In Memoriam
James Willard Hurst
James Willard Hurst (1910-1997) is commonly regarded as the founder and one of the great masters of the field of modern American social-legal history. Legal history as practiced and taught before Hurst in the U.S. was largely the history of English common law and famous American judges and constitutional cases. Hurst brought the spotlight down from great judges and great cases into the everyday operations of law in social and economic life, looking at the work of legislatures and administrators as well as courts, in state and local as well as federal government, and at the ways in which interest groups pressed for law and the legal system responded. The Hurst Summer Institute, founded his honor at the University of Wisconsin Law School and now also sponsored by ASLH, has become a formative experience for a generation of legal historians. Held biennially, “the Hurst” includes 12 fellows selected by the Society, who gather for two weeks of intensive reading, discussions of their work, and professional development.
Willard Hurst was born in Rockford, Illinois, the son of the owner of local movie theatres. He went East for schooling at Williams College, where he encountered the work of Charles and Mary Beard; and then to Harvard Law School, where he was put off by the formalism of the case-centered curriculum. He found more stimulation in the teaching of Felix Frankfurter, for whom he became a research assistant, helping to write Frankfurter’s history of the U.S Constitution’s Commerce Clause. Frankfurter got him a clerkship with Justice Louis Brandeis; and then a job with the Bureau of Economic Warfare in the New Deal. Eventually he was persuaded by the dynamic Lloyd Garrison to take a job at the University of Wisconsin-Madison, where he spent his entire academic career, resisting the offer of chairs at Harvard and elsewhere. At Wisconsin Hurst, Garrison, and Carl Auerbach put together a pioneering set of materials on the Legal Process, built around the adoption and administration of Worker’s Compensation statutes. And for 40 years he taught Legislation and American Legal History, founding a school of legal historians specializing in the history of Wisconsin law, and influencing several generations of legal historian colleagues including Lawrence Friedman, Stanley Kutler, Stanley Katz, Mark Tushnet, Robert Gordon, Hendrik Hartog, and Arthur McEvoy.
Hurst’s most generative works begin with The Growth of American Law: The Lawmakers (1950), a history remarkable for its broad scope. It is the first comprehensive study of all the lawmaking agencies in the US, which for Hurst include not only legislatures and courts, but also state constitutional conventions and the organized bar. (His chapter on lawyers as lawmakers remains to this day the most valuable treatment of the subject.) This was followed by his giant masterwork, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (1964), a 946-page study of the legal regulation of a single industry, inspired by the environmentalist Aldo Leopold’s account of the destruction of Wisconsin forests. This book was one several of the period showing that laissez-faire was not the dominant legal ideology of the early American republic, and that intrusive and detailed state regulation of economic life was the norm. To be sure, law was directed more at the promotion than the control of economic activity; but the social costs of growth, the clearcutting to exhaustion of 30 million acres of timberland, were enormous. In his most widely read synthesis of American legal history, Law and the Conditions of Freedom in the Nineteenth Century United States (1956), Hurst recorded his judgment that uncritical promotion of enterprise had resulted in “drift” and “default”, a failure of governance resulting in harmful externalities and imbalances of power that required 20th century administrative responses to correct. (Hurst was a committed New Dealer, a Progressive democrat in politics.) He is rightly characterized as belonging to the “consensus historians” of the 1950s, but was anything but complacent about the consensus, which he called a “bastard pragmatism” of short-term profit-seeking indifferent to long-term consequences.
Present-day readers of Hurst’s legal histories are likely to notice all the topics he leaves out. Hurst was focused on the legal history as seen by those who made most of the decisions, middle-class white men, who were chiefly interested in promotion of the economy. He had little to say about the major pre-occupations of post-1970s legal historians: labor and slavery, Native Americans, imperial expansion, religion, women, family, crime and welfare, and political and ideological conflict. He wrote off colonial history as too pre-modern to be interesting. His zone of interest was national, indeed provincial – Wisconsin – rather than comparative. Many readers have noticed that although he aspired to write social histories of law, his materials are all legal – much broader than the traditional appellate cases, to be sure, but still internal to the legal system.
But for all the limitations of the work, to anyone who compares the state of the field before Hurst wrote and afterward, his contribution is simply massive. More than any other scholar, he brought the field of social-legal history into being, practiced what he preached at an almost insanely high level of meticulous craft, was unafraid to theorize about his work, and passed on his influence and example to hundreds of others.
Robert W. Gordon