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Lumber, Law, and Social Change: The Legal History of Willard Hurst

Published online by Cambridge University Press:  20 November 2018

Sidney L. Harring  and
Barry R. Strutt
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Type
Review Symposium: The Work of J. Willard Hurst
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American Bar Foundation Research Journal , Volume 10 , Issue 1 , Winter 1985 , pp. 123 - 137
Copyright
Copyright © American Bar Foundation, 1985 

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References

1 We count only eight “major” reviews of Hurst's work. The general tone is one of high praise but with some criticisms and reservations. John P. Frank, American Legal History: The Hurst Approach, 18 J. Legal Educ. 395, 395 (1966), calls it “the most significant work on legal history ever produced in the United States… a stupendous work … [of] … kaleidoscope quality.” Frank goes on to conclude that “the bedrock Hurstian element… is thoroughness: thoroughness so complete as to put a new dimension on the word” (at 400). Russell E. Brooks, The Jurisprudence of Willard Hurst, 18 J. Legal Educ. 257 (1966). found the work the most thoroughly documented statement of jurisprudential theory ever published. And Brooks proclaims that by virtue of his historical analysis “Hurst has moved himself into the ranks of the great creative jurisprudential thinkers of this country” (at 273). Earl Finbar Murphy, The Jurisprudence of Legal History: Willard Hurst as Legal Historian, 39 N.Y.U.L. Rev. 900, 942 (1964), makes the assessment: “No other American scholar has dug so deeply, with such wide implications, into the raw data of the American past. Willard Hurst's own personal preference in scholarship is for the neutral, factual, descriptive, economistic account of some small, comprehensible subject which he can then coolly explicate” (at 942).Google Scholar

Others have been more substantive in their reviews, raising important questions about Hurst's work but not following through with the implications of their criticisms. Generally, they recognized that while the Hurst work had problems, it still was so broad in its scope that it completely redirected the scope of legal history and therefore served a valuable function. See Scheiber, Harry N., At the Borderland of Law and Economic History: The Contributions of Willard Hurst, 75 Am. Hist. Rev. 744 (1970), which correctly locates Hurst in the context of legal realism, recognizes that the concept of consensus “lies at the heart of Hurst's analysis,” and notes that Hurst “may treat too lightly the political conflicts that once loomed so large in historical analysis” (at 755).Google Scholar

Stone, Julius, Book Review, 78 Harv. L. Rev. 1687, 1688, 1698 (1965), questions whether Hurst has satisfied his ambition of developing “more meaningful and more useful concepts of the subject matter of legal history” (Law and Economic Growth, at viii) and allows that “other scholars, attending to the data … gathered by Hurst, may come to reject the hypotheses and even the very conceptual frame that the author has associated with the data, and offer other frames that may be radically different” (at 1698). Stone also observes that Hurst's “pioneering undertakings demand besides scholarly manpower of high ability and particular dedication, patient and sustained interdisciplinary teamwork.” Stone finds Hurst “very sensitive to the special difficulties of this sort of hyphenated inquiry “(at 1697) but does not question to what extent a legal historiographer should also be held critically accountable to those subdisciplines on which he relies in structuring and carrying out his ventures.Google Scholar

Flaherty, David M., An Approach to American History: Willard Hurst as Legal Historian, 14 Am. J. Legal Hist. 222 (1970). while generally laudatory about the breadth and balance of Hurst's work, wonders about the applicability of Hurst's ideas to other areas of law, such as criminal law and the law of slavery, and in the context of the impact of industrializaton (at 232). Robert Gordon, J. Willard Hurst and the Common Law Tradition in American Legal Historiography, 10 Law & Soc'y Rev. 9 (1975). is generally positive, locating Hurst in the context of twentieth-century legal scholarship, but in his final pages (and in one paragraph) asks critical questions about both Hurst's theory and the applicability of his model outside rural America in the nineteenth century.Google Scholar

The most critical of the major reviews was that of Mark Tushnet, Lumber and the Legal Process, 1972 Wis. L. Rev. 114. Tushnet notes that one of the major problems in reviewing the book is that it is difficult to follow. He then attempts to separate the theory from the data and critcize each separately. Like others he is critical of both Hurst's consensus model and drift theory.Google Scholar

Some minor reviews have interesting insights as well. John Phillip Reid, Legal History, in 1964 Annual Survey of American Law 699, at 703–4, says the book is “overlong and bogs down in a mass of details.” Criminologist Richard Quinnery, 5 Nat. Resources J. 187 (1965), focuses on the book as a “narrative of the destruction of the Wisconsin forest.” see also Lake, James A., Sr., Book Review, 17 Me. L. Rev. 298 (1965).Google Scholar

While there are some areas of overlap in what different reviewers have thought the book to be about, their individual focus and areas of emphasis vary widely. To some extent Hurst himself has recognized this “multiplicity of themes” problem and sought to remedy it in the Author's Note. See, e.g., at xvi.Google Scholar

2 Hence, our criticism here is limited to Hurst's new Author's Note to Law and Economic Growth and to his recent articles on legal history. Insofar as Law and Social Process in United States History (Ann Arbor: University of Michigan Law School, 1960) provides key insights into the roots and continuity of Hurst's theoretical perspective, excerpts from it will also be included.Google Scholar

3 The best account of the Deitz story is Paul H. Hass, The Suppression of John F. Deitz: An Episode of the Progressive Era in Wisconsin, 57 Wis. Mag. Hist. 255 (1974). see also Rosholt, Malcolm, The Battle of Cameron Dam (Rosholt, Wis.: Malcolm Rosholt, 1974); Why Dietz, [sic] Outlaw, Defied a State and an Armed Posse, N.Y. Times, Oct. 16, 1910;, and the Deitz Family Scrapbooks in the collections of the Wisconsin State Historical Society.Google Scholar

4 Hundreds of petitions and letters addressed to Governors Phillip and Blaine from state residents demanding that Deitz be released from prison are in the archives of the Wisconsin State Historical Society (boxes 147 and 148 of the “Pardon Papers”). Hundreds of other letters reached the desk of Governor Davidson, while scores of additional letters and editorials were published in newspapers across the state and throughout the entire Northwest. Hass, supra note 3, at 280–81.Google Scholar

5 Baxendall, Lee, Fur, Logs, and Human Lives: The Great Oshkosh Woodworker Strike of 1898, 3 Green Mountain Q. 3, 36–37 (1976). Deitz tried to hire Darrow to defend him in his 1910 murder trial.Google Scholar

6 Id. at 3–96. The full strike and trial is also described in detail in the pages of the Oshkosh Daily Northwestern from May 16 through Oct. 30, 1898.Google Scholar

7 We are just beginning to build a literature on the social history of crime and the relationship between the changing criminal law and the broader social and economic order. Two British books are a model for this work: E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon, 1975), and Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Nineteenth Century England (New York: Pantheon, 1975). An especially good essay, in addition and related to the lumber and firewood “business” in Germany is Peter Linebaugh, Karl Marx, the Theft of Wood, and Working Class Composition, 6 Crime & Soc. Just. 5 (1976).Google Scholar

8 The four sources are Richard N. Current, Pine Logs and Politics: A Life of Philetus Sawyer, 1861–1900 (Madison: State Historical Society of Wisconsin Press, 1950); Robert F. Fries: Empire in Pine: The Story of Lumbering in Wisconsin, 1830–1900 (Madison: State Historical Society of Wisconsin Press, 1951); Bernhard Kleven, The Wisconsin Lumber Industry (Ph.D. thesis, University of Minnesota, 1941); A. it. Reynolds, The Daniel Shaw Lumber Company: A Case Study of the Wisconsin Lumbering Frontier (New York: New York University Press, 1957).Google Scholar

9 Here we cannot resist noting that while Thoreau was outside of this Whig and Hamiltonian middle class, Ralph Waldo Emerson was not: he speculated in Wisconsin timberlands. Baxendall, supra note 5, at 6.Google Scholar

10 Fletcher v. Peck, 10 U.S. (6 Cranch.) 87 (1810). The case is the subject of an excellent historical study: C. Peter Magrath, Yazoo: The Case of Fletcher v. Peck (Providence, R.I.: Brown University Press, 1966). Particularly relevant here are chs. 1–3 on the social context of land speculation.Google Scholar

11 James Willard Hurst, Old and New Dimensions of Research in United States Legal History, 23 Am. J. Legal Hist. 1, 16–17 (1979).Google Scholar

12 Hurst, supra note 11, and Law and Economic Growth (Author's Note).Google Scholar

13 Robert Gordon takes another line of criticism, showing that in the volatile, complex, and underfinanced frontier industry, the log labor lien was only one possible solution to the problem of workers' difficulty in getting paid. Hurst simply does not address the range of possible choices, nor show why the log labor lien necessarily had to emerge as the legal solution. Robert Gordon: Critical Legal Histories, 36 Stanford L. Rev. 57 at 111 (1984).Google Scholar

While Hurst describes the log lien laws as a legal means of protecting the workers and the availability of labor in the volatile lumber industry, he also points out that it was very difficult for workers to enforce a logging lien. Hence workers often sold the “paper” for cash at heavily discounted rates, and then middlemen enforced the liens (at 391–408). This lack of access to ordinary legal redress on the part of workers must be of great importance in any analysis of law and social change, but Hurst deals with it no further.Google Scholar

14 Hurst, supra note 2, at 28.Google Scholar

15 Id. at 64.Google Scholar

16 Id. at 63–64.Google Scholar

17 Id. at 65.Google Scholar

18 Id. at 110.Google Scholar

19 Denise Hartman points out that since the complex problem of interstate pollution by acidic sulfur compounds was addressed in a judicial opinion by Justice Holmes in 1907, technological advances have now made it possible “to identify reliably source-receptor relationships on the regional level” (see Denise A. Hartman, Acid Precipitation: Limits of the Clean Air Act and the Necessary Role of the Federal Common Law, 34 Syracuse L. Rev. 619, at 623–24 (1983)). While the current Clean Air Act provides no adequate framework for directly confronting interstate sulfate pollution/acid precipitation, various congressional bills and National Governors' Association proposals have attempted to amend the act or otherwise provide a workable solution. Hartman ties their failure to be enacted to the “current political climate” (at 646). It is our opinion that it is “conscious disregard” and the abuse of administrative discretion (cf., e.g., Ann Burford's policies at EPA), not the lack of information or rational debate, not “the preponderance of circumstance” that account for the continuing deterioration of the environment.Google Scholar

20 Hurst's “common sense” style of analysis most often focuses on the existential limitations of humankind. Examples of this approach are found not only in his more theoretical works (cf. Hurst, supra note 2, at 10–11, 104–7) but throughout his empirical studies as well (cf. Law and Economic Growth, esp. at 140–42).Google Scholar

21 We relegate to a footnote one final example of the implicit moral choices Hurst makes. He notes that perhaps two-thirds of the timber of Wisconsin was wasted by the lumber companies, largely by fire. He also presents the need for fire control as one of the problems with the state's “police power” that was not adequately dealt with. All this can be understood in other ways as well, but a much more important fact is left out: Hurst mentions the fires (at 3, 430–33) but not that they killed thousands of people, a fact that doesn't even merit a footnote. Here we simply note that one fire, the Peshtigo Fire of October 1871, ravaged 2,400 square miles in northeastern Wisconsin, and killed perhaps 1,200 people.Google Scholar

Whole farmsteads and bush settlements were erased, and farmers, loggers and lumber workers, and whatever families they had died anonymously: only 383 of the dead were ever identified. In three bush settlements alone—Upper, Middle, and Lower Sugar Bush—241 bodies were found, including 123 children. The Reverend Peter Pernin's account is the best available: The Great Peshtigo Fire: An Eyewitness Account, 54 Wis. Mag. Hist. 246 (1971) (originally published in 1874).Google Scholar

22 This “model” is taken from Gordon's review essay on the evolution and development of the internal and external “styles” of historiography and the tensions that exist between them. See Gordon, supra note 1. at 9–12.Google Scholar