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Willard Hurst and the Archipelago of American Legal Historiography

Published online by Cambridge University Press:  28 October 2011

Barbara Y. Welke
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Extract

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on Florence Kelley and women's political culture, Linda Gordon on the welfare state, and Leslie Reagan on abortion—do not cite Hurst in the footnotes or, for the most part, in their bibliographies. For that matter, those from one subfield do not cite the other and vice versa.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.

Type
Commentaries
Information
Law and History Review , Volume 18 , Issue 1: Engaging Willard Hurst: A Symposium , Spring 2000 , pp. 197 - 204
Copyright
Copyright © the American Society for Legal History, Inc. 2000

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References

1. Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar; Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (Cambridge: Cambridge University Press, 1982)CrossRefGoogle Scholar; Sklar, Martin J., The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, The Law, and Politics (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar; Sklar, Kathryn Kish, Florence Kelley and the Nation's Work: The Rise of Women's Political Culture, 1830–1900 (New Haven: Yale University Press, 1995)Google Scholar; Gordon, Linda, Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890–1935 (New York: Free Press, 1994)Google Scholar; Gordon, Linda, ed., Women, the State, and Welfare (Madison: University of Wisconsin Press, 1990)Google Scholar; Reagan, Leslie J., When Abortion Was Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1997).Google Scholar There is a broad range of scholarship that I might have cited here. As will become clearer at the close of the essay, I have chosen to highlight works that have been central to my own current thinking on the emergence of the modern regulatory state.

2. Hurst, J. Willard, Law and Economic Growth: The Legal History of the Wisconsin Lumber Industry (Cambridge: Harvard University Press, 1964)Google Scholar; Hurst, , The Legitimacy of the Business Corporation in the Law of the United States, 1780–1970 (Charlottesville: University of Virginia Press, 1970).Google Scholar

3. A striking legacy of this fact and its continued impact is that in the veritable cottage industry that has developed surveying Hurst's work and his impact on the field of legal history, every article and comment has been authored by a man. This is the third journal issue to be devoted to Hurst. For the earlier issues, see the 1975 special issue on Hurst in Law and Society Review and the 1980 festschrift in the Wisconsin Law Review. For an interview, articles, and commentary appearing outside the context of a special issue, see Hartog, Hendrik, “Snakes in Ireland: A Conversation with Willard Hurst,” Law and History Review 12 (1994): 370–90CrossRefGoogle Scholar; Soifer, Aviam, “In Retrospect: Willard Hurst, Consensus History, and the Growth of American Law,” Reviews in American History 20 (1992): 1247–44CrossRefGoogle Scholar; Grossberg, Michael, “Social History Update: «Fighting Faiths’ and The Challenge of Legal History,” Journal of Social History 25 (Fall 1991): 191–201CrossRefGoogle Scholar; Gordon, Robert W., “Critical Legal Histories” Stanford Law Review 36 (1984): 57–125CrossRefGoogle Scholar; Diamond, Stephen, “Legal Realism and Historical Method: J. Willard Hurst and American Legal History,” Michigan Law Review 77 (1979): 784–94CrossRefGoogle Scholar; Tushnet, Mark, “Commentary: Lumber and the Legal Process,” Wisconsin Law Review 1972: 114–32Google Scholar; Scheiber, Harry N., “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” American Historical Review 75 (1970): 744–56CrossRefGoogle Scholar; Friedman, Lawrence M., “Some Problems and Possibilities of American Legal History,” in The State of American History, ed. Bass, Herbert J. (Chicago: Quadrangle Books, 1970), 3–21Google Scholar; Flaherty, David H., “An Approach to American History: Willard Hurst as Legal Historian,” American Journal of Legal History 14 (1970): 222–34CrossRefGoogle Scholar; Brooks, Russell E., “The Jurisprudence of Willard Hurst,” Journal of Legal Education 18 (1966): 257–73Google Scholar; Murphy, Earl F., “The Jurisprudence of Legal History: Willard Hurst as a Legal Historian,” New York University Law Review 39 (1964): 900–943.Google Scholar Although some of these authors have adopted a critical stance to Hurst, the complete lack of gender and racial diversity in authorship is both illuminating and troubling.

4. I am grateful here to Carol Chomsky for sharing data from her own research. See also Drachman, Virginia G., Sisters in Law: Women Lawyers in Modern American History (Cambridge: Harvard University Press, 1998)Google Scholar; Epstein, Cynthia Fuchs, Women in Law, 2d ed. (Urbana: University of Illinois Press, 1993)Google Scholar; Grossberg, Michael, “Institutionalizing Masculinity: The Law as a Masculine Profession,” in Carnes, Mark C. and Griffin, Clyde, eds., Meanings for Manhood: Constructions of Masculinity in Victorian America (Chicago: University of Chicago Press, 1990), 133–51Google Scholar; Abramson, Jill and Franklin, Barbara, Where They Are Now: The Story of the Women of Harvard Law 1974 (Garden City, New York: Doubleday, 1986).Google Scholar For an overview of discrimination in hiring in history departments, see Novick, Peter, That Noble Dream: The Objectivity Question and the American Historical Profession (Cambridge: Cambridge University Press, 1988), 363–68, 469–521.CrossRefGoogle Scholar

5. Ellen Fitzpatrick explores the training at the University of Chicago of Abbott, Edith, Breckenridge, Sophonisba, Davis, Katharine Bement, and Kellor, Frances in Endless Crusade: Women Social Scientists and Progressive Reform (Oxford: Oxford University Press, 1990).Google Scholar See also Sklar, Florence Kelley and the Nation's Work.

6. The articles in this issue by Dan Ernst, Bryant Garth, and Alfred Konefsky are most illuminating in this regard.

7. Garth, Bryant, “James Willard Hurst as Entrepreneur for the Field of Law and Social Science,” Law and History Review 18 (2000): 49, 50.CrossRefGoogle Scholar

8. Scholars commenting on Hurst's work and career here and elsewhere have noted other limits to Hurst's rebellion. See in particular Garth, “James Willard Hurst as Entrepreneur,” 37–58; Soifer, “Willard Hurst, Consensus History, and The Growth of American Law,” 124–44; Grossberg, “Social History Update,” 191–201; Gordon, , “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 51Google Scholar; Tushnet, “Lumber and the Legal Process,” 114–32.

9. Hurst, , Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956).Google Scholar

10. See, e.g., Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (Cambridge: Cambridge University Press, 1998)CrossRefGoogle Scholar; Kerber, Linda, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998)Google Scholar; Tomlins, Christopher, Law, Labor, and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993).CrossRefGoogle Scholar

11. On this topic see in particular Kerber, No Constitutional Right to Be Ladies; Stanley, From Bondage to Contract; Cott, Nancy, “Giving Character to Our Whole Civil Polity: Marriage and the Public Order in the Late Nineteenth Century,” in Kerber, Linda K., Kessler-Harris, Alice, Sklar, Kathryn Kish, eds., U.S. History as Women's History (Chapel Hill: University of North Carolina Press, 1995), 107–21.Google Scholar

12. These points are most clearly made in Kerber, No Constitutional Right to Be Ladies; Reagan, When Abortion Was a Crime; Cott, “Marriage and the Public Order;” Stanley, From Bondage to Contract. In legal history, see Grossberg, Michael, Governing the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985).Google Scholar

13. However laden with detail and fact, Hurst pointedly limited his inquiry to legal sources. See Hurst, Law and Economic Growth. This insight regarding an exclusive focus on the material of law is not unique to women's history. See in particular Tushnet, , “Lumber and the Legal Process,” 122, and “The American Law of Slavery, 1810–1860: A Study of the Persistence of Legal Autonomy,” Law and Society Review 10 (1975): 119–86.CrossRefGoogle Scholar The Critical Legal Studies movement offers a far more fundamental challenge to reliance on legal texts as sources for determining the actual motivations of actors. For an overview of Critical Legal Studies engagement with history, see Robert Gordon, “Critical Legal Histories.”.

14. Welke, Barbara Y., “When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914,” Law and History Review 13 (1995): 261–316.CrossRefGoogle Scholar

15. Barbara Y. Welke, Gendered Journeys: Railroads, Injury, and Law in the Making of Modern America, 1865–1920 (Cambridge University Press, forthcoming).