The Scholarship of James Willard Hurst
James Willard Hurst published over three dozen books and articles plus numerous book reviews. Certainly, his most widely-read book is Law and the Conditions of Freedom in the Nineteenth-Century United States (1956). This slim volume consists of three essays based upon lectures Hurst gave at Northwestern University School of Law in 1955. In the first essay, Hurst develops his famous "release of energy" thesis. Here he argues that an organizing principle of the nineteenth-century legal and social order in the United States was that the "legal order should protect and promote the release of individual creative energy. . . " (p. 6) A pro-development consensus undergirded nineteenth-century lawmaking. This is not to say, however, that Hurst believed that American law set and achieved instrumental goals. In the third essay, Hurst elaborates on an argument he develops elsewhere that social change was not the result of deliberate, purposeful action but was allowed to take place through the "drift" and "default" of public policy.
Although it has not attained the canonical status of his earlier short book of lectures, Willard Hurst's 1964 masterwork Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836-1915 is the centerpiece of his writing. Hurst's first three books -- The Growth of American Law: The Law Makers (1950) and Law and Social Process in United States History (1960) as well as Law and the Conditions of Freedom -- were preliminary studies in which Hurst worked out the theoretical approach that he applied to the lumber industry study. He fixed on the topic shortly after arriving at Wisconsin in 1937 when he heard a talk by Aldo Leopold. Inspired by Leopold's focus on the inter-relationship between the facts of botany and the facts of wild life and human beings and what they did with the earth, Hurst's work transcended the recognized boundaries of legal scholarship by drawing upon the inter-relation between different fields of inquiry, to discover insights and truths about the law. As a consequence, despite its seemingly parochial subject matter, Law and Economic Growth is a source of general knowledge about American history and culture and an inspiration to scholars of many different disciplines. In subsequent books, Hurst refined and elaborated the insights that he developed in the course of his work on the timber industry.
Hurst worked on a manual typewriter
Taken as a whole, Hurst's scholarship displays a number of distinctive characteristics: multifaceted empiricism, pragmatism, and a strong moral stance. For sources, he mined published documents of legal agencies -- court reporters, legislative journals, session laws, and reports of the executive branch -- looking for facts, not for theory and doctrine. Following Karl Llewellyn, he focused on the functioning of rather than the formal structure of lawmaking agencies. Hurst generalized from his empirical studies and made highly abstract conclusions about ideas and culture, but he always remained rooted in the real-world experiences of everyday men and women. He also sought to draw from this everyday experience, truths about law in action and about American culture that would enable people to increase their ability to control their own affairs.
Hurst's work has also been extraordinarily generative. The Growth of American Law: The Law Makers became a starting point for later work addressing the role of lawyers in society (Munger 113). Dealing with Statutes (1982) was a synthesis of his ideas about statutory interpretation and "was one of the works directly contributing to the renaissance of statutory interpretation writing in the 1980s" (Eskridge 1181). In the notes to Law and Economic Growth, Hurst identified an enormous range of topics that remained open for further study. And, the scholarly tradition that Willard Hurst began and promoted, both in legal history and in law-and-society studies generally, remains influential to this day.
William N. Eskridge, Jr., "Willard Hurst, Master of the Legal Process," Wisconsin Law Review 1997/6 (1997): 1181.
Frank Munger, "Sociology of Law for a Postliberal Society," Loyola (L.A.) Law Review 27 (1993): 89, 113.
Taken in part from Arthur F. McEvoy, "Willard Hurst's Scholarship: Pragmatism and Morality," Wisconsin Law Review 1997/6 (1997): 1192.
Dealing with Statutes. New York: Columbia University Press, 1982.
Developments in the Law of Industrial Accident. Madison, Wisc.: College Typing Co., 1939. (Hurst was editor.)
A Digest of Regional Sources for the Study of the Economic and Political History of the Law. Vol. 1. The Wisconsin Reports, 1 Penney (1839) through 253 Wisc. (1940). 1941. (Typewritten manuscript prepared with Rubben W. Fleming et. al.)
The Functions of Courts in the United States, 1950-1980. Madison: Disputes Processing Research Program, University of Wisconsin, 1980.
The Growth of American Law: The Law Makers. Boston: Little Brown, 1950.
A History of the Principal Agencies of Law in the United States. Madison: University of Wisconsin Law School, 1948.
Justice Holmes on Legal History. New York: Macmillan, 1964.
Law and Economic Growth. The Legal History of the Lumber Industry in Wisconsin, 1836-1915. Madison: University of Wisconsin Press, 1984 (orig. pub. Cambridge, Mass.: Belknap Press of Harvard University Press, 1964).
Law and Markets in United States History: Different Modes of Bargaining Among Interests. Madison: University of Wisconsin Press, 1982.
Law and Social Order in the United States. Ithaca: Cornell University Press, 1977.
Law and Social Process in United States History, Five lectures delivered at the University of Michigan, Nov. 9, 10, 11, 12, and 13, 1959. Ann Arbor: University of Michigan Law School, 1960.
Law and the Conditions of Freedom in the Nineteenth-Century United States. Madison: University of Wisconsin Press, 1956.
Law in Society: A Course Designed for Undergraduates and Beginning Law Students; Cases and Other Materials. Madison, Wis.: College Typing Co., 1941. (Ed. with Lloyd Kirkham Garrison)
The Law of Treason in the United States. Collected Essays. Collected Essays. Westport, Conn.: Greenwood Pub. Corp., 1971.
A Legal History of Money in the United States, 1774-1970. Lincoln: University of Nebraska Press, 1973.
The Legitimacy of the Business Corporation in the Law of the United States, 1780-1970. Charlottesville: University Press of Virginia, 1970.
Statutes in Court. Madison Wis.: American Printing and Pub., 1970. (Materials for a course on legislation)
"Alexander Hamilton: Law Maker." Columbia Law Review 73, no. 3 (1978): 483-547.
"Changing Popular Views About Law and Lawyers." Annals of the American Academy of Political and Social Science 287 (May 1953): 1-7.
"Changing Responsibilities of the Law School: 1868-1968." Wisconsin Law Review, no. 2 (1968): 336-344.
"Consensus and Conflict in Twentieth-Century Public Policy." Daedalus: Journal of the American Academy of Arts and Sciences 105, no. 4 (Fall 1976): 89-101.
"The Content of Courses in Legislation." University of Chicago Law Review 8, no. 1 (December 1941): 280-295.
"Dedication." Hastings Law Journal 32 (July 1981): 1393. (brief comment on Professor Jerome Hall)
"English Sources of the American Law of Treason." Wisconsin Law Review, no. 3 (May 1945): 315-356.
"Foreword: Legislation as a Field of Legal Research." Harvard Journal on Legislation 2, no. 1 (January 1965): 3-6.
"The Functions of Courts in the United States, 1950-1980," Law and Society Review 15, no. 3/4 (1980-1981): 401-471.
"Funds for Individual Legal Research." Journal of Legal Education 12, no. 4 (1960): 592-594.
"Holland, Switzerland, and Belgium and the English Gold Crisis of 1931." Journal of Political Economy 40, no. 5 (1932): 638-660.
"The Historic Background of the Treason Clause of the United States Constitution." Federal Bar Journal 6 (1945): 305-313.
"Law and the Balance of Power in the Community." Record of the Association of the Bar of the City of New York 6 (1951): 148-169.
"The Law in United States History." Proceedings of the American Philosophical Society 104 (1960): 518-526.
"Lawyers in American Society, 1750-1966." Marquette Law Review 50 (June 1967): 594-606.
"Legal History: A Research Program." Wisconsin Law Review, no. 3 (May 1942): 323-33.
"The Legal Profession." Wisconsin Law Review, no. 4 (Fall 1966): 969-978.
"The Legislative Branch and the Supreme Court." University of Arkansas Little Rock Law Journal 5, no. 4 (1982): 487-518.
"Mark Howe: Legal Historian." Harvard Law Review 80, no. 8 (June 1967): 1638-1640.
"Memorandum Regarding Pending Proposals to Amend the United States Constitution." Wisconsin Bar Bulletin 36, no. 4 (August 1963): 7-12.
"Old and New Dimensions of Research in United States Legal History." American Journal of Legal History 23 (1979): 1-20.
"The Perils of the Test Case: An Episode in the History of the Wisconsin Supreme Court." Wisconsin Law Review (January 1949): 26-60. (with Betty R. Brown)
"Perspectives Upon Research Into Legal Order." Wisconsin Law Review (May 1961): 356367.
"Problems of Legitimacy in the Contemporary Legal Order." Oklahoma Law Review 24, no. 2 (May 1971): 224-238.
"Professor Foster and the Desegregation Guidelines." Wisconsin Law Review, no. 1 (1987): 209-211.
"Remarks of Professor James Willard Hurst." Business Lawyer 31 (1976): 1185-1191. (on corporations)
"Research Responsibilities of University Law Schools." Journal of Legal Education 10, no. 2 (1957): 147-161.
"Response." American Bar Foundation Research Journal, no. 1 (Winter 1985): 138-144. (Response to Genovese and Harring/Strutt articles in same issue)
"The Role of Law in United States History: Part I." Student Lawyer 7, no. 2 (December 1961): 4.
"The Role of Law in United States History: Part II." Student Lawyer 7, no. 3 (February 1962): 14.
"The State of Legal History." Reviews in American History 10, no. 4 (December 1982): 292-305.
"Symposium on Lawyers Under the United States Civil Service." American Law School Review 9 (1942): 1316-1317.
"Thoreau, Conscience and Law." South Dakota Law Review 19 (Winter 1974): 1-38.
"Treason in the United States." Harvard Law Review 58 (1944-45): 226, 395, 806. (three-part article)
"A Tribute to Sam Mermin." Wisconsin Law Review, no. 4 (1980): VII-VIII.
"The Uses of Law in Four 'Colonial' States of the American Union." Wisconsin Law Review (July 1945): 577-592.
"Watergate: Some Basic Issues." Center Magazine 7 (Jan./Feb. 1974): 11-25.
"Who Is the 'Great' Appellate Judge?' Indiana Law Journal 24 (1949): 394-400.
"The Work of the Wisconsin Supreme Court for the August1936 and January 1937 Terms: Personal Property." Wisconsin Law Review (January 1938): 100-106.
"Commentary: Constitutional Ideals and Private Associations." In Voluntary Associations, eds. J. Roland Pennock and John W. Chapman, 63-68. New York: Atherton Press, 1969.
"Law and the Limits of Individuality." In Social Control in a Free Society, ed. Robert E. Spiller, 97-136. Philadelphia: University of Pennsylvania Press, 1960.
"Legal Elements in United States History." In Law in American History, eds. Donald Fleming and Bernard Bailyn, 3-92. Boston: Little, Brown and Company, 1971.
"The Process of Constitutional Construction: The Role of History." In Supreme Court and Supreme Law, ed. Edmond Cahn, 55-58. New York: Greenwood Press, 1968 (orig. pub. 1954).
"Review and the Distribution of National Powers." In Supreme Court and Supreme Law, ed. Edmond Cahn, 140-169. New York: Greenwood Press, 1968 (orig. pub. 1954).
"Themes in United States Legal History." In Felix Frankfurter: A Tribute, ed. Wallace Mendelson, 199-220. New York: Reynal, 1964.
"A Tribute." In Fiftieth Anniversary Convocation of Justice Brandeis's Appointment to the Supreme Court of the United States, ed. Student Bar Association, University of Louisville School of Law, 2. Louisville, Ky: University of Louisville School of Law, 1966.
"Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins." Reviews in American History 6, no. 1 (March 1978): 63-67.
"Alexander M. Bickel and Benno C. Schmidt, Jr., The Judiciary and Responsible Government, 1910-1921." Wisconsin Law Review (1984): 1671-1678.
"Bruce R. Trimble, Chief Justice Waite" and "Francis P. Weisenburger, The Life of John McLean." Harvard Law Review 51 (1938): 1306-1310.
"Burke Shartel, Our Legal System and How It Operates." Journal of Legal Education 4, no. 3 (1952): 347-349.
"Charles Fairman, Mr. Justice Miller and the Supreme Court 1862-1890." Columbia Law Review 40 (1940): 564-571.
"Charles Fairman, Reconstruction and Reunion, 1864-1888, Part One." A.B.A. Journal 58 (1972): 955-957.
"Francis S. Philbrick, ed., Laws of Illinois Territory, 1809-1818." Harvard Law Review 64 (1951): 1228-1230.
"Guido Calabresi, A Common Law for the Age of Statutes." Minnesota Law Review 67, no. 2 (December 1982): 536-544.
"Henry Rottschaefer, Handbook of American Constitutional Law." Harvard Law Review 53 (1939): 350-352.
"Howard Jay Graham, Everyman's Constitution: Historical Essays on the Fourteenth Amendment, the 'Conspiracy Theory,' and American Constitutionalism." Journal of American History 56, no. 1 (June 1969): 146-148.
"Howard Jay Graham, The 'Conspiracy Theory' of the Fourteenth Amendment" and "Louis B. Boudin, Truth and Fiction About the Fourteenth Amendment" and "Louis A. Warsoff, Equality and the Law." Harvard Law Review 52 (1939): 851-860.
"John P. Frank, Justice Daniel, Dissenting: A Biography of Peter V. Daniel, 1784-1860." U.C.L.A. Law Review 12 (1965): 1481-1413.
"Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841-1870." Journal of Legal Education 9, no. 4 (1957): 566-568.
"Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 18410-1870" and "Oliver Wendell Holmes, The Common Law." Harvard Law Review 77 (1963): 382-388.
"Mark DeWolfe Howe, ed., Readings in American Legal History." Harvard Law Review 63 (1950): 553-555.
"Morton J. Horwitz, The Transformation of American Law, 1780-1860." American Journal of Legal History 21 (1977): 175-179.
"Morton Keller, The Life Insurance Enterprise, 1885-1910: A Study in the Limits of Corporate Power." University of Chicago Law Review 31 (1963): 207-209.
"Paul A. Freund, On Understanding the Supreme Court." Federal Bar Journal 11 (1950): 107-109.
"Paul Wallace Gates, The Wisconsin Pine Lands of Cornell University." Economic History Review Second Series 19, no. 1 (April, 1966): 227-228.
"Pendleton Herring, The Politics of Democracy." Harvard Law Review 54 (1941): 714-717.
"Robert Samuel Summers, Instrumentalism and American Legal Theory." Michigan Law Review 82 (February 1984): 852-855.
"Willard King, Lincoln's Manager, David Davis." University of Chicago Law School Record 59 (1960).
"William E. Nelson, The Roots of American Bureaucracy, 1830-1900." New York University Law Review 58, no. 2 (May 1983): 457-463.
Hartog, Hendrik, "Snakes in Ireland: A Conversation with Willard Hurst." Law and History Review 12, no. 2 (Fall 1994): 371-390.
Smail, Laura L., "J. Willard Hurst: An Interview Conducted by Laura L. Smail." (Madison: University Archives Oral History Project, University of Wisconsin-Madison, 1981).