Perhaps because Willard Hurst did not publish his first book, The Growth of American Law, until 1950, more than a decade after he entered law teaching, his readers have often found it hard to imagine him as other than a fully formed scholar. The pluralist politics of his major writings, their functionalist sociology, and their attentiveness to consensus in history have made Hurst seem so much a product of the 1950s that one can easily overlook the ways in which developments in law and politics in the preceding decades shaped his perspective on the American past.

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.

Law and the Conditions of Freedom in the Nineteenth-Century United States, the slim volume that emerged from Willard Hurst's 1955 Rosenthal Lectures at the Northwestern School of Law, has attained an iconic status in American legal history. In his 1994 interview of Willard Hurst, for example, Hendrik Hartog mentions that both he and Robert Gordon were led to legal history as a result of reading Hurst's little book. A good deal of the magic of Law and the Conditions of Freedom stems from its undeniable vitality. Certainly, Hurst was after vitality in legal history, surprising Hartog in the 1994 interview by his fondness for Albert Beveridge's life of John Marshall because of its “magnificent job of bringing history to life.”

Two legacies vie to take the measure of the work of Willard Hurst. The first understands Hurst primarily in his formal role as the “founding father” of an academic sub-specialty known as “American legal history”—the author of a canonical text Law and the Conditions of Freedom, and the coiner of interpretive phrases like “legal instrumentalism” and “the release of energy” that established the boundaries of disciplinary debate for two generations of acolytes and dissenters. The second legacy flows from the substantive range of Hurst's research and writing as a whole—the depth and breadth of an intellectual project that tears at and transcends the very disciplinary borders being constructed by his texts and phrases. In this essay, I will ignore the first perspective, which tends to dominate hagiographic and commemorative commentaries.

Though I corresponded with Willard Hurst over the last twenty-five years, I met him only once. Hurst did not often attend events or meetings outside of Madison, but in 1971 he appeared at a legal history conference at the Harvard Law School to herald the renaissance in the field of American legal history, a renewal in many ways directly traceable to Hurst's own work and influence. I had just graduated from law school and was beginning my apprenticeship as a legal historian. With great trepidation I walked up to him to introduce myself at a reception on the first day of the conference. I was surprised when he seemed to recognize my name (I think a list of conference participants may have been circulated in advance), but even more astonished when he said, “Let's go find a quiet corner, I want to talk to you about your father.” My father, Samuel J. Konefsky, had died less than a year before, and Hurst's brief conversation with me was the first of the many kindnesses of his that I experienced.

Anyone who lived and worked within range of Willard Hurst's benign, if also rather insistent, influence is necessarily somewhat disabled from detached assessment of his legacy. We owe him too much. Not just for the continuous rapid fire of comment, criticism, recommendation, and encouragement that rattled off the famous ancient typewriter; but also for his intellectual and moral example. He set himself long-range projects and finished them; he surveyed large themes and explored them to the bottom. He used his authority to try to get us both to read more broadly and get down into the details. We responded because we were touched that he thought our work might matter, and because he did not spare himself. Even when rebelling against that authority (as I for one often did), we wanted his attention and judgment even when we could not hope for his approval, and he gave them generously.

The five articles in this volume make clear the overriding significance of J. Willard Hurst (1910–1997) to the burgeoning field of U.S. legal history. They leave no doubt as to his contributions to interdisciplinary social science research, to collegial and supportive exchanges with budding scholars, and attest to the overall intellectual breadth and sensitivity of Hurst's scholarly persona.

It is indeed true, as these essays conclude, that U.S. legal history in a sense really begins with Hurst. The barren, dry bones and husks on the terrain, before him, made American legal history, an appendage to English legal history, terra incognita for most historians and other scholars. He almost single-handedly made legal experience a necessary part of social and economic history.

Given the large body of expert writing about Hurst's scholarship in the United States, including the contributions to the present symposium, the most useful course for an outsider seems to me to be to ask a type of Foucauldian question: what is it about the fact of Hurst's writing what he did, at the time he did, that is strange to one foreign to the tradition to which Hurst and his commentators and critics belong? Why was a lawyer in the U.S., so long before legal scholars elsewhere in the Anglophone world, able to see the necessity of conceiving law in context, perhaps moving, as Novak suggests “from constitutional history toward historical sociology”? We can not proceed too abruptly to a conclusion, as if there were a single answer to the question. After all, lawyers such as Hurst, the Legal Realists, and the Supreme Court were involved in the New Deal. By contrast, while the professional social reformer and the professional lawyer might, just, have coexisted in the same British person at this time, the two commitments would have been cordoned off from each other.

Three aspects of J. Willard Hurst's locatedness strike me as being noteworthy: his identification as a law teacher, in Wisconsin, in the mid-twentieth century United States of America. It mattered immensely, as Ernst shows in this issue, that his life of mind was significantly formed in the period between the world wars.

Hurst's work is colored by these environments at every turn. Even assuming that he ranks with the likes of Tocqueville, Bryce, or Weber as a “broad-gauged socio-legal thinker of the first order,” it is important to consider him, not as a disembodied, unsituated intellect, but rather as a scholar who lived, worked, and wrote in a context. Though in part “an important extension of and dialogue with several well-established traditions and intellectual frameworks” on both sides of the Atlantic and on both sides of the world's longest undefended border, his work was also the product of a mind embodied.

Leading works published since the 1980s relating to law and the modern administrative state that privilege economy and politics—work by scholars like William Novak tracing the nineteenth-century common law roots of the modern regulatory state, Stephen Skowronek on the construction of a national administrative state, and Martin Sklar on the intersection of reform with the rise of corporate capitalism in reshaping the political economy of the American state—remain intensely engaged with the work of Willard Hurst. Leading works published in the same period relating to law and the modern administrative state that privilege gender—work by scholars like Kathryn Kish Sklar on Florence Kelley and women's political culture, Linda Gordon on the welfare state, and Leslie Reagan on abortion—do not cite Hurst in the footnotes or, for the most part, in their bibliographies. For that matter, those from one subfield do not cite the other and vice versa. There is a simple, innocuous explanation for these silences—we all have too much to read.

“The more important any legal theme is in United States history,” Willard Hurst once wrote, “the more likely it is that it has been significantly affected by the coexistence and interplay of the national and the state governments.” That federalism and its impact on legal development should have been of central importance to Hurst's interpretations of American history is by no means surprising, yet the subject seldom finds a place in the growing literature on Hurst's seminal research contributions. His estimate of federalism's importance may no doubt be explained in part by the close relationship that he had with Felix Frankfurter as the research assistant in 1935–36 for Frankfurter's book of lectures on the Commerce Clause in the nineteenth century. This was a study animated, one can be certain, by Frankfurter's interest in finding ample room within the constitutional order for giving the states adequate space to pursue their varied individual policy preferences in response to the challenges posed by economic and social change. Indeed, Frankfurter had long been struggling with the issue of what authority was left, by a proper interpretation of constitutional federalism, to the state legislatures and courts; and he must have been pleased when Hurst wrote to him in 1938 that he was thinking about undertaking a historical study of diversity jurisdiction as a way of getting “a slant on the business of making federalism work.”

Today, the history of law and society has become an exciting growth industry. But just a couple of decades ago this possibility would have seemed implausible. Indeed, when Willard Hurst became professor of law in Madison in 1937, modern legal history was, to put it kindly, dead. Reviving this moribund discipline required more than imagination and an acute awareness of the point and nature of law. Sleeping Beauty had to be woken with a kiss, and Hurst surely brought a serious, tenacious passion to his vocation. Through exhortation, inspiration, and sheer determination, he attempted to resuscitate a huge domain.