Series IV: Publications by Hurst

Contents of this series include citations and text copies all known scholarship published by Hurst.  This includes books, articles, contributions to edited works, and books reviews produced by Hurst during his career.

Scholarship Review:

Hurst at bookshelf

James Willard Hurst published over three dozen books and articles plus numerous book reviews. Certainly, his most widely-read book is Law and the Conditions of Freedom in the Nineteenth-Century United States (1956). This slim volume consists of three essays based upon lectures Hurst gave at Northwestern University School of Law in 1955. In the first essay, Hurst develops his famous "release of energy" thesis. Here he argues that an organizing principle of the nineteenth-century legal and social order in the United States was that the "legal order should protect and promote the release of individual creative energy. . . " (p. 6) A pro-development consensus undergirded nineteenth-century lawmaking. This is not to say, however, that Hurst believed that American law set and achieved instrumental goals. In the third essay, Hurst elaborates on an argument he develops elsewhere that social change was not the result of deliberate, purposeful action but was allowed to take place through the "drift" and "default" of public policy.

Although it has not attained the canonical status of his earlier short book of lectures, Willard Hurst's 1964 masterwork Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836-1915 is the centerpiece of his writing. Hurst's first three books -- The Growth of American Law: The Law Makers (1950) and Law and Social Process in United States History (1960) as well as Law and the Conditions of Freedom -- were preliminary studies in which Hurst worked out the theoretical approach that he applied to the lumber industry study.  He fixed on the topic shortly after arriving at Wisconsin in 1937 when he heard a talk by Aldo Leopold. Inspired by Leopold's focus on the inter-relationship between the facts of botany and the facts of wildlife and human beings and what they did with the earth, Hurst's work transcended the recognized boundaries of legal scholarship by drawing upon the inter-relation between different fields of inquiry, to discover insights and truths about the law. As a consequence, despite its seemingly parochial subject matter, Law and Economic Growth is a source of general knowledge about American history and culture and an inspiration to scholars of many different disciplines. In subsequent books, Hurst refined and elaborated the insights that he developed in the course of his work on the timber industry.

Taken as a whole, Hurst's scholarship displays a number of distinctive characteristics: multifaceted empiricism, pragmatism, and a strong moral stance. For sources, he mined published documents of legal agencies -- court reporters, legislative journals, session laws, and reports of the executive branch -- looking for facts, not for theory and doctrine. Following Karl Llewellyn, he focused on the functioning of rather than the formal structure of lawmaking agencies. Hurst generalized from his empirical studies and made highly abstract conclusions about ideas and culture, but he always remained rooted in the real-world experiences of everyday men and women. He also sought to draw from this everyday experience, truths about law in action and about American culture that would enable people to increase their ability to control their own affairs.

Hurst's work has also been extraordinarily generative. The Growth of American Law: The Law Makers became a starting point for later work addressing the role of lawyers in society (Munger 113). Dealing with Statutes (1982) was a synthesis of his ideas about statutory interpretation and "was one of the works directly contributing to the renaissance of statutory interpretation writing in the 1980s" (Eskridge 1181). In the notes to Law and Economic Growth, Hurst identified an enormous range of topics that remained open for further study. And, the scholarly tradition that Willard Hurst began and promoted, both in legal history and in law-and-society studies generally, remains influential to this day.   

(Scholarship review prepared by the Institute of Legal Studies, University of Wisconsin Law School)

Publications by Hurst:

An interactive database containing a bibliography of works by Hurst is available via RefShare.


Contributions to Books

Book Reviews

  • Abraham D. Sofaer's War, Foreign Affairs and Constitutional Power: The Origins, 6 Reviews in American History 63-67 (1978) (book review).
  • Alexander M. Bickel & Benno C. Schmidt, Jr's The Judiciary and Responsible Government, 1910-1921, 1984 Wisconsin Law Review 1671-1678 (1984) (book review).
  • Bruce R. Trimble's Chief Justice Waite, 51 Harvard Law Review 1306-1310 (1938) (book review).
  • Burke Shartel's Our Legal System and How It Operates, 4 Journal of Legal Education 347-349 (1952) (book review).
  • Charles Fairman's History of the Supreme Court of the United States: Reconstruction and Reunion, 1864-1888, Part One, 58 A.B.A. Journal 955-957 (1972) (book review).
  • Charles Fairman's Mr. Justice Miller and the Supreme Court 1862-1890, 40 Columbia Law Review 564-571 (1940) (book review).
  • Francis P. Weisenburger's The Life of John McLean, 51 Harvard Law Review 1306-1310 (1938) (book review).
  • Francis S. Philbrick's Laws of Illinois Territory, 1809-1818, 64 Harvard Law Review 1228-1230 (1951) (book review).
  • Guido Calabresi's A Common Law for the Age of Statutes, 67 Minnesota Law Review 536-544 (1982) (book review).
  • H.L. Pohlman's Justice Oliver Wendell Holmes and Utilitarian Jurisprudence, 92 American Historical Review 218 (1987) (book review).
  • Hans A. Linde & George Bunn's Legislative and Administrative Processes, 28 Journal of Legal Education 597-601 (1977) (book review).
  • Henry Rottschaefer's Handbook of American Constitutional Law, 53 Harvard Law Review 350-352. (1939) (book review).
  • Howard Jay Graham's Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the ‘Conspiracy Theory,’ and American Constitutionalism, 56 Journal of American History 146-148 (1969) (book review).
  • Howard Jay Graham's The ‘Conspiracy Theory’ of the Fourteenth Amendment, 52 Harvard Law Review 851-860 (1939) (book review).
  • Jamil Zainaldin's Law in Antebellum Society: Legal Change and Economic Expansion, 34 Journal of Legal Education 137-139 (1984) (book review).
  • John P. Frank's Justice Daniel, Dissenting: A Biography of Peter V. Daniel, 1784-1860, 12 U.C.L.A. Law Review 1481-1413 (1965) (book review).
  • John Phillip Reid's Chief Justice: The Judicial World of Charles Doe, 115 University of Pennsylvania Law Review 1020-1022 (1967) (book review).
  • Lawrence M. Friedman's Total Justice, 4 Law and History Review 476-478 (1986) (book review).
  • Louis A. Warsoff's Equality and the Law, 52 Harvard Law Review 851-860 (1939) (book review).
  • Louis B. Boudin's Truth and Fiction About the Fourteenth Amendment, 52 Harvard Law Review 851-860 (1939) (book review).
  • Mark DeWolfe Howe's Justice Oliver Wendell Holmes: The Proving Years, 1870-1882, 77 Harvard Law Review 382-388 (1963) (book review).
  • Mark DeWolfe Howe's Justice Oliver Wendell Holmes: The Shaping Years, 1841-1870, 9 Journal of Legal Education 566-568 (1957) (book review).
  • Mark DeWolfe Howe's Readings in American Legal History, 63 Harvard Law Review 553-555 (1950) (book review).
  • Morton J. Horwitz's The Transformation of American Law, 1780-1860, 21 American Journal of Legal History 175-179 (1977) (book review).
  • Morton Keller's The Life Insurance Enterprise, 1885-1910: A Study in the Limits of Corporate Power, 31 University of Chicago Law Review 207-209 (1963) (book review).
  • Oliver Wendell Holmes' The Common Law, 77 Harvard Law Review 382-388 (1963) (book review).
  • Paul A. Freund's On Understanding the Supreme Court, 11 Federal Bar Journal 107-109 (1950) (book review).
  • Paul Wallace Gates' The Wisconsin Pine Lands of Cornell University, 19 Economic History Review 227-228 (1966) (book review).
  • Pendleton Herring's The Politics of Democracy, 54 Harvard Law Review 714-717 (1941) (book review).
  • Peter H. Irons' The New Deal Lawyers, 11 Reviews in American History 112-117 (1983) (book review).
  • Raoul Berger's Review of Impeachment: The Constitutional Problems, 68 Northwestern University Law Review 643-650 (1973) (book review).
  • Robert Samuel Summers' Instrumentalism and American Legal Theory, 82 Michigan Law Review 852-855 (1984) (book review).
  • Willard King's Lincoln’s Manager, David Davis, 59 University of Chicago Law School Record (1960) (book review).
  • William E. Nelson's The Roots of American Bureaucracy, 1830-1900, 58 New York University Law Review 457-463 (1983) (book review).


See also Series II, Course Texts.

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