Lindsay Farmer's argument that, in seeking to replace the common law with legislation, and in striving for a novel systematization of the relationship between civil and penal law, the criminal law commissioners of 1833-45 transformed the understanding of criminal law in relation to government is a powerful one. It is to some degree an inferential argument, positing that a reading of Bentham's theory of legislation allows us to understand the commissioners' work better, since Bentham “makes explicit many of the broader political assumptions that guided the commissioners and allows us to understand the precise nature of their codification project.” It is worth asking therefore how far the commissioners were informed by Benthamic ideas and what they understood their task to be.

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.

Students of Anglo-American criminal law, historians included, have traditionally had very little to say about criminal codes. This omission is startling in the face of ongoing efforts to codify criminal law since the late eighteenth century, not only in England and the United States, but also in Canada and India. The only historical study of criminal codification in the United States is a survey article that is, strictly speaking, not about codification at all, but about the great men who made codification possible, in particular the forefathers of Herbert Wechsler, the main drafter of the Model Penal Code. The Model Penal Code itself gave no clues as to its historical antecedents, if any. It is regarded, and portrayed itself, as having invented the wheel by starting from scratch, the raw material of the common law.

Legal historians have turned with renewed energy in recent years to the project of fleshing out the myriad rules by which the common law of the free labor employment contract structured social relations in nineteenth-century America. Of course, labor relations have always been prominent in the literature. The German sociological tradition has long taught us to see in the legal protection of property rights a source of coercive power over the working classes. And for decades now, historians have studied the great nineteenth-century labor conspiracy cases, which generated leading cases and opinions by judges such as Shaw and Holmes. But there is a new wrinkle in recent accounts of nineteenth-century labor law. Much of the law of property, contract, and tort bears a relatively self-evident (though still too infrequently remarked on) relation to the relative bargaining power of the parties to an employment contract. Property rules, along with a whole host of attendant tort doctrines such as nuisance and trespass, allocate resources among parties. As Robert Hale observed long ago, property rules set the coercive power of A to exclude B from those resources that belong to A, whether A be a prospective employee excluding an employer from the employee's labor power, or an employer excluding a would-be employee from the means of production. In similar fashion, rules of contract and tort that define the weapons that parties may deploy in competition or bargaining also shape the relative bargaining power of social actors. Thus, doctrines of duress, fraud, unconscionability, and adequacy of consideration, and the law of labor conspiracies and competition all create immutable background rules (or sometimes inalienable entitlements) that have considerable impact on bargaining power. In Halean language, we might say that the law of duress, for example, coercively precludes the strong from forcing the weak to consent to a particular deal, or that the doctrine of fraud coercively precludes the slick from outfoxing the dupes.

When it was established in 1788, New South Wales became the most remote, and most peculiar, of the British empire's overseas colonies. The founding colony of what would eventually become Australia, it was established as a penal colony, a place to send the unwanted criminals of Britain and Ireland. Britain lost more than the majority of its North American possessions in the late eighteenth century. It also lost its principal repository for unwanted felons. New South Wales filled the gap.

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.

The words of Henry Bellenden Ker, Law Commissioner, quoted as the title of this response, were truer than he knew. In protesting that the commissioners' project was less radical than was alleged by the opponents of codification, he sought principally to gain parliamentary time and space for consideration of the commissioners' work. However, his words contain a deeper vein of truth. The work of the law commissioners has been praised and criticized, celebrated and ignored, over the past one hundred and fifty years, but never yet properly understood. Even as the commissioners' reports have been plundered by successive generations of legal scholars in search of doctrinal and theoretical support for their own very contemporary concerns, there has been a continuing neglect of the commissioners' overall project and little attempt to link it to the significant transformations in punishment and the administration of criminal justice that were occurring in the same period. Accordingly, any reassessment of the commissioners' work should address these two issues: understanding their project as a whole and placing codification within the general historical context of the modernizing of the state and institutions of criminal justice. It is these two concerns that the commentators address in their responses.

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.

Legal education has always responded to, perhaps even been driven by, available technologies of information dissemination. At the start of the twenty-first century law teachers find themselves in an unprecedented period of technological change: available means of presenting and distributing information are daily transforming. The “information age” seems, genuinely, to be upon us. The present is difficult to comprehend, the future beyond imagination.

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.