UNIVERSITY OF CALIFORNIA Los Angeles Trust, Proof and Persuasion in Historiography A Litigation Analogy A dissertation submitted in partial satisfaction of the requirements for the degree Doctor of Philosophy in Education by B. Everett Hendrickson 2014 © Copyright by B. Everett Hendrickson 2014 ABSTRACT OF THE DISSERTATION Trust, Proof and Persuasion in Historiography A Litigation Analogy by B. Everett Hendrickson Doctor of Philosophy in Education University of California, Los Angeles, 2014 Professor Sol Cohen, Co-Chair Professor Val Rust, Co-Chair Many if not most historians, and many if not most other academicians who employ history as a significant part of their discourse, form and present their arguments in ways strikingly analogous to those of lawyers in an adversarial legal system. Historians sift through and strategically select from among the legion available facts (“evidence”) to create a proof-based rhetorical narrative in support of the specific interpretation, with the understanding that reviewers, including proponents of competing arguments, will likely contest perceived instances of claim excess. While the central thesis is primarily descriptive, it may be possible to extend its logic to serve as a means of reconciling the literary and referential elements in history. The attempt to integrate those two threads has been a dominant concern in historiography for some decades now. ii The central thesis takes the form of an analogy, itself emerging from a synthesis of numerous reflections by historians and historiographers about their field and subfields. Testing proceeded first through a comparison of the literature on the theory and practice of law and history, then via an examination of zones and instances where law and history considerably overlap, including legal cases where the history of a specific question is the gravamen of the case, notably in some of the landmark education decisions. Recognition of strong parallels in the two fields should not alarm. For with historians and lawyers alike, the good ones at least, persuasion is both the primary means and ends of argumentation. And for persuasion the chief currency of exchange is trust. In turn, trust is often a function of fairness. Real benefits to historical scholarship can accrue through the recognition and adoption of some aspects of the lawyer’s approach, prominently the need to assess critically, before dissemination, one’s own narrative for internal coherence, including sufficient treatment of predictable counternarratives. Yet some of the more salient points emerge from those instances where the analogy proves imperfect. For example, while academic users of history often behave as professional advocates, in some settings they might do so without the lawyer’s fuller range of checks against abuse of position. In this respect, the thesis also is somewhat of a cautionary tale, for in extreme cases asymmetries in local leverages are anathema to good scholarship and good teaching. The findings here apply mostly to professional historians but are also applicable to non-historian academicians and thus are amenable to a wider pedagogical focus on encouraging modesty and generosity in intellectual exchange. iii The dissertation of B. Everett Hendrickson is approved. Edith Mukudi Omwami Stuart Banner Sol Cohen, Committee Co-Chair Val Rust, Committee Co-Chair University of California, Los Angeles 2014 iv Dédiée à Irène ma reine v TABLE OF CONTENTS Chapter 1. History, Law and Navigational Heuristics (Introduction of theory and beginning explanatory Literature Review) . 1 Prologue . 1 History, Law and Heuristic Analogy . 2 Judicialist Imagery in Historiography . 17 Tentative Thesis and Research Questions . 29 Research Approach/Method/Methodology . 36 Dissertation Organization and Roadmap . 41 Personal Notes, Background, Expertise . 44 Chapter 2. The Long Ellipse of Judicialist Historiography (deep level Literature Review) . 48 (1) Ancien régime: objectivity and reason in the Anglo-Continental tradition . 50 (2) Empire, imperfect transAtlanticism, and American Exceptionalism: Euro-American judicialist scientism . .76 (3) The forgotten cycle: New-century activist relativism . 90 (4) Underexamined retrenchment in the Age of Ideology . 104 (5) The fall of the House of (purely objective and positivist) Science . .132 (6) The social-personal turn: Corrective, standpoint, agenda, impasse . 142 (7) Turns linguistic and literary . 191 (8) The neo-judicialist synthesis: Attempted reconciliation . 226 vi Chapter 3. Historian-Lawyer Analogy (Exposition of working theory) . 253 (1) In history there is always an argument and an effort to persuade . 260 (2) While some important evidentiary gaps can exist, overall historians grapple with a considerable surplus of potential evidence . 272 (3) Limited resources force historians to be data selective . 289 (4) Historians nonetheless can objectively discern the merits of certain individual facts (or certain fact clusters) and relationships . 300 (5) Historians and lawyers direct their narratives largely to matters of causation . 315 (6) From a selective basket of (arguably) objective facts, and with skillful phraseology and paratext, the historian defines, shapes and directs the terms of rhetoric within a recognizable, orderly, plausible and compelling narrative . 324 (7) Notwithstanding all the above, external pressures – including the devices of formal and informal counteradvocacy and external judgment – help reinforce the historian’s presumed objectivity, fairness and trustworthiness . 346 (8) The historian’s realistic standard of proof is cast in probabilities similar to those in jurisprudence – not “beyond a reasonable doubt” (criminal law) but rather “more likely than not” (civil law) . 360 Chapter 4. Discussion and Reservations. 379 Chapter 5. Conclusion and Extension. 409 References/Bibliography . 427 vii VITA Education Present Doctoral Candidate, Education University of California, Los Angeles Qualifying exams passed with honors Emphases: Historiography; History/Philosophy of Education Teaching Assistant, Introduction to Comparative Education 2000 M.B.A., Management University of Oxford, Saïd Business School (UK) Focus on Social Entrepreneurship 1992 J.D., Jurisprudence University of California, Los Angeles School of Law Editor-in-Chief, UCLA Pacific Basin Law Journal 1989 M.A., Political Science University of California, Los Angeles American Politics and International Policy Studies 1985 B.A. summa cum laude, International Policy Studies Monterey Institute of International Studies Student-Faculty ombudsman Award for top student in History Professional and Pro Bono Work 2007- Friendship Products LLC Co-founder of a design and licensing company specializing in environmentally responsible product containers meant to encourage second use and then improve recycling rates; a parallel application of the design family provides light, strong, modular construction material as a second use of containers first employed in the broad-scale delivery of humanitarian aid to dislocated persons. Several US and international patents either held or in the application process. 1992- Law practice: civil litigation; alternative dispute resolution; administrative 2008 and legislative consultancy Spearheaded (lead attorney) a large public policy case concerning serious irregularities in protective oversight at a home for abused children. Authored several petitions and follow-on analyses to appellate courts, including the California Supreme Court. viii Employment law cases: age, racial and disability discrimination; breach of settlement agreement; defamation; breach of commissions contract with violation of wage and hours laws and fraudulent inducement to contract; sexual harassment and retaliatory termination in violation of public policy; exposure to toxic materials in the workplace leading to disability and retaliatory termination in violation of whistleblowing laws. Other extensive litigation: multi-party construction defects; insurance bad faith; telecommunications agency fraud; attorney-client relations and litigation privilege; undue influence and conflict of interest in the altering of a testator’s will and trust; hospital breach of trust, i.e., improper governance of a non-profit corporation involving self-dealing by officers and trustees. Drafted contracts, briefs, and corporate advisory letters and memoranda on finance, tax, employment and regulatory issues. Pro bono legal and consultancy work: political asylum; American Disability Act; advice regarding admissions-related dispute at a graduate university department; advice regarding claims of gender discrimination against higher education administrator; strategy advice and editing in support of a successful five year effort ultimately delivering $5.3 billion in legislative relief (two Congressional bills) for the severe unintended consequences of the alternative minimum tax scheme on thousands of mostly middle-income families; Board of Trustees service (twelve years) for a non-profit organization, requiring extensive interaction and negotiation with community leaders, City and County agencies, and City Council members. Arbitration and/or mediation of several contract disputes and other conflicts. Los Angeles County Bar Association, Dispute Resolution Services, arbitrator for attorney-client fee dispute resolution. Commissioned by the Los Angeles Metropolitan Water District to create a proposal for detailed procedures for an agency-wide alternative dispute resolution program. Personal