Counterfactual Legal History
About ten years ago a popular series of books called “What If?” — consisting of a series of essays by historians — came out that looked at key turning points in world or military history and tried to describe plausible counterfactuals. I’ve often thought that asking that question about law would make for a fun conference. Proposing the idea, though, points up a major difference between lawyers and historians.
Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of any sort.
Lawyers, by contrast, use counterfactuals all the time. After all, “but for” causation or “harmless error” is asking a jury or court to figure out alternative paths for litigation. In part, this is justified because we view causation as a more probable than not question. A looser standard for causation leads to a greater willingness to think about what might have occurred if the facts were changed.
Once again, this raises the question of what a legal historian should do. My own work is chock full of counterfactual experiments, which may explain why some historians might not like my scholarship. Straightforward legal history is important and worthwhile, but it seems to me that law (especially constitutional law) is more contingent than we generally think, and thus we need more work exploring lost paths. There are some terrific examples — Risa Goluboff’s book on “The Lost History of Civil Rights” comes to mind — but that’s not enough.