Reflections on the 40th Anniversary of Hurst's Growth of American Law (original) (raw)
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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.
The Cambridge History of Law in America
2008
This publication is in copyright. Subject to statutoty ex~eption and to the provisions of relevant collective licensing agreements. no reproduction of any part may take place without the written permission of Cambridge University Press.
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
Law and History Review, 2010
There is an interesting section on the transition to the job-the heavy learning curve, the problems of getting an office running, and the remarkable variety of cases federal judges confront. The chapter on the nature of the job holds few surprises. Most judges like the job with its broad range of subjects and conflicts, although there are complaints about the isolation. It is, though, disturbing to see such distinguished judges and ex-judges as Abner Mikva, Robert Bork, and James Buckley agreeing, at least on their notable Court of Appeals (D.C. Cir.), that after the conference on a case, the judge will go back and likely never speak again in person with his colleagues about it. When coupled with the "revelation" in another chapter that the law clerks are chiefly responsible for opinions (183), one cannot help wondering what creative, thoughtful, and analytical work federal judges are actually doing. A chapter partially named "Getting Along with Others" encompasses Alfred Goodwin's (9th Cir.) discussion of political trials. There is an interesting, though troubling, discussion of past tensions on the Seventh Circuit Court of Appeals and two pages allotted to Andrew Hauk's (C.D. Cal.) oral history demonstrating his "outrageous rudeness." Finally, Joyce Hens Green sums up what makes a good judge: "A judge has to have courage and express the way it is in her opinions, whether oral or written, not just to ride with the waves of the time, economically, politically, emotionally" (212). Both specialists and nonspecialists will learn from Domnarski's book. Nonspecialists will receive a painless introduction to the lives of federal judges and the conditions under which they work. The scholar will pick up a variety of interesting tidbits with a reminder of what a valuable resource for research on the courts oral histories can be.
Droit & Philosophie, 2021
We seek to explain the origin and trajectory of originalism in American legal thought today. Originalism, we argue, is a modern entry in a very old debate between two different approaches to law. One understands law as a project; the other, as a system. Together, these are the master narratives of law. We begin with the most famous jurisprudential debate of mid-century: the Hart-Fuller debate. Hart places himself at the end of a jurisprudential line of development that models law as a project guided by utilitarian standards. Fuller responds by arguing for an internal morality of law – an immanent order of system. From Hart-Fuller, we move on to Ronald Dworkin. The power of Dworkin’s position, we argue, lies in his synthesis of project and system. He defends a systemic idea of legality – the law is “working itself pure” -- linked to a project idea of legitimacy – citizens must understand themselves as the authors of the law. By the end of the century, scholars and judges were uneasy about the possibility of such reconciliation. Originalism is the jurisprudence of project arising in response to the post-war success of a jurisprudence of system. Several signs suggest, however, that originalism’s triumph is only a moment in the contest over the fundamental nature of legal order.
Review of “The Transformation of American Law, 1780—1860,” by Morton J. Horwitz
1977
This is a complex and absorbing book that should be of considerable importance to courts and lawyers as well as to historians. Professor Horwitz opens a realm of common law that few could enter without the assistance of his extraordinarily extensive research. He reviews the state and federal court decisions in which modem property, tort, contract, and commercial law were born; he assembles this great mass of law in lucid chapters that allow the reader to follow the development of case law in individual decisions. Much of this formative law is here available to the ordinary reader for the first time. Horwitz sees a pattern in this law that was first described by Sir Henry Maine: "the movement of the progressive societies has hitherto been a movement from Status to Contract." ' By "status" Maine means the place of an individual in the group-originally the family-that defines his rights and obligations. In primitive societies the family's interests are all, and there is no conception of individual freedom. The slow progress of morality has broken down the old rigid status relationships and created instead a system of voluntary agreements among free individuals. The transition from status to contract occurred with considerable speed in the English-speaking world at the beginning of the nineteenth century. The elaborate social relationships of the eighteenth century were built on the land tenure systems of the Middle Ages; every person's rank was determined in descending order from the King. Dress, manner, and education were all determined by status: Appearances on the streets of London and Paris two centuries ago were manipulated so as to be more precise indicators of social stand-1. H. MAmnr, ANCiENT LAw 100 (Morgan ed. 1917) (1st ed. London 1861).