History, Memory, Writing History and

Registering Memory in
and the Law Legal Decisions and Legal
Practices: An Introduction

Austin Sarat and Thomas R. Kearns

There can be no one historical narrative that renders perfect justice

Edited by (just as perhaps there is no judicial outcome that can capture the
AUSTIN SARAT complexity of history).... [T]he historian would like to do justice;
the judge must establish some version of history.... If good judges
and
and historians shun these tasks, they will be taken on by prejudiced
THOMAS R. KEARNS or triumphalist ones.
Charles Maier

The struggle of man against power is the struggle of memory

against forgetting.
Milan Kundera

We must know the right time to forget as well as the right time to
remember, and instinctively see when it is necessary to feel histori-
cally and when unhistorically.
Friedrich Nietzsche

Generally when scholars talk about the relationship between history,

Ann Arbor memory, and law, the latter is thought of solely as a passive object of
THE UNIVERSITY OF MICHIGAN PRESS
historical change. 1 Legal history is regarded as the study of the forces
that have shaped law. It is the history of the evolution of law with law

1. Lawrence Friedman, The History of American Law (New York: Simon and Schus-
ter, 1973), 18. Friedman remarks that "law moves with its times and is eternally new."
2 HISTORY, MEMORY, AND THE LAW WRITING HISTORY AND REGISTERING MEMORY 3

perpetually lagging behind society and being pushed and pulled from sense in which law can be said to make a difference in society, but in the
the outside. 2 This view, as rich and productive as it is, ignores what ways that law constructs and uses history to authorize itself and to jus-
might be called an "internal" perspective, one that would examine law tify its decisions. 6 As John Philip Reid puts it, "The forensic historian
for the way it uses and writes history as well as for the ways in which it ... searches the past for material applicable to a current issue. The pur-
also becomes a site of memory and commemoration) pose of the advocate ... is to use the past for the elucidation of the pre-
History, Memory, and the Law focuses on this internal perspective. It sent, to solve some contemporary problem or, most often, to carry an
examines law as an active participant in the process through which his- argument. It is the past put in the service of winning the case at bar./17
tory is written and memory constructed. In so doing, the essays pre- This book is based on the assumption that while law lives in his-
sented in this book reverse the usual presentation of law as a "victim" tory, it has a history all its own. While law responds to historical
of historical forces external to itself. They interrogate the particular change, it also makes history.8 Law writes the past, not just its own
hermeneutics through which history and memory are represented in past, but the past for those over whom law seeks to exercise its domin-
law. 4 They open up the question whether history and memory operate ion. 9 Law constructs a history that it wants to present as authoritative,
to constrain law, or whether their presence in law provides simply when, as Laura Kalman argues, no historian "considers the past
another field for improvisation. authoritative."lo And law uses history to tell us who we are.
When the essays in this book talk about law's history, and the Law looks to the past as it speaks to present needs. In the adjudi-
hermeneutics to which it gives rise, they do so with no intent to com- cation of every dispute, law traffics in the slippery terrain of memory,
pare law's history to the"facts" of history itself or the disciplinary prac- as different versions of past events are presented for authoritative judg-
tices of academic history.s By refusing the temptation to engage in this ment. Moreover, in the production of supposedly definitive statements
comparison they privilege no particular way of doing history, and they of what the law is in the form of judicial opinions, law reconstructs its
display an interest in law's history as an interpretive practice the own past, tracing out lines of precedent to their "compelling" conclu-
understanding of which is essential to an understanding of law itself. sion. ll The relationship of law to history is thus complex and multidi-
Here law is treated as the author of history, not just in the instrumental
6. Jack Rakove suggests that we should regard judicial appeals to history "not as
reasons driving decisions but as an attractive rhetorical method of reassuring citizens
2. This is what Robert Gordon labels "functionalist history." "Critical Legal Histo- that courts are acting consistently with deeply held values." "Fidelity through History/"
ries," Stanford Law Review 36 (1984): 64. Fordham Law Review 65 (1997): 1591.
3- When scholars have turned their attention to the internal perspective, it has often 7. John Philip Reid, "The Jurisprudence of Liberty: The Ancient Constitution in the
been to evaluate the way the courts use history against some standard of historical accu- Legal Historiography of the Seventeenth and Eighteenth Centuries/" in the Roots of Lib-
racy or in comparison to the way professional historians do history. Typical is the view erty: Magna Carta, Ancient Constitutions, and the Anglo-American Tradition ofRule ofLaw, ed.
expressed by William Nelson, who has differentiated between "lawyers' legal history, Ellis Sandoz (Columbia: University of Missouri Press, 1993), 167. Some suggest that the
written to generate data and interpretations that are of use in resolving modern legal con- doing of history is itself lawlike in its orientation. "Historians ... proceed inferentially.
troversies, ... [and] historians' legal history, written to provide and support new and They investigate evidence much as lawyers cross-question witnesses in a court of law,
interesting interpretations and bodies of data to advance exploration of the past." Quoted extracting from that evidence information which it does not explicitly contain." Paul
in Richard Bernstein, "Charting the Bicentennial," Colulnbia Law Review 87 (1987): 1578. Connerton, How Societies Remember (Cambridge: Cambridge University Press, 198 9), 13.
See also Charles Miller, The Supreme Court and the Uses of History (Cambridge: Harvard 8. Guyora Binder and Robert Weisberg suggest that "law neither reflects nor dis-
University Press, 1969); Alfred Kelly, "Clio and the Court: An Illicit Love Affair," Supreme torts a social world of subjects that exists independent of it. Instead, law helps compose
Court Review (1965): 122; and Laura Kalman, The Strange Career of Legal Liberalism (New the social world." "Cultural Criticism of Law," Stanford Law Review 49 (1997): 1152.
Haven: Yale University Press, 1996), chap. 6. 9. On the relationship between the production of memory and power see Richard
4. For other examples of this approach see Aviam Soifer, "Objects in the Mirror Are Terdiman, "Deconstructing Memory: On Representing the Past and Theorizing Culture
Closer Than They Appear," Georgia Law Review 28 (1994): 533. See also Christopher Eis- in France since the Revolution," Diacritics 15 (19 85): 13.
gruber, "The Living Hand of the Past: History and Constitutional Justice," Fordham Law 10. Kalman, Strange Career, 180.
Review 65 (1997): 1611. 11. Here too the reconstruction of the past is contested. Different judges produce
5. Miller, Uses of History; Kalman, Strange Career, 180. As Kalman puts it, "Por all different readings of precedent. See Lawrence Douglas, "Constitutional Discourse and Its
their excursions into other disciplines, historians still favor context, change, and explana- Discontents: An Essay on the Rhetoric of Judicial Review," in The Rhetoric of Law, ed.
tion.... [A]uthors of lawyers' legal history value text, continuity, and prescription." Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1994).
4 HISTORY, MEMORY, AND THE LAW WRITING HISTORY AND REGISTERING MEMORY 5

rectional. Rather than asking only about the history of law, History, different attitudes toward the past, as commander of the present and
Memory, and the Law considers how law treats history, how history barrier to change, or as guide, suggesting paths, but mandating no par-
appears in legal decisions, and how the authority of history is used to ticular way of being in the present. I8 And beyond these different atti-
authorize legal decisions. This book examines history as it appears on tudes toward the past there are the difficulties of determining what
the inside of law as a constituent element of law's rhetoric, of its justifi- counts as an applicable precedent as well as what a precedent stands
catory structure, and of its place as a social institution. 12 for in the way of its legal meaning. Neither is self-generating. I9 Analo-
The most obvious example of the way law constructs and uses his- gies proliferate almost without limit. Judges read the relevance of past
tory is found in the doctrine of stare decisis and the practice of justify- cases differently, and there are no metarules that govern such determi-
ing present decisions in light of precedent. 13 In the common-law tradi- nations of relevance. 2o This is not to say that the search for relevance is
tion the past is supposed to govern the present. Like cases are to be a free-for-all. Conventions, habits, intuitions, reasons all guide the
treated alike. 14 Precedent tells a judge to adhere to the decision in a pre- judgment of what is relevant. Yet judges with different conceptions of
vious similar case. As Shauer notes, an argument "from precedent ... their role adopt different standards of relevance as well as entirely dif-
urges that a decision maker give weight to a particular result regardless ferent orientations toward the way the past should be used in law. 21
of whether that decision maker believes it to be correct and regardless Even when judges agree on the relevance of a past case to a present
of whether that decision maker believes it valuable in any way to rely one, they may, and frequently do, disagree about how the applicable
on that previous result." 15 In this understanding, adherence to prece- precedent should be read. Thus judges construct law's own history in
dent is a rule, according judges no judgmental discretion. There is, of the process of deciding present cases. 22 They do so through a complex
course, another way of understanding how precedent works that genealogical operation that accords them enormous discretion, and yet
accords judges greater interpretive possibility. Past decisions create allows them to claim that they are fully and completely bound by the
standards or expectations whose gravitational force is not ironclad, but past. In law lithe past is primarily a source of authority-if we interpret
is instead a matter of judgment. Precedent creates a presumption, but a it correctly, it will tell us how to conduct ourselves now. History is not
presumption that can be, and sometimes is, rebutted. 16 Yet both of only a source of authority but of legitimacy."23 Reading and decoding
these conceptions treat the past as discoverable and potentially con- the past, arguing about its meaning, and shaping decisions as if they
straining or authoritative. The judge researching precedent constructs a were the inexorable product of an uncontested history is the very stuff
doctrinal history in the service of elucidating a present problem. 17 of law. Judges make history anew with each opinion, all the while pro-
These two different ways of thinking about precedent imply two claiming that they are simply discovering a past whose significance is,
12. As Eisgruber puts it, "History serves a specific and indispensable rhetorical
or should be, self-evident. 24
role" ("Living Hand," 1622). Indeed the authority or legitimacy of a judicial decision is to some
13. Kelly, "Clio and the Court," 122; also Frederick Shauer, "Precedent," Stanford
Law Review 39 (1987): 571. Peter Burke asks, "What is the function of social memory?" He 18. Frank Easterbrook, "Stability and Reliability in Judicial Decisions," Cornell Law
speculates that if a lawyer were asked, "[H]e or she might well discuss the importance of Review 73 (1988): 422.
custom and precedent, the justification or legitimation of actions in the present with ref- 19. As Cass Sunstein puts it, "Different factual situations are inarticulate; they do
erence to the past." "History as Social Memory," in Memory: History, Culture, and the not impose order on themselves." Legal Reasoning and Political Conflict (New York: Oxford
Mind, ed. Thomas Butler (Oxford: Blackwell, 1989), 105. University Press, 1996), 73.
14. Earl Maltz, "The Nature of Precedent," North Carolina Law Review 66 (1988): 367; 20. Roger Shiner, "Precedent, Discretion, and Fairness," in Law, Morality, and Rights,
Michael Gerhardt, "The Role of Precedent in Constitutional Decision Making and The- ed. M. A. Stewart (New York: Columbia University Press, 1983).
ory," Georgia Washington Law Review 60 (1991): 68; Larry Alexander, "Constrained by 21. William Nelson, "The Uses of History by Judges," typescript, 1978.
Precedent," Southern California Law Review 63 (1989): 1. 22. Kalman, Strange Career.
15. Shauer, "Precedent," 576. 23. Robert Gordon, "Foreword: The Arrival of Critical Historicism," Stanford Law
16. Henry Monahan, "Stare Decisis and Constitutional Adjudication," Columbia Law Review (1997), 49: 1023.
Review 88 (1988): 723. 24. For one particularly vivid example of this phenomenon see Trident Center v. Con-
17· Id., 725. necticut General Life, 87-6085, D.C. No. CV-87-2712-JMI (1987),8145.
6 HISTORY, MEMORY, AND THE LAW WRITING HISTORY AND REGISTERING MEMORY 7

extent a product of its ability to cloth itself in the history of law, to plau- Yet in spite of this rather striking defense of the role of precedent
sibly claim that there is nothing innovative or new being done or said in our legal system, O'Connor, Kennedy, and Souter went on, almost as
even while new departures are being undertaken. 25 Alternatively, if to take back what they had just said, to note that adherence to prece-
when judges make a radical departure from the past, the gravitational dent was not "an inexorable command."3 1 The decision whether to
force of law's history "compels" them to find a loophole, a gap in the adhere to precedent was, in their view, always one that had to be
seamless web of history, or to say that there are no applicable prece- guided by "prudential and pragmatic considerations,"3 2 including
dents, or that the applicable precedents are somehow less relevant than whether the rule developed by a prior case has proven to be unwork-
they might otherwise seem. In this sense law is always facing back- able, whether people have come justifiably to rely on it, and whether
ward, engaged with the past, constructing majestic narratives of conti- subsequently developed principles of law have rendered the prior rule
nuity with occasional flaws in the tapestry. a nullity. By taking this pragmatic and prudential approach to prece-
Let us note but two examples of the use of precedent in the con- dent the three justices constructed an historical narrative that made
struction of a historical narrative that, in turn, works to supply author- room for the possibility of change, of evolution)3 They wrote a history
ity and legitimacy. The first is found in Planned Parenthood v. Casey, the of constraint, yet also of possibility, rather than of an iron hand of the
1992 Supreme Court decision upholding, while limiting, abortion past inexorably determining present policy. They allowed themselves
rights under the Fourteenth Amendment. 26 In the now famous opinion to be seen as judging a past that they themselves first had to interpret.
by Justices O'Connor, Kennedy, and Souter, those justices took pains to Yet they acknowledged that the past created a presumption in favor of
explain their own reservations about Roe v. Wade, whose "essential continuity and that in no case should a decision to overrule precedent,
holding" their opinion in Casey was intended to reaffirm. "Some of us," and in so doing to rewrite history, rest simply on a "belief that a prior
the justices noted, "find abortion offensive to our most basic principles case was wrongly decided."34
of morality, but that cannot control our decision."27 It could not do so if The history constructed in Casey was a history of turning points, of
they were to uphold their duty to protect the "liberty of all"28 and to great moments, in the life of the Supreme Court, of which, in a rather
respect their obligation to "follow precedent."29 This obligation flows magisterial moment, this case was imagined to be one)5 Thus O'Con-
from "the very concept of the rule of law," which, in their view, nor, Kennedy, and Souter compared the case for overruling Roe with
"requires such continuity over time that a respect for precedent is, by the case made in West Coast Hotel for repudiating Adkins v. Children Hos-
definition, indispensable."3 0 pital and in Brown v. Board of Education for departing from Plessy v. Fer-
guson. As Horwitz explains,
25. See Stanley Fish, "Law Wishes to Have a Formal Existence," in The Fate of Law,
ed. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1991),
193. Fish calls this "the amazing trick." [T]he joint opinion in Casey struggled to articulate a persuasive
26. Planned Parenthood v. Casey 60 LW 4795 (1992). For an important essay on the sig- account of constitutional change that would justify its refusal to
nificance of Casey see David Garrow "From Brown to Casey: The U.S. Supreme Court and
overturn Roe. Its own theory merges from its characterization of
the Burdens of History," in Race, Law, and Culture: Reflections of Brown v. Board of Educa-
tion, ed. Austin Sarat (New York: Oxford University Press, 1997). "[T]he Casey majority the overruling of Lochner by the New Deal Court and the overrul-
presented perhaps the Court's most extended discussion of the concept of precedent in ing of Plessy by Brown-truly the twin peaks of modern constitu-
this century" (81).
27. Casey, 4800. 31. Casey, 4801.
28.Id. 32 . Id.
29. Id., 480l. 33. Sunstein, Legal Reasoning, 72. See also David Koehler, "Justice Souter's 'Keep
30. Id. As Morton Horwitz put it, Casey was "unique in American constitutional his- What You Want and Throw Away the Rest' Interpretation of Stare Decisis," Buffalo Law
tory for its highly self-conscious discussion of the question of constitutional legitimacy" Review 42 (1994): 859·
and for constructing a historical narrative to "provide a standard for determining when 34· Casey, 4 804.
overruling precedent is appropriate." "Foreword: The Constitution of Change; Legal 35. On the idea of a "monumental history" see Friedrich Nietzsche, The Use and
Fundamentality without Fundamentalism," Harvard Law Review 107 (1993): 36-37. Abuse o/History, trans. Adrian Collins, 2d ed. (New York: Macmillan, 1985).
8 HISTORY, MEMORY, AND THE LAW WRITING HISTORY AND REGISTERING MEMORY 9

tionallaw. The joint opinion's theory echoes the "changed circum- ing the attitude toward precedent that would later emerge in Casey to
stances" formulation advanced by Justice Brandeis, but it is a pre- justify adhering to precedent. As Rehnquist put it, "Adherence to
modern version infused with the static originalism that gave birth precedent is 'usually the wise policy.'''42 It is not, Rehnquist warned, a
to it. 36 "mechanical formula" of adherence to the latest decision no matter
how misguided. 43
At each turning point, the justices argued, the Court had to resolve an Marshall responded by conjuring a different relationship of law's
"intensely divisive controversy" in such a way as to call "the contend- present to its past. He called for "fidelity" to precedent and claimed
ing sides of a national controversy to end their national division."37 such fidelity was essential if courts were not to subject the People to the
Again constructing a monumental history,38 the justices announced, rule of "an arbitrary discretion."44 In his view the Court has a "duty to
"The court is not asked to do this very often."39 In these rare moments stand by its own precedents."45 Discharging that duty, against the tides
the Court has to stand firm; it has to defend a previously made "water- of changing personnel on the Court or a changing political climate in
shed decision" lest the Court's own legitimacy be jeopardized. the country, was, Marshall claimed, necessary to a judiciary that sought
Here the Court writes a history that goes beyond a history of legal to be a "source of impersonal and reasoned judgments."46 The history
doctrine; it is a history that takes into account the social and political that Marshall constructed is a history in which the past should rule the
world in which it is portrayed as playing a decisive role. Adhering to present, in which authority could and should be excavated from a con-
precedent in such circumstances gives testimony to the power of prin- tinuous process of reading and rereading of the judiciary's own prod-
ciples to guide the nation. By imagining the possibility of departing ucts. It is a history of "fidelity," of"duty" in the face of temptation. Fail-
from precedent, by treating precedent as a standard, not a rule, the jus- ing to follow precedent would mean that "power, not reason," would
tices are able rhetorically both to elevate the stakes in its present deci- be the currency of judicial decision making. 47
sion and marshal a narrative of the past to serve as a springboard for an These two different attitudes toward precedent reveal an impor-
explanation of why it is both wise and prudent to adhere to a decision tant part of the terrain of inquiry into law's use and construction of his-
about whose substantive judgment they had earlier expressed doubt. tory. They remind us of the complex and contingent interpretive possi-
In the history that Casey tells, the Court faced a severe challenge; adher- bilities of a legal order dedicated to a faithful respect for its past.
ing to precedent presented the best, though not the only, answer. Reasoning by analogy, distinguishing cases, identifying rules and their
Yet there is another image of precedent, of law's history, in which exceptions provide, in one sense, the very substance of legal reasoning.
the force of precedent compels judgment, in which precedent is treated But in another they provide the resources with which law can live
as a rule foreclosing the possibility of any other legitimate considera- within the prison of history and yet escape it as needed. They provide
tions. This image is perhaps best exemplified in Justice Marshall's dis- but one indication of the fact that law's history is almost always the
sent in Payne v. Tennessee. 40 In Payne the Supreme Court overruled its subject of contest and interpretive dispute, that its is a purposive and
earlier decision in Booth v. Maryland in order to hold that the use of so- politicized attitude toward history. They also suggest that the interpre-
called victim impact statements in the sentencing phase of capital trials tive touchstone for such contestation is the question of legitimacy.
was not a violation of the Eighth Amendrnent. 41 The majority opinion While there is contest about the meaning of the past, of the precise
written by Justice Rehnquist explained its overruling of Booth by invok-
42. Payne, 2609.
36. Horwitz, "Foreword," 71. 43. Id., 2610. See Amy Padden, "Overruling Decisions in the Supreme Court: The
37· Casey, 4 8°4. Role of a Decision's Vote, Age, and Subject Matter in the Application of Stare Decisis after
38. Nietzsche, Use and Abuse of History. Payne v. Tennessee," Georgetown Law Journal 82 (1994): 1684.
39· Casey, 4 8°4. 44. Payne, 2621. On the fidelity problem see Eisgruber, "Living Hand," 1612.
40. Payne v. Tennessee, 111 S.Ct. 2597, 261 9 (1991). 45. Payne, 262 3.
41. David Paul, "Payne v. Tennessee: A Case of Precedent Forgotten," University of 4 6 . Id .
Pittsburgh Law Review 54 (1993): 893· 47. Id., 261 9.
10 HISTORY, MEMORY, AND THE LAW WRITING HISTORY AND REGISTERING MEMORY 11

relevance law's history, to its present, there is little dispute about the remembered or memorialized and in what ways.53 As David Thelen
place of an historical sensibility in legal decision making. Yet as we turn argues, "[M]emory, private and individual, as much as collective and
from history to memory, this consensus disappears. 48 To turn from his- cultural is constructed, not reproduced.... [T]his construction is not
tory to memory is to move from the disciplined effort to marshal evi- made in isolation but in conversations with others that occur in the con-
dence about the "truth" of the past to the slippery terrain on which texts of community, broader politics, and social dynamics."54 Should
individuals and groups invent traditions 49 and record partisan versions law and legal processes lend themselves to these processes? Can they
of the past on the basis of which they seek to construct particular con- do so without compromising values central to law's integrity?55 These
ditions in the present. 50 "Memory," Pierre Nora writes, normative questions have so far driven scholarship on law and mem-
ory.5 6
is life, borne by living societies founded in its name. It remains in To talk about law and collective memory is almost immediately to
permanent evolution, open to the dialectic of remembering and conjure images of the show trial where individual rights and truth were
forgetting, unconscious of its successive deformations, vulnerable sacrificed in the service of political goals. Mark Osiel notes that
to manipulation and appropriation.... [H]istory, on the other
hand, is the reconstruction ... of what is no longer.... History, acts asserting legal rights or officially stigmatizing their violation
because it is an intellectual and secular production, calls for analy- have often become a focal point for the collective memory of whole
sis and criticism.... At the heart of history is a critical discourse nations. These acts often become secular rites of commemoration.
that is antithetical to ... memory.5 1 As such, they consolidate shared memories with increasing delib-
erateness and sophistication. These events are both "real" and
Acts of commemoration are the very stuff of politics;5 2 in and "staged." In this regard, they seem to problematize the very dis-
through our political processes we decide who or what should be tinction between true and false representations of reality.57

48. As James Fentress and Chris Wickham note, "In Western society, the history of In the classic, liberal conception, justice requires impartial adjudication
memory is one of its steady devaluation as a source of knowledge." Social Memory: New of claims and accusations. The sole question with which law should
Perspectives on the Past (Oxford: Blackwell, 1992), 8.
concern itself is whether, according to the evidence presented and the
49. Eric Hobsbawm and Terence Ranger, eds., The Invention ofTradition (Cambridge:
Cambridge University Press, 1983). rules of proof, someone "did" what they were accused of doing or
50. On the distinction between history and memory see Jacques LeGoff, History and some event did or did not happen. How the result serves particular col-
Memory, trans. Steven Rendall and Elizabeth Claman (New York: Columbia University lective memories is an illegitimate consideration, the introduction of
Press, 1992).
51. Pierre Nora, "Between Memory and History: Les Lieux de Memoire," Representa- which may distort those values. Playing out larger issues in culture and
tions 26 (1989): 8-9. But see Natalie Zemon Davis and Randolph Starn: "Rather than
insisting on the opposition between memory and history ... we want to emphasize their 53. Connerton, How Societies Remember, 21.
interdependence" ("Introduction," Representations 26 [1989]: 5). Or, as Burke argues, 54. David Thelen, "Memory and American History," Journal of American History 75
"Both history and memory are coming to appear increasingly problematic. Remembering (1989): 1119·
the past and writing about it no longer seem like the innocent activities they were once 55. See Gerry J. Simpson, "Didactic and Dissident Histories in War Crimes Trials,"
taken to be. Neither memories nor histories seem objective any longer.... In both cases Albany Law Review 60 (1997): 80l.
... selection, interpretation and distortion is socially conditioned" ("History as Social 56. See Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick,
Memory," 97-98). N.J.: Transaction Books, 1997): "The orchestration of criminal trials for pedagogical pur-
52. See John Gillis, ed., Commemorations: The Politics of National Identity (Princeton: poses ... is not inherently misguided or morally indefensible. The defensibility of the
Princeton University Press, 1994). See also Nathan Wachtel, "Introduction: Memory and practice depends on the defensibility of the lessons being taught" (65). See also Carlos
History," History and Anthropology 2 (1986): 218; Barry Schwartz, "The Social Control of Nino, Radical Evil on Trial (New Haven: Yale University Press, 1996); and Nancy Wood,
Commemoration: A Study in Collective Memory," Social Forces 61 (1982): 15; and Michael "Crimes or Misdemeanors: Memory on Trial in Contemporary France," French Cultural
Kammen, Mystic Chords of Memory: The Transformation of Tradition in American Culture Studies 5 (1994): l.
(New York: Knopf, 1991). 57. Osiel, Mass Atrocity, 6.
12 HISTORY, MEMORY, AND THE LAW WRITING HISTORY AND REGISTERING MEMORY 13

politics through the trial seems, if we take the liberal view seriously, a the past, both intentionally and unconsciously, and it is one place
misuse of the judicial process. where the present speaks to the future through acts of commemora-
But the relationship of law and collective memory need not simply tion. 62
be discussed in terms of these normative concerns, namely whether it is Because the litigated case creates a record, courts can become
right intentionally to use legal processes in the effort to create or vindi- archives in which that record serves as the materialization of mem-
cate collective memory. We might also approach the relationship ory.63 Due process guarantees an opportunity to be heard by, and an
between law and collective memory in a more descriptive vein and ask opportunity to speak to, the future. It is the guarantee that legal institu-
how and where law remembers as well as how and where it helps us tions can be turned into museums of unnecessary, unjust, undeserved
remember. 58 This question is one that engages the authors whose pain and death. 64 The legal hearing provides lawyers and litigants an
essays are collected in History, Memory, and the Law. opportunity to write and record history by creating narratives of pre-
In the present moment, as Nora reminds us, memory is "above all sent injustices, and to insist on memory in the face of denial. By record-
archival. It relies on the materiality of the trace, the immediacy of the ing such history and constructing such narratives lawyers and litigants
recording, the visibility of the image.... Even as traditional memory call on an imagined future to choose Justice over the "jurispathic" ten-
disappears, we feel obliged assiduously to collect remains, testimonies, dencies of the moment. 65
documents, images, speeches, any visible signs of what has been."59 This is not to say that the litigated case, the celebrated trial, the
Museums, monuments, and so on are today, Nora argues, the locations judicial opinion, or the rites of execution are first and foremost memor-
of memory, the sites to which collective memory is attached. If that is ial. It is, however, to attend to the temporality of legal acts and to their
indeed the case, one might ask whether law itself might be one of what relentless insistence on record keeping and remembrance. Law memo-
Nora calls "les lieux de memoire." rializes not just in its archival activities, but in acts that give particular
Here our interest is directed to the temporal dimension of legality, meanings to our past. In every legal act there is an invitation to remem-
the way law stands in relation to the past, the present, and the future. ber; in the testimony of the witnesses at a trial, in the instructions a
Law in the modern era is, we believe, one of the most important of our judge gives to a jury, in particular interpretive theories, and in the mon-
society's technologies for preserving memory. Just as the use of prece- umental buildings that house our courts as well as our prisons,66 there
dent to legitimate legal decisions fixes law in a particular relation to the is an insistent call to remember.
past, memory may be attached, or attach itself, to law and be preserved Law is one site to both "remember the future" and to insure that
in and through law. Where this is the case, it serves as one way of ori- the future remembers. Perhaps by paying attention to how law serves
enting ourselves to the future. As Drucilla Cornell puts it: "Legal inter- memory we can gain new understandings of law's crucial role in knit-
pretation demands that we remember the future."60 In that phrase, Cor-
nell reminds us that there are, in fact, two audiences for every legal act, 62. Gillis, Commemorations.
the audience of the present and the audience of the future. Law materi- 63. Nora, "Between Memory and History," 15.
alizes memory in documents, transcripts, written opinions;61 it reenacts 64. Martha Minow suggests that "legal rights matter not just because they provide
dignity to law's victims, or because they help to mobilize them to undertake political
58. "The historical study of memory would be the study of how families, larger action, but because they provide an opportunity to tell a story that might not otherwise
gatherings of people, and formal organizations selected and interpreted identifying get to be told." "Interpreting Rights: An Essay for Robert Cover," Yale Law Journal 96
memories to serve changing needs" (Thelen, "Memory and American History," 1123). (1987): 1860.
59. Nora, "Between History and Memory," 13. 65. See Robert Cover, "Foreword: Nomos and Narrative," Harvard Law Review 97
60. "From the Lighthouse: The Promise of Redemption and the Possibility of Legal (1983): 16.
Interpretation," Cardozo Law Review 11 (1990): 1690. 66. For a fascinating discussion of the semiotics of legal architecture see John
61. "Legal documents ... are written to be preserved and consulted.... The form and Brigham, "From Temple to Technology: The Construction of Courts in Everyday Prac-
syntax of a legal document, whether from the twelfth century or the twentieth, reflect the tice," in Austin Sarat et. al., Everyday Practices and Trouble Cases (Evanston, Ill.: North-
form and syntax of other written documents" (Fentress and Wickham, Social Memory, 9). western University Press, 1998).
 HISTORY, MEMORY, AND THE LAW

ting together our past, present, and future. Perhaps by attending to the
contestation that inevitably accompanies efforts to materialize memory
in law we can gain a better understanding of the ways that social con-
flict plays itself out on the terrain of remembrance. 67

The essays in History, Memory, and the Law address this subject, each in
its own distinctive voice. They present grounded examinations of par-
ticular problems, places, and practices rather than grand theories. In so
doing they address the ways in which memory works in and through
law, the sites of remembrance that law provides, the battles against for-
getting that are fought in and around those sites. Here we attend to
what Lucie White has labeled both the "epic" style of remembering the
past, the "grand, monumental, Manichean style . . . that splits
the world, morally, along temporallines,"68 as well as to what she calls
the "tragic" style of remembering. This style, White claims, "teases out
the multiple, tangled, always partial threads that comprise the space
where 'civility' has been enacted and resisted and reshaped." This kind
of remembering spurns "grand gestures." It remembers in "grounded,
gradual ways."6 9 It makes the accomplishments of the past more hard
fought, more tentative, more elusive, and more deeply intertwined
with the moral horrors to which it insists we attend.
The essays in this book also inquire about the way history is mobi-
lized in legal decision making, the rhetorical techniques for marshaling
and for overcoming precedent, and the different histories that are writ-
ten in and through the legal process. Among the questions that they
address are, How are the histories and memories created by law differ-
ent by virtue of the site of their creation? Through what representa-
tional practices are the seeming continuities between past and present
that are necessary to legitimize legal decisions constructed and pre-
served? Whose histories and memories "count" in law? What does his-
tory do to, and for, law, and what does law do to history? Under what
conditions do legal institutions, such as courts or prisons, become sites
of memory?
The first two essays-by Shoshana Felman and Dominick
LaCapra-focus on the criminal trial as a site of commemoration and

67. Thelen, "Memory and American History," 1127.

68. Lucie White, "'Why Do You Treat Us So Badly?' On Loss, Remembrance, and
Responsibility," Cumberland Law Review 26 (1996): 812.
69· Id., 81 3.