Three messages...

                                1.

Submitted by:   Reid Rozen
                r-rozen@students.uiuc.edu

Ronald Shearer asked:

> 1. If a case were brought in an English court against a Canadian citizen,
> would that Canadian be legally obligated to retain counsel to represent
> him/herself in England?  What international law compels him/her to do so?
> Is there something here that would only apply legally to the Commonwealth
> countries?

I am not certain about Canadian law, although I believe that Canada has
officially broken the last remaining ties between its judicial system and
that of Great Britain by prohibiting appeals to the House of Lords.  I
would imagine, therefore, that the situation of a Canadian defendant in a
British libel case would be the same as an American defendant: no one is
exactly _obligated_ to hire counsel and mount a defense to charges brought
in a foreign jurisdiction.  Of course, by failing to defend oneself, one
risks having an adverse judgment rendered.

> 2. If a Canadian defendant did nothing to represent him/herself in an
> English case and were convicted of libeling and defaming a plaintiff and
> assessed monetary penalties, what international law or authority would
> compel the Canadian to pay damages awarded by an English court?  How would
> the plaintiff make the defendant pay?

Again, my knowledge on these points is confined to American law.  If I
were sued in a British tribunal, I would hardly think it necessary to
offer a defense.  First, it is necessary for the British court to get
jurisdiction over me--not very easy when I am not physically located in
Great Britain and have no assets there.  Assuming, however, that I was
served summons while passing through Heathrow, it's unlikely that anyone
suing me in Britain would be able to enforce a judgment against me.  As I
mentioned, I have no assets there.  I don't know if there are any treaties
between Great Britain, Canada, and the United States regarding the
reciprocal enforcement of civil judgments: if there are, I doubt that it
would be worth the trouble and expense for a British plaintiff to go after
me, or practically any other historian.

If a litigant in Britain sued a British publication in which an allegedly
false and potentially even defamatory review appeared, the advantage would
be that such a defendant would presumably have assets with which to satisfy
any judgment.  Moreover, in such a case, the reviewer might have
difficulties finding a forum for any further reviews critical of an author
who had initiated legal action.

In a defamation case, it is not necessary to sue the author of the
libel--it is sufficient to sue the publisher (otherwise, everything
published anonymously would be immune). Unless there is some
British-Canadian treaty or agreement which renders a Canadian reviewer
liable in a British court, I would see no advantages in suing a reviewer
personally, other than perhaps to frighten other potential critics.

Reid J. Rozen
University of Illinois, Urbana-Champaign


                                2.

Submitted by:   Kenneth F. Ledford
                kxl15@po.cwru.edu

I grow increasingly dubious about the fruitfulness of H-German's
discussion of the Birn-Goldhagen controversy, but in response to the
postings by Dr. Riemer and Prof. Maier, I wish to make one point about the
legal nature of the intentional tort of defamation, one about the
relationship between legal thinking and historical thinking, and one about
the relationship between scholarly discourse and entrepreneurial
discourse.

I do NOT wish to be read to endorse any position taken or suggested by the
FAZ (I disagree with that paper's politics, and I have not seen the Nov. 4
article in question; I draw my information from an early October article
in the Berlin daily _Tagesspiegel_, which indicated that Dr. Birn had
received a letter from Prof. Goldhagen's English counsel demanding a
retraction and threatening a defamation action if one was not forthcoming,
and the interview in _Der Spiegel_).  Moreover, I do NOT endorse any
reference made in the FAZ or elsewhere about cultural readings of the
Goldhagen book as a phenomenon for American life or the role of American
Jews in that life.  Such references are one reason I do not read the FAZ.


I.   The Law of Defamation.

I AGREE with Prof. Maier in his personal assessment of what course of
action would be most beneficial to Prof. Goldhagen, as well as in his
reading of Dr. Birn's article in _The Historical Journal_ (that the
gravamen of her accusation is of distortion, which is not actionable, but
NOT of fraud or falsification, which might be).  And although I realize
that there are some cases when resort to defamation actions by historians
may seem overwhelmingly justifiable, I think that the nature of the tort,
combined with the nature of what we do as historians, combined with normal
professional comity, make it wise that we forbear EVEN in cases otherwise
deemed justifiable.

One of the first things one learns in law school is that legal concepts
often have the least relationship with common-sense understandings of
ANYTHING.  Such is the case with the law of defamation.  Defamation is the
publication of false statements about another that results in damage.
Recklessness or malice have NOTHING to do with the elements of the tort in
any state that I know of in the United States (and in most states,
statutory defamation actions have taken the place of the old common-law
torts of libel and slander, although there are some exceptions).  Thus, to
recover for defamation, a plaintiff has to prove that the statements
made are "false," and that damage occurred.  A statement made in the
honest belief that it is true, based upon what appeared to be conclusive
evidence of truthfulness, if later proved to have been based upon error
and to be false, is grounds for liability.  THIS IS EXACTLY WHAT NEW YORK
TIMES V. SULLIVAN set out to change for public figures.  It ADDED, as a
constitutional right under the First Amendment, the requirement that for
public officials (subsequently expanded to public figures), the plaintiff
have to prove "malice" on the part of the defendant, namely that the
defendant knew the statements were false when made or recklessly failed to
discern whether they were false.  Private persons NOT public figures still
live under the rule as stated above.  Thus, the state of mind of the
defendant is NOT a defense to defamation, either in the U.S. of private
figures or in England for ANY plaintiff.

Second, Prof. Maier is quite right to point out that, even if falsity is
proved, damages have to be proved for recovery.  And another contributor
has pointed out that the controversy may actually be a BOOST to sales.
But, as Dr. Riemer also correctly points out, in England, the loser of a
civil suit bears attorney's fees for both sides (unlike in the United
States).  THIS IS THE VERY DANGER TO DR. BIRN, OR ANYONE, OF A DEFAMATION
ACTION IN ENGLAND.  It seems to me very likely that a jury, having heard a
trial in which both sides endeavor to blacken the reputation of the other
in an effort to prove the other "wrong," would reach the "Solomonic"
decision of finding a statement false, but finding only symbolic damages,
along the lines of one pound.  In THAT case, Dr. Birn would be saddled
with BOTH sets of attorney's fees.  So the chill, I fear, is very real.

Since most of us manage to be just private figures, despite our exalted
rank as historians, then, "malice" and "recklessness" do not enter into
the law governing our right to make a claim or our "right" to be sued for
our professional statements.  For ALL of our sakes then, rules of
professional comity that condemn all but the very MOST exceptional cases
of resort to law, it seems to me, are to be welcomed and cherished.


II.  Legal Thinking and Historical Thinking.

Once historians retain counsel and start having demand letters sent to
each other, not only are we sheep among wolves, but we enter into a
different way of thinking, knowing, and evaluating evidence.  The
"cognitive structures," if you will, of the legal and historical
disciplines are fundamentally different.  As the experience of historians
testifying on both sides of the case in EEOC v. Sears in the 1980s showed,
and as the post mortem of the fractured friendships and lingering hard
feelings among scholars of American women's history concluded, law and
history simply have different relationships to evidence.  Law forces sharp
black-white distinctions, and the stakes are high: money.  History deals
in gray, in nuance, in liminality.  Stakes are lower: university power and
professional status, both of which come from many sources other than
actually being "right."  If historians adopt the legal mode of thinking,
the legal "cognitive structure," we enter a different disciplinary world
and fundamentally transform the form and content of our discourse and its
underlying thought.  My own view is that the historical way of thinking,
knowing, and evaluating evidence, with its very nuance and liminality, is
the superior one.


III. Scholarly discourse and entrepreneurial discourse

Prof. Maier laments the sensationalist use of the upcoming Birn article on
the Goldhagen book in publicity by _The Historical Journal_ as an effort
by Cambridge University Press to boost subscriptions.  Indeed, that is an
entrepreneurial tone rare in academic publishing and among university
presses.  But I wish to suggest that it was not the first shot in this
entrepreneurial exchange.  I reviewed Prof. Goldhagen's book in April 1996
in the Cleveland _Plain Dealer_, where I have reviewed books for several
years.  I had become accustomed to significant publicity packages that
accompany even scholarly books of history from trade houses.  I had NEVER
seen a publicity package as large or lavish as the one sent me with the
advance copy (bound uncorrected page proofs) of the book, or as lavish (or
as exaggerated) in its claims.  Later, the book editor of the _Plain
Dealer_ stated in a public forum that SHE had never seen such a publicity
hard sell as that which accompanied the Goldhagen book.  Like Prof. Maier,
I too lament the sensationalist and entrepreneurial overtones of this
exchange, especially from a respected university press like CUP, but the
origin of that tone, as I view the evidence, lies elsewhere.

When I practiced law, I once represented two clients who were sued in
state court in Virginia for statutory defamation.  The facts alleged were
that, frustrated about the course of a commercial dispute in the garment
trade, my clients encountered their business competitors, engaged in an
increasingly agitated argument in front of hundreds of witnesses, and ended
by shouting across the crowded arrival hall of the Richmond airport: "You
and your brother are a bunch of fucking thieves!"  At trial, my task as
counsel would be to prove that all of the allegations contained in that
sentence were true, and throughout pretrial discovery, depositions, and
other investigation, I gathered evidence on all elements of the alleged
tort.  I resisted my clients' suggestions that the shouted insult actually
served to IMPROVE the plaintiffs' reputations, and fortunately, commercial
relations improved, and in the interest of mutual profit, injuries to
honor were composed and the suit was voluntarily dismissed.

Is this the kind of case that we as scholars want to be associated with?
My hope here is that Prof. Maier's advice about how to deal with harsh
professional critics will be recognized as the sage guidance that it is,
that injuries to honor will be composed through the normal channels of the
profession, that of contention in H-German, in scholarly journals, in
public debate free from the shadow of the law.

Ken Ledford
Case Western Reserve University

Kenneth F. Ledford                              1997-98 ADDRESS
Associate Professor of History and Law          bei Nahr
Department of History                           Kalckreuthstrasse 11
Case Western Reserve University                 D-10777 Berlin
Cleveland, Ohio  44106-7107                     GERMANY
Office: (216) 368-4144                          (0 11 49)(30) 218 79 13
Fax: (216) 368-4681


                                3.



Submitted by:   Jorg Bottger
                jxb171@psu.edu

In his posting Jeremiah Riemer refers to me as "one historian". Let me
enter a personal note here: I received my academic training in Political
Science at the University of Kiel (while doing graduate studies my
secondary field was East European History, though). In addition, I would
have really appreciated it if Mr. Riemer would have quoted the complete
sentence. I wrote of "Goldhagen's alleged (sic!) attempt to silence a
critic with legal means."

I hate being repetitive but I want to urge members of H-GERMAN again to
read Dieter Pohl's piece in the "Vierteljahreshefte fuer Zeitgeschichte".
His critique has been undeservedly neglected in the entire debate. So far,
Goldhagen has not responded to Pohl's well-balanced and reasoned criticism.
At least in his "The Fictions of Ruth Bettina Birn" in 'German Politics and
Society' no reference is made to Pohl's review essay whatsoever. I hope
that Daniel Goldhagen will eventually come up with a reply! In the meantime
here are Dieter Pohl's  concluding remarks on Goldhagen's case studies:
"Ueberspitzt liesse sich argumentieren, dass alle drei Fallstudien im
Endeffekt nicht den Beweiskriterien des Buches entsprechen: Die
Ordnungspolizei war 1941 ein Teil von Himmlers 'Endloesungs'-Apparat, die
ausgewaehlten Arbeitslager im Distrikt Lublin waren eine reine SS-Domaene,
und die Todesmaersche waren weder ein zentrales Phaenomen der 'Endloesung',
noch laesst sich - wegen der Vielzahl der Bestimmungsfaktoren - der
Antisemitismus dabei als hinreichende Taetermotivation nachweisen, obwohl
er selbstverstaendlich von grosser Bedeutung war." 'Die Holocaust-Forschung
und Goldhagens Thesen' VfZ (January 1997): 35.

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