Reflections on the 40th Anniversary of Hurst's Growth of American Law (original) (raw)
Four Fragments on Doing Legal History, or Thinking with and against Willard Hurst
2021
What does it mean to know law-to understand legal sources-as existing in historical time? That is the question, or rather, my question. Not how to mine a legal archive to make social or cultural or political or economic generalizations about a historical moment or an era. Not how to find the origins of the legal present, the power or failure of a regulation, or any number of other questions that historians and others today pose about law. Here my concerns are epistemological and jurisprudential. When I as a historian identify something as law, and when I find myself seduced by a legal source-by a trial transcript, a lawyer's brief, a judicial opinion, a passage in a treatise, a letter or memoir of a litigant, a justification for a statute, or an interpretation of that statute-what is it that I am seduced by? I have only glimmers of answers for the questions that consume me.
Law, Modernization, and the Question of Agency in American Legal History
Tulsa Law Review, 2005
One September afternoon, as I stepped onto a rather small plane to Tulsa, Oklahoma, Lawrence Friedman came between me and my otherwise pleasant flight attendant. I had in my hands a hardcover copy of American Law in the Twentieth Century.1 She demanded that I put it away for take-off. "But I'm reading it," I insisted. "That book," she said sternly, "could do a serious amount of damage." I was allowed to keep another one of Friedman's books, The Horizontal Society. 2 This book, it appears, is less of a threat. Lawrence Friedman has written more books and articles than some people read in a lifetime. He has written in different genres and has more than one scholarly identity. I first got to know Friedman's work through the lens of legal history. In that world, he manages to do two very different kinds of work. He does deeply textured empirical work, illuminating the way law operates on the ground, for example in, The Roots of Justice: Crime and Punishment in Alameda County. 3 And Friedman is also a master at the broad, synthetic narrative, as in his classic, A History of American Law, 4 and in my apparent personal weapon of mass destruction, American Law in the Twentieth Century. This essay seeks to bring together Friedman's law and society writings and his legal history writings by examining one of Friedman's consistent themes: law and modernity. Lawrence Friedman, it seems, is always two steps ahead of everyone else. While others are thinking about globalism, Friedman engages the next frontier. Chapter two of Friedman's 1985 book, Total Justice, 5 is called "The Law: Creatures from Inner Space." His opening analogy, however, is from outer space:
The Cambridge History of Law in America
2008
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Engaging Willard Hurst: A Symposium
Law and History Review, 2000
Courtesy of the University ofWisconsin-Madison Archives. In this special symposium issue of the Law and History Review, the first of the new millennium, we offer an extended assessment of the scholarship and career of one of the most important legal historians of the twentieth century, James Willard Hurst, who died on June 18, 1997, at the age of eighty-six. Willard Hurst, of course, was an American. It was as a historian of American law that he made his name as a scholar, remaking the discipline of legal history in this country in the process. As we put it three years ago
Transformations in American Legal History II - Essays in Honor of Morton J. Horwitz. Daniel W. Hamilton and Alfred L. Brophy (eds). Cambridge. Mass.: Harvard University Press pp. 504-542., 2011
In this essay I examine the extent to which the scholarship of Morton J. Horwitz contributed to enriching legal education and scholarship in England, Canada, and Australia. My thesis is that Horwitz’s work (principally The Transformation of American Law, 1780–1860) provided an important stimulus at a critical time in the late 1970s and 1980s when legal education, legal scholarship, and legal history avowedly oriented toward anti-formalism and law and society were struggling to be legitimized beyond the United States. For a short but crucial period that subsequently appears as law’s tipping point—manifested in the move from an obsession with legal doctrine and legal institutions to the treatment of law in its larger socioeconomic context—Horwitz was an inspiration to those seeking to treat law as part of society, to transcend both the traditional chasm between law and justice and the dominant ahistorical tendencies in law schools, and to challenge legal history’s almost exclusive preoccupation with the law and legal institutions of medieval England. The reasons for Horwitz’s limited influence in England, Canada, and Australia are considered. It is argued that the questions that Horwitz asked have in some ways increased rather than diminished in importance since they were first posed in the 1970s and 1980s. In Transformations in American Legal History II - Essays in Honor of Morton J. Horwitz. Daniel W. Hamilton and Alfred L. Brophy (eds). Cambridge. Mass.: Harvard University Press. ch. 30. pp. 504-542.