of the past and its relationship to the present are valuable to their juridical work. Yet there are two troublesome questions about expertise that threaten this cross-disciplinary collaboration. One is the nature of historians’ expertise. The second is that the courts’ expertise also concern relating the past to the present, especially where precedent is concerned. The chapter then explores high-profile amicus briefs by historians since the Second World War and considers what these analyses tell us about the prospects for future amicus briefs.

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