Expert Witnesses and Intent

Abstract

How should a historian or a judicial scholar try to determine the intent of defendants in a racial or sex discrimination lawsuit, or the framers of a law or constitutional provision? What can we learn by examining paradigm cases from the employment and voting rights areas, and the classic case of the intentions of the framers of the Fourteenth Amendment? Making use of models drawn from statistics and from rational choice theory, I examine the general contours of the Sears sex discrimination case, a voting rights suit from Selma, Alabama, and Raoul Berger's attempt to nullify Fourteenth Amendment jurisprudence in his Government by Judiciary. Sears' and Berger's methods and evidentiary conventions are shown to lead to biased results.