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James Willard Hurst as Entrepreneur for the Field of Law and Social Science

Published online by Cambridge University Press:  28 October 2011

Bryant G. Garth
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Extract

Celebrations of the career of Willard Hurst tend to concentrate, quite understandably, on his scholarship in legal history. Most of those who now read and comment on his works are professional legal historians, and they tend to read and define Hurst according to that professional identification. This article takes a different approach, concentrating on Hurst's own role in the more general politics of legal scholarship. Hurst was not content with making a mark in legal history. He sought to challenge the legal establishment. We see the legacy of his efforts in the development of the field of law and social science, institutionalized in the mid 1960s in the Law and Society Association (LSA). Therefore, my focus is on the sociology and politics of scholarship rather than on intellectual history. I will not examine the relationship of Hurst's particular works to those who came before or after him, nor will I go through the exercise of suggesting what was good or lasting or useful about his work for present purposes.

Type
Articles
Information
Law and History Review , Volume 18 , Issue 1: Engaging Willard Hurst: A Symposium , Spring 2000 , pp. 37 - 58
Copyright
Copyright © the American Society for Legal History, Inc. 2000

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References

1. The material on the history of law and society is developed more in Garth, Bryant G. and Sterling, Joyce, “From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State,” Law and Society Review 32, no. 2 (1998): 409–72.CrossRefGoogle Scholar

2. I am grateful to Dan Ernst for bringing my attention to papers on Hurst's role in the Rockefeller Foundation and to the Rockefeller Foundation for making the papers available to me. All the documents cited here are courtesy of the Rockefeller Archive Center.

3. The Walter E. Meyer Research Institute of Law is discussed in David Cavers's history, edited and completed by John Henry Schlegel. Cavers, David, A History of the Walter E. Meyer Research Institute of Law (Amherst, N. Y.: Walter E. Meyer Research Institute of Law, 1997), ed. Schlegel, J. H..Google Scholar

4. Transcripts of the interviews cited in this article are on file at the American Bar Foundation.

5. Also “somehow Red and I got the idea of convening a breakfast meeting … at the ASA.”

6. See Macaulay, , “Non-Contractual Relations in Business,” American Journal of Sociology 28 (1963): 55–69.CrossRefGoogle Scholar

7. Friedman, Lawrence M., Contract Law in America: A Social and Economic Case Study (Madison: University of Wisconsin Press, 1965).Google Scholar

8. Macaulay, Stewart and Friedman, Lawrence M., Law and the Behavioral Sciences (Indianapolis: Bobbs-Merrill, 1969).Google Scholar

9. The tradition already existed to some extent when Hurst joined the faculty in the late 1930s. As Hurst stated in an interview with Hendrik Hartog, “it was apparent right from the very outset that this was a law school unlike most law schools, that did not exist in isolation from all the rest of the university. It was just taken for granted that we would have working contact with the economics department, with sociologists, only later with historians, because legal history was still regarded as not really a subject. But economics and sociology, it was taken for granted that people there were interested in the law school, and the law school was winterested in them.” Hartog, Hendrik, “Snakes in Ireland,” Law and History Review 12 (1994): 379.CrossRefGoogle Scholar The materials that Hurst originally put together with the then-dean, Lloyd Garrison, for the “Law in Society” course at Wisconsin further developed this approach within law.

10. Handler, Joel, “Controlling Official Behavior in Welfare Administration,” California Law Review 54 (1966): 479–510.CrossRefGoogle Scholar

11. Hurst, James Willard, “Research Responsibilities of University Law Schools,” Journal of Legal Education 10 (1957): 147, 161.Google Scholar

12. Ibid., 160.

13. The tension between the two sides is well exemplified in the work of David Trubek, who bridges the two sides of CLS and LSA. See, e.g., Trubek, David, “Where the Action Is: Critical Legal Studies and Empiricism,” Stanford Law Review 36 (1984): 575–622.CrossRefGoogle Scholar

14. According to the memorandum from Willits, dated 17 June 1949, “I would like to put down some of the steps that we have taken as a result of the recommendations on morals and ethics by the Trustee Review Committee and, more specifically, by Mr. Winthrop Aldrich.”.

15. Ibid., 2.

16. Law and Ethics, dated 12 Sept. 1949.

17. Ibid., 1.

18. “The emphasis on the case method in law schools is excellent as a practical means of teaching what the law is. But such preoccupations by law school faculty, along with their interest in the design of current administrative devices for reform, is not the best atmosphere out of which to develop philosophers in law and government… RF's [Rockefeller Foundation] opportunity is to endeavor to strengthen these basic deficiencies in law and law schools. If we can do this we will make a basic contribution to law and ethics (and not just add to sound and futility) and also serve the cause of wise government. And incidentally we will be making a flank attack on the weakness in political science.” Ibid., 2.

19. Hurst letter to Joseph Willits, 9 May 1951, p. 1.

20. From Willard Hurst, Law and Values, 9 May 1951.

21. Letter from Willard Hurst to Joseph Willits, 1 Oct. 1951.

22. Letter from Willard Hurst to Dean Rusk, 10 Nov. 1952.

23. “Anyone who had a little experience of the comparative records of law-trained men and men of business or other ‘practical’ background, when they were all thrown into the novel demands of Washington's wartime agencies, could hardly help emerging with a high opinion of the capacity of lawyers to adapt themselves with superiorreadiness and perspective to the needs of policy-making posts.” Ibid., 7.

24. Herbert A. Deane, Suggestions Emerging from the First Conference on Legal and Political Philosophy, 12 Jan. 1953. Page numbers of this document appear in parentheses in the text.

25. Memorandum by Joseph Willits, 20 Feb. 1953.

26. Agenda for the First Meeting of the Advisory Committee on Legal and Political Philosophy, 17 June 1953.

27. Letter from Willard Hurst to Joseph Willits, 22 July 1953.

28. Letter from Willard Hurst to Joseph Willits, 31 July 1953.

29. Letter from Willard Hurst to Joseph Willits, 11 Aug. 1953.

30. Letter from Joseph Willits to Willard Hurst, 24 Aug. 1953.

31. Letter from Joseph Willits to Willard Hurst, 28 Oct. 1953.

32. Letter from Willard Hurst to Joseph Willits, 31 Oct. 1953.

33. Letter from Willard Hurst to Joseph Willits, 12 Apr. 1954.

34. Legal and Political Philosophy Advisory Committee Meeting, 21 Mar. 1955.

35. Excerpt from Interview by John B. Stewart with Professor Lon L. Fuller, 25 Apr. 1955.

36. Legal and Political Philosophy Advisory Committee Meeting, 12 Mar. 1956.

37. Cavers, History of the Walter E. Meyer Research Institute of Law, 45 (quoting from Hurst memorandum).

38. Ibid., 45.

39. Ibid., 46.