1 Robert Gordon, “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” 10 Law & Soc'y Rev. 9, 45, 54 (1975). Gordon's study remains an exemplary overview of American legal historiography, as well as a particularly insightful commentary on Hurst's contributions. For a companion piece, illustrating the importance of Hurst's work by criticizing and expanding on it, see Harry N. Scheiber, “Federalism and the American Economic Order, 1789–1910,” 10 Law & Soc'y Rev. 57 (1975). A good Hurst bibliography through 1975 is available (Ronald Eskin & Robert Hayden, “A Bibliography of Work by and about J. Willard Hurst,”id. at 326); another accompanies a festschrift in his honor published in 1980 Wisconsin Law Review 1093.Google Scholar

2 Gordon, Law & Soc'y Rev. at 12. These days, the very idea of an “outsider's perspective” is controversial; see, e.g., Marc Galanter, “Review Essay: Outside, Inside: Jewish Justices in the Homeless Society,” 14 Law & Soc. Inquiry 507 (1989) (reviewing Robert A. Burt, Two Jewish Justices: Outcasts in the Promised Land (1988)). Gordon is surely accurate, however, when he stresses how innovative Hurst actually was in adopting an outsider's perspective in contrast to previous legal historians. See generally Morton Horwitz, “The Conservative Tradition in the Writing of American Legal History,” 17 Am. J. Legal Hist. 281 (1973). Nevertheless, Hurst has been subject to criticism for not adequately attending to the perspective of those outside his primary concern with the routine business, institutions, and ordinary people of society. Thus, rebels and outlaws, ethnic and racial minorities are rarely subjects for Hurst's scholarly attention. For critical commentary, see, e.g., Eugene Genovese, “Law and the Economy in Capitalist America: Questions for Mr. Hurst on the Occasion of His Curti Lectures,” 1985 A.B.F. Res. J. 113; Sidney L. Harring & Barry R. Strutt, “Lumber, Law, and Social Change: The Legal History of Willard Hurst,”id. at 123; and sources cited infra note 15.Google Scholar

3 Lawrence Friedman, quoted in David Margolick, “At the Bar,”N.Y. Times, 23 Mar. 1990. at B5, col. 1.Google Scholar

4 Samuel Konefsky, Interview Notes, 14 Sept. 1951, Book 1, at 6–11, graciously made available to me by his son, Fred Konefsky.Google Scholar

5 Hurst to Felix Frankfurter, 3 Jan. 1938, Frankfurter Papers, Manuscript Division, Library of Congress. Stanley Kutler found this letter and graciously made it available to me. In it, Hurst considered with characteristic care the costs and benefits in the first of many attempts made by Yale and Harvard law schools to lure him to join their law faculties.Google Scholar

6 Donald Richberg, “The Industrial Liberalism of Mr. Justice Brandeis,” in Felix Frankfurter, ed., Mr. Justice Brandeis 138 (1932).Google Scholar

7 1942 Wis. L. Rev. 323, 324.Google Scholar

8 Cramer v. United States, 320 US. 730 (1943). The articles Willard produced out of that wartime experience were republished, with additional material, in J. Willard Hurst, The Law of Treason in the United Stares (1971).Google Scholar

9 Hurst, “The Uses of Law in Four ‘Colonial’ States of the American Union,” 1945 Wis. L. Rev. 577.Google Scholar

10 Id. at 579.Google Scholar

11 Id. Google Scholar

12 Id. at 589.Google Scholar

13 Id. at 577. Hurst was careful to note that these opinions were those of the author, not of the United States Navy “with which he is at present connected.”Google Scholar

14 For good, sprightly examples of the general enthusiasm for the book, see, e.g., John Frank, 59 Yale L.J. 1381 (1950); Frank Horack, Jr., 64 Harv. L. Rev. 866 (1951); Robert Hunt, 35 Iowa L. Rev. 730 (1950); and John Roche, 99 U. Pa. L. Rev. 263 (1950). Many others, including Max Radin, Thomas Reed Powell, Philip Kurland, and Phil Neal from the law schools, and a smattering of political scientists, historians, and sociologists, heaped praises on what they repeatedly called a pioneering book. A list of these early reviews is available in 10 Law & Soc'y Rev. 330 (1976). There were a few exceptions to the general run of rave reviews. The most interesting were those by Mark DeWolfe Howe, who derided Hurst's “faith in statistics” and criticized his “cavalier dismissal of the law that was created in the colonies before 1750,”N.Y. Herald Tribune Book Rev., 2 July 1950, at 6; by Erwin Surrency, 24 Temple L.Q. 509 (1951), who gave the book a mixed review, since he considered it “a great contribution to the field of political science” but questioned the book's standing as history; and by Ford W. Hall, 28 Tex. L. Rev. 992, 994 (1950), who noted Hurst's lack of adequate attention to the influence of treatise writers on states such as Texas, which were settled in the latter two-thirds of the 19th century, but who presciently observed that Hurst “provides a view of a sizeable portion of the forest.”Google Scholar

15 Hurst's ability to break entirely outside the box is central to Robert Gordon's discussion of his work (10 Law & Soc'y Rev. cited in note 1). Critics of Hurst's work have challenged his ability to do so and suggest that he is actually at times an apologist for the status quo who seems to write winners' history. For perceptive criticism that focuses primarily on Hurst's magisterial lumber book, see Harring and Strutt, 1985 A.B.F. Res. J. (cited in note 2), as well as an article by Eugene Genovese and Hurst's brief response in that Review Symposium. Other important articles at least partially critical of Hurst's work include Harry N. Scheiber, “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” 75 Am. Hist. Rev. 744 (1970); Mark Tushnet, “Lumber and the Legal Process,” 1972 Wis. L. Rev. 114; and Stephen Diamond, “Legal Realism and Historical Method: J. Willard Hurst and American Legal History,”77 Mich. L Rev. 784 (1979).Google Scholar

16 Those who attack Hurst as a consensus historian tend to concentrate on his later Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (1964). Hurst's critics claim that because of his concern with large issues and dominant institutions, his lumber book omits crucial elements of conflict of interests, corruption, and class confrontation. For example, Harring & Strutt, 1985 A.B.F. Res. J., detail a dramatic series of clashes between John Deitz, a part-time employee and farmer, and the Weyerhauser lumber “pool” on the Upper Chippewa River in Wisconsin. After years of legal confrontations and sporadic violence, a posse of 40 men shot it out with Deitz and his family on land the lumber company wanted for a dam. Deitz subsequently got a life sentence for murder, but he went to jail a hero, sent off by a receiving line of hundreds of supporters and national press coverage. The story of the Deitz affair—the shoot-out occurred the month Willard was born—is not included in the lumber book. Willard's response was that such clashes were marginal, and that his book focuses instead on “conflict typically among contenders for the stakes in fast exploitation of the forest.” Hurst, “Response,” 1985 A.B.F. Res. J. Google Scholar

17 Parsons, “Hurst's Law and Social Process in United States History,”23 J. Hist. Ideas 558, 562 (1962). Parsons's review of Hurst's 1960 book nevertheless was overwhelmingly favorable. Parsons proclaimed that Hurst “may be claimed to stand in the best sociological traditions” and described Hurst's work as “very illuminating, not simply to those interested in American history, but to all social scientists who are concerned with the society and hence must pay attention to the historical background of the problems they study.”Id. at 561, 558.Google Scholar

18 Hurst's work anticipates G. Kitson Clark's well-known advice to anyone who seeks to generalize: “do not guess, try to count, and if you cannot count, admit that you are guessing.”The Making of Victorian England 14 (1962).Google Scholar

19 1 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1925, at 389 (M. Howe ed. 1953).Google Scholar

20 See, e.g., Auerbach, Jerold, Unequal Justice: Lawyers and Social Change in Modem America (1976); Maxwell Bloomfield, American Lawyers in a Changing Society, 1776–1876 (1976); Gerald Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760–1820 (1979); Robert Stephens, Law School: Legal Education in America from the 1850s to the 1980s (1983); Robert Ferguson, Law and Letters in American Culture (1984); Robert Gordon, “The Independence of Lawyers,” 68 B.U.L. Rev. 1 (1988).Google Scholar

21 For a recent discussion of the consensus approach, describing it as the counter-progressive trend that dominated postwar America historical writing, see chap. 11, “A Convergent Culture,” in Peter Novick, That Noble Dream: The “Objectivity Question” and the American Historical Profession 320–60 (1988). Novick notes that the University of Wisconsin remained “something of a Progressive redoubt” and a “besieged outpost” for historians “holding out against postwar tendencies.”Id. at 345–47. Novick never mentions Hurst, however, and pays scant attention to legal history.Google Scholar

22 Perhaps only in this sense, Hurst echoed Richard Hofstadter's early statement of the consensus idea of America as “a democracy in cupidity rather than a democracy of fraternity” (The American Political Tradition xxxvi-xxxvii (1948)). But this is a far cry from Hofstadter's later work or from the work of Daniel Boorstin, for example, who led the way toward a general consensus approach that involved “an attempt to give some positive content and direction to the essentially negative and critical counter progressive venture.” Novick, That Nobel Dram 334.Google Scholar

23 Shelby Foote, quoting Keats's letter in Mark Muro, “Shelby Foote Makes His Presence Felt in PBS Epic,”Boston Globe, Living sec., 26 Sept. 1990, at 47.Google Scholar

24 Hurst, Justice Holmes on Legal History 61 (1964). Hurst criticizes the normally tough-minded Holmes for romanticizing the social sciences, and for failing to perceive the effort of history to “grasp the whole event” in contrast to the abstraction of the social scientist's attempt to limit and control variables.Google Scholar

25 J. Willard Hurst, Author's Note, Law and Economic Growth xviii; 2d ed. (1984).Google Scholar

26 Frankfurter, quoted in Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States 106–7 (1956).Google Scholar

27 Konefsky Interview at 9 (cited in note 4).Google Scholar