The Wisconsin Tradition in Legal History

The "Wisconsin tradition" in legal history consists of both a long-standing university commitment to the teaching and study of legal history and an approach to historical studies that examines the interaction between law and social forces: "law in context," rather than law as a system unto itself.

The Wisconsin tradition in legal history began when James Willard Hurst joined the Law faculty in 1937 and was encouraged by Dean Lloyd Garrison to focus on law and society issues. Over the next half century, Hurst published over three dozen books and articles plus numerous book reviews. This body of work emphasizes the interplay between the legal system, broadly construed, and the social, economic, and environmental conditions that surround it. Hurst stressed that law could not be studied as a system apart from the society that created it, and he brought the American legal experience into the mainstream of economic and social history.

Hurst influenced the development and direction of legal history and of law and society research not only through his publications, but also through his efforts to create a community of legal historians and social scientists associated with the University of Wisconsin. In the late 1940s, he obtained a large grant from the Rockefeller Foundation to finance a series of one-year fellowships in Madison for visiting scholars to study the legal-economic history of Wisconsin. Over the course of the next several years, those scholars produced nine books about Wisconsin history. During this same period, in significant part because of Hurst's influence, an interdisciplinary law and social science faculty community centered in the law school emerged at UW. This group included Harry Ball, Jake Beuscher, Lawrence Friedman, Herbert Jacob, Stewart Macaulay, and Frank Remington. In the early 1960s, Ball and Hurst received a Russell Sage Foundation grant to establish a center for law and social science research at UW, one of four centers the Foundation created. The success of the program led Ball, in conjunction with individuals in the other Russell Sage Centers, to organize the Law and Society Association in 1964. Hurst disciples quickly came to play a dominant role in the organization, as do his progeny today.

See also the UW Law Library's Hurst Collection.

At the University of Wisconsin, Hurst was joined in 1961 by Lawrence Friedman, now Marion Rice Kirkwood Professor of Law at Stanford University and generally recognized as the dean of American legal historians, and in 1964 by Stanley I. Kutler (Emeritus Professor of History and Law), the author of several books on U.S. constitutional history and the Watergate scandal. Robert Gordon, formerly the Chancellor Kent Professor of Law and Legal History at the Yale Law School, now at Stanford Law School, joined the law faculty in 1977. Gordon is an intellectual historian who works in the Critical Legal Studies tradition – a tradition which began at Wisconsin in the 1970s and which grew out of Hurst's work while at the same time offering a critique of that work. Hendrik Hartog, now Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, joined the faculty in 1987. Hartog has written extensively about law, power, and family in nineteenth-century America.

The ILS Legal History Program

The Institute for Legal Studies is the home for a number of activities that support and promote legal history scholarship at the University of Wisconsin. In the 1980s, the Law School revived Hurst's postgraduate research fellowships by establishing a one-year Fellowship in Legal History, which was administered through the Institute.  Past Fellows include such distinguished scholars as William Novak (University of Michigan), Daniel Ernst (Georgetown University Law Center), Leslie Reagan (University of Illinois), and Linda Przybyszewski (University of Notre Dame). [academic status as of September 2011]. In 2008, the Law School established a Law and Society Post-doctoral Fellowship program, to which legal historians are strongly encouraged to apply.

In 2001, the Institute hosted the first biennial Hurst Summer Institute in Legal History. The two-week long institute is a joint effort of the Institute and the American Society for Legal History, designed to assist legal historians and others pursuing legal history scholarship in the early stages of their scholarly careers.

Finally, the Institute for Legal Studies provides opportunities for UW graduate students and visiting scholars interested in legal history to interact with each other and participate in the intellectual life of the Wisconsin law and society tradition.

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