Welcome everyone to tonight’s constitutional conversation with Professor Allison Larsen. I think we’re in for a really interesting evening. Professor Larsen is a professor at William and Mary Law School and director of William and Mary’s Bill of Rights Law Institute.

She is one of the most prominent figures in the increasingly important intersection between administrative law and constitutional law. She, among other things, graduated from University of Virginia Law School, clerked for J Harvey Wilkinson on the Fourth Circuit, and then for Justice David Souter on the Supreme Court, practiced for a while and then has been, I think her entire academic career has been at William and Mary, which is, by the way, a very nice place.
Her topic tonight is something that has bothered a lot of us who teach in this area, but I don’t think anyone has ever given it systematic treatment before, which is: the Supreme Court makes a number of pronouncements about what it thinks are historical facts and surprise, sometimes they get it wrong. But do we treat those statements and then the conclusions that follow from them as having precedential effect? Or what happens when you just know that they got it wrong? Let’s find out. Thank you for coming.

Thank you so much, Michael. So thank you so much for having me here. It’s volume. Okay. Okay. I’m really honored to share my work with you. And it’s particularly special because it’s being published in the Stanford Law Review, or was published last week in the Stanford Law Review. So it was much improved by working with the fabulous Stanford Law students.

So here’s my plan this afternoon. I thought I’d tell you a little bit about where this idea came from, and then walk through the major claims of my paper. But I wanna leave ample time for questions. And selfishly, I’m actually gonna plant a seed for maybe a future paper that I’m thinking about and get your reactions to that too.

So that’s later. That’s later. Okay. So this paper asks the question, is history precedent? And honestly, that’s a question that’s been rattling in my brain for over a decade, believe it or not. I wrote a paper when I was a younger scholar, I won’t say young scholar, younger scholar, called factual precedence.

And I think I’m, if I’m known for anything I’m most known for my work on appellate fact finding. So in that paper, I realized that there’s a, there are downstream consequences to appellate fact finding. As Michael was telling you, it’s a tendency for lower courts to cite higher courts as authorities on questions of fact.

And my favorite example from that paper comes from a Justice O’Connor opinion where she says, typically carpal tunnel resolves on its own without surgery, and then lower courts repeat that claim like that quote as truth of the matter asserted, as fact, citing Justice O’Connor. And she was an amazing judge, but she wasn’t, I don’t think she was purporting to be, an expert on carpal tunnel, as a medical authority.

So I, I worry about this practice, and I worried about it back in 2013. It risks entrenching factual mistakes. And cementing outdated data. And at bottom what I’m worried about is that a lower court judge will take something as authoritative from someone who is not an authority. That’s really what I’m worried about.

So in that piece, I confronted this decision of: What do I do with history? Does history count as a factual claim? Is it the same as carpal tunnel? And I originally said yes, and I lumped it in with other factual claims, but my present considered view is that it’s a little more complicated than that.

And I think history is facty, and forgive me, this is a word I made up and I’m really trying to make a thing. So facty means on the spectrum of law and fact, facty is on the fact side of that spectrum. So history is facty in some ways, and facty, and not facty in other ways. So sometimes a historical claim is easily verifiable with stuff you find in law libraries. That’s kind of facty. Other times these claims require research into sources that judges are not familiar with, and a sense of context that only comes after years and years of study. So it might be facty, but that’s not very ripe for judicial decision making.

Plus lawyers and historians, they think about history in very different ways. So Jack Balkan explains this in his recent book. He says, lawyers are taught to assert and dispute claims about legal authority to enter into and win arguments about what the law is or should be. They think about history and use history in ways that reflect this adversarial culture of authority-claiming.

Conversely, historians are trained differently. Their central task is not winning legal arguments or establishing or demolishing legal authority. They’re interested in the past for many reasons other than present-day legal debates. I actually told this story to the students I had coffee with before. So I, I just wrote another piece with a medieval legal historian, and I experienced this mismatch between law and history, like head on, because as we wrote together, I would say things like, how is this advancing our argument? Or why do we need this, and he would be like, why are you asking me that? And then he would be like, I’d say, why? We don’t need to know where this guy was born. And Tom would say, oh, these beautiful details. And it would just, it’s just the difference in the way we were trained and the difference in the way we approached it.

And anyway, in the midst of me thinking anew about whether history is facty or not and how law wants history to be something it’s just not, the Supreme Court took the Bruen case. It was the case that decided in 2022, the Second Amendment challenge to New York’s concealed handgun law. And at the oral argument for that case, I was listening, Justice Barrett asked a very interesting question. This is what she asks. Do you think we are bound by the way we characterize history in Heller?

Now, just to be clear, she’s not saying, are we bound by Heller? And when she was on the seventh Circuit, she didn’t think to ask that question, are we bound by Heller? That’s an obvious yes. She’s asking something else. Once the Supreme Court blesses a historical narrative or cites a historical source, does that conclusion in and of itself bind other courts to the same answer about what happened in the past?

And that’s the puzzle that I tackle in this paper. So my central claim, what is a historical precedent? My central claim is that Supreme Court historical citations and narratives have an afterlife, right? They have an afterlife. There’s something that happens after they appear in the US reports. They are subsequently cited by the lower courts as true.

So here’s a crisp definition for you. ’cause I know lawyers like crisp definitions. A historical precedent is a citation in one court of another judge’s legal, I’m sorry, another judge’s historical conclusion, not as part of the legal ruling, but as evidence that the statement is in fact true. So I’ll give you some examples.

And by the way, to give you a rough estimate of scale, there are over 900 lower federal and state court decisions citing the pages of the Bruen opinion that talk about the historical analysis. And Bruen is only three years old, so I don’t attempt to measure them or catalog all of them. But let me give you a couple examples.

Sometimes the courts will cite Heller for the claim that felon disarmament laws are longstanding. This, by the way, is why Justice Barrett asked the question, because this came up to her when she was on the Seventh Circuit. There was a felon disarmament law, and she was wondering if she was bound by the history that Justice Scalia cited in Heller.

Citing Bruen for the claim that surety laws were not intended for any degree of punishment in Colonial America. Citing then Judge Barrett’s Cantor dissent for the proposition that capital punishment was less pervasive than one might think. So these aren’t all the same. So part of my project is to create a taxonomy to, to create the different ways that the history is used. And the reason I do this is because I think our normative concerns will vary depending on how the history is used in its afterlife and by the lower courts.

So let me give you an example, some taxonomy. Oh. Okay, here we go. A short, bear with me. A short taxonomy of historical precedents. All right. I came up with four.

Sometimes historical statements are just shorthand for describing that an old law existed at one point in time, so X happened on Y day. That doesn’t worry me very much. Because it’s easily verifiable with traditional legal authorities. You can look it up in the law library as a way to think about it, so I don’t tend to worry about it as much. Sure, there could be a mistake, but this one doesn’t keep me up at night.

Okay, next one. Sometimes you have claims like X was pretty common back in the day. That’s quasi empirical, right? It’s a comment on how common a historical practice was in the past. It involves counting and weighing, and that use of a prior judge’s homework can still be fact checked, but perhaps not as easily in chambers, not as easily in a law library. And it’s maybe a place where mistakes are more likely to happen. So I’m starting to worry a little bit, but still not up at night.

All right, next one. This is where I’m starting to sweat. Sometimes they end up citing another judge’s historical homework for a claim about Purpose X was enacted because people back then thought Y, right? These lie on the outer edge of a judge’s expert expertise, and they raise greater concerns for me because they can easily be taken out of context.
And last but not least, sometimes as, it wasn’t as common, but sometimes you will find a lower court using a historical statement that was certainly used as rhetorical flourish the first time around. So the best example I found is when Justice Scalia refers to certain old gun laws as akin to jaywalking, right? That’s like a Justice Scalia like color that’s adding color to the opinion, but it’s recited as, oh, yep. Surety laws are like jaywalking, and that’s recited as fact in lower courts.

All right, one other descriptive observation before I get to the normative. On occasion, the judges who use history this way, what I’m calling historical precedent, they tell us why they’re doing so. So here’s an example we largely rely on then Judge Amy Coney Barrett’s Cantor dissent because she is credited with first compiling and analyzing these historical materials in one opinion. And other judges have extens extensively relied on her work. So I’m not sure why being the first to compile history, bestows authority, but the second reason makes sense to me.

I believe the second reason can be explained by something known. As the authority of familiarity, and this is something we should be nervous about, right? So for a trial judge with a lot to do and not much time, it is very tempting to cite a famous judge, a judge you have heard of before for a statement of history, and think of a law clerk’s temptation to do that.

And the analogy in the paper, which you all let me use, even with the abbreviations 1L and 3L is: a 1L will take a 3L’s outline from the law review, even if there’s no confidence that 3L was a subject matter expert in whatever the subject is, right? It’s the same, under the same thing. I find this a familiar and comforting authority, and so I’m drawn to it. All right?

Why should we care? I think there are significant practical considerations that follow a practice of citing a judge as an authority on history and using that to settle a matter. So I walked through three in the paper.

One: courts can get the history wrong, right? And this is what you were alluding to before. In terms of mistakes, courts are just not institutionally structured to sort through historical authorities. They risk missing important context and they risk falling prey to confirmation bias. And that’s, there’s good reasons to worry that courts are gonna get the history wrong because factual claims and historical authorities come to the court’s attention in a procedural hodgepodge, in, in a variety of ways. Sometimes there’s a trial and you have experts testifying below. Sometimes you have dozens of amicus briefs that have been filed at the 11th hour by motivated actors. Sometimes the judge is doing the historical homework alone in-house with just with the, his own staff. So in that environment, the risk of mistake, the risk of missing important context is very significant. All right.

Second, even if courts are really careful and they don’t make mistakes, our understanding of history changes over time. And I use an example in the paper from this EEOC v. Sears trial in the eighties about gender discrimination. Which is, the historical issue was historically what jobs were women interested in pursuing. And my understanding is that historians cite this case as an example of putting history on trial and that mismatch that I described before between law and history. The concern here is not that the judge in the Sears trial was sloppy or overly casual. Indeed, there was a full blown trial with qualified experts on both sides. The worry is more fundamental than that. It’s a concern that if we cement our understanding of history at one moment in time, we’re stuck when our understanding of that history changes, and that’s that basic mismatch between law and history. Law seeks finality, a firm answer, but history rejects finality. Our understanding of it changes as we change.

All right. Finally, we come to the big question, the Justice O’Connor carpal tunnel question. Can Supreme Court Justices or their counterparts on appellate courts who are sometimes cited as well, can they even claim to be authorities on history? Do they want to be authorities on history? Is that what they’re trying to do? Just as it’s doubtful that Justice O’Connor was purporting to bind all future judges to one answer about the medical fact of carpal tunnel and surgery rates, it seems peculiar to me to assign to nine lawyers the job of refereeing the validity of historical sources and context debates and then settling that for everyone until we revisit the precedent later.
So to understand why I think it’s odd to understand this third worry, I wanna reference a lecture at NYU about 20 years ago, given by Judge Pierre Leval. So his topic was dicta. Oh. Did I do something weird with the lights? No, it’s okay. Alright. His topic was dicta and he spoke about his concern that dicta is no longer given the insignificance it deserves and is unfortunately flexing its muscle.

But in addition to constitutional concerns, Judge Leval articulated practical ones that I think are very relevant to my project, right? So he says, judges work under great time pressure. When the concurrent chambers receive the writing judge’s draft for their review, they’re likely to look primarily at whether the opinion fulfills their expectations as to the judgment and the reasoning and support.

There is a high likelihood that peripheral observations, alternative explanations, and dicta will receive scant attention. To paraphrase, this dicta is made on the cheap. So think about it’s not always briefed, it’s not always argued, and this is the important one for me. It’s not always deliberated, right?

Think about what you imagine happens in conference. It’s very unlikely I think that every historical claim that’s gonna show up in this in the final opinion, is going to be debated and deliberated. At the AT conference. So in Judge Laval’s words, judges pay no price. The statement gets in for free, and paying no price, consequently means paying less attention.

All right, what should be done? Some of you might be asking, who is her audience here? Who is she talking to? So I wanna be really clear that I have a lot of sympathy for the lower court judge with a Second Amendment litigation case on their docket and not really knowing what to do. And I remember being at a conference right after Bruen and hearing a judge who I respect very much say, okay, short of going back in time and getting a history degree, how do I do this?
And she said, I’ve got two briefs. One brief says this happened in history, and the other brief says, no it didn’t. What am I supposed to do? She’s my target audience. Because if you’re in that position, it’s very tempting to find a judge who has already done this, to find a citation in the US reports and put it, or think of the law clerk, that’s great, oh, Justice Alito said it, put it below the line. That, that’s a very tempting move. And so I wanted to give that judge and other judges like her, I wanted to give her my thoughts, guidance on when I think it’s okay to use a historical precedent, and when I think it’s not, and I have the following suggestion.

You gotta look under the hood. You gotta look under the hood and think carefully using nuance and care about what you’re actually citing and where it came from. And there’s three dimensions to my look-under-the-hood advice. All right?

The first one requires us to ask a question that my old mentor Fred Shower, used to ask. What is precedent anyway, right? What is precedent anyway? So some judges on the lower courts, they speak like these statements about history from the Supreme Court are binding on their judgment, as in it restricts the way that they can rule. But that can’t be right or it can’t explain all of the instances that I found, to take the lowest hanging fruit, some of the historical precedents being cited come from concurrences and dissents.

So that’s certainly not binding on the discretion of the second judge. But even outside of that, a lot of these historical narratives are not central to the holding, right? They’re dicta, so they don’t really bind your discretion. So I think what’s happening is that we’re using this word precedent in a looser way.

Maybe you could think of it as persuasive authority. So courts are citing these legal sources, not because they have to, or even because they’re necessarily persuaded by the reasoning, but because the first judge deserves respect, right? The first judge is found to be trustworthy, and that’s something lawyers do all the time. We, we call it source authority. Sometimes a source is more authoritative because of who said it, not what it actually said. All right, so the first thing I think you have to ask is whether it’s really binding or not.

The second one, oh, I forgot to say something important. This is my Taylor Swift lyric, right? It’s hard for me to wrap my head around the idea that a judge is ever an authority on a historical claim. And that’s where I said in the paper, it hits different, hits different when it comes to history. Because very few judges are trained historians. And there’s a real danger with citing historical evidence as true just because a famous judge said it once before, I think it, it leads to a distorting game of telephone.

So repeating factual claims and then sound bites of factual claims. And then sound bites of sound, bites of factual claims. And then it elevates certain voices for idiosyncratic reasons, not because they’re the historical authority, but because they were the first to assemble a history. I dunno, that seems weird to me.

All right. Second dimension for this one. An analogy is helpful if you think about the law of issue preclusion. Now, this is risky for me because I’m going back to Civ Pro, which for me was a long time ago. But it, that’s a doctrine that prevents the same issue from being litigated repeatedly in subsequent qua subsequent claims, and the rationale behind the doctrine.

Part of it is about fairness, but I think there’s something else happening too. And if you look at, if you look at sort of the hesitation in the collateral estoppel context to declare an issue settled, here are some important phrases. The first claim has to be actually decided. It must have been essential to the first judgment, and the party resisting preclusion must have had a full and fair opportunity to litigate the issue.

So think about those phrases, actually litigated the quality of the procedures full and fair opportunity. To me, those evoke more than just fairness concerns. Courts don’t wanna deem an issue settled if they’re not confident that the past presentation of it was full throated, right? So there’s a procedural rigor.

There’s a procedural rigor requirement behind the collateral estoppel. And I think that applies equally with historical precedent. So if you can compare by, if you compare the history of felon disarmament, it was mentioned by Justice Scalia in Heller very briefly. And if you think about colonial surety laws in Rahimi, that was the center of that fight.

So it was the subject of many briefs. It came up at a oral argument. It was full. There was a fullthroated defense of it. I think another dimension to thinking, should we cite a historical precedent? Is to ask, did this get the full attention of the court in the case that we’re citing?

Because if it didn’t, if it was just an aside or, as Justice Barrett said when she was a judge on the Seventh Circuit, a passing reference, then that we shouldn’t repeat it over and over again. And those risks that I mentioned before are exacerbated.

All right, last one, bearing with me, doing great. This one almost stumped me. I wanna give you a hypothetical. Imagine a federal district judge who is skeptical about the historical evidence that Justice Scalia relied on in Heller to conclude that members of the founding generation used the phrase bear arms to refer to an individual, right?
And there’s plenty of people who are saying that history was wrong. What if that judge today in 2026, what if that judge decides to hold a trial? Complete with testimony from linguistic experts and historians aided by modern technology. And ultimately, that judge concluded as a matter of fact, that people alive in 1787, they said, bear arms only with a military, meaning that conclusion, whatever you wanna call it, a legal ruling, a factual finding or corrective history that would amount to an overruling of Heller by a lower court judge.

And that can’t be right. If every district court across the country is authorized to probe every utterance of historical fact, the judicial hierarchy would unravel and we would just be left with chaos. So what makes that thought experiment different than the other examples that I mentioned in the paper?

The Heller history in this example is not precedential because it’s persuasive. It’s not precedential because it comes from a fancy judge. It’s precedential because it cannot be separated from the rule that it helped create. So because Heller followed an originalist methodology, the legal rule that comes out of that case, what the Second Amendment covers is intrinsically linked to that particular history, what the people alive at the founding thought bear arms meant.

So I think that makes the history, our understanding of what happened in the past embedded in the modern, the mo, the legal rule, the modern legal rule that came out of Heller. I think in that situation, the stare decisis power of the legal rule attaches to the history that created it. And that’s why I call it a, premise, a premise, a historical premise.

Okay. Even with the concession, that premise, history, premise, historical precedence, say that five times fast that they’re essentially legal and so binding. There’s still plenty of work for my good faith friend, the judge. But it’s work that courts are used to doing. So much like we expect judges to look under the hood and separate dicta from holding when they’re interpreting a prior decision.

So too, should we expect them to look to separate the premise historical precedent from. The shortcuts or the factoids or the connective tissue, we can call it narrative, whatever. Alright, so what is the answer? If you ask a question in your title, you should give an answer, right? Is history precedent?

Here’s my answer. Usually no, but not never, right? Usually not, but not never. It depends on a bunch of things. It depends on how the history was used the first time around it. It depends on whether it was subject to rigorous testing. It depends on whether it is the sort of claim that can easily be verified by a judge, how facty is it, and whether it was central to the legal rule in the first case. But one thing I know for sure is we shouldn’t just do it because it’s easy. It should be done with caution and nuance and thought. And I don’t think that’s what’s happening now.

Okay. I’m gonna ask your questions. I’m gonna take your questions, but before that I wanna do that thing I promised, which is, I have, I’m gonna call it a half-baked idea, but that’s not fair to half-baked ideas.

This is, I’ve taken the flour out of the cupboard. It is a really early idea, but it’s a follow up to this paper. And so I wanted to get your thoughts on it. It’s an epilogue, I’m calling it precedent as lore. So part of what I’m describing in the present paper is a game of telephone history is briefed to a judge and then a soundbite of that history is enshrined in the US reports. And then a soundbite of that soundbite is cited subsequently by a lower court judge. And that telephone game is made possible by digital research tools, fatter judicial opinions. So more things to find right? More things to find, and frankly, citation-happy law clerks, of which I was one. So I’m starting to wonder if that telephone dynamic with precedent is actually a more general phenomenon apart from historical claims.
So imagine that one court misinterprets a precedent, maybe on purpose, maybe not. And when that happens, we have a new animal. The old precedent has been recharacterized, which is what I mean about lore. And my strong suspicion is that lower courts cite that second opinion without giving it too much thought.

Is that problematic? I don’t know. It’s not the same as history. ’cause we don’t have the same courts aren’t authorities on history problem. But I am puzzled by it and worried by it. And frankly, I think the dawn of AI is gonna make it worse, not better. So if you have any examples that come to mind of precedent as lore or scholarship, you think I should read, or if you think, Alli, you shouldn’t be worried about this at all, go back to sleep, I’d be happy to hear all of it. And thank you again so much for having me. I’ve been delighted to be here. Happy to take your questions.

You can line up in either aisle for questions. Please speak into the microphone.

Hi. Hi. I’ll get us started. I’m Duncan. I’m the fellow. Oh, hi Duncan. Nice to meet you. It works really inspiring to me, so it’s great to have you here. Thanks. I have a question. So since you began writing in 2013, we’ve seen a revolution in the role of history with the rise of originalism. Yeah. I wanted you to reflect on the relationship between this project and your larger project about studying history and the primacy of originalism and contemporary constitutional law and as a corollary to that originalists aren’t monolith and how they think about what originalism means. Yes. Are there insights from your work in some of the lively debates among originalists now, like in post ratification history between Justice Kavanaugh and Justice Barrett?

Yeah. That’s great. So I’m glad you, you gave me a little cover, which is true. ’cause in 2013. Like history and tradition, it was obviously was around, but it wasn’t as front and center, let’s say, as it is now. So my original thought of like history is fact. It’s about whether something happened in the past. I think that was overly simplistic. And so the rise of originalism and some of us have been doing originalism for a long time, but the growing band, the merry band of original, that has influenced my thinking about whether history is fact. And if it’s a fact, what kind of a fact? I have this little paper called History’s Identity Crisis where I think about, there’s different sort of facts. There’s a fact that goes to a jury, like a who, what, when, where, why fact. And there’s a fact that’s more like policy. We call it a legislative fact, which is a terrible phrase ’cause it doesn’t mean that the fact was found by a legislature, but whatever, we’re stuck with it. That’s the phrase. And I think sometimes history falls into that legislative fact category and sometimes not so much. So I think, and sometimes I think, as I mentioned in this paper, it does meld into the legal rule. So I guess the insight I would have is it’s not all the same like the way it’s used by lawyers can make it different in terms of the evidence that should be used to prove it or not. Yeah, it’s a good question.

Hi. Hi. I’m Jack Rakove. I have a lot of questions and qualms and problems with your analysis.
And so let me start by saying it seems to be this problem. The problem you’re posing could be posed in two complimentary or parallel ways. One, there’s a specific question about how do judges reason about historical material within a framework of legal decision making. The broader question, the one which appeals to historians like myself who are originalists, but not on linguistic grounds, but on historical contextual grounds, would say there’s a deeper issue.

And the question is, how well are judges capable of reasoning historically? That’s not a matter of finding particular facts. That’s a matter of reconstructing more broadly the context of action within which the relevant actors at Tessa one, in this case, let’s say 70, not 78 7, but 70 89 or 77 and 79 were at, that’s complicated by the problem that Bruin, I think, a little bit more than Rahimi creates, Bruen invites jurors who are who around the country are baffled by what their new obligations are to reason on the basis of history and tradition. They are invited to do research that will be much more, it’s likely to be much more complicated, but also much more conscientious than scrupulous than the Supreme Court has done previously.

Scalia’s historical reasoning. You won’t be surprised. Hear me say that. Scalia’s Historical reasoning in Heller is a disgrace, and that’s an overgenerous comment to how badly that decision is argued. No one in 79 thought it would’ve thought for a moment that they were constitutionalizing a common law right of self-defense.

It was all about the militia. Nothing more, nothing less. But the dilemma that Bruen raises, I’m not sure if I’m gonna have a question for you, but I’ll have a lot for you to react to the dilemma that Bruen raises. It’s inviting judges around the country to their frustration and bafflement without adequate guidance from the court to reason historically, when they reason historically they’re gonna discover, as a lot of my buddies, people like, so Cornell and Brian de delay and, and like to quote arson no lace.

When you say others, do you mean others? They are, they’re gonna create a history that’s much richer than anything the court has relied on. And once that history is created, the premises of rah excuse me, the premises of, I think also Bruin in many ways are gonna be undermined.

Now what? Now I’m a little, I’d like to hear, if you want to defend as you want to do your precedent driven model of historical reasoning, it’s what the court decided in the end that should be determined. But what happens if the court is inviting a line of reasoning the judges may or not be perfectly qualified to do, but they, the court has actually invited them to do it.

In fact, it’s ordered them to do it. And they’re, they’re likely to come up with much more complicated, but also empirically much superior answers to the one that, to the ones that the court relied on. And Heller, and I’m blanking on. There was a pressing case to Heller that was, I’m blanking on that, that, that more or less said hell up.
So I, I, obviously I’ve given a lot of thought in this issue. It’ll stop at this point, you’re I won’t say you’re opening up the Canon words, the historical enterprise, you are inviting, you’re trying to constrain it by imposing the judicial framework on it.

But in fact, the over the overall, conceptual, intellectual nexus, the court is inviting, it seems to me is gonna be subversive of the purposes you’re describing to it. So I don’t think we actually disagree on much. So my project isn’t to tell them to do this more. My project is to bring attention to the fact that they’re doing it at all.
I think what you say about judges, like asking them to do historical reasoning when they’re not trained to do it and how that’s unfair. I totally agree with that. I just don’t think the answer to that is cite someone else who did it like that to me seems like a shortcut that is. Papering over a bigger problem.

I, where I’m, I think we might disagree is the premise fact, the last thing I said and I, and to me the reason I came to that resolution is I don’t understand an ordered judicial hierarchy that would permit the overruling of a core Supreme Court holding by new historical analysis done by judges. Even if it’s better.

I guess to me, my sense of order comes first, but I think we are almost aligned on everything until that last bit at the moment I’ll say. That seems to me, but you explain this better. Should be at dinner. People see that news. Oh, okay. You may have just answered my question, but to return to your hypothetical Yeah.

You advocating that the lower courts should never challenge the Supreme Court’s previous decision based on history or if they should, under what circumstances would that be a reasonable thing to do? I think it’s the same as any sort of stare decisis. If you have a lower court judge that really doesn’t like a precedent that is squarely on point, that judge can write separately and say, I don’t like this.

I think history has changed, I think, and then the litigation goes up and, but it’s the Supreme Court that has to change its mind. And I think that’s just back to the stare decisis puzzle generally. I don’t want the, I don’t want the, I don’t know what the right analogy is. I don’t want the tail to wag the dog. So like the overall thesis is, let’s not do this. The little tail is, maybe there’s one situation where we have to do it. I just wanna make sure that I have that framing right, so we understand tail and dog. I think that’s the analogy. I wanted to ask something, which I think is at the intersection of this paper and your earlier paper about appellate fact finding. Yeah. And that is about amicus briefs. Oh. And the, there’s just this oddity in the way civil procedure works. Yes. That at the district court level, when you’re talking about facts that are understood to be facts there are rules about evidence and we have expert testimony and there’s cross-examination and all that may have its problems, but it has a certain rigor to it.
But then you get up to the appellate level and especially the Supreme Court level, and suddenly you have these amicus briefs. And this goes back to the Brandeis briefs. This is a long, this has a long history to it. And the amicus briefs have no rigor at all. Some of them are written by people who know a lot about what they’re saying.

Some not. Some not. Yeah. And actually sometimes you have amicus brief by people who know a lot about what they’re saying, and they say things that are contradictory to the work. Yeah. That they’ve actually done. And the Supreme Court justices and other appellate judges really do just take them.

They will cite an amicus brief as if it is a scholarly authority. Yep. I just wondered if you have some thoughts on that. Oh, I have so many thoughts, Michael. Yes. So yeah, this is how I got into this project. Like long time ago I started worrying about the growth spurt of amicus briefs and how the Supreme Court was relying on them exactly as you say, as expert witnesses.

And actually, this is a good lesson in of like academic study. I had my IRA. This is back in 2012. It’s I want you to write, whenever they cite an amicus brief, I want you to cite the authority that they cite. Because I just assumed that they wouldn’t, they would just start the authority in the brief, but they wouldn’t cite the brief as the expert.
But that is not what they were doing. They were citing the authors of the brief. The brief was the expert testimony. And that shocked me. And then I looked into it a little more. And this is rampant. It’s, and it’s, I think the problem is not just that it’s happening, but that it’s happening at the quantity.

So the Brandeis brief, as you say, that was the pioneer brief, like this, a legislative fact. But there weren’t hundreds of briefs for the justices and the law clerks to sort through. It’s very difficult when you have dozens and dozens of factual assertions, historical claims being submitted to the court without any real adversarial check.
The parties can respond in their reply brief, but they’re not incentivized to do so because then they’re calling attention to something that might get lost in the sea. That means the justices are just surrounded by claims. That are that they’re gonna fall prey to confirmation bias, right?

Like you’re gonna read the brief that agrees with you, and all of a sudden that expert is the one that you put in your footnotes. And to me that’s no way to run a railroad. And it’s very different from the way we treat facts in the run of the mill case. And this is where that distinction between adjudicated facts and legislative facts comes to haunt us because the federal rules of evidence exempt legislative facts.

So if it’s a fact about the way the world works, do violent video games. Harm juvenile brain development. And history. History I think is often treated in this way too. Do people alive at the framing think of bare arms as having an individual, connotation. Those don’t have to come in through trial.

They can come in at the last minute, like at the Supreme Court level, after the party briefs are in. And to me that’s just really bad. What I’ve argued for in the past is more disclosure rules for amicus briefs. If they’re gonna do it and they love them, they love the amicus briefs. If they’re gonna do it, maybe they should at least know who’s paying for it in a more full throated way.

But I don’t know. I do think the amicus brief problem is a real problem and it’s only getting worse. And, oh, one other thing I wanted to say. I counted citations. That’s how I measured it, like how often they cited it. But that’s a drastic under count because there are political scientists that use plagiarism detection software, and so they can see.
When the brief shows up in the opinion, even without citation, and it’s happening all the time. So my little non empirical count is a very conservative estimate of how they’re being used. Hi. Thank you so much. I just wanted to ask a follow up on, on Professor McConnell’s question, kind of one step back from the amicus brief.

I feel like we’re seeing more and more professors writing towards the Supreme Court. Yes. And I was, I’m thinking about the birthright citizenship context. Yeah. Just because I feel like that’s where it’s come up where people create a scholarly debate where maybe there wasn’t one before. Yeah. That’s maybe I’m thinking too bad faith there.
But I was wondering if you could say that I got a good one for you. I know I’m just like going to different papers that I’ve written, but that’s just what I know. So the Major Questions doctrine this is a doctrine in administrative law that has it, it has its roots in cases of statutory interpretation where you don’t lightly assume that Congress is gonna delegate major questions to agencies.

And those statements like that date back at least to 2000 even before. And there was a Justice Brier article before that, but what happened in the, like post 20, I think it was like post 2018, there became a literature where we’re calling it a doctrine. And that is an academic move. And then it’s picked up in social media and it’s eventually, now it’s a doctrine as opposed to an argument of statutory interpretation.

And to me, I think that makes a difference. ’cause it’s like more authority, it’s doctrine, it’s law. You gotta study it for the bar, right? It’s like heavier. But that’s the work of academics in terms of amicus briefs. To bring it back to history for a second, my understanding, you can correct me if I’m wrong, my understanding is there used to be at least a norm against historians filing these briefs, like using their work to submit it for legal purposes.
And that means the ones that are doing it are either lawyers or have other reasons why they’re doing it. So you might have. A pool that’s perhaps not reflective of the larger field. And that’s not exactly your question, but it’s related to your question. Hi. Hi. How are you? Thanks for this.

It’s a wonderful presentation. I teach just down the road it’s Santa Clara. My question is. And I apologize if I’m, if this is too elemental, but there’s a way in which this endeavor the whole judicial enterprise, particularly in constitutional law, is about trying to separate what is the holding from, what is the rationale?

The holding is binding precedent. The rationale is not, but it’s informative. And the further you get away from the holding the less presidential it is. I guess I’m left wondering, to what degree do you think history is in any way distinctive from all the other ways? Yeah. In which various sources of knowledge are used to form a rationale that ultimately supports a judgment?

Should we be obviously. The turn towards originalism makes history more significant in some sense, but does it make it any qualitatively different than any other thing that we’ve always been trying to sort out that separates rationale from judgment or holding? That is not an elementary question, so I don’t think it’s different in kind, I think it’s different in the following degree.

Lawyers are confident in their ability to digest history in a way that may not be true in their when it comes to like other factual assertions. So I start with the Justice O’Connor example because all of you are like, whoa, that’s crazy. Justice O’Connor is an authority on carpal tunnel, right? But with history, there’s plenty of very smart lawyers that don’t have that same reaction, right?

Lawyers can do history and there’s a reason for that instinct. ’cause what you’re doing, I understand, is different than historical reasoning, but you’re looking for patterns and evidence. You’re looking for anal. That’s something lawyers feel confident in doing. I am not sure if that confident is confidence is well earned.

So it, it could be this, the same pitfalls are gonna, depend, regardless of whether it’s a question of medical factor, a question of history, you can still miss something important. ’cause you’re not an expert. But I think you see lawyers doing it more. Does that make sense? Like they’re more confident in their ability to do it.

And there’s plenty of people that say historical claims aren’t facts at all. They’re this, it’s a legal, it’s a legal authority.

I really on can hear. I really enjoyed this. Thank you. My question is if you think of like the clerks who now, yeah, I love this. I’m gonna do it. Take your paper, let’s go. Are they gonna run into some of the same problems that they used to, so now they have to sort dicta from bin precedent.

And then it looks like what you do is you go and you say if it’s fully briefed, and what briefed means is there’s lots of briefs and it’s been talked about in oral argument. Are they now supposed to count briefs and go into the transcript? What are the mechanics of them actually implementing your suggestion?

Yeah that’s a good, that’s a good question. So let me go back to this one.

I think the place where it might have the most, like the actual most practical change is when you’re asking a law clerk to think about the way the history was used. This is something I think that, that can be managed. I’m just not sad about a law clerk saying in Connecticut there was a state constitution in 1789 and it included the right to bear arms C heller.

Right? That to me doesn’t, that doesn’t bring me anxiety. But I think just having the law clerks think about, what am I using this for? Am I using it to show purpose? Am I using it to make an empirical claim? Is this just something that was used as a total aside before? I do think they can handle this.

I think they can handle thinking through the way it was used. But yeah, you’re right. Sure. One answer to my paper and some people have said this, one answer to my paper is just stop doing history. Full stop. I think that’s a, that might be what your takeaway is, but my audience is somebody who has to do it.

My audience is that, circuit court judge who has been given Bruin and given rahimi and has no choice but to do it. How do you do it? But I hear you. I do think there’s a, sorry. It wasn’t meant to be like I genuinely was asking. Yeah. Is that what they should do to sort the dicta from the I agree.

And I think that your approach is right. Like how do they know if something has been fully briefed? Like how, oh, what is their, oh, it wasn’t meant as like a hypo a challenge. Oh yeah. No, it’s okay. You implemented, what is that? So I, I think the example in the paper is the, so think about I, I’m like obsessed with this Cantor opinion that Justice Barrett writes because she’s on seventh Circuit and she’s struggling with the fact that her old boss, justice Scalia said that Fall Disarmorment laws had a long history.

And so the way she deals with it is she says, we don’t dissect judicial opinions word by word. That was just a passing reference. It’s right which is convenient to what she wants to hold. This is, but I think that roof is probably right. So if you compare the briefing of felon disarmament laws and Helen Heller to the briefing of surety laws in Bruin, or rather rahimi, there’s a big difference.

So I’m sure there’ll be some, and I can’t give you a number where it’s five is enough, but if you look at it and you’re like this, it didn’t even come up at oral argument and no other justice talked about it in their opinion, seems like it was an aside. To me that’s line that a law clerk could draw between that and versus Rahimi, where.

Lots and lots of briefs submitted. Talked about an oral argument, came up in a variety of different opinions from the different justices. So maybe the harder cases they’ll struggle with, but there are some big divides that should be easy to spot. Yeah. But I think your point actually about line drawing is right, like I think I’m asking them to draw lines and that’s a hard thing to do.

Hi. Hello. Thank you. I think I’m too short for this. There we go. Okay, there we go. I think this is related. What do you think your. Hypothesis here says about how judges should think about party presentation of history. Yeah. And if it’s not fully briefed, should a judge be more willing to go look outside of Yeah.

Of the historical sources that we’re presented in briefing, how do they think about that and what if, or what if all of the briefing is also citing to historical precedents? And so I’m just curious though. Yeah. If you think there’s implications for how to handle. It from the party presentation side?

Yeah, that’s a good question. So I tend to be pro party presentation and I know it’s not perfect. And I know there are going to be issues that are missed and I know there are often not equitable resources among the parties, but that’s the system we’ve had for a really long time. And to me, the adversarial testing gets at what’s really good about judicial decision making, which is I read one brief, I read a second brief, I have to test my priors.

I’m capable of being persuaded. And the adversarial system does that with party presentation. It’s not gonna be perfect. There will be. There will be motivated parties that don’t work perfectly brief, a part of history that the courts should want to know, but that, you know what, there’s also levers that the judges can pull.

If you want more briefing on a subject that was ignored by the parties, ask for it. A court appointed expert, they could do that too. So there are levers that the courts can pull if the parties are being inadequate. But generally speaking, I’m an old fashioned gal and I tend to value the adversarial system.

This is why I started my career being really worried about amicus briefs, right? Because they’re outside the main, the adversarial system. Thank you.

Hello. Hi. Thank you. I really enjoyed this talk. I’m Tilly and I’m a JD PhD in linguistics. Oh, how interesting. Yes. I’m really curious about some of the parallels you drew between the sort of claims that we get about law and the claims that we get about history. And sometimes there’s overlap, like in Heller where there was a question about historical language usage, linguistics, yeah.

But it’s not an in principle similarity because we could ask a question about contemporary language usage. Yeah. In a case where ordinary meaning is supposed to carry the day. And so I’m curious about the extent to which you would extend your account to have linguistic premises in the same way you might have historical.

Oh, that’s really good. And if you would draw any other sorts of principle distinctions between how we should treat historical claims versus linguistic claims. Yeah. So I also teach statutory interpretation where your field is ver very interesting to that class. I think there are a lot of parallels.

I think there’s also parallels in terms my understanding, in terms of the disconnect. So just like there’s a disconnect between lawyers and historians, there’s also a disconnect between lawyers and linguistic experts in terms of what we think the what we’re, what we think we’re doing, so I, I don’t think they’re dissimilar. It might be the same to my answer previously, that although this is changing. So I was about to say judges are more confident with history, but I don’t actually think that’s, I think they’re getting confident with like using linguistic tools too.

So maybe the parallels are even richer than I initially thought. Yeah. Yeah. I’m having a hard time finding a principal distinction. I think they’re very related.

Hi there. Thanks so much for coming for this talk. I wanted to ask about your, can you hear me? Pick it up. Pick it up? Okay. I wanted to ask about the paper that you’re thinking about writing. Oh yeah. So I was curious are you thinking about precedent as Laura as in the sense of precedent getting misconstrued by the court that wrote the precedent?
So like the Supreme Court reinterpreting or stewing away from its own precedent, or are you thinking about lower courts running away with the higher court? I was thinking the latter. Okay. But because, I guess because it’s like the Supreme Court’s business if they wanna narrow precedent.

Yeah. So I was thinking the latter, unless you think the, do you have thoughts on the former? No, I’m, so I guess the maybe an unfair question, but I was thinking of it and I was thinking if it’s the former then the Supreme Court has every pre prerogative to overturn its own precedents.

And if it’s the latter. I think we’ve seen like the courts step in and say, oh, the lower courts are Yeah. Getting it wrong. Like Chevron, right? Yeah, exactly. And we have like opinions that maybe surprise doctrinal like experts in the field, but then it becomes oh yeah, we’re not saying anything new like this is Yeah.

Established. Yeah, I don’t know. I just wanted to get your thoughts. So I’ve actually, I’ve been thinking a little bit when I say lore, like there’s some things we just say in con law classes, like we just say it and it gets passed down, and then I’m like I don’t know if that’s right anymore.

Like I feel like it’s just part of the. Fable. And Jamal Green has a great paper where he talks about when you say substantive due processes, like green pastel red, what is it? The illegal Yeah. That we, we all just say that and you’re like, does that sort of take on a life of its own? Is it something that comes of it, thought a little bit about this, like if it comes in a case book.

So here’s a, here’s an example. Tara Grove wrote this paper about the political question doctrine and her argument Is that in the, in Frankfurt or No, it was in the first Wrighton Miller treatise or something. They changed what the political question doctrine was. It was a question about facts and then they changed it to be an Article three jurisdiction, the authors of the book.

And then that became. Truth like that just became what we said, and then the courts adopted it. So that’s an example of it’s a telephone game that I’m interested in. Like it’s at what point do we just, we have a house of cards almost like we’re bu we’re building Yeah.

Statements on statements. And that, that, that worries me. That makes sense. And that makes me think of one from voting rights, and that’s like trying to distinguish the cases of participation versus, if it’s defacto disenfranchisement in the sense that it’s just hard to vote then that’s like the verdict balancing versus dejero disenfranchisement, which is like Harper and the strict scrutiny. Yeah. I’m running as fast as I can. Sure. Yeah. Okay. And that’s just like a very useful classification. But I remember this is from. Class last semester or quarter when we go to the cases and try to find like where does that come from?

That idea? Yeah. There are two different lines. Yeah. Where does that come from? And it’s Scalia said it wants no concurrence, but really it’s just a tool to use. Yes. This is what I’m talking about. Okay. Hold on. So anyways, thanks so much. Yes. Okay. Don’t go away after this, I wanna find out the name of that case.

Okay. Sure. So that’s good. Let me turn this off. Let’s see.

So it’s convenient that the last question ended right at ending time. Please everyone join me and thanking professor Larsen for such an interesting topic. And so the next Constitutional Law Center event is our annual Publius Symposium. It’s a week from today. This is where we honor a book of roughly in the field of constitutional law published in the last year, and invite the author to come and give a brief presentation about it. And then usually three respondents to comment on the work.

And this year our the book that we are honoring is Cass Sunstein’s book a de. Is it a defensive liberalism? I’m sorry, what? Liberalism? I I, okay. We’re, neither of us is remembering, but it’s basically a defense liberalism both against attacks from the right and from attacks from the left that are happening.

A freedom on liberalism, a defense of freedom. This is and I, anyway, I invite you all to come a week from today from for that discussion. And again, thank you very much, Allison. That was fascinating. Thank you. I’m so glad you here.
Thank you.