Law v History v Medicine ...

by Cliopatria

David Garrow's review of Peter Charles Hoffer's Past Imperfect for the Wilson Quarterly is a searing indictment of historical practice as we've known it, though scarcely more severe than Hoffer's own book. Hoffer argues that the scandals of 2002 were rooted in prior practice and that the AHA's abandon of adjudication is unlikely to correct our malpractice. The usual excuse for no adjudication? The threat of lawsuits.

Superficially, Garrow's review might have been entitled"Law v History" because he emphasizes the important role that student assistants play in fact-checking law review articles. Had similar rigor been applied to Michael Bellesiles's 1996 article in the Journal of American History, he argues, American historians might have been spared enormous embarrassment.* Surely one reason that Bellesiles's work was initially so warmly received by historians is that our practice since World War II has increasingly valued innovation, the new, provocative thesis, alternative ways of understanding this or that. On the other hand, the more ordinary violations of acceptable practice – i. e., plagiarism – have been found in the work of both historians, Stephen Ambrose and Doris Kearns Goodwin, and distinguished legal scholars as Charles Ogletree and Laurence H. Tribe. As Hoffer suggested, these kinds of problems – whether in history or law -- are often a function of publishing work that has been done by a hired collective.

But law's emphasis on precedent, itself, may tend to encourage the replication of prior language. Why re-invent the boilerplate in a routine case? Deviation from it is high risk. Or, at least, that's how I read Richard Posner's important, but rather benign perspective on plagiarism in"The Truth About Plagiarism." So, plagiarism is not theft or a violation of law; nor is it the same as a violation of copyright. In fact, Posner argues, it isn't law, alone, that practices plagiarism routinely. He cites many instances of it in music and literature. When it is done skillfully, we laud its product; and, without it, civilization would be immensely impoverished.

If, then, plagiarism is not a violation of law, on what grounds would the AHA conduct inquiries into charges of it, particularly if the accused party threatens legal action? I suspect that brings us closer to understanding the rationale for the AHA's decision. In making that decision, the AHA claimed that the primary responsibility for investigating charges of ethical violations lies with a historian's employing institution. That leaves historians who are independent scholars and historians who are not members of the AHA out of the picture entirely. And where does Posner's telling us that plagiarism is not a violation of law leave the community college instructor and her institution when she finds it in her student's work? Does the institution cut and run, as the AHA has, when a student/plagiarizer threatens to sue when penalized by the instructor?

There simply is no guarantee that the state will sustain a profession's ethical code. Perhaps we should speak of law v history v medicine. How else are we to understand the zeal with which the state protects the identity of doctors who participate in legal executions? There, the state actually pays professional men and women to violate their Hippocratic Oath and, by protecting their identity, guarantees that there will be no professional sanction for their behavior. We haven't quite reached that pass in the practice of history, though our court historians will need to keep a close eye on themselves when next they get that big government grant.

*Update: A colleague points out to me that, prior to the publication of Arming America, Bellesiles published two articles in law journals and they survived fact checking by law school student assistants.

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Jonathan Dresner - 2/9/2005

I haven't yet (I've never taught graduate students), but I'm seriously considering it for my historiography course next fall. The main problem is that my field includes considerable foreign language scholarship inaccessible to most students, so I'm going to have to stretch my own legs and do something in the US field.

Carl Patrick Burkart - 2/9/2005

The more I think about the spading process, the more I think that it could contribute to graduate education or even undergraduate course work. Does anyone assign students to spade an already published article or portion of an article in any of your classes?

Richard Henry Morgan - 2/9/2005

I believe the two "law reviews" referred to in the Bellesiles matter were Law and History Review, and Constitutional Commentary.

Law and History Review seems run more along the lines of a traditional history journal. It promises an in-house review, and if the submission passes that, a peer review. Constitutional Commentary brags that it is edited by professors, and prefers to dispense with copius citations. Neither journal is student edited, and it isn't made clear that the editing that does take place there follows the norm of student-administered assiduous citation checking that one finds in student-run law reviews.

Derek Charles Catsam - 2/8/2005

You know what might be Bellesiles' biggest sin? That he might have ruined a thesis that has not yet been disproven. His critics rightly hammered him for the research he either made up or misrepresented, and while many have showed that the methodology itself may also have been flawed, it seems, at least from the vantage point of someone for whom this debate is a long way from my work, that the larger argument might still be true -- that the gun culture in the United States has historically been overstated. Anyone who does this sort of work in the future will inevitably be coupled with Bellesiles. How is that for a yoke no one wants?

dc

Jonathan Dresner - 2/8/2005

Most law reviews, it seems to me, are housed in universities. Most history journals, at this point, are not; in fact, many are commercial enterprises.

I'm not saying that it's a bad idea. On the contrary. I'm simply pointing out a logistical issue....

Not to mention the hiring problems which could result as these fact-checking students get vetted for positions by fact-checked senior scholars....

Carl Patrick Burkart - 2/8/2005

Perhaps the JAH and a couple of other journals should have graduate students spade articles the way they do in law. It could even be an important part of graduate education if it were integrated into the curriculumn and not treated as another method of getting cheap labor. Where, however, are these graduate students going to come from? Most are already busy grading, leading discussion sections, or even teaching their own courses. Few would be willing to do it for free.

Law students, on the other hand, are eager to work on law review because it is an accepted by potential employers as an honor. It helps to get you a job. Plus, the kinds of material that you are spading is mostly stuff that is easily accesible online or at a law library. Manuscripts at the special collections that are only open 8-5 Monday through Friday are usually consulted.

In short, good idea. Not gonna happen.

Jonathan Dresner - 2/8/2005

The example is ok, as long as we don't take it too far. One of the interesting things about Bellesiles' book is that it used a new kind of evidence, a pretty rich one as it turns out, to investigate something which had not been rigorously examined. Now his research turned out to be .... flawed .... but other scholars have now turned to those sources with a will and vigor and once we get over the guns issue there will be new and interesting insights into early American material culture to be had.

There is a great deal more evidence of the importance of bibles in early America, in literature, journalism, church history, family histories, physical evidence (I'd wager that more old bibles survive from that period than old guns, but I wouldn't wager much).

One of the things which made Bellesile's suprise plausible, to take Mr. Dorn's point, is that he claimed to do what really good historians do: approach an interesting question in a new way.

David Lion Salmanson - 2/8/2005

Would that be Bibles in New England, the Middle States or the South? 'Cause that would make a difference to me in terms of believability.

William J. Stepp - 2/8/2005

If a historian did a study purporting to show that few Americans during the colonial era owned Bibles because there was little probabtory evidence of their existence, and they turned up infrequently in wills, having been mostly passed on to younger family members, would you believe it or would you be skeptical of his claim?
My guess is that virtually everyone would be skeptical.

This is essentially what Bellesiles did with guns, but instead of being skeptical, many historians rushed to judgement in this case and lauded his findings as important new revisionism. His evidence turned out to be worth less than the paper it was printed on.

Ralph E. Luker - 2/8/2005

Well, without intending to deny what you've suggested, I'd be more inclined to say that Bellesiles won such ready acceptance because his thesis told us what we wanted to believe; but that it won such high praise because it told us that, at the same time that it was distinctly counter-intuitive. How old were we, after all, when we still believed that every red-blooded white American man in the colonial/ante-bellum period had his sturdy flintlock rifle hanging over his fireplace? Didn't we _know_ that all of James Fenimore Cooper's white heroes fought with a trusty gun piece?

Sherman Jay Dorn - 2/8/2005

I think there's an historiographical point to be made about the Bellesiles affair that doesn't apply to Kearns Goodwin or Ambrose: Bellesiles fed into our romance with what I think of as the "plausible surprise," a thesis that is innovative and yet fits with the majority of what we know (or think we know) about human behavior in the past. This is subtler than the "new provocative thesis" discussion in your blog entry because it's not the innovation <em>per se</em> that makes a new book appealing. In the case of Bellesiles, the "no colonial gun culture" argument fed into a host of recent works overturning notions of stasis in North American culture as well as the whole continuity/discontinuity argument in Southern historiography. One colleague of mine terms it the "Goldilocks principle:" not repetitive, not entirely new.

What's professionally scary is that we can probably be tricked by any book that our trained subconscious identifies as that plausible surprise. Have you ever been seduced by the summary of an argument in a preface? ...