On hearing the sad news of the passing of James Willard Hurst, the Newsletter Editor solicited a series of memorial comments from colleagues in the law and society community who knew Professor Hurst well and understood his special significance in the law and society movement. Not coincidently, the Editor feels especially privileged to have been a student in two of Professor Hurst=s classes at Wisconsin Law School many years ago. In 1980, the Association honored Willard Hurst by naming one its first prizesC for the best book in American legal historyCafter him. The Hurst Prize has been awarded biennially since that time.
Providing memories and comments for this issue are: Lawrence M. Friedman, Marion Rice Kirkwood Professor of Law, Stanford University; Stewart Macaulay, Malcolm Pitman Sharp Professor of Law, University of Wisconsin, Madison; Joel B. Grossman, Professor of Political Science, Johns Hopkins University; Joel F. Handler, Richard C. Maxwell Professor of Law, University of California, Los Angeles; Hendrik Hartog, Class of 1921 Bicentennial Professor of the History of American Law and Liberty, Princeton University; Robert W. Gordon, Fred A. Johnston Professor of Law, Yale University; Harry N. Scheiber, Riesenfeld Prof. of Law and History, University of California, Berkeley; Shirley S. Abrahamson, Chief Justice, Wisconsin Supreme Court; and Arthur F. McEvoy, J. Willard Hurst Professor of Law, University of Wisconsin, Madison.
J. Willard Hurst, Vilas Professor at the University of Wisconsin Law School, emeritus, died on June 18th, 1997, at the age of 86. There is probably no one in this country who did more to stimulate scholarly research on the relationship of law and society. He leaves behind him a shelf of books and articles-material which has been enormously stimulating to scholars in our field; the influence of his personality and character have been, if anything, even greater.
Willard Hurst was born in Rockford, Illinois, on October 6, 1910. After college he attended the Harvard Law School; he found the first year courses there disappointingCthey were "as abstractly doctrinal as it is possible to get," as he said in an interview with Dirk Hartog; he compared his contracts class to an exercise in geometry. In a sense, Willard Hurst spent the rest of his life struggling to get a different message across and to tell a competing story: the story of law in society, the story of how law and society were, as he put it, interwoven with each other.
After law school, Willard Hurst clerked with Justice Brandeis; and in 1937, he arrived at the University of Wisconsin Law School. Essentially, except for wartime service, and occasional visits at other schools, he never left. The Growth of American Law: American Law: the Lawmakers (1950) was one of the most significant books ever published in legal academia. The preface states that the book's emphasis was to be "on the functions performed by legal agencies, rather than on their formal structure;" and he describes law as "an instrument of social values." In its quiet, understated way, this and later works revolutionized the writing of legal history, and turned this field into a vital branch of economic and social history. Of his many books, perhaps most notable were Law and the Conditions of Freedom in the Nineteenth-Century United States (1956); and his monumental study, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin. 1836-1915 (1964). Nothing could have been further from the traditions of orthodox legal history than this exhaustive and amazingly insightful exploration of the ways in which Americans used law, and the ways in which legal concepts and institutions shaped thought and behavior, all explored within the microcosm of a single industry, in a single middle-sized state. These books are the high point of the "Wisconsin school" of legal historyCthe school which he founded. Yet, in a real sense, all schools of thought in sociolegal history must reckon with his work; they all flow from, react to, or revise the ideas and approaches that he pioneered.
Although his published work dealt with legal history, Willard Hurst's thought had a major influence on the developing community of law and society scholars, many of whom were on the faculty of the University of Wisconsin, or visited there. A whole generation of law and society scholars considered him a mentor, or teacher, or just plain inspiration. They include Joel Handler, Marc Galanter, Stewart Macaulay, Robert Gordon, and Harry Scheiber, among many others.
Willard's influence was very great, not only because of his brilliant mind, but because of who he was as a human being: his selflessness, his devotion to his colleagues and students, his almost saintly willingness to help, to instruct, to guide. He was never too busy to help shape work in progress, typing out page after page of comments on his old battered typewriter. He had the capacity to make young scholars think that he was as eager to further their scholarship as to continue with his own. And perhaps he was. As his old friend, John Frank, remarked at a memorial service in Madison, Willard Hurst "must, on occasion, have been in ill-temper; every human is. But I never saw any trace of it." Nor have I. To be abrupt, annoyed, or impatient with a colleague, or a fellow scholar, especially a younger one, was simply unthinkable for him.
Willard was not a conference-goer; he hated to travel. But for many of us, his spirit inhabited the meetings of the Association, often in ways that younger members could hardly be conscious of. When Willard began his career, neither legal history as a serious social field, nor law and society studies in general, were anything more than embryos. When he ended his career, they were full-grown adults; and he deserves a greater share of the credit than anyone else. The Hurst prizeCa prize in socio-legal historyC was established at the Association, a number of years ago, as a small token of his unparalleled contribution. Willard Hurst was a powerful scholar, and a wonderful human being. We will miss him sorelyChis work, his teaching, his example.
Willard Hurst's death prompts many memories. To begin, Willard wanted us read his work. He cared deeply about teaching lessons about law and society. He cared almost not at all about being recognized as "a great man." Almost three years ago, Lawrence Friedman, John Stookey and I were putting the finishing touches on our Law & Society: Readings on the Social Study of Law. I realized that we had failed to mention Willard's work, and I did a quick review of my collection of his reprints and books. All his work is worth reading (although some of it is hard going), but I was struck how well his The Growth of American Law: The Law Makers (Little Brown 1950), stands up for a law and society person after almost fifty years. Among many other things, Willard pioneered the study of what lawyers do and why it might matter. Willard pushes us to see so much more than appellate cases as the subject for study. He insists, for example, that clean water and pure food are partial triumphs of law as well as technology. He points out that the revolution brought about by rail and air transportation rested importantly on legal devices fashioned by lawyers so that this infrastructure could be financed and its social costs could be allocated. I am always skeptical of claims for law made by law professors who usually inflate its importance. Willard continually cautioned me not to go too far in denying the importance of a functioning legal system.
Willard was a magnificent mentor to a surprising number of people. This was a man, after all, engaged full-time in his own demanding work, but still he made time to help others. In his autobiography, Music Is My Mistress, Duke Ellington said: "And that's the way it has always been. Every time I reached a point where I needed direction, I ran into a friendly advisor who told me what and which way to go to get what or where I wanted to get or go or do." Insofar as we've done anything worthwhile, Willard told us "what and which way to go to get what or where [we] wanted to get or go or do." I remember being a new assistant professor in my 20s and going to lunch with Willard, "the world famous legal historian," to talk about my career. It was a daunting prospect, but Willard never played the role of "the great man." He would not be patronizing or impatient even with a raw beginner. Your ideas were taken seriously, and Willard's message was what a young person wanted to hear. He told us to take risks, think more broadly and make connections with worlds of ideas outside of the law schools. He knew that young law professors needed time to read and think about unfamiliar material. He had obtained grants that bought a summer or a semester off for beginners. Thanks to Willard's grant, I spend one summer in Berkeley, working my way through books that he had suggested such as Max Weber and Parsons and Smelser's On Economy and Society. I also had a whole semester off, during which I made a grand tour of the East Coast talking about my ideas with Willard's friends, Talcott Parsons and Robert Merton. Fortunately, I didn't know enough to be appropriately in awe of them.
Willard read drafts of our manuscripts. He always responded with several single-spaced typed pages of reactions and suggestions. He typed them himself on what some of us believed was the first typewriter ever made equipped with its original ribbon, and he decorated these documents with many strike-overs. Lawrence Friedman and I used to joke about giving a manuscript to Willard, hoping for an A but being quite willing to settle for a C+. At Willard's retirement diner, I noted that if it were a just world, Willard's comments on our work would have been published instead of our manuscripts. Fortunately, it is not a just work world and so we could repair our work in light of Willard's comments, and have careers. I've noted elsewhere that my ANon-Contractual Relations in Business: A Preliminary Study@ was published in the American Sociological Review in 1963 because Robert Merton told the ASR editor to publish it. Of course, Robert Merton knew about my work because Willard had told him about it.
Willard and I shared a love for reading mysteries. After his retirement, I'd visit him at his home, bringing reprints of articles and copies of mysteries that I thought he might like. From time to time, he would call me, asking whether I had noticed an article in the Law & Society Review or picked up the latest work of an author we both enjoyed. Willard was a great fan of Emma Lathen, whose detective is John Putnam Thatcher, the Vice President of an investment bank on Wall Street. He liked the Anthony Price series where events in British and European history are woven into thrillers set during the Cold War. And he liked many of the newer women detectives, as long as he could learn something from placing a woman in what had been a male role.
One Friday in early 1996, I gave Willard a copy of Macaulay, Kidwell, Whitford and Galanter, Contracts: Law in Action (CLA). I hesitated to do this because I knew well how little he thought of law professors who limited their scholarship to writing casebooks. But in writing CLA, we had tried to take risks, think more broadly and make connections with worlds of ideas outside of the law schools, and I knew that CLA never would have been written had Willard not mentored all of its authors. Willard called me the following Monday. He said that he had started to skim the book after I left and had been so impressed that he spent the weekend reading the whole thing. He was enthusiastic, and he noted that this wasn't the contracts course that he had taken from Samuel Williston in the 1930s. Needless to say, Willard's approval made our day, week, month and year. Maybe, after all, we'd gotten at least an A- from a very tough grader.
I read about Willard's death in Madison's evening newspaper. Willard was in his 80s and I knew that he had had cancer, and so I shouldn't have been surprised. But I was. I think that I assumed that he would always be there. I recalled that Jackie and I had come upon Frances and Willard at the Wilson Street Grill one evening last March and had been invited to join them at their table. We had a delightful time. We talked about current events, developments at the Law School, mysteries set in places that we might visit, and Madison's building the Frank Lloyd Wright Monona Terrace Convention Center after years of disputes. Willard might have been in his 80s, but still he was on top of his game. After reading about Willard's death, I went to a basket in my study and looked at the pile of things I was collecting to take to Willard the next time that I visited him. As I put away the reprints and paperbacks, it hit home how much I owe him and how much I will miss him.
When I arrived at the University of Wisconsin-Madison in the summer of 1963, fresh out of graduate school, I had read Willard Hurst's The Growth of American Law, but knew little else of his work or reputation, or of the law and social science enterprise (the label "law and society" had not yet been coined) that he had nurtured and fostered. What an exciting and rewarding experience it was to join the ranks of "Willard Hurst and Company" and to meet, be accepted by, and work with, Willard himself, Jack Ladinsky, Harry Ball, and Bob Alford in sociology, Herb Jacob in political science, Lawrence Friedman, Stewart Macaulay, and Joel Handler (who arrived the next year) in the law school, and Stanley Kutler and Stanley Katz in history (and many others). The UW had just received a major grant from Russell Sage for developing the law and society enterprise, and for the training of young scholars; and I was an immediate beneficiary. It opened my eyes to a new world of scholarship that I had scarcely imagined, and set the course for the remainder of my academic career. Wisconsin was the place to be; the Wisconsin Law Review soon began publishing the first ever "law and society section;" the Law and Society Association was formed in 1964 (and celebrated its 25th anniversary in Madison in 1989, with Willard Hurst delivering the keynote address); and the Law & Society Review published its first issue (under the editorship of Red Schwartz) in 1966.
The enterprise was the work of many hands, but there was no doubt in anyone's mind that Willard Hurst's vision, scholarship, and leadership set the tone, and the standards, for what was to come. His style of leadership was, by personality and design, understated and reflective, never flamboyant or even very public. He was by nature a creator and decidedly not an administrator. He rarely sought the limelight although he was not unaware of his influence or towering reputation. He saw the law and society enterprise as an important vehicle for expanding our (and his) intellectual horizons, but his work and interests remained focused on legal history. He opened people's eyes but encouraged them to see for themselves. Willard turned down several law school deanships, and a distinguished professorship at the Harvard Law School. I once asked about that and he said, with a smile and uncharacteristic immodesty, "well, Harvard shouldn't have a monopoly on the best people."
Notwithstanding all of the above, our fondest memories are of Willard and Frances Hurst as wise and good friends. Academics like to talk, particularly about themselves. Willard, however, much preferred to listen. He always wanted to know what Mary and I thought about some academic, current affairs, or university issue, or some current novel or mystery, and made it clear that, whether he agreed with us or not, what we said was important to him. Apart from Willard's distaste for small talk, sports, and gossip, and talking about his own achievements, there was almost no limit to his curiosity and boundless respect for the views of others. A lunch on campus, or an evening at the Hursts', was an invitation to a feast of friendship and ideas, never to be forgotten.
As we prepared to leave Madison in the spring of 1995 for a visiting year at Johns Hopkins (and not yet contemplating that our departure would be permanent), we invited Willard and Frances to our house for a farewell brunch. Willard's health was declining, and making the trip was not easy for him. But they came, and it was, once again, an exhilarating experience. We talked about the Rehnquist Court, the fortunes and misfortunes of Bill Clinton, the sad state of Wisconsin politics and recurring attacks on the Wisconsin faculty, and how the UW could and should deal with hate speech, gender discrimination, and sexual harassmentCall current issues, and all painful subjects in one way or another. There was much dismay and pessimism around the table, but through it all Willard was remarkably optimistic. His sense of history was that these great institutions of government and higher education would survive their current pathologies; that institutions have to change in order to survive; and that hard times are as predictable, and perhaps as necessary, as good times. This would be our final visit with Willard Hurst. I hope that he knew of the enormous respect and affection that we had for him, and how much we treasured his friendship. What a legacy he left!
My first real substantive conversation with Willard took place shortly after I arrived at Wisconsin Law School. My book, The Lawyer and His Community, had just been published. Willard called me into his office and to discuss the book, which he liked very much. He said that what he especially liked, he said, was my "economic analysis." I had no idea what he meant, but I was too intimidated to ask, "what economics?" And today, I still don't know!
Over the years, we had many of the famous Willard conversations, in the large office, with Willard turned toward the center of the room, and the aspiring, junior scholars seated next to the circular, wooden book case. Willard always read our work with great care and insight. The conversations were thoughtful, gentle, and full of ideas. In fact, so full of ideas that when we left the office, we had at least two lifetimes' worth of assignments. My line of work was somewhat out of his expertise, but he always had insightful comments about bureaucracy, discretion, public policy, and even welfare. After I left Wisconsin, I still sent Willard my manuscripts, and received back so promptly his thoughts on the famous battered typewriter. All of these letters sit in a folder on my desk.
Willard was a mentor, colleague, and friend in the very best tradition. We always feltC and were never disappointedCthat he cared deeply about our work and about us as individuals and colleagues engaged in a joint enterprise of learning and teaching. It was a great feeling to talk with him, to have lunch him, just being in his presence.
I have had a lot of success in my career, for which I am very thankful, but the most important moment for meCby farCwas the day that Willard told me that he was nominating me to succeed him as the Vilas Professor. I remember this moment as if it were yesterday. It was such a thrill, such an unbelievable honor, to hear his words.
Those of us who knew Willard were fortunate indeed. What a fine human being.
Joel Handler's comments remind me of my first luncheon with Willard. I had just sent to the publisher a book manuscript. And someone, I think it may have been Joel Handler, had warned me that lunch at such times would include the dreaded question: "So, what's your next book going to be about?" And I had prepped desperately the night before. At noon we walked down Bascom Hill to the Wisconsin Union, where Willard got his sandwich and his skim milk, and I got whatever I got. And as we went through the cafeteria line, Willard was full of "useful" advice: about doing an index (He thought you should do your own. No surprise there.), about copy editing and cite checking. Then, we sat down, and Willard cleared his throat, and asked: "Have you had your depression yet? I always feel depressed for a few weeks after I finish a large project." I said, no. But he was right, and a few weeks later I did have mine. (And a few moments later Willard did ask me about a next project.)
Willard was an extraordinarily dutiful person, and his way of being in the world was always restrained and respectful of individual privacy. But he was also sensitive and kind and, in his own way, he reached out to people. And, as well, he was remarkably open to experience, his own and those of others. His imagined presence, his authority (My one real surprise when I came to Wisconsin was that he was short. I had seen photographs, and I just assumed that he was a physical giant as well as an intellectual one. Which tells you about my sizeism.), allowed people to forget the capaciousness of his moral imagination. (And the awkwardness of his writing didn't help.)
Those who read him as a consensus historian, or an interest group pluralist, or a Beardian economic determinist, or as a functionalist, have not misread him. But he was never narrowly any of these. And to the extent that he was as characterized, he transformed the characterization. The phrases for which he is rememberedCthe release of energy, drift and direction, bastard pragmatism, the control of environment, and so onC all incorporated rich complexities and possibilities and moral ambiguities. He once wrote of American constitutionalism as defined by a public obligation to improve material lives ("We believed that legal order should justify its costs by serving life. We believed that the state and society existed to fulfill and enlarge individual life, and not individual life to nourish the strength of particular rulers or of some mystic social whole abstracted from people."). The claim contained multiple histories: what is, what has been, a public obligation in the context of a liberal legal order where individuals lead private lives? what has constituted the "material" of a life worth living? what is "improvement" in the context of endless battles over law reform? who were, who are citizens, those entitled to have their lives fulfilled and enlarged? who decides who decides? Willard believed in American aspirations, and he was a committed lower-case democrat; but his historical understanding was shaped by skepticism and a deep commitment to Niebuhr's "tragic sense of life," by years of studying environmental degradation, by an unmatched understanding of institutional structures and processes and failures, and by a recognition that our public life has often, not always but often, failed to achieve any worthwhile aspirations.
Part of what made him so intimidating was the sense that he understood the legal system as a whole, that he had found a way to make sense of the world of legal institutions. Or, to put it slightly differently, that he was just a lot smarter than the rest of us. But what made him a great historian and a wonderful human being was his curiosity, his interest in new knowledge, new facts, new stories, in testing his understanding of the whole with what all of us brought to him. In that sense, the gracious and searching comments he made on our draft manuscripts and off-prints were not just the acts of a generous man, though they were that as well; they were also part of his larger project, one of the ways in which he tested and enlarged his understanding of the world.
The problem with having known Willard is that, on the one hand, he taught us to value our struggle to learn about the world, to wrest meaning from intractable material. But, on the other hand, we also learned, at least I learned, that we would surely fail in the struggle. Because we were not Willard.
Quite a legacy.
I knew Willard Hurst's name and work long before I met him: they had sustained and inspired me through the long dry spell of a legal education that did its best to convince us that law was a collection of doctrines of great technical complexity but little obvious connection to anything of social importance. Having read The Growth of American Law, and Law and the Conditions of Freedom and Law and Economic Growth, I knew betterC that law was a powerful, omnipresent but often misused instrument of social ordering, and that by learning its history one could learn something about how to use it more sensibly. I also knew what I wanted to do with my lifeCtry to write social-legal history like Willard Hurst's. The picture I formed of my unseen mentor through his writings was of an austere patrician scholar-statesman and original mid-western sage, a cross between General George C. Marshall and Thorstein Veblen. Only such a formidably disciplined and cross-grained character could have designed his entire life projectCand turned out book after wonderful bookCin total defiance of the conventions of his field.
When later I actually got to know Willard, through the lucky break of becoming his Wisconsin colleague, and sat talking with him at lunch after lunch in the Union dining hall above Lake Mendota, I realized that my early picture of him had been reasonably accurate, but only up to a point. The books convey his integrity and lucidity of thought; his theoretical breadth and incredible capacity for detailed research; his unmatched knowledge of the legal product of the American past; but they filter out the benign, twinkly, lively, sparkly side of the manChis dry jokes and small bright enthusiasms, his amazing generosity with his time, his affectionate ironic glances across a meeting room when he sensed some absurdity was afoot. Having a naturally contrary temperament, especially towards older men with a lot of authority and influence, I fought with Willard constantly, over small points as well as large. The greatest compliment he ever paid me was to fight back, tenaciously but with invariable grace and good humor. In the last letter I have from him he is still trying to change my mind and further my education with suggestions for new reading.
How much we still need what he had to teach! America is going through one of its periodic loony phases of believing that its history and natural destiny is one of laissez-faire capitalism. No one has shown more steadily and effectively than Willard Hurst what a fallacy this is about our past and what disastrous policies result when lawmakers act as if it were true. Willard was a skeptical Progressive: he had no utopian illusions that government could remake society; but believed, and gave solid historical evidence for the belief, that careful rational planning might now and then offset the forces of drift and inertia. He also taught that the purpose of government and organized society had to be something more than just enabling people to make money, that that was only a means to the end of enhancing the range and quality of life experience.
What a grand teacher he was and what a good companion! And what incredible good fortune for us that our lives were touched with his books and the man who wrote them.
It is difficult, as yet, for one to take the full measure of our loss of Willard Hurst, whose influence has been of such profound effect on both American legal history and Law and Society studies for so long a time.
Academic life takes curious turns: it is astonishing to recall that thirty years ago, in 1967-68, when the American Historical Association program committee agreed to organize a session on Willard's work, some of the U.S. historians on the committee were completely baffled as to why Hurst would merit a session (and I think few knew his name at all). Of course Willard had already won prominent honors in the law school world, and the group of younger scholars he had guided at Madison had already produced some highly important work. Yet his studies had scarcely been noticed by members of the historical profession, where, of course, there was an enormous need to discover legal history as he was revising its frameworkCand where the possibility of others following up his leads was perhaps much greater than in the law school world as it was then constituted.
Dave Flaherty and I did get the invitation to speak at the AHA, after all, thanks to Stanley Kutler's relentless efforts; and we both read papers whichCas some might be surprised to learnCwere quite critical of some of Willard's interpretations, especially as to the consensus problem although in other respects appropriately full of praise (behind which was awe, I assure you) with regard to his remarkable research.
I had never met Willard, when I wrote that paper (called "At the Borderlands of Law and Economic History," published in the AHR a year later); but I had spent much time in the late sixties, when I was moving more and more into legal history after a decade of work in economic history and public policy history, intensively reading his books. (I also had the incalculable benefit of being able to study Law and Economic Growth over several months time the format of a bi-weekly luncheon seminar that Stewart Macaulay and Lawrence Friedman and I maintained at the Center at Stanford in 1966-67. I don't know how anyone can match that for an introduction to Willard's studies, or, for that matter, to pretty much any serious topic I can think of in the Law and Society field! Nor can I imagine a group of three that, in the long haul, drew more intellectual sustenance from Hurst.).
Willard's response to the AHA session papers was immediate and itself a lesson for us in what the life of the mind, at its very best, can mean. There was not the slightest hint of defensiveness, or upset, or arrogance in his comments: every sentence bespoke that he appreciated and enjoyed being engaged so directly and strongly. He made some concessions. For example, as to the Wisconsin focus and what one could generalize from itCYes, he wrote, "legal history should not erect dogmatic generalizations on particular regional experience," whether Midwestern, New England, or any other area's. Until we had built up a wide enough base of regional studies, however, he still believed it must be a primary concern that "the particular studies we do should be cast in some frame of general theory." He conceded that his notion of "drift and default" should not be pushed too hard, and that the vagaries of "release of energy" as an explanation of change had to be recognized: there were good examples to be found in the record of planning and deliberation. But still, on reflection he remained persuaded that "if we look at the broad sweep of our legal-social history" his thesis seemed tenable: He saw "diffuse, intricate, cumulative effects which shaped life in ways no one foresaw." Above all, he appreciated the analyses of his work not only for the critical points raised but for their recognition of what he felt was an essential problem that historians of our law must confront: evidence of "the mindless drive and the inert resistance of events." He thrived on the hugely difficult task of identifying complexities, resisting the temptation to tear loose from empirical moorings. He was never daunted by the challenge.
All this in 1968-69 presaged my thirty years' friendship with Willard Hurst (alas, one conducted mainly by correspondence, and at long distance). Serious intellectual engagement was the essence of his style; he urged one to chart one's own direction, yet kept coming back to the need for attention to a more general framework (hence his encouragement of my studies of federalism, over three decades of writing). He never lost his faith that systematic expansion of our knowledge of regional patterns was essential to the larger enterprise, and he watched with keen interest as California studies proliferated out here. Never would a serious piece be sent to himCwhether in manuscript or published formCthat did not evoke the same kind of careful, probing, challenging response that he gave to those AHA papers, years earlier. His letters took classic form, in this respect, but they also always ended with some suggested reading, a comment on something that had caught his interest, something in which he took delight or that puzzled him and that he was eager to share.
I am uncertain as to how much he was actually bothered by the arrows and barbs that sometimes came his way during a few years of ideological fervor that seemed to go totally out of control in some segments of the profession. He certainly was never derailed by it, and perhaps he took some satisfaction in the later developments when he was given enthusiastic public recognition by some who had given short shrift to work of his that actually presaged their own. Instead, Willard followed a steady course, taking soundings of depth regularly and watching from the deck for new currents and unknown shores. As for himself, he was always meticulous in crediting the work of others; he did not like to pretend that we do not stand on others' shoulders.
He was brilliant, his dignity shone through and inspired us, his generosity truly knew no limits. He was prodigious with ideas and with the corpus of work that is one of his monuments. What is equally memorable is that he also built a legacy of incalculable value in representing for others a model of dignified and civil intellectual engagement, the greatest store of authentic humility about his own fallibility that I have ever seen in a scholar of anything like his standing, and a fabulous capacity to enjoy the fruits of others' best efforts in scholarship.
There is no scholarly reward or formal recognition I can think of that would be even close to receiving a letter from Willard that gave praise (along with the mandatory reading list, of course!) about a new piece or writingCor the opportunity to sit with him and hear him on academic life, its beauties, its fragility, and its enormous strengths. One never could lose sight, in Willard's presence, that we lead a privileged life in the university. It was always heart-warming to hear him say something about his family, too; one sensed very quickly how important that private side of his life must have been to sustaining him. Not to be forgotten: his hopes that legal history and jurisprudence and policy studies will continue to enrich one another in new ways, as historians open up previously unexplored avenues of study.
It is impossible to give adequate words to how much all of us in legal history and in the Association owe to him or what an enormous gap in the professional lives of his friends his passing now leaves.
(from the Memorial Service for James Willard Hurst, Unitarian Meeting Home, Madison, Wisconsin, June 29, 1997).
In 1956, at 22 years of age and completing law school, I learned a very important lesson that I remember to this day. The lesson that I remember to this day C go to dinner parties. And, if at all possible, sit next to someone you do not know. I take this lesson seriously because a dinner party-sitting next to someone I didn't know brought me to the University of Wisconsin law school to study with Willard Hurst. In April 1956, my husband Seymour and I drove to Indianapolis from Bloomington for a law review dinner party. I sat next to Daniel Mandelker, a former student of Willard's, and a law teacher at Indianapolis. Upon learning that Seymour would be coming to Madison as a post-doctoral fellow with Bob Irwin and then with Jim Crow, Professor Mandelker insisted he call Professor Hurst on my behalf. And so it was that I arrived in Madison in September 1956 to be Professor Hurst's graduate student in American legal history.
When I arrived in Madison, Professor Hurst had an assignment waiting for me. He wanted me to write on quality control in the Wisconsin dairy industry from Wisconsin territorial days until the great depression of 1929. He wanted me to write about his way of looking at legal historyChow changes in the law had influenced the real world of dairying in Wisconsin and conversely how the real world of dairying had influenced the law regulating the dairy industry.
Professor Hurst informed me that that I was to bring my experiences to bear on the topic. He was certain I had something to offer. I had grave doubts about the contributions of a 22 year-old from Manhattan whose only connection with the dairy industry was through her purchases of milk (to which she had developed an allergy) and Velveeta cheese (a staple in the Abrahamson home). Professor Hurst reassured me, as he did all his students. ARemember,@ he said Ano one knows as much about this subject as you do. Be bold.@
I learned a great deal from the dairy industry study and my years with Professor Hurst. I learned that I would not be comfortable calling him Willard until nearly 15 years would pass. I learned that Velveeta is processed cheese. I learned that if you were going to write you had to be methodical in your approach. I learned that time was a precious commodity and that it was especially precious to Professor Hurst. Who else used every moment so wisely and well? (Willard was known to read the New York Times while waiting for the bus to take him to and from the law school. Willard read to Frances while dinner was being prepared.) I learned that everyone felt guilty troubling Willard with questions or with manuscripts; but I also learned that we all imposed on him despite our misgivings about troubling him. While on the court I continued to clear any subject of a major speech or law review article with him.
Colleagues at the University of Wisconsin and at universities around the country would work for weeks and months to produce a draft. Within a day or two after receiving the draft Willard would send his response. Willard's response to a draft was often pages of notes. Single-spaced pages of notes, typed on a manual typewriter with broken keys and whose ribbon seemed not to have been changed for 2 or 3 yearsCif ever. I learned that for all his typing Willard was a poor typist. His typos and cross-outs were visible to all. Willard's notes were often longer than the text he began with. His notes were often better than our pieces. Many an author thought that Willard's notes, rather than the draft texts, should be published.
Willard also taught me, ...that each generation of lawyers has an obligation to help the next and that the time invested is worthwhile for both the older and younger generations.
I learned to value, because Willard did, the practicing bar. And I must say, one of the best practical lawyers I have ever known was Willard, who never practiced law a day in his life.
I learned from Willard the value of working on a wide range of topics. Aside from legal history, Willard was interested in contemporary legal problems. He wrote on statutory interpretation, workers compensation and the legal process. A recent 1996 Journal of Supreme Court History refers to Willard's magnificent study of treason written for a 1942 landmark treason case. You could talk to Willard about everything.
I learned from Willard, ... that we must make our own paths rather than following the paths of others. Once when Willard told a leading law school dean the he was working on Alegal economic history,@ the dean harrumphed, AYou'd never get away with it at my place.@ Willard charted his own course....
I stood in awe of Willard. Over the years I continued to think of myself as his student. As I became his colleague, a frequent guest at his home and a friend, the awe never subsided.
In 1956, when I was 22, Willard seemed old to me-he was 46, with abundant, wonderful white hair. He was a nationally recognized scholar. He always wore a white shirt and tie. He was incredibly serious. Boondoggle was not a word in Willard's vocabulary. When he was invited to lecture in Japan, he told a colleague he would limit his viewing of Mt. Fuji to what he could see from the train. The story is told that when Willard's law school office was moved to the then new 1963 law school building, the movers put his desk on a large dolly and Willard hopped aboard to continue his typing. He missed only 30 seconds of work. His reputation for intellectual excellence and productivity grew during the 40 years I knew him. Willard at 86 looked the same to me as he did at 46. Indeed, I thought him a young 86, as Seymour and I had aged to catch up with him. But there was more to Willard than hard work and scholarship. Over the years Seymour and I got to know the more relaxed side of Willard....
[T]here were the Hursts' dinner parties-always a wonderful treat. Willard liked small dinner parties and resisted all our attempts to get him to celebrate his important birthdays with the many friends who wanted to visit with him. At the Hurst dinner parties there was some talk was about the law, of course, but there was also talk about politics ... It was during these dinner party conversations that I truly saw the non-professional side of Willard: Willard, the Green Bay Packer fan; Willard, the movie buff; Willard, the devotee of mysteries. Of course, in keeping with his serious side, Willard tended to read mysteries that taught him something. Emma Lathen's John Putnam Thatcher, executive vice-president of Sloan Guaranty Trust, taught Willard about high finance and international trade and investment. Mary Helen at the Booked for Murder bookstore says Willard delighted in Michael Gilbert, a British barrister, whose books have legal aspects but are best characterized, she said, as Aintelligent British mysteries.@ Willard also enjoyed the newer mysteries by women writers. He was fascinated by the Anew genre@ spawned by the changing status of women.
To Mary at Booked for Murder, Willard was a great man who became remarkable because he was nice. David Margolick, writing for the New York Times in Willard's 80th year, characterized Willard as Aone of those people who retain[s] all the fire, impatience and curiosity of youth.@
Willard Hurst was renowned nationally and internationally as founder of the field of American legal history. He was a shining light in the Wisconsin legal community, a great colleague at the Law School and a friend to generations of law students and lawyers.
To those of us gathered here this afternoon, he was our wise teacher, mentor, role model, neighbor and good friend. Our lives were made richer by having known him.
We shall miss him.
As a relative newcomer to law teaching, I was unable to develop the kind of relationship with Willard that the other memorialists had. By the time I came to Wisconsin in 1994 he was largely home-bound and we had only the occasional visit in his living room, where we talked about what he'd been reading, how my Legal History course was going, and plans for the future of the law school. I did have "lunch with Willard" early in my career, when I spent a summer in Madison. Knowing that I'd written a book on fisheries management, he used the occasion to introduce me to Arthur Hassler, the Wisconsin biologist who figured out that salmon "smell" their way back to their natal streams. As he did for many others, Willard also discussed my work with me, read my book, and within a short time of our initial meeting sent me a letter in which he laid out (far better than I could) the emergent questions in my research and then outlined the future course of my career for me. I keep that letter -- strikeouts, corrections, faint type and allCclose at hand and refer back to it whenever I lose my way.
Willard's most important legacy to me as his successor at Madison is his lasting impact on the institutional culture here at the Law School. In an interview with Dirk Hartog, Willard described his coming here in 1937 as "largely just a fortunate accident," though he added that what drew him was the fact that, unlike most law schools (then and now), Wisconsin took it for granted that the law faculty would not work in isolation from the rest of the University: Economics, Sociology, and eventually History. His arranging my lunch with Professor Hassler, indeed, reprised a dinner he attended early in his own career at which Aldo Leopold impressed upon him "the idea that there was a tremendous interrelation between the facts of botany and the facts of wildlife and human beings and what they did with the earth," including particularly "what had happened to trees." That dinner gave him the inspiration for Law and Economic Growth. If Wisconsin Law School was already relatively congenial to interdisciplinary research, Willard made it the organizing principle of the school's culture.
Willard used his stature in the profession first and foremost to strengthen the school. At just one AALS meeting in 1952 he received offers from Harvard, Columbia, Ohio State, and Chicago to join their faculties "to act as a stimulator and counselor in the development of [their] general research interests." He refused all of them but did leverage the offers into a commitment from Wisconsin to support academic research at the Law School, which (then as now) was under pressure from some of the more practice-minded Regents. In particular, he thought that research money should go not only to himself and other tenured professors, but to younger people as well. He wrote support for one new scholar each year into the grants from the Rockefeller Foundation that supported his own work on the lumber industry. In all, the eight postgraduate fellows that came to Madison under the Rockefeller grants produced from their visits a remarkable total of nine books, among them Lawrence Friedman's Contract Law in America. This tradition survives today in the form of Wisconsin's Legal History Fellowship, many of whose recent recipients are now well established at places like UCLA, Cincinnati, Chicago, Cardozo, and Georgetown.
Willard did all of this in his way, not in the role of mover and shaker but quietly, in the role of citizen. His citizenship, moreover, manifested itself from day to day as well as in his vision for the long term. One current Law School staffer remembers him as courtly, polite, and respectful of the school's staff workers. She reported to me that Willard always did his own clerical work, with the single exception of asking her to type his exam keys each semester.
Willard, finally, was a citizen not only of the law school but of the State of Wisconsin as well. He spoke at innumerable meetings of the Dane County Bar Association and did much to maintain good relations between the School and the profession. His last injunction to me was very much in keeping with the Wisconsin Idea: we were talking at his home about generating institutional support for research on the interplay between law and science and technology, and Willard insisted that the impact of technological change on small business was an essential part of the task. As he put it to the University President in 1953, "legal research won't produce the millennium, but it is a necessary part of the total effort for a more humane and decent way of life to which our society is committed."
I promise to do my best.
Return to Newsletter
Contents
Return to Home Page