This series contains audio recordings and descriptions of course lectures presented by Hurst for his 1978 course titled Introduction to Modern American Legal History at the University of Wisconsin Law School. Topics include the origins of American legal order, the rise of federalism, and the impact of the growth of industry on the American legal system.
The course description for the class from the 1977-79 Law School Bulletin reads: “The relation of law to some main currents in political, social, and economic thought in the United States; appraisal of the social function of constitution-making processes, the legislature, the courts, the bar, and the executive branch in United States society.”
The course audio recordings are available in digital format below and on cassette tapes. Each one is approximately 50 minutes long.
Also included in Series 3 is a 1984 interview with Hurst and Marc Galanter about the history of women judges in Wisconsin, a 1983 discussion on the use of legislative history in legal research, and a speech Hurst presented in 1973 about the separation of powers.
The latter recordings are available only on cassette tapes. Contact a librarian for assistance with these tapes.
Displaying Records: 1 to 39 of 39 Results
Title: Lecture 01
Summary: An introduction to Modern American Legal History is presented to students as Hurst delineates the key concepts of the course and emphasizes the importance of law-embodied values. He goes on to trace America's legal origins from its seventeenth century English roots, the Greek city-states, and the English parliamentary revolution. The origins of America's legal order are further traced through a detailed examination of Oliver Cromwell's 1647 "Agreement of the People." The emergence of Cromwell's army is explained in relation to rising middle-class values, individualism, and demands for widespread suffrage. Hurst details the impact of these challenges upon England's legal and social order.
Title: Lecture 02
Summary: A continued discussion of the issues surrounding the 1647 debate and the presence of Cromwell's army is used to begin an examination of suffrage. Social stability is linked to governmental representation, and Hurst emphasizes the necessity of protecting public interests. He explains the representative councils that constituted Cromwell's army and the relation of these groups to the political consciousness that existed in the Greek city-states, the Roman Empire, and the 1620 Mayflower Compact. The previous lectures on representation and social stability in England are used as a base to begin describing suffrage in the American colonies. Hurst explains how the right to vote was viewed as an instrument of power, the dangerous potentiality some feared in this privilege, and the ways in which these premonitions played into the decisions that were reached at the Philadelphia Convention.
Title: Lecture 03
Summary: The correlation between the 1647 English debates and the 1787 Philadelphia Convention is further emphasized as Hurst discusses the factors behind the creation of the federal constitution. The social significance of the market, contracts, and freehold titles is described and linked to later societal trends such as Jacksonian democracy, freedom of contract, the Civil War Amendments, the 1877 railroad strikes, and the 1934 Wagner Act. America's political state is described as a service industry as Hurst begins to enumerate the moral and political entitlements it grants to the public. This concept is further explained through an in-depth examination of the service and political functions of a public supported education system and the long-term implications of this trend are evidenced through the existence of modern public service curriculums. The relationship between these types of civil liberties and social stability are then lined to the marginal nature of America's legal order.
Title: Lecture 04
Summary: The issues of mal-apportionment and equal access to the vote are introduced through an examination of Thomas Jefferson's Notes on Virginia. Hurst emphasizes the importance of judicial review when dealing with these topics, and describes modern trends within state apportionment statutes. The cases of Baker v. Carr, and Mahen v. Hollow are used to expand upon this discussion of current-day gerrymandering, and the presence of suburbia is considered as an important factor within present day apportionment problems. This lecture focuses heavily on the adaptation of public policy, and how this tactic has been used to ensure equal protection under the law. Hurst explains this concept within the context of early American history by highlighting the extension of the commercial market to the farmer. He goes on by incorporating the redistribution of power after the creation of the fourteenth amendment, the effects of Brown v. Board of Education, and public suspicion of corporations and a corrupt government.
Title: Lecture 05
Summary: The new directions public policy took and the use of fiscal powers to redirect business cycles are examined after the period of the great depression. These trends are tied to new demands for the regimentation of labor, the legitimacy of organized power, and improved management/labor relations. The Wagner Act of 1934 and social mobility through the vote are used as examples of the formal legal responses that were utilized to effect change. The legal protections that were afforded to employees through the Wagner Act are further explored as Hurst continues to discuss the adaptation of public policy. He ties this discussion to John Locke's thoughts on the creative elements of human nature, and the collective bargaining farmers engaged in to dislodge the absolute power of the railroad industry.
Title: Lecture 06
Summary: Elements of power within the public educational system are examined as Hurst begins the lecture by explaining Thomas Jefferson's thoughts on education as a service to the individual. This concept is expanded upon as the costs involved in individual liberty and political abuse are examined and used to explain America's present-day system of separation of church and state. The past ideas on public education are linked to the need for competent leaders, and the nation's transition to a system of broad suffrage. Thomas Jefferson's views on voting rights are compared to John Adam's opinion on the natural aristocracy, and the use of education to shape the electorate. The presence of land titling as basic to one's political character is also discussed as the lecture moves onto the legislature's role in curbing abusive power and John Marshall's court.
Title: Lecture 07
Summary: The precarious balance that exists between the legal and social order is examined by first returning to conditions in England after the seventeenth century civil war. The discussion switches over to a consideration of the need for social order in the United States, and the ways in which early demands for government, sheriffs, schools, roads, and navigation paved the way for a legitimate monopoly of violence. John Locke's ideas on constitutional order are also detailed, and linked to established laws for equal protection. This lecture continues to discuss the questions surrounding legitimacy of power after the colonies broke away from England. Adam Smith's critiques of power are discussed, and examined within the context of legislative roles, the armed forces, judicial review, and contemporary lobbying groups. The differences between property rights and human rights also play into this equation, and are tied to issues of titling and women's property rights.
Title: Lecture 08
Summary: The legal and social protections that support human worth and dignity are discussed in this lecture, and mainly linked to individual private property rights. The fee simple titles that were available to individuals settling in the Mississippi Valley and the abolition of imprisonment for debt are considered key components of these protections. The protection of autonomy and private will is furthered explored within contemporary settings as Hurst as explains the dynamics behind property rights on the job, governmental loyalty checks, fair employment practices, collective bargaining, and due process and equal protection clauses. The large and impersonal market had become a hallmark of present day society, and is bolstered by an equally expansive administrative apparatus. Hurst considers the costs and benefits of this human dependence on financial solvency though an investigation of SEC legislation, the investment banking act, the control of public utilities, the fair trade and commerce clause, FTC legislation, and corporate responsibility. These elements are tied to the previous discussion on the human importance in property and individual worth.
Title: Lecture 09
Summary: This lecture focuses on the presence of federalism within a growing American society. Hurst investigates the importance placed upon individualism and personal will within the formal governmental structure. These concepts are expanded upon through a consideration of the origins of the constitutional government in the Greek city-states, the federal territories and the Northwest Ordinance of 1787, the contract clause within the constitution, and the general precepts behind imperial policy beyond the Appalachians. Interest groups and the conflicts they bring to law are investigated within the context of moral and political legitimacy. This discussion begins by examining the conflicts that existed as contracts for the sale of western land became largely dependent upon credit and financiers from the east. This is linked to the reasoning behind national control of public domains and navigable bodies of water. The last conflict investigated centers around the right to cession and the sectional tensions that existed in 1861.
Title: Lecture 10
Summary: This lecture serves as a continuation of the previous discussion on conflicts of interests, but narrows in on lobbying and special interest groups. Madison's Federalist Number Ten essay is investigated for its ideas on social and political peace, and this leads into a consideration of social peace and the inherent nature of power. The presence of power and conflicts of interests are found within the examples of the Whiskey Rebellion, the 1824 case of Gibbons v. Ogden, and the way the Marshall court handled the commerce clause. The expansion of the federal government's powers are examined and presented as mainly positive and facilitative acts. This begins with a consideration of the effects of John Marshall's handling of interstate commerce, federal taxation to raise revenue, the 1830 protective tariff, and subsidies awarded to the private market. The element of competitive bargain and selfish interests are also examined through Henry Clay's ideas on national use of the economy, and Calhoun's desire to protect southern power.
Title: Lecture 11
Summary: This lecture focuses on Calhoun's thoughts on the inherent tensions between individualism and the need for members of society to peacefully coexist. This includes a consideration of controlling the abuses of the government, voting and the contingency of power, and southern reactions to tariffs and revenue collected for internal improvements. Calhoun's thoughts on the concurrent majority principal are used as a backdrop to investigate power and the structuring of the federal government. The impact of a two chambered legislature, judicial review, and presidential veto power are all examined for their effect upon the committee system and special interest groups. Finally, the marginal effects of law are emphasized through a comparison of legal versus religious order, and the separation of church and state.
Title: Lecture 12
Summary: The origins and reasoning behind separation of church and state are investigated beginning with an examination of a 1786 Virginia statute on the topic. Ben Franklin's thoughts on prayer in school are considered, and the secular gains of organized religion are also highlighted. Hurst switches gears to contemporary as he discusses how the topic is complicated by the state aid to churches, the rights and privileges of incorporation, and the presence of conscientious objectors. This lecture explains early American society through the eyes of a French traveler. America's open society, hospitality, and immense richness are highlighted as the traveler marvels at the country's substantial economic activity. This growing market economy is perceived as a source of great vitality, and as a means of expressing individual private will. These observations are linked to a discussion of the 1798 sedition acts and the transition of political power after the election of 1800.
Title: Lecture 13
Summary: This discussion begins with an investigation of Henry Thoreau's ideas on the moral and political basis of legitimacy. This leads into an examination of the consent of the governed, the nature of legal action, moral responsibility within the legal order, and the effects of the voting process. Thoreau's thoughts on legitimacy of power and civil disobedience work to frame a discussion around public distrust. The mass poll tax, Vietnam War, and the war on Mexico are all identified as single issues that had the ability to prompt collective action. Hurst goes on to explain the protections that are afforded to dissenters within a constitutional legal order.
Title: Lecture 14
Summary: This lecture returns to the subject of separation between church and state with a particular focus upon the laws that confirm this decision. Hurst discusses the diversity of sectarian interests that exist, and the statutes of religious toleration and privacy, which protect these rights. He then goes on the emphasizes the church's insistence that compulsory, state-controlled education remain separation from religion, and how this is related to Locke's ideas on the freedom of private association for religious beliefs. Hurst continues to discuss the dynamics behind separation of church and state, and the amendments that called for the inclusion of prayer in school. He also points out the areas within the political framework where organized religion exists: the balanced ticket, racial justice and peace, and lobbying groups.
Title: Lecture 15
Summary: The concept of loyalty and peaceful transition of power is investigated through an examination of the 1798 sedition acts, and the changing of political power during the election of 1800. Hurst also discusses the rationale behind the Kentucky and Virginia Resolutions as he defines what it means to commit treason in the U.S. and the implications behind "evil intent" and "libel." He closes by discusses ways in which individuals can resist these persecutions and precedents the Marshall court set with judicial review. This lecture focuses on the various legal and political elements of American society that work to maintain social peace and stability. The 1830's era of Jacksonian democracy is examined for its egalitarian emphasis, and tied to the stead expansion of suffrage that the country experienced after 1800. Hurst also discusses the provisions for universities and hospitals that accompanied Wisconsin's admittance as a state in 1848, and the married woman's property act, the growing administration, and increased professional competence.
Title: Lecture 16
Summary: A discussion centering on individualism begins with an investigation of Thoreau's thoughts on individual values within the social order. Reliance upon law to protect individualism is juxtaposed to the steady of expansion of the state and its service roles. The case of Commonwealth v. Hunt is used to illustrate the relation between associated action and market behavior. This leads to a consideration of conspiracy and civil liberties, and the social importance of public education. This lecture serves as a continuation of the previous discussion on individualism as it further investigates the impersonal nature of the market. Marx's thoughts on the industrial revolution in urban England serve to highlight various aspects of America's northern market oriented society. Criticisms directed towards the market as a social institution is addressed, the influence of technology, and Horace Mann's opinions on the need for public education.
Title: Lecture 17
Summary: Alexis de Tocqueville is discussed in this lecture as Hurst investigates the emphasis American society has placed upon private/unofficial will and democratic liberties. The American farmer and the French peasant are compared for their divergent participation in public affairs. The relations between newly arriving immigrants and the ward boss or political machines are considered as the topic of equality in the legal and social structure is addressed. Attention is also paid to the perceived beneficence of technology, laissez-faire trends up to 1970, and general access to material interests. This discussion narrows in on liberty, equality, political involvement, and material interests. These items are expanded upon through an investigation of Henry Ford's democratization of the automobile in 1905, the cold war and McCarthyism in the 1950's, , and the corrupted meaning of "privacy" in a democratic society. Thoreau's thoughts on the dangers of material standards of living leads to the rights of special interests groups, a public policy linked to freedom of contract, and the possible tyranny of the majority.
Title: Lecture 18
Summary: This lecture opens with Tocqueville predictions from the 1830's on the future of American society. The political legal order that he observes allows for broad suffrage and an ever-increasing material standard of living. However, as Hurst points out, this growth also bred a great deal of political apathy. Through the decentralization of public policy and the administration, the government worked to encourage private association and voluntary efforts. Hurst explains how this practice began in the 1790's with the first philanthropic associations, expanded with settlement west of the Appalachians, and still exists in present-day small enterprises and the media. This lecture continues to examine the relation of the public to the government, and special attention is paid to accessibility to the courts and judicial power. This leads into a consideration of relation of law to private markets, and the legal processes that work to allocate scarce economic resources. Hurst investigates the Land Ordinance of 1785, the presence of special interests in this act, and the non-market measured values that played into its results.
Title: Lecture 19
Summary: The Ordinance of 1785 is further examined as Hurst emphasizes the precedents behind the government's decision to turn the land over for fee simple ownership. These roots in favor of a private market are weighed against policies prohibiting a free market between Indians and settlers, the Marshall Court's decision to first survey all land plots, and the local governments established by squatters. The use of law as a standardized instrument for trade is further examined through a discussion of claims court representatives, the development of administrative agencies, and the use of fiscal powers to subsidize land through the Homestead Acts of 1862. America's first Secretary of Treasury, Alexander Hamilton, serves as the focus of discussion as Hurst details the lasting effect his policies for governmental action had upon the country. His vigorous use of governmental force in order to keep the peace, and his efforts to facilitate economic growth with subsidizes and protective tariffs are thoroughly examined. Hurst also explains his reasons for wanting to intervene in the economy, the ideas he borrowed from Adam Smith on the three main duties of government, and his concept of the government's multiplier effect.
Title: Lecture 20
Summary: Hamilton's ideas for the fiscal powers of the government and the goal of multiplier returns are used as a base for explaining the risks that the United States took in order to see a financial payoff in the market. Hurst goes on to explain changes in the structure of the market resulted in imbalances in the factors of production, and how these problems were exacerbated by the activities of state immigration offices and the duties assigned to women and children. The discussion closes with a consideration of the importance of purchasing power and the ways in which growth was fueled through lending. This discussion picks up on the previous topic of lending, and begins with the principle of negotiability and the changing value of state securities. The wartime debt of states is also examined, and the creation of the first bank of the United States is explained through the role of the tenth amendment, the necessary and proper clause, and the need for the provisioning and supplying of money.
Title: Lecture 21
Summary: The precedents set by the establishment of the first national bank are examined, and the roles it played in national economic planning. Hurst ties these topics to the relationship between social peace and an increased material standard of living. He goes to examine how this creates tensions due to individual dependency on the health of the market, and the impersonality of market processes. This lecture begins with a comparison between Jefferson's support of a laissez-faire approach to the market, and his opposition to the Hamiltonian program and special interest lobbies. This debate is examined in relation to the international and domestic politics behind the Louisiana Purchase, and the government's ability to take action on behalf of national interests. The discussion ends with an examination of the Marshall court's use of the contract clause in Fletcher v. Kent, and the Dartmouth College Case.
Title: Lecture 22
Summary: The focus of this lecture is the creation of the second bank of the United States, and public policy surrounding vested property rights. Hurst describes the market as an agent for social change, and details the protections it provides for the fluidity of titles and transferability. These ideas are further explored through an introduction to the issues involved in the Charles River Bridge case.
Title: Lecture 23
Summary: This discussion expands upon the previous introduction to the Charles River Bridge case by exploring the four-stage development that lead to the creation of today's modern corporation. Hurst undertakes this task by describing the suspicion that prompted the creation of special statutory requirements in the 1820's, the move to compulsory general incorporation acts in the 1870's, and the modern incorporation acts created in the 1890?s. This description ends with a return to the Charles River Bridge case, and the use of the monopoly clause.
Title: Lecture 24
Summary: The focus of this lecture is the central bank in the U.S., and the role Nicholas Biddle played in shaping its success. Hurst opens the lecture by discussing the impact McCullough v. Maryland (1819) had upon the existence of the bank. He then details the precedents Biddle set for its bureaucratic structure, overall reliability, a national source of business credit, and increased lending intervention into the raw materials sector. The discussion closes with an examination of the 1830 report on the bank conducted by the Ways and Means Committee, and Andrew Jackson's resistance to the bank in 1832.
Title: Lecture 26
Summary: Andrew Carnegie's thoughts on production and organization and the accumulation of corporate capital are used to open the lecture. Hurst ties this into a consideration of the moral, economic, and political legitimacy of private decision-making. He goes on to discuss the law of tort and its impact upon private power. The concluding portions of the lecture focus on economic efficiency, the distribution of wealth, and the roles of stockholders and trusteeships. Andrew Carnegie continues to be the focus of this lecture as Hurst begins by discussing his philanthropic donations. The ideologies behind the Carnegie Corporation are examined, and this is tied to a broader discussion of large-scale production enterprises. Hurst continues by discussing Lord Brice and other currents of public policy in the late nineteenth century. This includes an examination of the nation's increased legal intervention, Roosevelt's use of increased federal intervention, and general community response to technological changes.
Title: Lecture 27
Summary: This lecture focuses on labor relations and the economic regulations that were implemented in response to arising problems. Hurst details the history and impacts of Lockner v. New York and the overall use of the contract clause in the U.S. before 1868. He expands upon this topic with the Dred Scott case and property concerns in the nineteenth century. He then discusses the passage of the fourteenth amendment in 1866, and the ways in which it was later utilized to benefit business entities. He closes with an examination of Bunn v. Illinois, and the dissent written by Justice Holmes on responses to social change. Hurst continues discussing economic regulatory legislation as he opens with a detailed look at Nebby v. New York. This case centering on price regulation in the milk industry leads into a discussion on William Graham Sumner. Hurst describes Sumner as the founding father of anthropology and economics, and examines his thoughts on private power with collective action. Hurst closes the lecture with a set of social rules for lawyers that can be derived from the course topics.
Title: Lecture 28
Summary: Hurst begins the lecture with an examination of the Treatise of Henry George and the thoughts of William Graham Sumner. He then goes on to discuss some of the costs and benefits of legal initiative, and the facilitative and regulatory aspects of law. He concludes with an analysis of the physical limits on space and human energy, and the public health institutions and land policies that combat these issues.
Title: Lecture 29
Summary: This lecture focuses on Sumner's views on the legal and social order. This includes a consideration of individual private will, elements of the feudal society, and the emphasis placed on relations in the twentieth century legal order. Hurst moves into a discussion of specialization of contract law, and inequalities of bargaining power. The lecture closes with an introduction to Henry George and his thoughts on social change. This lecture continues to expand upon the theories of Henry George. The overall maintenance of the legal order is discussed, and linked to redistribution of wealth and taxation. Hurst emphasizes America's increased dependence on income in the twentieth century, and the widespread acceptance and legitimacy surrounding taxation.
Title: Lecture 30
Summary: Henry George continues to be discussed as Hurst focuses on deliberate, collective action. He then moves on to highlight the economic values that can be found within communities based on the division of labor and technology. This creates increased material expectations, and a frustration of expectations for some groups. The overall impact of the business cycle on the general quality of life is linked to a discussion on the depression of the 1930's and the New Deal. Hurst closes by highlighting the general twentieth century public policies, and a discussion of his book on nineteenth century expectations. This discussion revolves around topics that Hurst has included in his text. He begins by highlighting the key points of the Hudson Valley River Riots of the 1830's, and social class conflicts at the end of the nineteenth century. He discusses the market-oriented middle class that existed at this time, and the primary focus of trade. This is tied to a critique of the first chapter of his book, an explanation of the meaning of consensus history, and the development of the money system.
Title: Lecture 31
Summary: This lecture focuses on the topic of the relation of law to society. Hurst investigates the presence of law in the private market by revisiting the topic of Nicholas Biddle and the second Bank of the United States. This leads into the creation of the Federal Reserve System in 1913, and non-market justifications for governmental intervention. The case of McCullough v. Maryland, the Farmer's Alliance of the 1880's, and the Agriculture Adjustment act are all used as examples of increased social regulation in the United States. Hurst continues to discuss the increases in social regulation as he moves into the topic of taxation. He emphasizes governmental use of funds for subsidizing intervention, and the government's ability to enter the market. He then shifts the focus to the specific changes that took place at the state and federal level to increase intervention.
Title: Lecture 32
Summary: This lecture investigates the structural impact of public policy and legal intervention in society. Hurst begins by emphasizing the increased use of public policy in state governments during the twentieth century. He goes on to examine the priorities, which were set for the use of capital assets, and compares this to the lack of planning in the nineteenth century. He finishes by discussing the trends of scientific knowledge that began during World War II, and role private societies played in stimulating research. Hurst opens this discussion with an examination of the treatment of natural resources in state economic planning. He links this to federal investment in science and technology, and compares twentieth century trends with the market driven advances made in the nineteenth century. He discusses the agricultural revolution of the Midwest, and the destruction of lumber lands in Wisconsin. He closes by investigating the pressures law has exerted on scientific and technological innovation, and the bias exhibited towards technology.
Title: Lecture 33
Summary: Hurst discusses the government's involvement in science and technology. Government, not the private market, in the form of public collective action, should cure the preventable evils of society. Four factors influence the way law interacts with science and technology: the public's demand for immediate results, civil liberties for science, social cost accounting, and technology's chaotic impact on people. Hurst opens this lecture with the idea that the law should effectively exercise the monopoly of force in society. Technology weakens government's monopoly of force, because it creates an egalitarian society. Additionally, capital allows businesses to bypass the problems of immediate results (see Tape 33, Side 1) and look forward to the future when investing in science and technology. This leads into a discussion about the balance of power in society.
Title: Lecture 34
Summary: Hurst discusses the impact interest groups have on society. Through this discussion, Hurst asks if technology is free and argues no. This reveals a re-shifting of the balance of power in society. Hurst ends with a discussion about the American desire to merge legal results with private collective efforts, which resulted in an increased need for specialized regulation in fields. Hurst opens this lecture with his analysis of Christopher Stone's primary thesis, which criticizes the adequacy of the private bargaining market as an institution to control economic concerns of society. Hurst discusses a number of causes for the inadequacy of private markets. The inadequacies include the private market's concern for the immediate market (short-term focus), a market bias for change, an immediate focus on interests of immediate actors, and calculus worked by money.
Title: Lecture 35
Summary: Hurst begins with a discussion of the balance of power and the concentration of power from early American thought to the present. Again, Hurst views Stone's essay as a critique of the adequacy of market processes. As a result, legal agencies need the resources to act when the market fails to do so. Hurst discusses the legislature and executive agencies' role in acting as a check against the market, highlighting agencies' need for expertise and specialization as technical capacity grows. Hurst continues his discussion concerning the necessity for legal specialization in a highly technical market. Regulators and legal interventionists had to begin regulation with no knowledge of the field and built-up a highly technical regulatory knowledge. This increased specialization narrowed the job market for employees involved in the administrative agencies. Therefore, conflicts of interest developed as regulators and those regulated fought over the narrow number of qualified employees. Concurrently, society turned back to litigation to solve balance of power problems after their initial enchantment with administrative agencies.
Title: Lecture 36
Summary: Hurst begins this discussion using Christopher Stone's essay to reveal an increased criticism of the market as an institution of allocating resources. He discusses the history and recent development of class action suits to combat broad social problems. Closing out the tape, Hurst begins a review of anti-trust and corporation law. There are five stages in the development of public policy toward the use of corporation law in business. The first stage is very high and jealous public policy suspicion of the corporate entity. Hurst continues his discussion of the five stages in the development of public policy toward corporation law in business. The second stage was the General Incorporation Act, which recognized the corporate firm may be available for business operation. Stage three involved states amending their constitutions to create a standardized method to award special charters. The fourth stage incorporated holding companies. Legislatures moved away from built in regulation and awarded broad legal discretion to management. The fifth stage required management to operate within a legal framework (i.e. FDA, SEC).
Title: Lecture 37
Summary: Hurst continues his discussion of anti-trust law looking at how legislatures and business used public policy to overcome asset scarcity by ensuring investors about of their investment. In 19th century America, few active investors knew what was going on within the corporation, because managers ran the enterprise. Judge-made law recognized that the stockholder did not have the right to run the business. In the 20th century, the basic legal policy changed as corporation law paid more attention to management. The law began to protect investors' returns, and focused on the oversight of the few managers. Between 1790 and 1890 the federal government had a limited impact on the national economy (an Adam Smith notion of government role) as there was no tradition of legal apparatus in corporate action (U.S. inherited English Law tradition toward corporations). By 1890, Congress reacted to the outgrowth of corporations and passed the Sherman Act. The act proved inadequate and looked dead with the U.S. Supreme Court's decision in E.C. Knight. However, favorable Court rulings, T. Roosevelt's revival of the Sherman Act, and Wilson's addition of the Clayton Act revived government's role in regulation.
Title: Lecture 38
Summary: By 1890, the market appeared to become self-destructive. As a result, the government had to intervene to keep the market in existence. The first response assumed threats as unusual and specialized, resulting in rulings such as Munn v. Illinois. The second response (i.e. Sherman Anti-Trust, Clayton) represented a radical re-conception of threats against the competitive system. This re-conception emphasized order in the market, not maintenance of good markets. Legislation during the New Deal increased the ability of the anti-trust division of the Department of Justice. Yet, once the Department of Justice had the capability to prosecute anti-trust violations, no anti-trust movement existed. Hurst discusses three legacies of anti-trust legislation. First, the institutional structure of the legal order affirms the government's responsibility to maintain the competitiveness of the market. Second, positive government action to maintain the competitiveness in the market is the responsibility of the national government. Third, there is an institutional legacy to delegate to the executive and judicial branch to put substantive content into anti-trust law. Hurst then answers the question: what is the substance of anti-trust law? He answers the question with three points: factual and legal impact on the market, market competitiveness, and the illegality of overt price-fixing.
Title: Lecture 39
Summary: Anti-trust law assumes three notions. First, monopoly is an uncommon phenomenon in the market. Second, oligopolies are the dominate structure in the market; that is, government and society views oligopolies as the market norm and the anti-trust division will act only if there is appearance of conscious parallelism. Third, overt price-fixing is an anti-trust violation. The rest of the discussion centers on economic efficiency and bigness. This short discussion looks at the effects of government regulation and technology on small and big business. Ultimately, Hurst asks if society should value smallness.
Title: Lecture 40
Summary: Hurst discusses the grounds of social legitimacy of the decision-making power of a small number of businesses. Top managers controlled their subordinates by guarding knowledge, and stockholders supposedly acted as a check on management. Yet, the managers' control of knowledge worked to limit the ability of stockholders to oversee managers. The recognition of this problem resulted in legislation providing stockholders with more access to information and increased opportunities to check managers. Hurst continues his discussion of the ability of stockholders to check management?s power. Hurst looks at the argument that society could trust corporation managers because of the structural characteristics of the enterprise. The size of the project requires technical skill and knowledge. The corporation will prevent irresponsible people from entering management, because they may jeopardize the working of the corporation. Additionally, corporations should not have any great body of decision-makers who do not have any check on their authority (constitutionalism in business). Finally, Hurst discusses the deepened commitment to anti-trust without defining goals of the legislation.