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Expert Witnesses, Rational Choice, and the Search for Intent

Kousser, J. Morgan (1988) Expert Witnesses, Rational Choice, and the Search for Intent. Constitutional Commentary, 5 . pp. 349-373.

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Students of the individual personality have been serving as expert witnesses since at least the seventeenth century, when Sir Thomas Browne assured an English jury that witches existed and that, in his opinion, the defendants in the instant case were, indeed, witches. Historians, psychologists, anthropologists, and sociologists only took on a like duty in the 1940s and 1950s with the preparation of the school segregation cases. In Brown v. Board of Education, the Supreme Court and the litigants were concerned with the question of intent in two very different ways: they asked historians whether the framers of the fourteenth amendment had meant to ban racial segregation in schools or not; and they asked other social scientists, in effect, whether segregation was so harmful to black people that a discriminatory motive could be inferred.

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Additional Information:© 1988 University of Minnesota Law School. Earlier versions of this paper were delivered at Ohio State University and Caltech. I want to thank Michael Les Benedict, Alan Donagan, Allan Schwartz, and especially R. Douglas Rivers for helpful comments. Constitutional Commentary, 5 (1988), 349-73. Reprinted in Jack N. Rakove, ed., Interpreting the Constitution: The Debate Over Original Intent (Boston: Northeastern univ. Press, 1990), 313-35.
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Deposited On:30 Aug 2013 15:49
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