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Willard Hurst and the Administrative State: From Williams to Wisconsin

Published online by Cambridge University Press:  28 October 2011

Daniel R. Ernst
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Extract

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.

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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. 1 - 36
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Copyright © the American Society for Legal History, Inc. 2000

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References

1. Hurst, James Willard, The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950).Google Scholar

2. Hurst, Willard, “Who Is the ‘Great’ Appellate Judge?” Indiana Law Journal 24 (1949): 396Google Scholar; Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, Mass.: Harvard University Press, 1964)Google Scholar; Willard Hurst, “J. Willard Hurst: An Interview Conducted by Laura L. Smail” (Madison: University Archives Oral History Project, University of Wisconsin-Madison, 1981), 25 (hereafter Hurst, Smail Interview); Hurst, James Willard, “Legal Elements in United States History,” Perspectives in American History 5 (1971): 3.Google Scholar

3. “Administrative Law,” Curriculum Committee Report No. 8, 1947, Box 5, Series 11/1/ 2, University of Wisconsin Archives, Memorial Library, Madison (hereafter Subject Files, WLS-UWA).

4. Hurst's year at the Board of Economic Warfare is the subject of my forthcoming article, “The Ideal and the Actual in the State: Willard Hurst at the Board of Economic Warfare,” in Total War and the Law: New Perspectives on World War II, ed. Ernst, Daniel R. and Jew, Victor (East Lansing: Michigan State University Press, 2000).Google Scholar

5. Cozzens, James Gould, The Just and the Unjust (New York: Harcourt, Brace, 1942), 434.Google Scholar Hurst called The Just and the Unjust and Cozzens's Guard of Honor (1948) “the best fiction anyone has done about the law in this country.” Hurst to Frankfurter, 12 January 1949, reel 42, Felix Frankfurter Papers, Library of Congress (hereafter FF-LC). Frances Hurst and Stanley Kutler have assured me that Cozzens and John P. Marquand were among Hurst's favorite authors. Frances Hurst, interviewed by author, Madison, Wis., 12 May 1998; Stanley Kutler, conversation with author, Madison, Wis., 13 May 1998.

6. Elizabeth Janeway, review of The Novels of James Gould Cozzens, by Frederick Bracher, New York Times Book Review, 9 August 1959, 1; Hurst, Willard, “Lawyers in American Society, 1750–1966,” Marquette Law Review 50 (1967): 600.Google Scholar

7. Hurst, Smail Interview, 1–2, 18; College, Williams, Gulielmensian (1932), 69Google Scholar; “Belgium, Holland, and Switzerland and the English Gold Crisis of 1931,” 23 April 1932, Archives and Special Collections, Williams College Library; Hurst, Willard, “Holland, Switzerland, and Belgium and the English Gold Crisis of 1931,” Journal of Political Economy 40 (1932); 638–60.CrossRefGoogle Scholar

8. Hartog, , “Snakes in Ireland,” Law and History Review 12 (1994): 371CrossRefGoogle Scholar; Smith, Theodore Clarke, “The Writing of American History in America, from 1884 to 1934,” American Historical Review 40 (1935): 447–49.CrossRefGoogle Scholar Hurst retained his heavily annotated copy of Rise of American Civilization throughout his life, and it has become something of an heirloom in his family. Frances Hurst, interview.

9. “Social Science on a Lawyer's Bookshelf,” n.d., in Frankfurter to Hurst, 10 Mav 1956 reel 42, FF-LC.

10. Hurst to Frankfurter, 27 July 1952, reel 42, FF-LC; J. Willard Hurst, “Modern American Legal History” (Madison: Wisconsin Public Radio, 1978), cassette 1, side 1.

11. See Katz, Stanley N., “The Problem of a Colonial Legal History,” in Colonial British America: Essays in the New History of the Early Modern Era, ed. Greene, Jack P. and Pole, J. R. (Baltimore: Johns Hopkins University Press, 1984), 465–66.Google Scholar

12. Novick, Peter, That Noble Dream: The “Objectivity Question” and the American Historical Profession (New York: Cambridge University Press, 1988), 345CrossRefGoogle Scholar; Hurst to Frankfurter, 27 February 1938, Box 192, Felix Frankfurter Papers, Harvard Law School Library (hereafter FF-HLS).

13. Willard Hurst, review of Truth and Fiction about the Fourteenth Amendment, by Boudin, Louis B., Harvard Law Review 52 (1939): 851, 858.Google Scholar

14. Willard Hurst, review of The Politics of Democracy, by Herring, Pendleton, Harvard Law Review 54 (1941): 715, 717.Google Scholar

15. Hurst recommended Hofstadter's American Political Tradition and Social Darwinism in America to Frankfurter and placed both books and The Age of Reform on his list of recommended readings for the Wisconsin bar in 1956. Hurst to Frankfurter, 12 January 1949, reel 42, FF-LC; “Social Science on a Lawyer's Bookshelf,” n.d., ibid.

16. Hurst, Smail Interview, 2–3; Hartog, “Snakes in Ireland,” 373.

17. Hurst to Lloyd K. Garrison, 3 June 1946, Box 5, Lloyd K. Garrison Papers, Harvard Law School Library.

18. Hurst, Smail Interview, 3–4; “No. 17, Mechanics Universal Joint Co. v. Culhane, Re. draft of opinion,” n.d., 19, reel 26, series 2, Louis Dembitz Brandeis Papers, Harvard Law School Library (hereafter LDB-HLS). The particular Restater Hurst had in mind might have been Warren Seavey, as Cullmne involved the law of agency and one of the notes Hurst edited for the Harvard Law Review referred extensively to Seavey's restatement of that field of law. “Liability of Directors and Other Agents for Procuring Breach of Corporate Contract,” Harvard Law Review 48 (1934): 298–302.

19. Hurst, Smail Interview, 3.

20. Hartog, “Snakes in Ireland,” 377, 372–73.

21. James Willard Hurst, “Legal Elements,” 28. For Llewellyn's influence on Hurst, see Hartog, “Snakes in Ireland,” 372–73, 381; Soifer, Aviam, “In Retrospect: Willard Hurst, Consensus History, and The Growth of American Law,” Reviews in American History 20 (1992): 141CrossRefGoogle Scholar, n. 14. And on the functionalism of Llewellyn and other Legal Realists, see Kalman, Laura, Legal Realism at Yale, 1927–1960 (Chapel Hill: University of North Carolina Press, 1986), 3 – 44Google Scholar; Hull, N. E. H., Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997), 136–47.Google Scholar

22. Hurst, “Legal Elements,” 84; Hurst, “Modern American Legal History,” cassette 17, side 2.

23. Hurst, “Modern American Legal History,” cassette 31, side 2; Barrows v. Jackson, 346 U.S. 249(1953).

24. Hurst, “Modern American Legal History,” cassette 31, side 2; Senn v. Tile Layers Protective Union, 301 U.S. 468 (1937).

25. “No. 658, Senn v. Tile Layers Protective Union (Wis. Sup. Ct. 1936), Re. draft of opinion,” 19 April 1937, 20–21, reel 26, LDB-HLS. Hurst supported his argument with a citation to Miller v. Schoene, 276 U.S. 272, 279 (1928), in which Justice Harlan Fiske Stone explained the decision to uphold a statute authorizing the destruction of cedar trees for the benefit of apple growers with the remark that “it would have been none the less a choice” had the state decided not to enact the statute. For Cook on Brandeis's resort to the actomission distinction in International News Service v. Associated Press, 248 U.S. 215, 260–61 (1918), see “The Associated Press Case,” Yale Law Journal 28 (1919): 387–91.

26. Hurst, , Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), 82, 84, 85, 89Google Scholar; Hurst, James Willard, “Law and the Balance of Power in the Community,” Record of the Association of the Bar of the City of New York 6 (1951): 155Google Scholar; Hurst to Mark DeWolfe Howe, 22 June 1949, Box 3, Mark DeWolfe Howe Papers, Harvard Law School Library.

27. Hurst, Smail Interview, 19; Hurst, James Willard, “Old and New Dimensions of Research in United States Legal History,” American Journal of Legal History 23 (1979): 3.CrossRefGoogle Scholar Like Hurst, Neil Duxbury has stressed the limits of the Legal Realists' contribution to the New Deal state, in his Patterns of American Jurisprudence (New York: Oxford University Press, 1995). 149–58.

28. Hurst, Smail Interview, 10: Hartog, “Snakes in Ireland,” 373; Hurst to Frankfurter, 2 June 1954, reel 42, FF-LC; Frankfurter, Felix, The Public and Its Government (New Haven: Yale University Press, 1930)Google Scholar; “The Chicago Telephone Case: A New Technique in Rate Review,” Harvard Law Review 48 (1934): 83, n. 2. In 1981, Hurst explained that he had “some connection with” Frankfurter “growing out of my law review editor's work… [T]here was always consultation with relevant faculty members on whatever the subject matter made appropriate, and in the normal course of dealing … I got to know various faculty members in a way 1 never would have just as another student at the school.” Hurst, Smail Interview, 8.

29. These quotations are from Frankfurter, Felix, “The Task of Administrative Law,” University of Pennsylvania Law Review 75 (1927): 617Google Scholar, and a subsequently published and slightly revised version of the same essay, Preface to the First Edition (1932), in Frankfurter, Felix and Davison, J. Forrester, Cases and Materials on Administrative Law (Chicago: Foundation Press, 1935), v.Google Scholar

30. Frankfurter and Davison, Administrative Law, 570–74; Frankfurter, Public and Its Government, 29, 133.

31. Frankfurter, Public and Its Government, 151, 127–28, 133, 114, 146.

32. Ibid., 133, 135, 122, 151, 127, 153, 163; Frankfurter, “Task of Administrative Law,” 618; see Pound, Roscoe, “The Administrative Application of Legal Standards,” Reports of the American Bar Association 44 (1919): 464–65.Google Scholar

33. Hurst, Willard, “The Uses of Law in Four ‘Colonial’ States of the American Union,” Wisconsin Law Review 1945; 577Google Scholar; Hurst, Growth of American Law, 435–36, 441, 443; Hurst to Raoul Berger, 18 November 1963, Box 1, Raoul Berger Papers, Harvard Law School Library; “Symposium on Lawyers under the United States Civil Service,” American Law School Review 9 (1942): 1316.

34. Frankfurter, Public and Its Government, 161.

35. Hurst, Willard, “Legal History: A Research Program,” Wisconsin Law Review 1942: 323.Google Scholar

36. Hurst to Mark DeWolfe Howe, 22 June 1949, Box 3, Howe Papers; Hurst, Law and the Conditions of Freedom, 42–43.

37. Frankfurter, “Task of Administrative Law,” 620, 619; Frankfurter and Davison, Administrative Law, vi, v. In considering Frankfurter a key figure in the development of an administrative law that had “nothing to do with the substance of administrative decisions,” I am following Chase, William C., The American Law School and the Rise of Administrative Government (Madison: University of Wisconsin Press, 1982), 14.Google Scholar University-based law professors ought not to bear the sole blame for this development, however. Frankfurter's project would not have succeeded had practicing lawyers not shared his fears for the independence of the legal profession. Shamir, Ronen, Managing Legal Uncertainty: Elite Lawyers in the New Deal (Durham: Duke University Press, 1995).Google Scholar

38. Hurst, Smail Interview, 6–8.1 have been unable to identify the note Hurst wrote during his second year at Harvard.

39. Irons, Peter, New Deal Lawyers (Princeton: Princeton University Press, 1982), 24Google Scholar; Dawson, Nelson Lloyd, Louis D. Brandeis, Felix Frankfurter, and the New Deal (Haraden, Conn.: Archon Books, 1980), 63–70.Google Scholar

40. “Delegation of Power by Congress,” Harvard Law Review 48 (1935): 798–806; Hurst, Willard, “Review and the Distribution of National Powers,” in Supreme Court and Supreme Law, ed. Cahn, Edmond (Bloomington: Indiana University Press, 1954), 161Google Scholar; Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935).

41. “The Decisions of the National Labor Relations Board,” Harvard Law Review 48 (1935): 630–59; “Railroad Revenue Problems As Affected by the Decline in Traffic,” ibid., 1382–1400; “PWA Loans and Grants for Municipally Owned Public Utilities,” ibid. 47 (1934): 89–95; “The Constitutionality of theTVA as a Power Development Program,” ibid. 48(1935): 806–15.

42. Hartog, “Snakes in Ireland,” 382.

43. Hurst, Smail Interview, 9; Hartog, “Snakes in Ireland,” 373; Circular Letter, 15 February 1937, reel 88, FF-LC.

44. In addition, Hurst audited two courses taught by Frankfurter, a seminar on legislation co-taught by James M. Landis, and Roscoe Pound's jurisprudence seminar. Pound's course struck Hurst as “a rather fruitless enterprise” presided over by a dogmatic, isolated, and “rather arrogant” figure. Its reading list would nonetheless serve as the point of departure for Hurst's own exploration of philosophical and social scientific work relating to law. Hartog, “Snakes in Ireland,” 373, 374–75, 377; Hurst, Smail Interview, 9–10; Hurst to Lloyd K. Garrison, 3 June 1946, Box 5, Garrison Papers.

45. Frankfurter, Felix, The Commerce Clause under Marshall, Taney and Waite (Chapel Hill: University of North Carolina Press, 1937)Google Scholar; Frankfurter, Public and Its Government, 48; Dawson, Brandeis, Frankfurter, and the New Deal, 103–12.

46. Frankfurter, Public and Its Government, 74, 77–78; Frankfurter, Commerce Clause, 10, 112.

47. Hurst, Smail Interview, 10–11; Frankfurter, Commerce Clause (“Acknowledgments”); see also Hartog, “Snakes in Ireland,” 373. Frankfurter, and Landis, produced The Business of the Supreme Court: A Study in the Federal Judicial System (New York: Macmillan, 1927)Google Scholar through a similar collaboration, although, as Stanley Kutler has suggested to me, Hurst never addressed Frankfurter with the sycophancy of Landis and other protégés. Ritchie, Donald A., Landis, James M., Dean of the Regulators (Cambridge, Mass.: Harvard University Press, 1980), 21–22.CrossRefGoogle Scholar

48. Frankfurter to Acheson, 7, 12 May 1937, reel 11, FF-LC; Frankfurter to Garrison, 27 February 1937, Box 192, FF-HLS. The “Marion” to whom Frankfurter referred in the preceding sentence was his wife, Marion Denman Frankfurter.

49. Frankfurter, Commerce Clause, 2.

50. Willard Hurst, “Notes on the History of the ‘Commerce Clause,’” [1935], reel 136, FF-LC; see Stern, Robert L., “That Commerce which Concerns More States than One,” Harvard Law Review 47 (1934): 1335–66CrossRefGoogle Scholar; Irons, New Deal Lawyers, 48.

51. Willard Hurst, “The Process of Constitutional Construction: The Role of History,” in Supreme Court and Supreme Law, 57, 56, 58; Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 (1877); Missouri v. Holland, 252 U.S. 416, 433–34 (1920).

52. Hurst, “Role of History,” 58.

53. Hurst, James Willard, The Law of Treason in the United States (Westport, Conn.: Greenwood Publishing, 1971)Google Scholar; Howard, J. Woodford Jr, “Advocacy in Constitutional Choice: The Cramer Treason Case, 1942–1945,” American Bar Foundation Research Journal 1986: 399.Google Scholar For the timing of Hurst's work on the appendix, see “Willard Hurst,” Box 7, Subject Files, WLS-UWA; Lloyd K. Garrison to Oliver Rundell, 20 September 1944, Box 55, Series 11/ 1/1, University of Wisconsin Archives, Memorial Library, Madison (hereafter General Correspondence, WLS-UWA).

54. Hurst had the research assistance of Herbert Gutman, later an eminent historian of the American working class, but at the time a graduate student in Wisconsin's history department. Hurst to William T. Coleman, 28 July 1953, Accession M81–187, State Historical Society of Wisconsin, Madison; Hurst to Thurgood Marshall, 5 November 1953, Box 1, Accession 81/73, University of Wisconsin Archives, Memorial Library, Madison (hereafter JWH-UWA). On the NAACP lawyers, the historians, and Brown v. Board of Education, see Kluger, Richard, Simple Justice (New York: Alfred A. Knopf, 1976), 618–26, 634–41Google Scholar; Tushnet, Mark V., Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1941 (New York: Oxford University Press, 1994), 196–200.Google Scholar

55. Hartog, “Snakes in Ireland,” 373, 377.

56. Hurst to Frankfurter, 27 September 1938, Box 192, FF-HLS; Willard Hurst, review of Handbook of American Constitutional Law, by Rottschaefer, Henry, Harvard Law Review 53 (1939): 350–51.Google Scholar See also Willard Hurst, review of The Life of John McLean, by Weisenburger, Francis P., Harvard Law Review 51 (1938): 1306–10Google Scholar; Willard Hurst, review of Mr. Justice Miller and the Supreme Court 1862–1890, by Fairman, Charles, Columbia Law Review 40 (1940): 564–71Google Scholar; Hartog, “Snakes in Ireland,” 376.

57. Hartog, “Snakes in Ireland,” 377; Hurst, Smail Interview, 25, 23–24, 20. On the “Law in Society” course, see Eskridge, William N. Jr, “Willard Hurst, Master of the Legal Process,” Wisconsin Law Review 1997: 1181–89Google Scholar, and Ernst, “The Ideal and the Actual in the State.” Hurst insisted that he and Garrison “framed it together.” Garrison thought otherwise. “Law in Society is really a most interesting course,” Garrison wrote to David Riesman, Jr., in a vain attempt to lure him to Wisconsin, “and I can say this without immodesty, since my own contribution to it in the way of material has been very minor, and the big job has been done by Hurst.” In 1960 Garrison refused a share of the royalties when Carl Auerbach and Samuel Mermin published a revised edition. “My own contribution to the book was minimal at the outset, except in terms of enthusiasm; the basic ideas were Willard's, and I did no more than fill in a few chinks.” Hurst, Smail Interview, 20; Garrison to Riesman, 26 May 1942, Box 54, General Correspondence, WLS-UWA; Garrison to Carl A. Auerbach, 18 April 1960, Box 5, Garrison Papers.

58. Frankfurter to Hurst, 17 April 1940, reel 39, part 3, FF-HLS; Brandeis to Hurst, 19 October 1940, reel 33, LDB-HLS; Hurst to Thurman Arnold, 4 November 1940, Thurman Arnold Papers, American Heritage Center, University of Wyoming, Laramie; James Willard Hurst, comp., “A Digest of Regional Sources for the Study of the Economic and Political History of the Law: Volume One: The Wisconsin Reports, 1 Pinney (1839) through 235 Wisconsin (1940)” (N.p., 1941); Hurst to Dan Dykstra, 7 April 1953, Box 1, JWH-UWA; Hartog, “Snakes in Ireland,” 379; Hurst to Garrison, 10 August 1945, Box 57, General Correspondence, WLS-UWA; Hurst, “Research Program,” 325, 329.

59. Hurst to Mark Howe, 1 January 1953, Box 3, Howe Papers; Hurst to Frankfurter, 18 October 1955, reel 42, FF-LC; Frankfurter, , “John Marshall and the Judicial Function,” in Of Law and Men: Papers and Addresses of Felix Frankfurter, 1939–1956 (New York: Harcourt Brace, 1956), 3–30.Google Scholar

60. Hurst, Smail Interview, 15; Hurst to Alpheus Thomas Mason, 3 November 1941, quoted in Mason, , Brandeis: A Free Man's Life (New York: Viking Press, 1946), 643Google Scholar; Hurst to Charles E. Wyzanski, 20 March 1954, Box 1, JWH-UWA; Hurst to Frankfurter, 20 December 1955, reel 42, FF-LC. I am grateful to Alfred S. Konefsky for drawing my attention to Hurst's communication with Mason.

61. Hurst, Smail Interview, 13, 14–15. On Brandeis and his clerks, see Strum, Philippa, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1984), 354–61.CrossRefGoogle Scholar

62. Hurst, Smail Interview, 15, 13–14; Senn v. Tile Layers Protective Union, 478; Hurst to Philippa Strum, 3 October 1980, quoted in Strum, Justice for the People, 360–61; Riesman to Frankfurter, 21 November 1935, quoted in Dawson, Brandeis, Frankfurter, and the New Deal, 131.

63. Hurst, Smail Interview, 15; “No. 40, Atlantic Refining Co. v. Commonwealth of Virginia (Sup. Ct. App. Va., 1936), Due Process and Commerce Clause Issues since Cudahy Packing Co. v. Hinkle, 278 U.S. 460,” n.d., 2, reel 27, LDB-HLS; “No. 32, Duke Power Co. v. Greenwood County (CCA. 4th), Re. draft of opinion,” 28 November 1936, 1, reel 25, ibid.; “No. 32, Duke Power Co. v. Greenwood County (CCA. 4th), Re. draft of Per curiam opinion,” 10 December 1936, 2, ibid.; “No. 22, State Board of Equalization vs. Young's Market Co., Re. Draft of opinion,” n.d., 2, reel 26, ibid.

64. Frankfurter to Hurst, 22 October 1936, reel 39, FF-HLS; L. D. B. to W. H., 17 January 1937, reel 27, LDB-HLS; Frankfurter to Dean Acheson, 12 May 1937, reel 11, FF-LC The qualification – “professionally speaking” – may indicate that Brandeis thought Hurst was less adept at his famous “teas” than his more socially assured predecessors – such as Acheson – had been. On the teas, see Strum, Justice for the People, 362; Murphy, Bruce Allen, The Brandeis/Frankfurter Connection: The Secret Political Activities of the Supreme Court Justices (Garden City, N.Y.: Anchor Press, 1983), 120–23.Google Scholar

65. Hurst to Robert W. Gordon, n.d. This document is among papers in the possession of Arthur F. McEvoy, the J. Willard Hurst Professor of Law and History at the University of Wisconsin-Madison Law School. Hereafter I refer to these papers as JWH-AFM. I am grateful to Professor McEvoy for permission to examine them.

66. Hurst, James Willard, Dealing with Statutes (New York: Columbia University Press, 1982), 88, 89, 95Google Scholar; Hurst, “Legal Elements,” 55, 51.

67. O'Gorman & Young, Inc. v. Hartford Ins. Co., 282 U.S. 251 (1931); New State Ice Co. v. Liebmann, 285 U.S. 262, 280–311 (1932) (Brandeis, J., dissenting). Hurst included both cases in Hurst, Willard, Some Problems in the Relationship of the Legislative and Judicial Processes (Madison: College Typing Co., 1938).Google Scholar

68. Willard Hurst, “A Tribute,” 28 January 1966, in Student Bar Association, University of Louisville, School of Law, 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), 2Google Scholar; Hurst, Growth of American Law, 399–400. Neither West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), nor NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), was assigned to Brandeis, and so Hurst had no occasion to prepare memoranda on these celebrated cases of judicial deference to legislatures.

69. “No. 534, Bourjois, Inc. v. Chapman (D. Me. 1936), Re. draft of opinion,” 6 April 1937, reel 25, LDB-HLS. Hurst also turned back the objection that the statute improperly delegated legislative power to establish rules and regulations. After surveying decisions on the regulation of lobster fishing, motor buses, and plumbing fixtures, he concluded that “delegation is as much an accepted thing in Maine today as anywhere else.” Ibid., 17–18.

70. Ibid., 22; “No. 534,” n.d., 4, ibid.; Bourjois, Inc. v. Chapman, 301 U.S. 183, 189 (1937).

71. Brown & Sons Lumber Co. v. Louisville & Nashville R.R. Co., 299 U.S. 393, 398, 397, 400(1937).

72. “No. 100, W.P. Brown & Sons Lumber Co. v. Louisville & Nashville R.R. Co. (CCA. 6th 1936): Re. draft of opinion,” 27 December 1936, 3, reel 25, LDB-HLS; New York, New Haven & Hartford R.R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 401–402 (1906); Hurst, Growth of American Law, 399–400.

73. I am grateful to Professor Christopher J. Castaneda of the History Department at the California State University at Sacramento for insights into Texas's natural gas industry in the 1930s.

74. Thompson v. Consolidated Gas Utils. Corp., 300 U.S. 55, 58–61 (1937).

75. Thompson v. Consolidated Gas Utils. Corp., 63, 78.

76. International News Serv. v. Associated Press, 250, 267 (Brandeis, J., dissenting); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416–22 (1922) (Brandeis, J., dissenting).

77. Schechter Poultry Corp. v. United States; Dawson, Brandeis, Frankfurter, and the New Deal, 129–30; Thompson v. Consolidated Gas Utils. Corp., 79.

78. “No. 89, Thompson et al., R.R. Comm. of Texas v. Consolidated Gas Utilities Corp. (W.D. Tex. 1936): Re. Construction of Statute,” 17 December 1936, 3, 4, 5, 4, reel 26, LDB-HLS.

79. WH, untitled memorandum, 17 December 1936, ibid.; “No. 89, Thompson et al., R.R. Comm. of Texas v. Consolidated Gas Utilities Corp. (W.D. Tex. 1936), Re. history of oil proration in Texas,” 25 December 1936, 4, ibid.; “No. 89. Thompson et al., R.R. Comm. of Texas v. Consolidated Gas Utilities Corp. (W.D. Tex. 1936); Re. Texas law on review of administrative findings,” 25 December 1936, ibid. In an earlier memorandum Hurst observed that the public's interest in the natural gas industry was “obviously not for the amateur lightly to decide” and wondered how Brandeis could tell whether the district judge had abused his discretion in finding no substantial evidence of waste when the record did not make clear what evidence had been before the Commission. “No. 89, Thompson et al., R.R. Comm. of Texas v. Consolidated Gas Utilities Corp. (W.D. Tex. 1936): Re. the conflicts in evidence, and findings,” 20 December 1936, 4, 15, ibid.

80. “No. 89, Thompson et al., R.R. Comm. of Texas v. Consolidated Gas Utilities Corp. (W.D. Tex. 1936): Re. Construction and Constitutional Issues,” 7 January 1937, reel 27, ibid.; Thompson v. Consolidated Gas Utils. Corp., 69–70.

81. “No. 89, Thompson, et al., R.R. Comm. of Texas v. Consolidated Gas Utilities Corp. (W.D. Tex. 1936): Re. Findings for use in opinion, and conflicts of evidence,” 18 December 1936, reel 26, LDB-HLS; “No. 397, Henderson Co. v. Thompson, et al. (W.D. Tex. 1936): Re. draft of opinion,” 20 February 1937, 4, ibid.; Henderson Co. v. Thompson, 300 U.S. 258, 264 (1937).

82. Frankfurter to Hurst, 10 June 1938, reel 39, FF-HLS; Hurst, “Tribute,” 2; see Spillenger, Clyde, “Reading the Judicial Canon: Alexander Bickel and the Book of Brandeis,” Journal of American History 79 (1992): 125–51.CrossRefGoogle Scholar

83. Frankfurter, “John Marshall and the Judicial Function,” 20; Hurst to Wyzanski, 20 March 1954, Box 1, JWH-UWA; Hurst, “Tribute,” 2.

84. Hurst, James Willard, Law and Markets in United States History: Different Modes of Bargaining among Interests (Madison: University of Wisconsin Press, 1982), 118.Google Scholar I am grateful to Charles W. McCurdy for drawing my attention to this passage.

85. Stanley Reed to Willard Hurst, 18 May 1937, Box 243, Stanley Reed Papers, University of Kentucky; Interview of Clark Byse, 20 December 1997. Byse quickly became an admirer. Lloyd K. Garrison to Hurst, 24 December 1937, Box 43, General Correspondence, WLS-UWA.

86. Hurst, “Old and New Dimensions,” 3; Hurst, , “The Content of Courses in Legislation,” University of Chicago Law Review 8 (1941): 294CrossRefGoogle Scholar; Hurst, “Research Program,” 332.

87. Hurst, James Willard, “Thoreau, Conscience and Law,” South Dakota Law Review 19 (1974): 38Google Scholar; Hurst, “Modern American Legal History,” cassette 13, side 2; Cozzens, Just and the Unjust, 434. For Hurst's recollections of the “self-righteous intolerance” of some of his students, see Hurst, Smail Interview, 93–96.

88. Hurst to Mark V. Tushnet, 15 June 1981, JWH-AFM; Robert W. Gordon to Willard Hurst, 15 November 1981, ibid.; Hurst to Gordon, n.d. [1981], ibid.

89. Gerstle, Gary and Fraser, Steve, “Introduction,” The Rise and Fall of the New Deal Order, ed. Fraser, Steve and Gerstle, Gary (Princeton: Princeton University Press, 1989), ixGoogle Scholar; Hurst, “Thoreau, Conscience and Law,” 38.