1. Hurst, James Willard, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1986; originally 1956).Google Scholar

2. “I was talking with Bob Gordon recently about how we each came to be a legal historian. Oddly, he and I had exactly the same beginning point, which was reading Law and the Conditions of Freedom.” Hartog, Hendrik, “Snakes in Ireland: A Conversation with Willard Hurst,” Law and History Review 12 (1994): 370–71.CrossRefGoogle Scholar

3. Gordon, Robert W., “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 48.Google Scholar

4. Hartog, “Snakes in Ireland,” 372.

5. Garrison, Lloyd K. and Hurst, Willard, eds., Law in Society (Madison: College Typing Company, 1941).Google Scholar

6. Hartog, “Snakes in Ireland,” 385.

7. On Legal Realism and social science, see Schlegel, John Henry, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995).Google Scholar

8. Soifer, Aviam, “In Retrospect: Willard Hurst, Consensus History, and The Growth of American Law,” Reviews in American History 20 (1992): 125.CrossRefGoogle Scholar

9. Hartog, “Snakes in Ireland,” 388.

10. Particularly striking is a passage in the acknowledgments from C. Vann Woodward's Reunion and Reaction: “In looking back over the citations, however, I was struck by the omission of one name— that of the late Charles A. Beard. It was, perhaps, an unconscious tribute that it did not seem necessary to mention him as the originator of the concept of the Civil War and Reconstruction, as a revolution— the Second American Revolution, as he and Mary R. Beard called it.” And later in that opening paragraph Vann Woodward goes on to express his “hope that American historians will never permit honest differences of opinion over foreign policy to withhold from the late dean of the craft the honor that is justly due him.” Vann Woodward, C., Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (Garden City, N.Y.: Doubleday Anchor, 1956; originally 1951), v.Google Scholar

11. Gordon, “Introduction,” 18.

12. Daniel Ernst showed me the book list, which he had found among the Felix Frankfurter Papers (10 May 1956, Library of Congress, reel 42). Part of the fascination of Frankfurter's copy is that he has checked off the books he had read on Hurst's list (Tocqueville's Democracy in America received three checks, presumably because Frankfurter had read it three times).

13. See, e.g., Hartog, “Snakes in Ireland,” 375, 376, and 389.

14. Ibid., 376.

15. Brinkley, Alan, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995).Google Scholar See, e.g., Bernstein, Michael A., “Why the Great Depression Was Great: Toward a New Understanding of the Interwar Economic Crisis in the United States,” in The Rise and Fall of the New Deal Order, 1930–1980, eds. Gerstle, Gary and Fraser, Steve (Princeton: Princeton University Press, 1989), 32–54.Google Scholar

16. Hofstadter, Richard, The Age of Reform from Bryan to F.D.R. (New York: Vintage, 1955), 21 (“hatred”), 302 (“new departure”).Google Scholar

17. Hurst, Law and the Conditions of Freedom, 108.

18. Hofstadter, Richard, The Progressive Historians: Turner, Beard, Parrington (New York: Vintage, 1970; originally 1968).Google Scholar

19. Gordon, “Introduction,” 49.

20. On the Progressive/consensus polarity, see, e.g., Morton, Marian J., The Terrors of Ideological Politics: Liberal Historians in a Conservative Mood (Cleveland: Press of Case Western Reserve University, 1972).Google Scholar

21. Hurst, Law and the Conditions of Freedom, 3.

22. “On a winter day in the 1850's, according to a tradition of the West, a party of mountain men, fleeing a band of hostile Sioux, sought refuge in an isolated canyon whose entrance was concealed by a growth of cedar. To their astonishment they saw in a clearing beneath a cliff a starving horse, facing a numbing wind. One of the party recognized the mustang as Nez Perce, the mount of the lonely trapper, Bill Williams. Not far away they found the body of the old hunter, reclining against a tree, the feet stretched toward some charred pine logs half buried in snow. Bill Williams had died, as he had lived, alone.” Gabriel, Ralph Henry, The Course of American Democratic Thought (New York: Ronald Press Company, 1956; originally 1940), 3.Google Scholar

23. Hurst, Law and the Conditions of Freedom, 3–5.

24. Ibid., 5.

25. Ibid., 5–6.

26. Soifer. “In Retrospect,” 136–37.

27. Benedict, Ruth, Patterns of Culture (Boston: Houghton, Mifflin, 1989; originally 1934), 46.Google Scholar Benedict is herself quite clear that different cultures have different levels of “integration” and that indeed contemporary Western civilization may be too diverse and complicated to be integrated. In fact, in Western civilization, Benedict suggests that units within the civilization may be integrated cultures. Western civilization, she tells us, “is stratified, and different social groups of the same time and place live by quite different standards and are actuated by different motivations.” Ibid., 230.

28. Of course, the anthropologists and psychoanalysts cross-referenced each other directly so that they were creating a psychological anthropology. Mead's work on childhood and adolescence may be the most obvious example—but, finally, the psychoanalysts and the anthropologists were working out a notion of character that could define an individual in society and consequently help to define the society.

29. Hurst, Law and the Conditions of Freedom, 7.

30. Arthur E. Sutherland, review of Law and the Conditions of Freedom in The American Political Science Review 51 (Sept. 1954): 832.

31. Hartz, Louis, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860 (Cambridge, Mass.: Harvard University Press, 1948)CrossRefGoogle Scholar and Handlin, Oscar and Handlin, Mary Flug, Commonwealth; A Study of the Role of Government in the American Economy: Massachusetts, 1774–1861 (Cambridge, Mass.: Harvard University Press, 1947).Google Scholar

32. Hurst, Law and the Conditions of Freedom, 6 (emphasis added).

33. In his 1994 interview with Hartog, Hurst states: “What bothers the CLS line of thinking is that they don't find in a lumber book treatment of the history of oppression (I mean consciously delivered oppression). Here's where the idea of consensus comes into the picture. I think there was little history of oppression to tell because the shared values of the society were such that you didn't have any focal points about which organized activity could arise to express the interests of the oppressed.” Hartog, “Snakes in Ireland,” 387.

34. It may not be an easy task to integrate slavery into the narrative of American regulation and the economy outside the South. Slavery was clearly off-stage in William Novak's recent important study of “law and regulation in nineteenth-century America.” Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).Google Scholar Indeed, Louis Hartz's attempt to see the South in the same Lockean terms as the rest of the U.S. rings a bit hollow. Hartz, Louis, The Liberal Tradition in America (San Diego, New York, London: Harcourt, Brace, Jovanovich, 1991; originally 1955).Google Scholar But to the extent slavery is not an integral part of the narrative, it is important to be quite explicit about its absence and clear about why it represents a story apart. In this context, it is interesting to read the first sentence of C. Vann Woodward's Reunion and Reaction (which appeared both in Hurst's endnotes and on his book list): “There was a time, so long ago that it has been forgotten, when the South represented no distinctive departure from the general pattern of American politics.” C. Vann Woodward, Reunion and Reaction, xi.

35. Hurst, Law and the Conditions of Freedom, 25.

36. “Consensus history” was first used in a critique by Higham, John, “The Cult of the American Consensus: Homogenizing American History,” Commentary 27 (Feb. 1959): 93–100.Google Scholar Marian J. Morton, The Terrors of Ideological Politics, and Pells, Richard H., The Liberal Mind in a Conservative Age: American Intellectuals in the 1940s and 1950s (New York: Harper and Row, 1985)Google Scholar, provide useful analyses of consensus historians, but finally exaggerate the uniformity among them and the differences between them and their nonconsen-sus counterparts.

37. Hofstadter, Progressive Historians, 445.

38. Curti, Merle, The Growth of American Thought (New York and London: Harper and Brothers, 1943), 752.Google Scholar

39. Trilling, Lionel, “Reality in America,” The Liberal Imagination: Essays on Literature and Society (New York: Charles Scribner's Sons, 1976; originally 1950), 9.Google Scholar

40. Handlin opens his Introduction by stating: “Once I thought to write a history of the immigrants in America. Then I discovered that the immigrants were American history.” The Uprooted: The Epic Story of the Great Migrations That Made the American People (New York: Grosset and Dunlap, 1951), 3.

41. Soifer, “In Retrospect,” 137.

42. Lipset, Seymour Martin, The First New Nation: The United States in Historical and Comparative Perspective (Garden City, N.Y.: Doubleday, 1967; originally 1963), 1.Google Scholar

43. For an identification of Hurst as a Progressive historian, see, e.g., Gordon, “Introduction,” 19, and for an identification of Hurst as a consensus historian, see, e.g., Tushnet, Mark, “Lumber and the Legal Process,” Wiscons in Law Review 1972: 114, 115.Google Scholar Sacvan Bercovitch's studies of the 1970s may represent one of the last gasps of the attempt to locate America's defining imagery and values. One can see the transition between the title of Bercovitch's 1975 book, The Puritan Origins of the American Self, and Jeffrey Steele's study published twelve years later, The Representation of the Self in the American Renaissance.

44. Harry Scheiber makes Hurst's aim quite clear when he analyzes the variables that for Hurst shaped the policy-making function of law: “Of overarching importance is the Volksgeist of the nineteenth century.” Scheiber, Harry N., “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” American Historical Review 75 (Feb. 1970): 746.CrossRefGoogle Scholar

45. See, e.g., Current, Richard N., “Willard Hurst as a Wisconsin Historian,” Wisconsin Law Review 1980: 1215.Google Scholar

46. Also significant in this context are the several entries from the Encyclopaedia of the Social Sciences—unquestionably a progressive project of the 1930s–that appear in Hurst's notes.

47. Mark Tushnet, “Lumber and the Legal Process,” 114, 129–30.

48. Hurst, Law and the Conditions of Freedom, 39.

49. Handlin and Handlin, Commonwealth, ix–x.

50. Scheiber, Harry N., “Government and the Economy: Studies of the ‘Commonwealth’ Policy in Nineteenth-Century America,” Journal of Interdisciplinary History 3 (1972): 146–47.CrossRefGoogle Scholar See this article generally on the so-called “Commonwealth studies.”

51. Homan, Paul T., “Economics, The Institutional School,” Encyclopaedia of the Social Sciences, vols. 5 and 6 (New York: Macmillan Company, 1949; originally 1931), 388.Google Scholar

52. I am grateful to Robert Gordon for introducing me to Hurst's commitment to institutional economics.

53. Hurst, Law and the Conditions of Freedom, 109, n. 2.

54. Potter, David, People of Plenty (Chicago and London: University of Chicago Press, 1965; originally 1954), 48.Google Scholar

55. One thinks, by comparison, of Merle Curti's dedication of The Growth of American Thought to Turner.

56. Soifer, “In Retrospect,” 133.

57. Elkins, Stanley and McKitrick, Eric, “A Meaning for Turner's Frontier,” Political Science Quarterly 69, no. 3 (Sept. 1954): 324, 321.Google Scholar

58. Gabriel, The Course of American Democratic Thought, 4.

59. Benjamin F. Wright, Jr., “Political Institutions and the Frontier,” Sources of Culture in the Middle West, ed. Dixon Ryan Fox (1934), reprinted in The Turner Thesis: Concerning the Role of the Frontier in American History, ed. Taylor, George Rogers (Lexington, Mass.: D. C. Heath and Company, 1972; originally 1949), 64.Google Scholar It is interesting to note in this context that Wright was Louis Hartz's teacher at Harvard and provided a foreword to Hartz's study of Pennsylvania state regulation.

60. Hurst, Law and the Conditions of Freedom, 7 (“We came from”), 34–35 (“challenge of physical fact”), 35 (“evidences”).

61. A very important part of Wright's story of legal dissemination was played by Blackstone's Commentaries, which “became the bible of American lawyers.” “Backwoods lawyers,” Wright told us, “with only Blackstone's Commentaries and a set of their own state's published statutes felt equipped to argue cases and set forth learned opinions on jurisprudence.” Wright, Louis B., Culture on the Moving Frontier (New York: Harper and Row, 1961; originally 1955), 206–7.Google Scholar Daniel Boorstin opened the preface to the paperback edition of his study of Blackstone by declaring: “In the history of American institutions, no other book—except the Bible—has played so great a role as Blackstone's Commentaries on the Laws of England.” Boorstin, Daniel J., The Mysterious Science of the Law (Boston: Beacon Press, 1958; originally 1941)Google Scholar, n.p. By comparison, Hurst's single mention of Blackstone in Law and the Conditions of Freedom is a contrast made in a footnote between Blackstone's short treatment of contract and the extensive treatment of contract by American commentators. Hurst, Law and the Conditions of Freedom, 111, n. 17.

62. Webb, Walter Prescott, The Great Plains (Lincoln: University of Nebraska Press, 1981; originally 1931), 387.Google Scholar

63. Hurst, Law and the Conditions of Freedom, 7 (“Our prime”), 34 (“Our place”), 35–36 (“It was of definitive”).

64. Hacker, Louis M., The Triumph of Capitalism: The Development of Forces in American History to the End of the Nineteenth Century (New York: Columbia University Press, 1946), 16Google Scholar (“our American”), 26 (“From the start”), 48–49 (“the Protestant Reformation”).

65. Hurst would seem to come down on Tawney's side of his debate with Weber over The Protestant Ethic and the Spirit of Capitalism. See Tawney, R. H., Religion and the Rise of Capitalism: A Historical Study (Gloucester, Mass.: Peter Smith, 1962; originally 1926).Google Scholar

66. Miller's 1952 address of that title became the title essay for Miller, Perry, Errand into the Wilderness (New York: Harper and Row, 1964; originally 1956).Google Scholar

67. Hurst, Law and the Conditions of Freedom, 37 (“Security”), 38 (“in the background”).

68. Although Matthiessen announced his effort to move away from Parrington's “elucidation of our liberal tradition,” he described the five protagonists of The American Renaissance—Emerson, Hawthorne, Thoreau, Whitman, and Melville—as writing “literature for democracy.” Matthiessen, F. O., The American Renaissance: Art and Expression in the Age of Emerson and Whitman (London, Oxford, New York: Oxford University Press, 1968; originally 1941), ix, xv.Google Scholar

69. Indicative of the turn to the American Renaissance for their precedential reformism was Schlesinger's, Arthur M.The American as Reformer (Cambridge, Mass.: Harvard University Press, 1950)Google Scholar, which not only takes its title from Emerson but begins each of its three lectures with a quotation from Emerson. Even Dewey had to end one of the chapters of The Public and Its Problems (Athens: Ohio University Press, 1988; originally 1927) by turning to Whitman: “Democracy will come into its own, for democracy is a name for life of free and enriching communion. It had its seer in Walt Whitman. It will have its consummation when free social inquiry is indissolubly wedded to the art of full and moving communication” (184).

70. In his book on culture on the frontier, Louis Wright specifically addresses the impact of John Locke on the frontier. After talking about Blackstone's Commentaries making their way to the frontier, Wright discussed John Locke's frontier impact: “Formal ideas on political theory came from many sources but none was more influential than the second of John Locke's Two Treatises of Government. … County editors and prairie politicians might refer to Locke as to an oracle.” Wright, Culture on the Moving Frontier, 207.

71. Hartz, Louis, Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (San Diego, New York, London: Harcourt Brace and Company, 1991; originally 1955), 6.Google Scholar

72. Dan Ernst has suggested to me a possible connection to the legal realist critique of the Lockean man, which may have played a part in Hurst's avoidance of Locke, but I think this avoidance was more fundamentally based in a methodological estimation of the relative importance of more purely intellectual force over against social and economic forces.

73. Hurst, Law and the Conditions of Freedom, 37.

74. Ibid., 16 (“appear increasingly”), 17 (“that the public interest”), 30 (“controversies”), 50 (“the record”).

75. Ibid., 36.

76. Kardiner, Abram et al., The Psychological Frontiers of Society (New York: Columbia University Press, 1945), 414.Google Scholar

77. Hurst, Law and the Conditions of Freedom, 20 (“a market-oriented”), 8 (“Nineteenth-century”).

78. Ibid., 12 (“For a time”), 13 (“This was”), 70 (“equated”), 11 (“it does not”).

79. From an interview with Hurst, Soifer reports that “Hurst also says he was greatly influenced by Karl Polanyi's The Great Transformation.” Soifer, “In Retrospect,” 141, n. 12.

80. Polanyi, Karl, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1956; originally 1944), 3Google Scholar (“Nineteenth-century”), 43 (“implies”), 43 (“propensity”), 57 (“naively imagined”).

81. Ibid., 140 (“[t]heroad”), 133 (“trading classes”), 216 (“so violent”), 3–4 (“The idea”).

82. This likely relates to Hurst's telling his narrative predominantly in the first person plural. Although his critical voice, to which I will return, showed that his field of vision was much greater than his subjects, he started with their view, or rather “our” view, and never entirely left it.

83. Hurst, Law and the Conditions of Freedom, 67 (“[t]he development”), 108 (“Such challenges”).

84. Polanyi, The Great Transformation, 133.

85. Hurst, Law and the Conditions of Freedom, 90 (“The Commercial”), 96 (“[m]uch”), 90 (“We were”).

86. Hart, Henry M. Jr, and Sacks, Albert M., The Legal Process: Basic Problems in the Making and Application of Law (Westbury, N.Y.: Foundation Press, 1994)Google Scholar provides a particularly good example of the importance of the dispersion of power. See Eskridge and Frickey's discussion of “a government of dispersed power.” William N. Eskridge, Jr., and Philip P. Frickey, “An Historical and Critical Introduction to The Legal Process,” Ibid., xciv.

87. Harry Scheiber, “At the Borderland of Law and Economic History,” 751.

88. Gordon discusses Hurst in the context of pragmatism, primarily Dewey's The Public and Its Problems (1927), in Robert Gordon, “Introduction,” 45–48.

89. Dewey, John, Liberalism and Social Action (New York: G. Putnam's Sons, 1963; originally 1935), 35Google Scholar (“release”), 55 (“freed intelligence”).

90. Gordon, “Introduction,” 45.

91. Hurst, James Willard, “Drift and Direction,” Law and Social Process in United States History (Ann Arbor: University of Michigan Law School, 1960).Google Scholar

92. Dewey, The Public and Its Problems, 170.

93. Dewey, Liberalism and Social Action, 57. See also his reference to “drift and casual improvisation.” Ibid., 51.

94. Dewey, The Public and Its Problems, 116 (“lost”), 135 (“caught”), 116 (“bewildered”), 131 (“caught in”).

95. Dewey acknowledges his indebtedness to Lippmann's Phantom Public (1925) and Public Opinion (1922) in a footnote to The Public and Its Problems, 116–17.

96. Alan Ryan in a recent study of Dewey writes that “[t]he difficulty for readers of The Public and Its Problems, the book Dewey published in 1927, after two brief squarings of accounts with Lippmann in short reviews of [Public Opinion and The Phantom Public], is that Dewey accepted most of Lippmann's complaints against the existing order of things.” Ryan, Alan, John Dewey and the High Tide of American Liberalism (New York, London: Norton, 1997; originally 1995), 217.Google Scholar

97. Hurst, Law and the Conditions of Freedom, 75 (“two elements”), 80 (“drift and default”), 52 (“an unpatterned”), 78 (“default and drift”).

98. Ibid., 62 (“bustling concern”), 67 (“impatient confidence”), 67 (“[w]e were unwilling”).

99. Ibid., 67 (“mortgaged”), 70 (“farmers burned”), 66 (“This bustling”), 52 (“dangerously retarding”).

100. Fine, Sidney, Laissez Faire and the General-Welfare State: A Study of Conflict in American Thought (Ann Arbor: University of Michigan Press, 1956).Google Scholar

101. Hurst, Law and the Conditions of Freedom, 84 (“[t]t he challenge”), 85 (“deriving from”), 85 (“pervasive unease”), 86 (“resort to association”), 86 (“positively to mobilize”).

102. Ibid., 78 (“concentrated unprecedented”), 78 (“there is little”), 90 (“What was new”), 90 (“[w]e were slow”).

103. Ibid., 87 (“In 1896”), 94 (“Interest group conflict”), 95 (“good deal”).

104. Ibid.,95.

105. Ibid., 96 (“from our past”), 106 (“reliance on government”), 107 (“Most significant”).

106. On the importance to Hurst of the “Wisconsin idea” of policy directed by social science research, see Gordon, “Introduction,” 49.

107. Hurst, Law and the Conditions of Freedom, 107–8.

108. Dewey, The Public and Its Problems, 219.

109. Chase, Stuart, Democracy Under Pressure: Special Interests vs. the Public Welfare (New York: The Twentieth Century Fund, 1945), 1–2.Google Scholar

110. Drucker, Peter, The Concept of a Corporation (New Brunswick, London: Transaction Publishers, 1993; originally 1946), 229.Google Scholar

111. Galbraith, John Kenneth, American Capitalism: The Concept of Countervailing Power (Cambridge, Mass.: Houghton Mifflin, 1956; originally 1952), 113.Google Scholar

112. Soifer, “In Retrospect,” 126.

113. Noble, David W., The End of American History: Democracy, Capitalism, and the Metaphor of the Two Worlds in Anglo-American Historical Writing, 1880–1980 (Minneapolis: University of Minnesota Press, 1989; originally 1985).Google Scholar

114. Noble, The End of American History, 5 (“rhetorical ritual”), 6 (“promise of virtuous”), 57 (“narratives written”), 83 (“dismissed the promise”), 86 (“must accept”), 98 (“he had joined”), 99 (“the hero”).

115. Hartog, “Snakes in Ireland,” 375.

116. Felix Frankfurter, Foreword to Goldmark, Josephine, Impatient Crusader (Urbana: University of Illinois Press, 1953), viiGoogle Scholar, quoted in Hurst, Law and the Conditions of Freedom, 106–7.

117. Hurst, Law and the Conditions of Freedom, 107 (“[a]fter seventy-five years”), 107–8 (“[s]uch challenges”).

118. Boorstin, Daniel J., The Genius of American Politics (Chicago: University of Chicago Press, 1959, originally 1953), 8.Google Scholar

119. Hurst, Law and the Conditions of Freedom, 103.

120. Ibid., 105.

121. Niebuhr, Reinhold, The Irony of American History (New York: Charles Scribner's Sons, 1952), 33.Google Scholar As an example, Noble uses Marvin Meyer's The Jacksonian Persuasion, which found that “although the Jacksonians spoke as anticapitalists, they behaved as capitalists.” Noble, The End of American History, 9.

122. Noble, The End of American History, 8.

123. Ibid., 9.

124. Berman, Art, From the New Criticism to Deconstruction: The Reception of Structuralism and Post-Structuralism (Urbana: University of Illinois Press, 1988), 52.Google Scholar

125. Niebuhr, Irony of American History, 11.

126. Hurst, Law and the Conditions of Freedom, 95.

127. Hartog, “Snakes in Ireland,” 380. The genre of the case study was important to Hurst. As an example, one finds on his Wisconsin book list Alvin Gouldner's study of bureaucracy in a single gypsum plant. Gouldner, Alvin W., Patterns of Industrial Bureaucracy: A Case Study of Modern Factory Administration (New York: The Free Press, 1964; originally 1954).Google Scholar