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The Voice of Willard Hurst

Published online by Cambridge University Press:  28 October 2011

Alfred S. Konefsky
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Extract

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.

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Articles
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Law and History Review , Volume 18 , Issue 1: Engaging Willard Hurst: A Symposium , Spring 2000 , pp. 147 - 166
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Copyright © the American Society for Legal History, Inc. 2000

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References

1. On Hurst's reluctance to travel, see Friedman, Lawrence M., “Remembering Willard,” Wisconsin Law Review 1997: 1137, 1138Google Scholar; and Foster, Bill, “Recollections of Willard Hurst,” Wisconsin Law Review 1997: 1139, 1142.Google Scholar

2. Needless to say, I am not the first to notice the typewriter. See, e.g., Soifer, Aviam, “In Retrospect: Willard Hurst, Consensus History, and The Growth of American Law,” Reviews in American History 20 (1992): 124, 128CrossRefGoogle Scholar; Eskridge, William N. Jr., “Willard Hurst, Master of the Legal Process,” Wisconsin Law Review 1997: 1181, 1189Google Scholar; Frank, John P., “J. Willard Hurst — Memorial Remarks,” Wisconsin Law Review 1997: 1131, 1133Google Scholar; Friedman, “Remembering Willard,” 1138.

3. I am also not the first to talk about these letters and comments. See Friedman, “Remembering Willard,” 1137–38; Macaulay, Stewart, “Willard's Law School,” Wisconsin Law Review 1997: 1163, 1171–72.Google Scholar

4. Konefsky, Samuel J., The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas (New York: Macmillan, 1956).Google Scholar

5. Letter from Samuel J. Konefsky to Willard Hurst (20 May 1951) (on file with author). John P. Frank, a former student of Hurst's at the Wisconsin Law School, was a law professor at Yale in 1951. See Frank, “J. Willard Hurst – Memorial Remarks,” 1132.

6. Letter from Willard Hurst to Samuel J. Konefsky (22 May 1951) (on file with author).

7. For the list of the thirty-five law clerks, scholars, and judges interviewed, see Konefsky, The Legacy of Holmes and Brandeis, vii–viii.

8. Letter from Samuel J. Konefsky to Willard Hurst (27 Aug. 1951) (on file with author).

9. Eleven of these notebooks have survived. At least one, apparently containing the earliest interviews in April and May, 1951, with Mark DeWolfe Howe, Warren S. Ege, and Horace Chapman Rose, is lost. Howe and Rose were law secretaries for Holmes in 1933–1934 and 1931–1932 respectively; Ege was a Brandeis law clerk in 1924–1925. See the lists in White, G. Edward, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 489Google Scholar; Mason, Alpheus Thomas, Brandeis: A Free Man's Life (New York: Viking, 1946), 690.Google Scholar

10. In the transcription that follows, I have completed contractions that would help identify persons and meanings, and I have corrected obvious errors in punctuation, spelling, and grammar. In the footnotes accompanying the interview with Hurst, below, I have noted where Riesman's observations prompted my father's questions to Hurst. I doubt whether Hurst knew that the source of these questions originated with Riesman's comments. For Riesman's later views on Brandeis, still critical, see his autobiographical essay, “Becoming an Academic Man,” in Authors of Their Own Lives: Intellectual Autobiographies by Twenty American Sociologists, ed. Bennett M. Berger (Berkeley: University of California Press, 1990), 38–40.

11. Riesman wrote to my father, for example, that he was “particularly happy that you found my own thinking helpful in connection with the book.” Letter from David Riesman to Samuel J. Konefsky (6 Nov. 1956) (on file with author).

12. Jack Schlegel observed that Hurst's account here of Brandeis's working habits also describes Hurst himself, including his direction of younger scholars. (Personal communication.)

13. David Riesman claimed that “other clerks were closer to their judges.” Interview with David Riesman (12 Sept. 1951), 4 (on file with author) [hereafter Riesman Interview].

14. Probably a reference to the work of the Progressive historian, Parrington, Vemon (1871–1929) and his Main Currents in American Thought (New York: Harcourt, Brace, 1927).Google Scholar

15. Marquand, John P., The Late George Apley: A Novel in the Form of a Memoir (Boston: Little, Brown, 1937).Google Scholar The novel's appeal to Brandeis may have been in its satirical treatment of Boston Brahmin culture.

16. Riesman said of Brandeis that he “had no use for philosophy” and that he “was a bore, a barbarian, no classicist.” Riesman Interview, 6.

17. Riesman reported that he was “aware of B's legend of holiness,” and he intimated that he thought there was a “discrepancy” between the legend and reality. Ibid., 2.

18. Pearson, Drew and Allen, Robert S., The Nine Old Men (Garden City, NY: Doubleday, Doran, 1937).Google Scholar

19. Riesman noted that Brandeis “was loyal to the team, might fight with them within but defended them outside.” Riesman Interview, 7.

20. Riesman had reported that Brandeis “didn't want his clerks to fraternize with other clerks.” Ibid., 4.

21. Riesman commented that Brandeis “didn't have an open mind, a great lawyer but not judge. AH B's opinions are all ingenious briefs (they can't be trusted to report all the evidence),” and that he was “exceeding[ly] rigid, was gracious but wouldn't budge an inch, not open-minded.” Ibid., 2, 4.

22. Riesman observed that Brandeis “never asked R for his opinion, just a leg man, his strategy even was all set. Would listen to R on point of style didn't like R's lack of legal ingenuity.” Ibid., 4.

23. Stanley F. Reed (1884–1980), Solicitor General of the United States, 1935–1938; appointed in 1938 by President Roosevelt to the Supreme Court.

24. Lloyd K. Garrison (1897–1991), at the time, Dean of the Wisconsin Law School.

25. Riesman characterized Brandeis as having a “certain presumptuousness in pressing people (to be a pioneer),” and that in his case Brandeis “wanted him to go to pa minn or tenn and adamant against his going back to Boston.” Riesman Interview, 3. Riesman still seemed to resent this years later. See Riesman, “Becoming an Academic Man,” at 40.

26. Riesman seemed to suggest that Brandeis was an “enemy of the New Deal” because he was a “rabid decentralist.” Riesman Interview, 1, and that he “was no Dem. or Liberal in the New Deal sense.” Ibid., 5.

27. Riesman asserted that Brandeis “was against Soc[ial] Sec[urity].” Ibid., 9.

28. Riesman observed that he had “watched” Brandeis “at Sunday teas draw people out,” but that he was “incapable of genuine interest in people, just exploiting them. Should not be criticized because obviously he also exploited himself.” Ibid., 2. For a description of the Sunday (and Monday) teas, see Mason, Brandeis, 603; Strum, Philippa, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1984), 362CrossRefGoogle Scholar; and Acheson, Dean, Morning and Noon (Boston: Houghton Miffiin, 1965), 49–50.Google Scholar

29. Riesman claimed that “B thought Cardozo was a weak man” and that “Cardozo had doubts B [therefore] didn't respect him.” Ibid., 4–5.

30. John Augustine Ryan (1869–1945), prominent Catholic educator (a theology professor at Catholic University in Washington, D.C.), social reformer (an early proponent of the minimum wage), and New Deal supporter. Alpheus Mason included Ryan on a “typical list of dinner guests, as of 1927” in the Brandeis home. Mason, Brandeis, 604. “The Brandeises regularly invited lonely bachelors to dinner on Thanksgiving and before Christmas.” Kaufman, Andrew L., Cardozo (Cambridge, Mass.: Harvard University Press, 1998), 478.Google Scholar

31. Joseph B. Eastman (1882–1944), early Brandeis protege, public servant, member and chairman, Interstate Commerce Commission. Acheson also reported that Eastman occasionally appeared at the Sunday teas. Acheson, Morning and Noon, 50.

32. New State Ice Co. v. Liebmann, 285 U.S. 262, 280 (1932) (Brandeis, J., dissenting).

33. Riesman asserted that Brandeis was “anti-humanistic, he was intelligent but not an intellectual. Had no interest in ideas for their own sake. B never had an idea really interesting.” Riesman Interview, 9.

34. The transcription concludes with abbreviations of a brief collection of citations, probably (and characteristically) a list of suggestions from Hurst to my father for helpful sources to consult. It ends with a reference to Hurst's own work, “The Uses of Law in Four ‘Colonial’ States of the American Union,” Wisconsin Law Review 1945: 577.

35. See Hartog, Hendrik, “Snakes in Ireland: A Conversation with Willard Hurst,” Law and History Review 12 (1994): 370–90CrossRefGoogle Scholar; Strum, Louis D. Bmndeis, 486; Oral History Project Interview, Oral History Project, University of Wisconsin Archives, Madison (1981). There is also a memorandum on the subject of Brandeis prepared in 1941 by Hurst for Alpheus Mason for his biography of Brandeis. See Mason, Brandeis, 643.

36. Dirk Hartog asked Hurst, “Did Brandeis have much influence on your thinking about legal history?” Hurst replied, “No, not a great deal.” Hartog, “Snakes in Ireland,” 375.

37. Representative samples include McEvoy, Arthur F., “Willard Hurst's Scholarship: Pragmatism and Morality,” Wisconsin Law Review 1997: 1191Google Scholar; Gordon, Robert W., “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 9Google Scholar; Soifer, “In Retrospect”; Scheiber, Harry, “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” American Historical Review 75 (1976): 744.CrossRefGoogle Scholar

38. A fruitful place to start might be determining just what definition of democracy emerges from Hurst's work and exactly what relationship he perceived between freedom and democracy.

39. For reference to Hurst's devotion to factual inquiry, see Soifer, “In Retrospect,” 139; McEvoy, “Willard Hurst's Scholarship,” 1192; Samuel Mermin, “Thoughts on the Legendary Willard Hurst,” Wisconsin Law Review 1997: 1155, 1157–59.

40. 285 U.S. 262, 280–311 (1932) (Brandeis, J., dissenting).

41. See above, 155 and note 32.

42. Konefsky, The Legacy of Holmes and Brandeis, 177.

43. New State Ice Co. v. Liebmann, 310–11.

44. Ibid., 311.

45. Ibid. Justice Sutherland responded for the majority that “[t]he principle is imbedded in our constitutional system that there are certain essentials of liberty with which the state is not entitled to dispense in the interest of experiments.” Ibid., 280. On Brandeis's point about states as laboratories, see generally Marcus, Maeva, “Louis D. Brandeis and the Laboratories of Democracy,” in Federalism and the Judicial Mind: Essays on American Constitutional Law and Politics, ed. Scheiber, Harry N. (Berkeley: Institute of Governmental Studies Press, University of California, 1992), 75.Google Scholar

46. New State Ice Co. v. Liebmann, 306.

47. Ibid.

48. Ibid., 306–7.

49. Ibid., 310.

50. Ibid., 310–11.

51. Ibid., 310.

52. What resonates as well in Hurst's work is Brandeis's loving, and occasionally minute, attention to detail, to the facts. In his Ice dissent, “Brandeis quoted the mean normal temperature each month in Oklahoma, showing the need for ice; the dependence of industries and retail dealers on ice; the lack of refrigerators and their cost as against the lower cost of ice.” Strum, Louis D. Brandeis, 302–3. In addition, “[a]t every major point, Brandeis cited a host of sources: thirty-seven books, articles, reports, scholarly papers, and congressional hearings.” Ibid., 304. In other words, the “facts” were marshalled to support the argument that there was plenty of evidence to justify the state legislative activity. For a comparison of the method, I commend to the reader's attention a quick run through Hurst's footnotes in Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Indus try in Wisconsin, 1836–1915 (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1964).Google Scholar

In arguing that Hurst was influenced by Brandeis, I do not mean to exclude the possibility that Hurst was influenced by others, including Felix Frankfurter. Hurst openly talked of the impact Frankfurter had on him during his legal education at Harvard, as well as the year Hurst spent working as a research assistant for Frankfurter between his graduation from law school and the start of his clerkship for Brandeis. See Hartog, “Snakes in Ireland,” 373–74. Of course, in measuring the ultimate impact on Hurst, one probably should not discount the relationship between Brandeis's attitudes and Frankfurter's ideas. For instance, as early as 1913, Brandeis was communicating to Frankfurter certain themes that anticipate his dissent in New State Ice by nearly twenty years:

To secure social advance we must regard the field of sociology and social legislation as a field for discovery and invention. Research is necessary as in the field of science and invention. as in the field of mechanical and other arts. In the field of mechanical invention, as in other fields of human enterprise, the successes are few and the failures are many.

Letter from Louis D. Brandeis to Felix Frankfurter (28 Jan. 1913), in 3 Letters of Louis D. Brandeis, ed. Urofsky, Melvin I. and Levy, David W. (Albany: State University of New York Press, 1973), 19.Google Scholar

53. Quoted in Soifer, “In Retrospect,” 127. Hurst also noted that while enrolled in a law school course on courts and mortgages, “the course never mentioned the idea of a mortgage moratorium, which was going on all over the United States.…” Hartog, “Snakes in Ireland,” 372.

54. See above, 155.

55. Hartog, “Snakes in Ireland,” 375–76. Hurst reported that Brandeis once talked to him “on the subject of Woodrow Wilson and his disastrous last period as president and the fight over the League of Nations, and Brandeis said he thought he'd always remember that as an historic example of the fact that a man shouldn't try to do too much, that there were limits to the human capacity to create and act.” Ibid., 375.

56. Ibid., 389.

57. Letter from Willard Hurst to [Henry Allen Moe] (c. 4 Mar. 1954), James Willard Hurst Papers, Box 1, Folder 1954, University of Wisconsin Archives, Madison. I am grateful to Dan Ernst for bringing this correspondence to my attention.

58. See above, 155.

59. New State Ice Co. v. Liebmann, 311. My father titled chapter eight of The Legacy of Holmes and Brandeis, “If we would guide by the light of reason,” and he asked that the full sentence be his own epitaph. The chapter concludes with a discussion of the New State Ice case (ibid., 177–80).

60. Ibid., 163.

61. Letter from Willard Hurst to Charles Wyzanski (20 Mar. 1954), James Willard Hurst Papers, Box 1, Folder 1954, University of Wisconsin Archives, Madison. I am grateful to Dan Ernst again for bringing this letter to my attention. Hurst later voiced similar sentiments on the reason for doing history in order to “enlarge understanding, to increase men's control of their affairs.” Hurst, Law and Economic Growth, viii.

62. Hurst, Willard, “A Tribute,” in Fiftieth Anniversary Convocation of Justice Brandeis's Appointment to the Supreme Court of the United States (Louisville, Ky.: University of Louisville School of Law, 1966), 2.Google Scholar

63. See above, 153, 155, 156. Because Brandeis “wanted never to be caught out on facts,” the law clerks “found themselves spending endless hours in libraries,” including “the Library of Congress, where they sought out the innumerable citations to sociological material that Brandeis demanded.” Strum, Louis D. Brandeis, 355. Since, in particular, the Brandeis opinions “had always to be factually correct,” it “was a burden the clerks carried.” Ibid., 356. There seems to be no question that this Brandeis trait left an impression on Hurst. Strum reports that “[w]hen counsel did not present all relevant facts, his clerks were expected to compensate for the deficiency.” Ibid. Strum's source for this statement seems to be her interview with Hurst. Ibid., 470, n. 5.

64. Hartog, “Snakes in Ireland,” 385, 386, 387, 390. Samuel Mermin, in discussing Hurst's penchant for facts, quotes a Holmes letter to Pollock in which Holmes good-naturedly reports being chided by Brandeis, “Why don't you try something new, study some domain of fact. Take up the textile industries in Massachusetts and after reading the reports sufficiently you can go to Lawrence and get a human notion of how it really is.” Holmes's response to Pollock about Brandeis's suggestion was to observe laconically, “I hate facts.” Mermin, “Thoughts on the Legendary Willard Hurst,” 1158. Hurst does not seem too concerned about the postmodern skepticism that calls into question the objectivity or scientific reliability of observations or interpretations of “facts.”

65 McEvoy, “Willard Hurst's Scholarship,” 1192.

66. Strum, Louis D. Brandeis, 62. On Brandeis and democracy, see generally Mason, Alpheus Thomas, The Brandeis Way: A Case Study in the Workings of Democracy (Princeton: Princeton University Press, 1938)Google Scholar; and Brandeis on Democracy, ed. Strum, Philippa (Lawrence: University Press of Kansas, 1995).Google Scholar Brandeis applied this democratic vision in his judicial writing. “In a sense, the very length of Brandeis's opinions bears testimony to his faith in democracy. If all the facts were known and understood, people would choose the wisest course of action. And so the Brandeis brief … was transformed into a judge's opinions designed to educate the people.” Strum, Louis D. Brandeis, 347–48.

67. See Hartog, “Snakes in Ireland,” 389–90; see generally Hurst, James Willard, Law and Social Process in United States History (Ann Arbor: University of Michigan Law School, 1960)Google Scholar; Hurst, Law and Economic Growth.

68. Hartog, “Snakes in Ireland,” 371. See especially in this symposium Ernst, Daniel, “Willard Hurst and the Administrative State: From Williams to Wisconsin,” Law and History Review 18 (2000): 1–36.CrossRefGoogle Scholar

69. On this last point in particular, see generally Purcell, Edward A. Jr, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973), 159–78.Google Scholar

70. Letter from Louis D. Brandeis to Felix Frankfurter (28 Jan. 1913), in 3 Letters, 20. It was almost certainly not an accident that Hurst migrated to Wisconsin, which was well known for its Progressive legislative tradition (heavily reliant on experimentalism), and the role of its state university, including its law school, in maintaining and participating in that tradition. See generally Carrington, Paul D. and King, Erika, “Law and the Wisconsin Idea,” Journal of Legal Education 47 (1997): 297Google Scholar; Macaulay, “Willard's Law School,” 1163–65; Hartog, “Snakes in Ireland,” 377–78. Hurst acknowledged as much in a 1938 letter to Frankfurter explaining his decision to remain at Wisconsin rather than accept an offer to teach at Yale. Wisconsin, wrote Hurst, “is just about an ideal ‘laboratory’ situation fromthe [sic] standpoint of studying the legislative process: a state in which there is a long tradition of political experiment, which seems to go on pretty well even when there is not a La Follette ascendency; and some first rate civil service people … within a ten minute walk of the campus.” As quoted in Soifer, “In Retrospect,” 129.

71. Hurst, “A Tribute,” 2.

72. Gordon, “Introduction: Hurst and the Common Law Tradition,” 9–12.