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Sarah A. Seo, A User’s Guide to Historyin Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at SSRN.

In A User’s Guide to History, Sarah A. Seo offers a thoughtful and challenging assessment of the possibilities and pitfalls of using historical scholarship to guide our present. At the heart of her essay is a tension between needs and methods. We need to know the past to understand the present; we need to know what we’ve done before so we can make the right choices about policies today. But, as Seo strikingly puts it, “history’s methods seem unsuited for determining what, exactly, those policies should be.” To demand that history has a “practical use,” that it serves as “a tool for reform,” may be “something like a suicide mission,” putting at risk “the integrity of the discipline.” (P. 465.)

Seo’s essay—a contribution to the Research Handbook on Modern Legal Realism— thus offers historians a warning, a reminder of the limits of their craft. The essay can be read as a critique of historians who, moved by some combination of enthusiasm, desire for attention, and moral commitment, too confidently claim special insight into present-day legal and political choices.

But Seo’s primary project is constructive. By analyzing how historical scholarship can inform the choices of the present (what she describes as history’s “translation challenges”), she seeks not only to acknowledge history’s limitations, but to celebrate its distinctive and essential contributions. Seo dedicates the first half of her essay to drawing on recent U.S. legal historical scholarship to construct a “typology of history’s insights.” (P. 465.) She describes how the historians’ focus on context, time, contingency, and human subjectivity illuminates a variety of sociolegal dynamics—from the evolution of legal categories to the relationship between law and social movements to the way individuals experience periods of legal transformation.

After this illuminating survey of recent work in legal history, Seo arrives at the key question of the essay: “So, what do we do with this historical knowledge?” (P. 472.) At this point the essay shifts from summarizing the contributions of exemplary legal historical scholarship into a critical analysis of how historians use their expertise to participate in contemporary law and policy debates. And here is where we encounter the crux of the dilemma of the engaged historian: the very methods and assumptions that allow historians to bring fresh insights to sociolegal dynamics of the past—particularly their insistence on the primacy of context and contingency—limit their ability to translate insight into prescription.

“The main issue in translating historical conclusions into policy arguments,” Seo observes, “is that the questions that motivate historians are not precisely the questions that policymakers, or the public, ask.” (P. 472.) Historians work primarily in a descriptive register. The terms of policy debate, by contrast, are primarily normative. And when historians shift registers, using their knowledge of the past to defend a normative position—writing amicus briefs or op-eds, testifying before lawmakers or in court—what emerges is often second-rate history. It’s history stripped of the nuance, ironies, and complexities that breathe life into the best historical scholarship. Historians have a long record, going back at least to Brown v. Board of Education, of joining forces with lawyers and then writing confessional accounts of the scholarly compromises this work entailed. The steady ascendancy of originalism as a method of constitutional interpretation in recent decades has only increased the demand for historical scholarship that pushes aside the constraints of context and contingency and locates in the past clear conclusions that can be applied in the present.

Seo does not linger on episodes of historians who feel they have compromised their scholarship in the service of advocacy. She is more interested in exploring the ways in which historians can contribute to contemporary policy debates while maintaining their commitment to the context, time, contingency, and human subjectivity that constitute the essence of historical scholarship.

One essential role for professional historians in the public sphere that Seo identifies is error correction. When public figures use shoddy history to justify some action or argument, professional historians have a responsibility to speak up.

Another role that historians can play in policy debate is to chasten excessive optimism about legal reform. Much of the historical scholarship Seo surveys in this essay emphasizes the limits of law in producing social change. Yet, at the same time, history often provides inspiration for reform efforts. By paying close attention to change over time and the contingency of law and social practices, historians challenge those who assume that just because something is a certain way, it always was and always will be that way. A famous example of this was C. Vann Woodward’s 1955 The Strange Career of Jim Crow, a book Woodward intended as not only a reinterpretation of the emergence of segregation in late nineteenth century America, but also a direct statement about the potential for civil rights reform in the 1950s.Woodward’s message to the nation, and particularly to his native South, was that segregation was not as old or as deeply entrenched as generally assumed, and that dismantling Jim Crow was therefore more possible than many thought. Historians, Seo writes, “specialize in stories of change, which can affirm that change is possible.” (P. 472.) One of their key contributions is to “liberate us from the past.” (P. 475.)

But what about the historian who seeks to contribute to public debate beyond offering these “general messages of humility and hope” (P. 472) and beyond correcting the errors of others? What about the historian who wants to claim that history—that is, the findings produced by rigorous historical inquiry, as guided by the best practices of the profession—tells us we should do x and not y? Can the historian who fully engages in political or legal advocacy remain in the role of the historian?

Seo suggests—rightly I think—that the answer to this question is no. Although it seems that many historians, judged by word and action, disagree, there is simply no getting around the limitations of historical methods.

To assert that “history” is on one side or the other of a particular policy dispute or legal reform effort, is not, strictly speaking, a historical claim. Its primary goal is to explain and shape the present; its value and validity is determined by the future, not the past. Such an assertation uses history not as an end unto itself but as a means for another end. It requires a process of decontextualization and abstraction that denies the foundational assumptions of the historian’s discipline.

The point here is not that historians should refrain from taking sides in debates over the direction of law and policy. Historians can and should be advocates for causes they believe in. And the knowledge and moral sensibilities derived from their historical scholarship surely informs the positions they take and the arguments they make. The point is that the shift from a descriptive to a prescriptive register requires a different set of analytical tools, and that these are not the tools of historical analysis.

Seo’s essay leaves the reader with an account of historical knowledge that is chastening, perhaps, but also inspiring. Historical expertise may not be particularly good at supplying answers to present-day challenges, but we cannot successfully face these challenges without the rich, complex accounts of human experience and the windows onto alternative ways of thinking and living that a knowledge of history gives us.

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Cite as: Christopher W. Schmidt, Using the Past, JOTWELL (May 19, 2022) (reviewing Sarah A. Seo, A User’s Guide to Historyin Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at SSRN),