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Introduction: J. Willard Hurst and The Common Law Tradition in American Legal Historiography

Published online by Cambridge University Press:  05 August 2024

Robert W. Gordon
Robert W. Gordon*
Affiliation:
State University of New York at Buffalo
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In 1963 the Italian historiographer Arnaldo Momigliano told an assembly of legal historians that they were gathered to celebrate “a historical event of some importance, the end of history of law as an autonomous branch of historical research.” At least in the historiography of ancient law, he said, “the elimination of history of law as independent history now seems to me to be settled.”

Type
Introduction
Information
Law & Society Review , Volume 10 , Issue 1: Essays in Honor of J. Willard Hurst: Part I , Fall 1975 , pp. 9 - 55
Copyright
Copyright © 1975 The Law and Society Association.

Footnotes

*

This essay owes much to conversations with Paul R. Duggan, Marc Galanter, David Hollinger, Stewart Macaulay, John Henry Schlegel, David Trubek and Mark Tushnet, and to the members of the Faculty Seminar on Law and Development of the SUNY at Buffalo Law School, who heard and criticized an earlier version. They do not by any means all share the views reported here; and are not responsible for errors and distortions.

References

1. A.D. Momigliano, “The Consequences of New Trends in the History of Ancient Law,” in Momigliano, Studies in Historiography 239, 240-241 (1966).

2. This would seem to imply that no one could write the legal history of a society that had no notion of “law” as a bundle of specialized activities distinct from, and to some extent autonomous of, other social phenomena—e.g., a society that did not distinguish between legal and religious norms. Legal historians usually solve this problem by treating of the aspects of such societies that appear to serve counterpart social functions to those of the relatively autonomous legal systems. For example, courts perform certain dispute settlement functions in modern Western societies which might, in other societies of the past, have been performed by councils of warriors or village elders. The warriors or elders will therefore be treated in the legal history of the other society. Yet though dispute settlement may be done by warriors or elders in modern Western societies also, that is not “law” and is therefore usually of no interest to legal historians This somewhat curious manner of defining the field of specialization is partly responsible for the fact that focus abruptly shifts (and narrows) whenever a society exhibits traces of an autonomous legal order. On this point, see text at notes 29-31, 40-44, infra. On the emergence of “autonomous” legal orders in modern societies, see Max Weber on Law and Economy in Society (Rheinstein ed. 1954), especially chs. 7-9, 11; for a brilliant recent reinterpretation, Roberto Mangabeira Unger, Law in Modern Society (forthcoming, 1976), especially at 52ff.

3. Lawrence M. Friedman probably inclines as far as anyone. See e.g., his History of American Law (1973):

This book treats American law … not as a kingdom unto itself, not as a set of rules and concepts, not as the province of lawyers alone, but as a mirror of society. It takes nothing as historical accident, nothing as autonomous, everything as relative and molded by economy and society… . The [legal] system works like a blind, insensate machine. It does the bidding of those whose hands are on the controls… . [T]he strongest ingredient in American law, at any given time, is the present: current emotions, real economic interests, concrete political groups.

Id. at 10, 14. Professor Friedman acknowledges the existence of legal phenomena that are purely “internal” or “formal”—technical aspects of the system that can be altered or adjusted without affecting much (if at all) the outside society. See his “Law Reform in Historical Perspective,” 13 St. Louis U.L.J. 351 (1969). He also recognizes that people living in some societies may perceive their legal order to be autonomous and to associate autonomy with legitimacy; he would classify such beliefs as part of a society's “legal culture”— “values and attitudes which … determine the place of the legal system in the culture of the society as a whole.” See his “Legal Culture and Social Development,” 4 L. & Soc'y. Rev. 29, 34 (1969).

4. Some scholars would go further than Momigliano; see, e.g., Richard L. Abel, “A Comparative Theory of Dispute Institutions in Society,” 8 L. & Soc'y Rev. 217, 221-224 (1973), for the views of a legal anthropologist who has given up on “law” altogether as a useful organizing concept in social research.

5. These terms are borrowed from T.S. Kuhn's treatments of (remarkably similar!) problems in the historiography of science. See especially his “Relations between History and History of Science,” 100 Daedalus 271, 279 (1971). “External history” seems to me a better label than “social” history because it is more inclusive; specifically, it includes intellectual and cultural history.

6. The best of these are, I think, Daniel J. Boorstin, “Tradition and Method in Legal History,” 54 Harv. L. Rev. 424 (1951); George L. Haskins, “Law and Colonial Society,” 9 Am. Q. 354 (1957); Stanley N. Katz, “Looking Backward: The Early History of American Law,” 33 U. Chi. L. Rev. 867 (1966); Lawrence M. Friedman, “Some Problems and Possibilities of American Legal History,” in The State of American History 3 (Bass ed. 1970); Morton J. Horwitz, “The Conservative Tradition in the Writing of American Legal History,” 17 Am. J. Leg. Hist. 275 (1973); Herbert Alan Johnson, “American Colonial Legal History: A Historiographical Interpretation,” in Perspectives on Early American History 250 (Vaughan & Billias eds. 1973), hereinafter Johnson, “Colonial Legal History”; and the many historiographical contributions of Willard Hurst, of which the most comprehensive, as well as the most recent, is “Legal Elements in United States History,” in Law in American History 3 (Fleming & Bailyn eds. 1971), hereinafter Hurst, “Legal Elements.” Much acerbic and astute criticism of the state of the art has appeared over the years in the Annual Survey of American Law's “Legal History” sections written by John Phillip Reid (1962-66); Reid and William E. Nelson (1969-70); and Nelson (1967-69; 1973-present). I am very indebted to all the articles cited here. One of the many ironies connected with American legal history is that its shortcomings have called forth so useful a historiographical literature.

7. See Calvin Woodard, “History, Legal History, and Legal Education,” 53 Va. L. Rev. 89 (1967) for a similar sketch arriving at somewhat different conclusions.

8. Some readers may find my idea of what constitutes “American legal history” idiosyncratic—both too inclusive and too exclusive. It includes studies in English legal history in the 1880s and 90s, but then drops these; and excludes constitutional, administrative, and other plausible candidates for the category of American legal history throughout. Let me try to justify this. Hardly anything one could call American legal history was written in the 1880s and 90s, but one has to say something about the legal history that was written (English, mostly), because it exerted such a strong influence on what came later. After that I try to stick to the American side, including in the “legal history” field whatever contemporaries were likely to include, which until recently meant the history of “private law” subjects and not much else except perhaps constitutional history, which I do not feel competent to discuss, but which I gather has suffered from comparable if considerably less severe limitations. See the bibliographical note, and sources there cited, in Harold M. Hyman, A More Perfect Union 557-560 (1973). Notions of what legal history is about are, of course, rapidly changing (as witness the essays in this issue) thanks in large part to the work of Willard Hurst and his school. See text at notes 132-135, infra.

9. See, e.g., Reid & Nelson, Ann. Survey Am. L., supra, note 6; Friedman, History of American Law, supra, note 3, at 596-621; Friedman supra, note 6; Johnson, “Colonial Legal History”; David H. Flaherty, “An Introduction to Early American Legal History,” in Essays in the History of Early American Law (Flaherty ed. 1969); Wythe Holt, “Now and Then: The Uncertain State of Nineteenth Century American Legal History,” 7 Ind. L. Rev. 615 (1974); and Harry N. Scheiber, “Federalism and the American Economic Order,” 10 L. & Soc'y Rev. 57 (1975) (in this issue, infra).

10. For an example of the exciting possibilities of a historiography relating law and lawyers to a wider culture, see William J. Bouwsma, “Lawyers and Early Modern Culture,” 73 Am. Hist. Rev. 303 (1973) and the contributions already made to such a history cited in id. at 304 n.4.

11. Friedman, History, supra, note 13, at 567-595 sketches a provocative brief outline of 20th century American legal history. The best general secondary treatment of the history of the American bar remains, 25 years later, Willard Hurst, The Growth of American Law: The Lawmakers [hereinafter Hurst, Lawmakers] 249-375 (1950), a circumstance that probably gives the author little satisfaction. The history of legal education has been well treated recently in Robert Stevens, “Two Cheers for 1870: the American Law School,” in Law in American History 405, supra, note 6; Jerold S. Auerbach, “Equity and Amity: Law Teachers and Practitioners, 1900-1922,” Id. at 551; and William Twining, Karl Llewellyn and the Realist Movement (1973). Two books are especially successful at relating legal to philosophical thought in the 20th century: Morton White, Social Thought in America: The Revolt Against Formalism (2d ed. 1957) and David A. Hollinger, Morris R. Cohen and the Scientific Ideal (1975). There are several studies of Realism: among them Wilfrid E. Rumble, Jr., American Legal Realism: Skepticism, Reform, and the Judicial Process (1968); Calvin Woodard, “The Limits of Legal Realism; an Historical Perspective,” 54 Va. L. Rev. 689 (1968); Twining, supra, this note; Edward A. Purcell, Jr., The Crisis of Democratic Theory (1971); and G. Edward White, “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth Century America,” 58 Va. L. Rev. 999 (1972). This literature on Realism, though interesting and useful, still leaves one with the feeling that something important has been left out. Except for Twining, the authors tend to treat the Realists as (rather inept) legal philosophers, quoting from their more speculative work and from their debates on the nature of law with critics like Roscoe Pound and Morris Cohen. What gets slighted in the process is most of the stuff that the Realists themselves considered their most important work: their studies of subjects like procedure and commercial law. Research now being done by John Henry Schlegel should help to correct this. Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (1976) appeared too late to be consulted for this essay.

12. On the significance of Henry Adams' seminar, see Helen M. Cam, Law Finders and Law-Makers 176-182 (1962); on the influence of German writers on Holmes, Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Proving Years, 1870-1882, ch. 5 (1963).

13. J.W. Burrow, Evolution and Society, A Study in Victorian Social Theory (1966) emphasizes the variety of 19th century evolutionary theories; Robert A. Nisbet, Social Change and History 166-188 (1968), their similarity.

14. See especially Jurgen Herbst, The German Historical School in American Scholarship 112-116 (1965); and John Higham, History: Professional Scholarship in America 158-161 (1965). Out of 15 history courses given at Harvard in 1890-91, “twelve were wholly or partly concerned with constitutional development.” Cam, supra, note 12, at 182.

15. The titles of some of H.B. Adams' articles will convey the flavor of some of his scholarship: “The Germanic Origin of New England Towns,” Johns Hopkins Studies in History and Political Science (ser. 1, no. 2, 1882); “Saxon Tithing-Men in America,” id. (ser. 1, no. 4, 1882); “Norman Constables in America,” id. (ser. 1, no. 8, 1883).

16. James Barr Ames, Lectures on Legal History and Miscellaneous Legal Essays (1913); Melville M. Bigelow, Placita Anglo-Normannica (1879) and History of Procedure in England from the Norman Conquest (1880); O.W. Holmes, Jr., The Common Law (1881); James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (1898).

17. See C.H.S. Fifoot, Frederick William Maitland: A Life, at viii, 69-70, 75-76, 80 (1971).

18. See text at notes 23-27, 32-44, infra.

19. See Auerbach, “Equity and Amity,” supra, note 11 at 553-72.

20. James Barr Ames, “The Vocation of the Law Professor,” in Ames, supra, note 16 at 366. [The reference is clearly to Foakes v. Beer, 9 App. Cas. 605 (1884), citing Pinnel's Case, 5 Co. Rep. 117a (1602).]

Ames also saw a role for the law professor as an “expart counselor in legislation,” by which he meant advisor on technical law reform. Id. at 367-68.

21. “Why the History of Law Is Not Written,” Collected Papers, I, 480, 493 (1911).

22. Horwitz, supra, note 6 at 282-83, calls attention to the “incredibly striking” parallels between lawyer's legal history and scientists' history of science, quoting T.S. Kuhn, The Structure of Scientific Revolutions 137-38 (2d ed. 1970):

Textbooks … begin by truncating the scientist's sense of his discipline's history and then proceed to supply a substitute for what they have eliminated. Characteristically, textbooks of science contain just a bit of history, either in an introductory chapter or, more often, in scattered references to the great heroes of an earlier age. From such references both students and professionals come to feel like participants in a long-standing historical tradition. Yet the textbook tradition in which scientists come to sense their participation is one that, in fact, never existed … [S]cience textbooks … refer only to that part of the work of past scientists that can easily be viewed as contributions to the statement and solution of the text's paradigm problems… . No wonder that textbooks and the historical tradition they imply have to be rewritten after each scientific revolution. And no wonder that, as they are rewritten, science once again comes to seem largely cumulative.

23. On the new institutional (or “imperial”) historians, see Higham, supra, note 14 at 162-166; Johnson, “Colonial Legal History.” Maine is usually thought of as an evolutionist; but Kenneth E. Bock has persuasively argued that he was an opponent of the theory of a unilinear evolutionary development, and not interested in hunting for origins among primitive peoples, but instead was concerned to study law in relation to the entire surrounding culture, including its “relatively recent history.” (I.e., Maine was disposed to explain ancient law by ancient history, but not modern law.) “Comparison of Histories: The Contribution of Henry Maine,” 16 Comp. Stud. in Soc'y & Hist. 232, 247 (1974).

24. On the Progressives, see Richard Hofstadter, The Progressive Historians (1968), especially 181-218; and Higham, supra, note 14 at 171-182.

25. The case method, in Langdell's original conception a way of getting across the basic principles of legal science, rapidly acquired its present-day justification as a pedagogic vehicle for the teaching of legal method. Thus justified, it became the device for teaching every undergraduate law course, tending to drive out subjects (such as legal philosophy and history) not suited to being so taught. See Stevens, supra, note 11 at 435-449. In 1960, commenting bitterly on the anti-intellectualism accompanying the spread of the Harvard method in the late 19th and early 20th centuries, Karl Llewellyn recounted that when

[William A.] Keener was called to Columbia in 1890 to put that law school on a footing worthy of a great University, he brought with him two policies: (1) “The” case-system … (2) All that noise which is not “law” must go out; a “law” curriculum must cast out Ishmael. Columbia … had therefore to amputate from any official “law”-connection what became the Department of Political Science. Thus the Roman Law Perspective of a Munroe Smith, the scholarship and vision of a [Frank J.] Goodnow, the power and range of our greatest international lawyer, John Bassett Moore [who trained, among others, Julius Goebel, Jr.], flourished not within the law curriculum, nor for it, but across the barbarian border …. In 1915, when, already our foremost jurisprude, [Roscoe Pound] became Dean at Harvard Law School, he deliberately took his own Jurisprudence course out of the undergraduate curriculum. He kept it out, lest his bulk of graduates be distracted—or contaminated.

Llewellyn, “The Study of Law as a Liberal Art,” in Jurisprudence 375, 377-78 (1962). [Italics Llewellyn's; interpolations mine.]

26. See generally, Herman Belz, “The Realist Critique of Constitutionalism in the Era of Reform,” 15 Am. J. Leg. Hist. 288 (1971); Paul L. Murphy, “Time to Reclaim: The Current Challenge of American Constitutional History,” 69 Am. Hist. Rev. 64 (1963).

27. It is not always appreciated how wide the split was. One can get some sense of it from casual remarks made recently by non-lawyer historians who have become interested in law. For example: (a) Eugene Genovese: “[T]he fashionable relegation of law to the rank of a superstructural and derivative phenomenon obscures the degree of autonomy it creates for itself.” Roll, Jordan, Roll 25 (1974). (b) Harry N. Scheiber, speaking of recent developments in economic history, refers to “new lines of inquiry that stress institutional and doctrinal development in American law …” “Government and the Economy: Studies of the ‘Commonwealth’ Policy in Nineteenth Century America,” 3 J. Interdisc. Hist. 135, 151 n. 44 (1972) [Italics added]. Historians are discovering law, lawyers society.

28. The Ideal and the Actual in Law 10-11 (1890).

29. This is how Richard L. Abel describes a “law book,” a “study [that] identifies, defines, organizes the rules [that legal institutions apply] by means of criteria proper to the legal system—it rationalizes them in Weber's sense.” He contrasts such a “law book” to a “book about law ” which is a “mode of reflection upon the legal system”. “Law Books and Books About Law,” 26 Stan. L. Rev. 175, 176 (1973) [Italics Abel's]. This is another (and very effective) way of stating Maitland's distinction between legal history and legal dogma, text at note 21, supra.

30. The late Professor Goebel employed his gift for Latinate astringency to characterize this method as treating

the growth of doctrine as something projected on a horizontal plane of rational manipulation unmindful of its perpendicular support in time or circumstance. In expositions of the doctrine of consideration, the judgments of his majesty's judges in the seventeenth century rub shoulders with those from the American backwoods two hundred years later. To legitimate the control of business, Tudor sumptuary statutes are forcibly wedded to the legislative indiscretions of the seventy-third Congress …

That so fantastic a conception of history should prevail as a convention in the bulk of our legal literature is attributable in some degree to the intellectual tyranny which the judicial opinion exerts. It is a truism that to know the common law its history must be known. Our courts, however, seek enlightenment on the past chiefly in the judgments of their predecessors. These judgments are rarely treated as single but complex assessable facts, for the mass of relevant data of which they are merely parts is usually ignored. In consequence, the antecedent judicial opinion is elevated to a status of preposterous importance as a source… Julius Goebel, Jr., Felony and Misdemeanor xvii-xviii (1937).

31. Beale was expounding this theory to Harvard law students in 1909, according to notes taken by Robert Lee Hale of his lectures on jurisprudence in that year. These notes are published, with an introduction, in Warren J. Samuels, “Joseph Henry Beale's Lectures on Jurisprudence, 1909,” 29 U. Miami L. Rev. 260 (1975). See id. at 288-293.

32. And did so in fact. Its nearest rival was a compilation of essays in American legal history put out by members of the Yale Law-School faculty, Two Centuries' Growth of American Law, 1701-1901 (1901), sketching the antecedents of some 18 fields of contemporary practice, and now interesting mostly as revealing how little access even learned lawyers had to their own past.

33. Paul Samuel Reinsch, “English Common Law in the Early American Colonies,” Select Essays in Anglo-American Legal History, I, 367 (1907).

34. By the work of Goebel, Morris, and Haskins in particular. See Johnson, “Colonial Legal History,” and the essays collected in Flaherty, supra, note 9.

35. Pound, The Spirit of the Common Law 113-118 (1921); The Formative Era of American Law 6-12, et passim (1938). For an account of Pound's “enormous influence on the study of American law” with these two books, see Michael G. Kammen, “Colonial Court Records and the Study of Early American History: A Bibliographical Review,” 70 Am. Hist. Rev. 732, 738 (1965); and Katz, supra, note 6.

36. Baldwin, “History of the Law of Private Corporations in the Colonies and States,” in Select Essays, supra, note 33, at III, 236; Williston, “The History of the Law of Business Corporations before 1800,” id. at III, 195.

37. Maitland's essays on trusts, corporations, and unincorporated bodies are all collected in Maitland: Selected Essays (Hazeltine, Lapsley & Winfield eds. 1936), as well as in Maitland, supra, note 21.

38. There is a fuller literature on the history of the American corporation than on any other subject that plausibly belongs in the field of American legal history. See the bibliography in Willard Hurst, The Legitimacy of the Business Corporation in the Law of the United States, 1780-1970 at 165 (1970).

39. See, e.g., William F. Walsh, A History of Anglo-American Law [Bobbs-Merrill] (2d ed. 1932); Max Radin, Handbook of Anglo-American Legal History [West Hornbook Series] (1936); Frederick G. Kempin, Jr., Historical Introduction to Anglo-American Law in a Nutshell [West Nutshell Series] (1973). Of course these vary greatly in quality: Radin's is the outstanding one.

40. E. Allan Farnsworth, “The Past of Promise: An Historical Introduction to Contract,” 69 Colum. L. Rev. 576 (1969).

41. Id. at 578-88.

42. Id. at 591.

43. Id. at 592-99.

44. Id. at 599-607.

45. The committee consisted of Charles McLean Andrews, Carroll T. Bond (Chief Judge of the Maryland Court of Appeals and editor of the first volume in the series), John Dickinson, the ubiquitous Felix Frankfurter, Evarts B. Greene, and Richard B. Morris. See Evarts B. Greene, “Foreword” to Proceedings of the Maryland Court of Appeals, 1695-1729 (American Legal Records, I; Bond ed. 1933). Greene acknowledged “the encouragement, given at an early stage of the development of this project, by Mr. Justice Brandeis …” Id, For a list of publications in the series, see Kammen, supra, note 35 at 733.

46. See Goebel, supra, note 30 at ix.

47. See his Studies in the History of American Law (1958); and Johnson, “Colonial Legal History” at 258-261.

48. See, e.g., Julius Goebel, Jr., Cases and Materials on the Development of Legal Institutions (2d ed. 1937) [but see Ch. 3 of this book, on “Social, Economic and Intellectual Factors Conditioning Legal Development,” which mostly accords with tradition in confining discussion of such factors to the earlier English law, but not entirely: cf. id. at 620-626 on American corporations]; Mark DeWolfe Howe, Readings in American Legal History (1949); and Joseph H. Smith, Cases and Materials on the Development of Legal Institutions (1965).

49. The William Nelson Cromwell Foundation underwrote in whole or in part: Colonial Justice in Western Massachusetts (1639-1702): The Pyncheon Court Record (Smith ed. 1961); Legal Papers of John Adams (Wroth & Zobel eds. 1965); and The Law Practice of Alex-ander Hamilton (Goebel et al., eds. 1964-). I am not complaining about this; these volumes are superbly edited, and if there is one place where lavish spreading of technical detail is surely justified, it is in the edition of a primary text.

50. Boorstin, The Mysterious Science of the Law (1941); Howe, supra, note 12.

51. Haskins, Law and Authority in Early Massachusetts (1960). The influence of this approach may be detected in the range (as well as the title) of a recent collection of essays, Law and Authority in Colonial America (Billias ed. 1965).

52. Government and Labor in Early America (1946).

53. See Scheiber, supra, note 27.

54. “The Humane Study of Law,” 57 Yale L.J. 960, 963-64 (1948).

55. Woodard, supra, note 7 at 110-114.

56. See, e.g., Maitland writing to Dicey in 1896 (cited in Fifoot, supra, note 17 at 143):

The only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law. I don't think that the study of legal history would make men fatalists; I doubt it would make them conservatives. I am sure it would free them from superstitions and teach them that they have free hands.

57. See, e.g., “Law in Science and Science in Law [1899]”, in Holmes, Collected Legal Papers 210, 225 (1920):

From a practical point of view, [the use of history] is mainly negative and skeptical … [I]ts chief good is to burst inflated explanations. Everyone instinctively recognizes that in these days the justification of a law cannot be found in the fact that our fathers have always followed it. It must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants … [H]istory is the means by which we measure the power which the past has had to govern the present in spite of ourselves, so to speak, by imposing traditions which no longer meet their original end.

58. This phrase seems broad enough to encompass Holmes's pragmatism, Pound's sociological jurisprudence, and the many varieties of legal Realism.

59. See note 35, supra.

60. Frankfurter, The Commerce Clause under Marshall, Taney, and Waite (1937); Frankfurter and James M. Landis, The Business of the Supreme Court, A Study in the Federal Judicial System (1928); Frankfurter and Nathan Greene, The Labor Injunction (1930).

61. Llewellyn: “On Warranty of Quality and Society,” (Pts. 1 & 2) 36 Colum. L. Rev. 699 (1936), 37 Colum. L. Rev. 341 (1937); “Across Sales on Horseback,” 52 Harv. L. Rev. 725 (1939); “The First Struggle to Unhorse Sales,” 52 Harv. L. Rev. 874 (1939). (This superb quartet on the history of sales law may be Llewellyn's most durable work. Yet he said [of “Warranty of Quality,” Pt. 1, supra this note at 699 n.*] he was not writing “history, … [but] an appeal for history. It is a sad commentary on our dogmatics that sales cases over a hundred and fifty years and more than fifty jurisdictions have been treated as if they floated free of time, place and person. Whereas it is time, place, person and circumstance which give them meaning. A few major trends are here presented. But not as history. History calls for detailed knowledge, for detailed background, and for discrimination even more detailed.”)

Hall: Theft, Law and Society (1935).

Hamilton: “The Ancient Maxim Caveat Emptor”, 40 Yale L.J. 1133 (1931).

Nelles: “Commonwealth v. Hunt” 32 Colum. L. Rev. 1128 (1932); “Towards Legal Understanding,” (Pts. 1 & 2), 34 Colum. L. Rev. 862, 1041 (1934).

Yntema: Sourcebook on Roman Law (1929) (with A. Arthur Schiller).

But see Grant Gilmore, Book Review, 21 The Law School Record (Chicago) 38 (Summer, 1975):

When I studied law at Yale in the early 1940's there was no suggestion, in any of the instruction which I received, that there was any point in thinking about law as a historical process. The implicit philosophical or jurisprudential bias which the entire law faculty seemed to share was that law was a sort of mystical absolute waiting to be discovered, described, catalogued, mapped out, so to say, reduced to possession. [Gilmore adds that his instructors included some noted Realists.] It was not until considerably later—if we must have a date, 1960 will do as well as any—that a historical approach to law seemed, almost overnight, to become fashionable, at least among academic theorists.

The absence of a historical approach at Yale in the 1940's does not surprise me; the intellectually curious and innovative phase of legal pragmatism was by then over. I am somewhat perplexed by the reference to a new fashion for history starting about 1960. In 1963 Edward Re surveyed law school curricula to find legal history courses other than “development of Anglo-American legal institutions” (often shortened to DLI) virtually non-existent; and even DLI was rare. (DLI was sometimes real history camouflaged as evolutionism, as in John P. Dawson's splendid Harvard Law School version; more often [to judge from course descriptions cited in Re] simply orthodox evolutionism.) Of course this is not necessarily inconsistent with Gilmore's recollection; “a historical approach to law” does not have to mean legal history courses. But legal history courses provide some evidence of the seriousness of commitment to the approach. See Re, “Legal History Courses in American Law Schools,” 13 Am. Univ. L. Rev. 45 (1963).

62. See Pound, Interpretations of Legal History 152 and Ch. 7 passim (1923); Holmes, “The Path of the Law [1897],” in supra, note 57 at 167, 191-195. The difference between Holmes's and Ames's views on tradition and function in law is really only one of emphasis: in practice they often arrived at the same conclusion. Ames believed that traditional authority, accurately interpreted by means of scientific historiography, would also produce the socially functional results he thought desirable. Holmes rejected, of course, the idea that the past could supply “correct” legal doctrine, but argued nonetheless for judicial conservatism towards reforming traditional doctrine—“… because I believe the claim of our especial code to respect is simply that it exists, that it is the one to which we have become accustomed …” “Law in Science,” supra, note 57 at 239.

63. See Herman Belz, supra, note 26 and “The Constitution in the Gilded Age: The Beginnings of Constitutional Realism in American Scholarship,” 13 Am. J. Leg. Hist. 110 (1969); Richard Hofstadter, The Progressive Historians 200-202 (1968). Charles Beard acknowledged Holmes, Pound and Goodnow as forerunners in An Economic Interpretation of the Constitution of the United States 9 (1913).

64. Beale: “[L]aw is a traditional manner of thought about right behavior; the lawyers and judges are experts in it.” A Treatise on the Conflict of Laws xiii (2d ed. 1935). He developed the idea in his 1909 lectures (Samuels, supra, note 31 at 292-93):

[The principal characteristic of the common law] is that it requires a scientific knowledge on the part of a legal caste, thus coming back to a characteristic of the most ancient times, where it was in the knowledge of a priestly caste… . How can you tell what is the law of Massachusetts today? You can of course ask the judges, as special experts; but they will not say unless a case is brought before them. The law of Massachusetts is what the body of the Massachusetts bar thinks it is.

I use Beale to stand for orthodoxy because the Realists, especially Frank, did so; and Beale did not seem to mind. How seriously members of the bar took the image of a priesthood is another question, which would require much more research to answer.

65. The point is forcefully made by Horwitz, supra, note 6, “The Conservative Tradition in the Writing of American Legal History,” that preoccupation with formality and technique in legal history is ideological, in that it serves the interests of the profession to write about law as if it were autonomous from politics and inaccessible to the uninitiated. I think this is right but in some need of qualification and elaboration, which the text following this note tries to supply.

66. See Maxwell Bloomfield, “Law v. Politics: The Self-image of the American Bar (1830-1860),” 12 Am. J. Leg. Hist. 306 (1968), a study of 19th century lawyers suggesting that most of them disavowed intellectual pretensions and presented themselves as practical businessmen and skilled craftsmen. Jerome Carlin's study of individual practitioners found that “[t]hese lawyers although generally handling matters that require little in the way of technical legal skill, still have fairly frequent contact with the courts and are thereby able to find a link with the most commonly accepted image of a lawyer … [T]he big firm lawyer, in their view, has not only lost his identity as a real lawyer by virtue of his more infrequent contact with the courts … but his independence as well.” Lawyers on Their Own 187 (1962). In short, their identification is with the image of the trial lawyer, not with the more mandarin image of the appellate judge.

67. See, e.g., William D. Guthrie, Magna Carta and Other Addresses (1916) and Elihu Root, Addresses on Government and Citizenship (1916), for a view of Anglo-American history as the progressive realization of the principle of individual liberty against the state. Guthrie and Root were the two leading Wall St. practitioners of their time. But it is dangerous to generalize too far. Some Wall St. men belong, now as then, to the quasi-acadmic bar, which restates the law in the American Law Institute, serves on law reform commissions and the Cromwell Foundation, takes an active and informed interest in the curricula of the schools, and is familiar with scholars' legal history. It is worth remembering that there are several elites of lawyers—a municipal bond elite, a trial elite, etc.—and that they are not much like one another.

68. I have no authority for this beyond my own observation of teachers and colleagues.

69. History of English Thought in the Eighteenth Century, I, 379 (1876). Stephen thought Gibbon's skeptical views had helped to bring about the French Revolution which horrified him.

70. Julius Goebel, Jr. et at., A History of the School of Law, Columbia University 251 (1955).

71. Stevens, supra, note 11 at 472 n. 28.

72. For the Columbia experiment, see especially Twining, supra, note 11, ch. 4 (and the annotations to that chapter at 399-402, which contain some useful warnings against generalizing about the Realists too broadly).

73. See text at notes 88-96, infra.

74. For the preoccupation of social-legal research with the gap between law on the books and law in action, see Abel, supra, note 29 at 185-89 and Marc Galanter, “Notes on the Future of Social Research On Law” (unpublished ms. on file with the Law & Society Review).

75. For discussions of these impact studies, see Stephen L. Wasby, The Impact of the United States Supreme Court: Some Perspectives (1970); Richard Lempert, “Strategies of Research Design in the Legal Impact Study: The Control of Plausible Rival Hypotheses,” 1 L. & Soc'y Rev. 111 (1966); Martin Shapiro, “The Impact of the Supreme Court,” 23 J. Leg. Ed. 77 (1971).

76. This position probably came easiest to the teachers of commercial law, a field in which facts of business practice had been supposed to have some relevance to adjudication since Mansfield's time.

77. Goebel & T.R. Naughton, Law Enforcement in Colonial New York xxxiii-xxxiv (1944).

78. Goebers legal history materials are the first to stress extralegal influences on law (supra, note 48); as director of the Foundation for Research in Legal History he sponsored the publication of studies of the history of corporations that were the most ambitious attempts yet to relate modern law to social and economic context [Armand DuBois, English Business Companies after the Bubble Act (1933); Shaw Livermore, Early American Land Companies (1939)1; and his background essays in The Law Practice of Alexander Hamilton, supra, note 49, especially those on “The Law and the Judicial Scene,” id. at I, 1 and “The Economy in Hamilton's New York,” id. at II, 29, reveal a grasp on extra-legal detail as sure as on the law. It is especially striking that someone with so much range should have deliberately unbalanced so much of his work towards the internal.

79. See, e.g. “Ex parte Clio,” 54 Colum. L. Rev. 450 (1954), reviewing W.W. Crosskey, Politics and the Constitution (1953).

80. Frank did try to direct attention away from appellate and toward trial courts in Courts on Trial (1949). Llewellyn, in his general work in legal sociology, notably “What Price Contract —An Essay in Perspective,” 40 Yale L.J. 704 (1931), showed he was perfectly aware of the limits of the case-lawyers' view—which makes it all the more interesting that he settled down into that view in The Common Law Tradition: Deciding Appeals (1960). See text at notes 97-99, infra.

81. David Wigdor, Roscoe Pound, Philosopher of Law 207-81 (1974).

82. On changes in the role of courts and types of law practice, see Hurst, Lawmakers 85-87, 301-305; Robert T. Swaine, The Cravath Firm and its Predecessors, II, 461-66 et passim (1948).

83. See the extraordinary elegy of Julius Goebel, Jr., “Learning and Style in the Law—An Historian's Lament,” 61 Colum. L. Rev. 1393 (1961), in which the author calls up the classical learning of great past judges (“Diversion … was on a level almost incomprehensible to us. I cannot picture Holt, or Hardwicke, or Mansfield viewing a so-called ‘better’ program on television, or, if trapped into so doing, esteeming what they had looked upon to be a fit subject of conversation.” Id. at 1395-96.); and contrasts it invidiously with the present situation:

A reasoned opinion that rests upon impeccable authority and that carries conviction by reason of this and of its inner logic, unquestionably is difficult to compose. Fortunate it is that there are so many written. Such are, alas, much outnumbered by those patchworks of cases stated, passages from cyclopedias and snippets from a Restatement. This is a style highly esteemed in some trans-Appalachian jurisdictions … [This has been accompanied by] the descresence of allusive and epigrammatic writing, which so conduces to elegance …

Surely the law must lose something of majesty if its oracles think of their pronouncements in terms of threading a pipe or of contriving a passable mitre joint. Let us leave such ideas to the legislators. To judges and lawyers the past calls out that we should cherish writing as the exercise of art. This let us not forget.

Id. at 1398-1400.

84. David Riesman pointed this out in 1951:

To be sure, most lawyers today recognize that their most important work is done in the office, not in the courtroom; the elaborate masked ritual of the courtroom holds attraction only for the neophyte and the layman. Yet it is astonishing how strongly the image of the judge stands as the image of the lawyer-hero. While at the better law schools at least one and often nearly three years are spent in debunking upper-court opinions, in showing their largely derivative quality, their endless fallacies, their interminable self-confusion as to what they are “actually” deciding (as against what they say they are deciding), the better products of the better law schools want nothing more exciting when they get out than a chance to serve as clerk [as I did] to an appellate judge—the “upperer” the better. And as members of the bar they will move heaven and earth to get on the bench themselves (which is the source of much dirt in our political system, since many congressmen have partners who itch to be judges), although they know from practical experience how little power the judge has under the American system and how skilled lawyers are in emasculating that little.

“Towards an Anthropological Science of Law and the Legal Profession,” in Riesman, Individualism Reconsidered 440-41 (1954). See also id. at 462-63.

85. I am uttering here what is rapidly becoming the standard social-political explanation for the decline of Realism. See Edward A. Purcell, Jr., “American Legal Realism Between the Wars: Legal Realism and the Crisis of Democratic Theory,” 75 Am. Hist. Rev. 424 (1969); G. Edward White, “The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change,” 59 Va. L. Rev. 279, 281-285 (1973); both of which stress the attacks associating the positivism and skepticism of the Realist movement with fascism, and later with communism.

And yet I wonder. One might have thought that the rise of Nazism and Stalinism would as likely have promoted social research in law as put an end to it, would have encouraged Americans to investigate the sociological bases of the rule of law rather than simply to assert its autonomy from social conditions. This is the sort of work that C.J. Friedrich, Franz Neumann, and Friedrich Hayek all did (from rather different perspectives); was there similar work going on in the law schools? I am not sure, but I think the answer is not much even among the emigre lawyers. The Journal of Legal & Political Sociology, started in 1942, began to address these issues (Karl Llewellyn and David Riesman were among the first contributors), but it petered out after a few numbers. The retreat from external social perspectives on law in the late 1930s and 40s is only just beginning to be explained. We need to know a lot more about the politics of law teachers, their attitudes towards the New Deal, towards communism and civil liberties in the 1950s; more also about the contribution of the emigre scholars, about how they altered (and failed to alter) our perspectives on study of the legal system.

86. Or perhaps simply survived; it may never have been abandoned.

87. On the Catholic natural lawyers and Hutchins and Adler, see Purcell, supra, note 11; on Arnold, see his Symbols of Government (1962); Rumble, supra, note 11 at 217-220.

88. For an early American version, see Brooks Adams, Centralization and the Law (1906). The “economic interpretation” was most effective in the robust muckraking and debunking histories of the Supreme Court: notably Gustavus Myers, History of the Supreme Court of the United States (1918) and Louis B. Boudin, Government by Judiciary (1932). Other reductionist theories of law prevalent in the 1930's, such as Watsonian behavioristic psychology, apparently failed to influence historical writing.

89. Francis H. Bohlen, “The Rule in Rylands v. Fletcher” 59 U. Pa. L. Rev. 298 (1911); Walter Nelles, “Commonwealth v. Hunt” supra, note 61.

90. Pound's attacks on the “economic interpretation” may be found in “Political and Economic Interpretations of Legal History,” Proc. Am. Polit. Sci. Ass'n 95 (1912); Interpretations of Legal History, ch. 5 (1923); The Formative Era of American Law, supra, note 35; “The Economic Interpretation and the Law of Torts,” 53 Harv. L. Rev. 365 (1940).

91. For example, Pound concluded from the fact that interpretations of corporate and partnership law restricted businessmen's choice of forms of doing business and of ways of operating across state lines that “capitalists” (whom he conceded were the dominant class at the end of the 19th century) had suffered as much from courts' hanging on to traditional forms as had “laborers.” See his Interpretations of Legal History, supra, note 90, at 111-112.

92. Pound, Formative Era, supra, note 35, at 83-84.

93. Pound explained the vulnerability of legislators to economic pressures by their lack of training in the tradition: “The legislator … has no settled habits of applying an authoritative technique to authoritatively given materials.” “Economic Interpretation,” supra, note 90, at 366. A colleague to whom I showed this passage suggested that since many judges are legislators who have failed of reelection, the critical training experience might be the crucible of failure.

94. The “taught tradition” idea seems particularly hard to square with Pound's historical account of various theories he supposed had influenced American judicial decision-making in the 19th century (law-of-nature theory, analytic and historical theories, etc.) or with his frequent criticisms (especially in his earlier years) of late 19th century courts on the grounds that they had prevented necessary adaptations to social and economic needs, including adaptations sought to be accomplished by legislation. He worked himself into the position of saying that the taught tradition, apparently proof against “all manner of economically or politically powerful interests,” fell victim to the influence of any jurisprudential scribbler who happened to be in the neighborhood; and also that the autonomy of courts consisted in their being perpetually out of tune with modern needs—the very quality for which he had once attacked them.

95. For fine recent examples of what might be called a “neo-Progressive” approach, see Lawrence M. Friedman, “The Usury Laws of Wisconsin: A Study in Legal and Social History,” 1963 Wisc. L. Rev. 515; Robert S. Hunt, Law and Locomotives (1958).

96. I don't wish to imply that the net effect of Pound's influence on legal historiography was baneful. In this field as in so many others, he called attention to the right problems and pointed to suggestive lines of inquiry; and the fact that the Dean of the Harvard Law School uttered phrases like “sociological jurisprudence” gave social research in law respectability it could have acquired in no other way.

97. Llewellyn, Common Law Tradition, supra, note 80 at 36.

98. Id. at 39. The most effective statement of the concept of craft-style is in Llewellyn, “On the Good, the True, the Beautiful in Law [1942]”, in Llewellyn, supra, note 25 at 167.

99. For effective criticisms from differing perspectives, see Charles E. Clark & David Trubek, “The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition,” 71 Yale L.J. 255 (1961); Duncan Kennedy, “Legal Formality”, 2 J. Legal Studies 351 (1973).

100. Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (1957); John Phillip Reid, Chief Justice: The Judicial World Of Charles Doe (1967). Howe's biography of Holmes, supra, note 12, doesn't count as “judicial” biography because it ends before Holmes goes on the bench.

101. See Llewellyn articles cited supra, note 61.

102. Though perhaps not so different in their aspects with which Llewellyn was particularly concerned, as judges in commercial cases.

103. Lawrence M. Friedman, “On Legalistic Reasoning—A Footnote to Weber,” 1966 Wisc. L. Rev. 148; Morton J. Horwitz, “The Emergence of an Instrumental Conception of Law,” 5 Perspectives in Am. History 287 (1971); William E. Nelson, “The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” 87 Harv. L. Rev. 513 (1974); Mark Tushnet, “The American Law of Slavery 1810-1860: A Study in the Persistence of Legal Autonomy,” 10 L. & Soc'y Rev. 119, infra. So far as I know, nobody has taken up Llewellyn's hint that it might be valuable to apply methods of art or architectural history to law.

104. The codification theme can be tracked from Charles M. Hepburn, “The Historical Development of Code Pleading in America and England,” in Select Essays, supra, note 33 at II, 643; through Charles Warren, A History of the American Bar, Ch. 19 (1911), Alison Reppy, “The Field Codification Concept,” in David Dudley Field Centenary Essays (Reppy ed. 1949); Pound, Formative Era, supra, note 35; and Howe, supra, note 48. The theme was picked up by Perry Miller in The Life of the Mind in America (1965) (Book 2, “The Legal Mentality”); and has recently been sounded again in Carl B. Swisher, The Taney Period, 1836-64 at 339-56 (Oliver Wendell Holmes Devise History of the U.S. Supreme Court, V, 1974). One reason for what must be described as the obsession of our legal historians with this theme is that 19th century American lawyers were obsessed with it also; “codification” was the staple topic of their occasional essays, articles in law periodicals, and orations at bar dinners and memorials. They had as great a capacity to assimilate everything to their own categories as we do. Even the great Haskins may have been somewhat taken in by the appeal of the “codification” category: compare his “Codification of Law in Colonial Massachussetts: A Study in Comparative Law,” 30 Indiana L.J. 1 (1954) (Massachusetts Law and Liberties of 1648 is the first modern law code in the West) with Ronald G. Walters, 'New England Society and the Laws and Liberties of Massachusetts“, 106 Essex Inst. Hist. Colls. 145 (1970) (the ”Laws“ is not ”basically a code of law but rather something more mundane: a handbook for justices, an instrument for the use of a public and a body of magistrates likely to be of uncertain and conflicting knowledge.“ Id. at 167).

105. See especially Richard E. Ellis, The Jeffersonian Crisis (1971); William E. Nelson, Americanization of the Common Law, ch. 5 (1975); Friedman, “Law Reform,” supra, note 3; Maxwell Bloomfield,“ William Sampson and the Codifiers: The Roots of American Legal Reform, 1820-1830,” 11 Am. J. Leg. Hist. 234 (1967); Gerald W. Gawalt, “Sources of Anti-Lawyer Sentiment in Massachusetts, 1740-1840,” 14 Am. J. Leg. Hist. 283 (1970).

106. “Legal History: A Research Program,” 1942 Wisc. L. Rev. 319.

107. The works of this school on Wisconsin legal history are: Lawrence M. Friedman, Contract Law in America (1965); Hunt, supra, note 95; Spencer Kimball, Insurance and Public Policy (1960); George J. Kuehnl, The Wisconsin Business Corporation (1959); James A. Lake, Law and Mineral Wealth: The Legal Profile of the Wisconsin Mining Industry (1962); Francis W. Laurent, The Business of a Trial Court, 100 Yeors of Cases (1959); Samuel Mermin, Jurisprudence and Statecraft: The Wisconsin Development Authority and its Implications (1963); Earl F. Murphy, Water Purity (1961).

108. See the “Bibliography”, infra, this issue, § V.

109. The outstanding ones are both, as it happens, by contributors to this volume: Harry N. Scheiber, “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” 75 Am. Hist. Rev. 744 (1969), and Mark Tushnet, “Lumber and the Legal Process,” 1972 Wisc. L. Rev. 114.

110. There are other significant influences detectable in Hurst's work, notably Max Weber's; but as a factor shaping Hurst's external perspective, American pragmatic thought seems to me to have been more significant.

111. Hurst, “The Law in United States History,” 105 Proc. Am. Phil Soc. 518, 519 (1960). For Dewey on the same themes, see, e.g., Experience and Nature, ch. 10 (2d ed. 1929).

112. For Hurst on drift, see Law and Social Process in United States History (1960), especially at 66-75; cf. Dewey on habit, Human Nature and Conduct, Pt. 1 (1922).

113. This phrase tries very clumsily to give a brief impression of Hurst's intricate theoretical account of how imprisonment in habit produces social drift. For this account in its most developed form in Hurst's work, see his Justice Holmes on Legal History 11-13 et passim (1964).

114. For typical descriptions of this consciousness, see Hurst, id. at 39-50; Law and Social Process, supra, note 112 at 54-55.

115. Hurst's most powerful expression of these ideas remains that in the final chapter of his Lawmakers, supra, note 11, at 439-446 et passim; see also Law and the Conditions of Freedom in the Nineteenth Century United States (1967). Here the allegiance to Dewey is especially strong: see The Public and its Problems (1927).

116. Hurst, “Legal Elements,” supra, note 6 at 88-89; see Dewey, id., especially at chs. 5-6. There is an excellent discussion of this aspect of Progressive thought in David E. Price, “Community and Control: Critical Democratic Theory in the Progressive Period,” 68 Am. Polit. Sex. Rev. 1663, 1672 (1974).

117. For a representative passage on the constitutional ideal, see Hurst, “Legal Elements”, at 3-7. Hurst never goes quite so far as to equate constitutionalism and his own normative pragmatic method (though he is not entirely innocent of sometimes confusing them in his discourse), since the constitutional ideal has held officials and private holders accountable to serve individual life, but not (at least not consistently) to serve social or community life. See Law and Social Process, supra, note 112 at 3.

118. Hurst, Law and Social Process, supra, note 112 at 37-41.

119. But it would be misleading to conclude that Hurst simply carried on a going tradition at the Wisconsin Law School, since the Law School was only really brought into the Wisconsin tradition after World War II. In the heyday of the Wisconsin idea before World War I, the faculty consisted mostly of part-time practitioners; after World War I, “the faculty's major service contribution related not to legislation, but to law in the courts,” i.e., work on the Restatements. John E. Conway, “The Law School: Service to the State and Nation,” 1968 Wisc. L. Rev. 345, 346. The “law-and-society” approach that now distinguishes the Wisconsin Law School was pioneered after World War II by men recruited to the faculty by Dean Lloyd K. Garrison just before it: notably Jacob H. Beuscher and Willard Hurst. See W. Scottt Van Alstyne, Jr., “The University of Wisconsin Law School 1868-1968: An Outline History,” id. at 321, 330-31; and Fran Thomas, Law in Action: Legal Frontiers for Natural Resources Planning—The Work of Professsor Jacob H. Beuscher (Land Economics Monographs No. 4, 1972).

Hurst therefore had to cut all his own trails. But of course it is not likely that his enterprise could have prospered anywhere else as well as in Madison.

120. See Hurst, Lawmakers at 370.

121. For an illuminating discussion of the distinction, see Friedman, “Law Reform,” supra, note 3.

122. See, e.g., Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (1964) [hereinafter, Hurst, Law & Lumber] at 99, 298.

123. See Hurst, supra note 82; and Law & Lumber 249-50 (on built-in institutional limitations of common law litigation as decisionmaking method).

124. Law & Lumber.

125. I do not mean that this book is accusing in tone; on the contrary it is a model of scholarly neutrality, full of warnings against applying the criteria of the present age to the 19th century. (The earlier Lawmakers is much more overtly didactic.) But it is a grim and passionate book all the same, the more impressively so for its outward reserve.

126. Cf. Hurst's very Brandeisian early statement of this position:

Emphasizing the economic setting, [a legal history course] would deal [in part] with the security and values of individual personality in a world increasingly marked by centralized, large-scale power arrangements. The emphasis would be on the small man—laborer, white-collar worker, farmer, small business man. Hurst, supra, note 106, at 331.

127. See, for one of the rare instances in which Hurst cites a pleading form as significant, Law & Lumber 354-55 (where he also points out that it wasn't very significant).

128. See citations to Law & Lumber, supra, notes 122, 123.

129. Law & Lumber 289-90.

130. For other criticisms (in the course of generally appreciative treatments) of Hurst's work as theory and history, see the articles by Scheiber and Tushnet, supra, note 109; Julius Stone, Book Review, 78 Harv. L. Rev. 1687 (1965); and Richard B. Abrams, Book Review, 24 Stan. L. Rev. 765 (1972).

131. Tushnet, supra, note 109 at 125-26 points out in this connection (citing Albert Hirschman on unbalanced growth) that economic development may sometimes depend upon concealment of externalities.

132. Tushnet, id. at 122, says that purely legal materials cannot adequately test even Hurst's theory, and that his “law centeredness seeems totally ingenuous.” This is unfair. Hurst is acutely aware of the problems of law-centered research, and repeatedly qualifies the inferences he thinks permissible to draw from it. See, e.g., “Legal Elements” at 21-22; Law & Lumber at 225-227 (where Hurst also makes it clear he did not use business records because none existed). But some inferences about the effects of law on extralegal behavior can be drawn from the legal sources: e.g., the output of the legal system may be supposed to be important, or at least to be thought important, to people who resort frequently to it (seek amending acts in the legislature, litigate in the courts); and less important to those who could use it but do not (like the big lumber companies that tended to refrain from litigation). Law & Lumber 200, 226, 321 et passim.

133. See Scheiber, “Federalism and the American Economic Order,” infra at 57,

134. See Re, supra, note 61.

135. See, e.g., the large number of respondents stressing the necessity of an external approach to legal history (and taking such an approach in their courses and publications) in Joseph H. Smith, Report on the Teaching of Legal History in American Law Schools (AALS Legal History Section; Nov. 1973).

136. This is his “Legal Elements,” supra, note 6.