Ramses Delafontaine

Introduction Part III

In this part of the book I present my research on the involvement of historians as expert judicial witnesses in tobacco litigation in the American legal system. I have made a quantitative and qualitative analysis which has allowed me to give a broad overview of those historians involved. With historians testifying for the tobacco industry remaining silent about their involvement while making hundreds of thousands of dollars through delivering doubtful historical research on the actions committed by the tobacco companies which Judge Kessler described as over the course of more than 50 years, Defendants lied, misrepresented, and deceived the American public; forensic history in tobacco litigation remains a controversial practice.

Historical testimony for the government in US v. Philip Morris, et al.

In this chapter I analyse the role of two historians who have testified as expert witnesses for the US Department of Justice in US v. Philip Morris et al. My examination focuses on the interaction between the two historians, the DOJ attorneys, the judge, the government’s representatives, and opposing counsel. Were scholarly standards upheld or did they sway for a form of lawyer’s advocacy or for the legal straightjacket of procedural rules? Drawing on court records and interviews with the protagonists, this chapter shows how historical scholarship in the form of expert testimony had a considerable influence on Judge Kessler’s 2006 decision which convicted the major American tobacco manufacturers of racketeering.

Clio’s Modern Paradox Unraveled

This theoretical chapter explains the theoretical issues in historiography behind Clio’s Modern Paradox. I have defined three core problems that explain history’s vulnerability in court on an epistemological level. An introduction into these issues helps us understand why historians and most expert witnesses tend to cling to their alleged objectivity and why historians would do well to leave it behind.

Tobacco and Health: Towards a Contemporary Perspective

This second chapter on the history of the tobacco industry and its product tackles the discovery of health hazards associated with smoking. I have given extra attention to the difficulty that scientists have had with presenting smoking as the single cause of cancer or disease. This issue has allowed the tobacco companies to claim that there was a scientific controversy on the subject which needed further research in order to be conclusive. The chapter furthermore considers the 1964 Surgeon General Report on smoking. Lastly this second chapter covers the industry’s ability to evade litigation and government oversight through well-funded lobbying networks.

Introductory Theoretical Remarks on the Alleged Problematic Nature of the Interaction of History and Law

This first part of the book is of a theoretical nature. The first chapters introduce the concept of Clio’s Modern Paradox. Clio’s Modern Paradox explains why history and historians, from a theoretical point of view, are conceived as controversial in the courtroom. By discussing certain issues from theoretical history in an interdisciplinary context of law and history, I lay the theoretical groundwork in which I will discuss forensic history.

Historians in Tobacco Litigation, a Conclusion

This chapter offers a conclusion on the role historians have played in tobacco litigation in the US. It discusses the current tobacco epidemic based on material from the WHO. The chapter further examines the strength of litigation to force the tobacco industry to change its habits. I also discuss the role of historians as an expert judicial witnesses in tobacco litigation as a controversial legal practice in general and on three specific points: advocacy, ethics, and transparency. For this chapter, I drew from my qualitative as well as quantitative analyses on the involvement of historians as expert judicial witnesses in tobacco litigation.

Final Conclusion on the Involvement of Historians in Tobacco Litigation

This chapter gives a final conclusion on the role historians have played in tobacco litigation based on qualitative and quantitative inquiries the book has presented in previous chapters. Although experts for the defence are not following professional historical ethics, experts for the plaintiff are showing that litigation-driven history can produce solid historical research.

Modern Interactions of Law and History

This chapter considers three different forms of interdisciplinary practices of law and history that are similar to expert witnessing but remain distinctly different. I discuss the French Dreyfus affair, the Nuremberg and Tokyo tribunals, and the legal amicus curiae briefs written by historians. These different interactions of law and history provide an introduction to the field of forensic history and its controversial nature.

The Tobacco Industry and Its Tactics

In this third and final chapter on the history of the tobacco industry and its product, I discuss the role the Hill & Knowlton marketing company played in creating a deception of the general public. The Frank Statement, the Tobacco Industry Research Committee, the Tobacco Institute, mass-marketing techniques, and extensive lobby-work were all part of a strategy to lead the American public to believe that there still existed a scientific controversy on smoking despite the fact that the tobacco companies’ own scientists had convincing evidence to the contrary. These tactics by the tobacco industry are key elements of the testimony of expert historians in tobacco litigation today.

Introduction Part II

In this second part of the book, I examine the interactions between history and law that have spurred Belgian legal historian Alain Wijffels to coin the term forensic history. Wijffels concentrated the conclusions of his work History in Court on post-Holocaust trials and Holocaust denial trials (Wijffels, Alain. 2001. History in Court: Historical Expertise and Methods in a Forensic Context. Leiden: Ius Deco). These brought him to a rather negative conclusion on the involvement of historians in the courtroom. In order to reassess Wijffels’ term, I will compare the examples he discussed with examples from American litigation-driven history.