Hurst, J. Willard (1910–1997)

James Willard Hurst, a law professor at the University of Wisconsin, was both a leading legal historian and a key founder of the law and society movement in the United States. Hurst studied at Williams College, where he focused especially on the progressive historians Charles (1874–1948) and Mary Beard (1876–1958). He attended Harvard Law School, graduated in 1935, and followed graduation with a yearlong research fellowship, working with Felix Frankfurter (1882–1965). He then became a legal secretary to Justice Louis Brandeis (1856–1941), serving for the Supreme Court's 1936 term. He began teaching at Wisconsin the following year and remained there throughout his career.

Hurst built on legal realism and the insights of the progressive historians to reinvent the field of legal history. He rejected the case-centered history then dominant in law schools, which treated legal history as the history of changes in legal doctrine made by judges. He turned instead to the general connections between law, economy, and society. A series of books, including his most famous one,Law and the Conditions of Freedom in the Nineteenth-Century United States, published originally in 1956, found a fit between law and the economy and polity of the times but also [Page 724]demonstrated the active role of law and lawyers in maintaining social order and promoting economic prosperity. Hurst's works remain the essential starting point for U.S. legal historians today.

The early history of the Law and Society Association (LSA) also owes much to Hurst, though Hurst himself never played a particularly active role in the organization. As the leading member of the law faculty at Wisconsin, Hurst used his influence and intellect to hire young scholars and steer them toward interdisciplinary work. He helped Harry Ball, a sociologist already in Madison to work on an interdisciplinary study of criminal justice, to put together a grant from the Russell Sage Foundation in 1964 that, along with grants to Berkeley, Denver, and North-western, energized and brought together the emerging field of law and society. Ball, working especially with Richard “Red” Schwartz of Northwestern and Robert Yegge, began to organize what became the LSA. Many of Hurst's protégés, including Lawrence Friedman, Joel Handler, and Stewart Macaulay, went on to head the LSA.

Hurst's even more important contribution to law and society was substantive, coming out of his approach to legal history. He emphasized the relationship between law and the social context within which it was enacted and which gave it effect. This emphasis was sometimes expressed simply as making “law the dependent variable.” He and his followers, among whom are those listed above, consistently directed their scholarship against legal scholars and policy makers who presumed that the role of law could be determined by examining formal law only. Macaulay's famous article on noncontractual relations in business, published in 1963, epitomized this approach. Macaulay interviewed Wisconsin business leaders and used the interviews to show that formal contract law had little impact on actual business relationships. This “law and context” approach remains one of the dominant strains in law and society research.

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