Recovered manuscripts from the ‘father of modern American legal history’ reveal James Willard Hurst to be a ‘powerful chronicler of the rise of the modern American regulatory state.’
James Willard Hurst is generally acknowledged as the “father of modern American legal history.” A recently recovered manuscript captures Hurst, who joined the faculty of University of Wisconsin Law School in 1937 and was active for 44 years, at one of the earliest stages in his intellectual career.
“I first learned about Hurst’s manuscript on technology and the law from a footnote in Professor Sarah Seo’s book, ‘Policing the Open Road,’” said BJ Ard, UW Law assistant professor. “After Seo gave a talk in Lubar in Fall 2019, I realized her perspective would be an invaluable addition to the discussion of automobiles in my technology law course. Even better, for purposes of adding materials to a crowded syllabus, was my discovery of a brief excerpt Seo had published online in the Boston Review.”
In that excerpt, Ard saw that Seo had referenced and quoted from a piece written by Hurst in 1949 identifying “119 derivative effects of the auto upon the law.”
“I was intrigued,” said Ard. “Professor Hurst was a luminary of the Law School, and the broad view of the relationship between law and technology suggested by his list was something that I wanted to explore further given my interests as a technology law scholar.”
As he searched for the actual piece by Hurst, however, the only reference he found was an excerpt in an article Professor William Novak published over 20 years ago. (Novak is currently the Charles F. and Edith J. Clyne professor of law at the University of Michigan Law School.)
“I enlisted the Law Library to help me search all the unpublished Hurst materials archived on campus, and we couldn’t find any sign of it,” Ard continued.
Coming up empty, he decided to contact Novak directly.
“I discovered he had the only copy of the manuscript, and he shared the remarkable story of how he found and preserved it,” Ard said.
Novak first came into possession of the lost manuscript during the 1990-91 academic year while serving as a legal history fellow at the Institute for Legal Studies at the Law School.
“I was in fairly regular contact with Hurst in those years,” said Novak. “Around that time, as he turned 80, Hurst made the decision to vacate his Law School office, where he had amassed a lifetime collection of books, articles, papers and correspondence. In emptying the office, Hurst invited several colleagues to take whatever they might find valuable or useful. As a doctoral student, I was the last to receive such an invitation, and by that time, most of Hurst’s law books were substantially picked over.” By the time Novak arrived at Hurst’s office, a plastic dumpster was in the hall filled with paper and materials.
“I called Professor Hurst at home rather frantically as so much of value seemed to still remain in the office—including signed photographs of Supreme Court Justices from Hurst’s clerkship year—but he was characteristically stoic about the whole affair and simply reiterated his wish that his colleagues and students should take what they might find useful,” Novak continued.
As he cleared the remaining bookshelves, Novak caught sight of a stack of faded manila envelopes wedged onto a bottom corner shelf.
“The contents of the envelopes and folders were strangely random—classroom lecture notes, hand-cut file-card notes, stray correspondence and old newspaper clippings,” he explained. “But two folders especially captured my attention—one containing what seemed to be a wholly complete and carefully hand-edited manuscript chapter: ‘Chapter Eight: Technology and the Law: The Automobile’ (73 pages and notes), while the other contained a similarly entitled manuscript: ‘Chapter Eleven: Law and the Balance of Power: The Federal Anti-Trust Laws’ (220 pages and bibliography).”
When Novak discovered the files, UW Law had just spent almost two years studying and discussing Hurst’s work and legacy in the context of an 80th birthday celebration.
“We had assembled a comprehensive bibliography, and Hurst’s own books occupied two displays in the lobby of the law building,” said Novak. “But nowhere did we find or discuss Hurst’s important scholarly contributions on either the automobile or antitrust.”
Novak’s original goal was simply rescuing the documents, and he largely forgot about them for the next decade or so as he relocated to the University of Chicago.
“While many commentators still view Hurst primarily as a 19th century legal historian attending to the relationship of law and economic freedom, his earliest writings—as this manuscript shows—reveal him to be an equally powerful chronicler of the rise of the modern American regulatory state.”
“But when the Law and History Review convened a symposium on Hurst’s work in 2000, I dug out the manuscripts in search of some fresh perspective,” he said. “Simultaneously, Daniel Ernst’s contribution to the same symposium included a characteristic deep-dive into the Felix Frankfurter Papers at the Library of Congress, precipitating a long and constructive dialogue about the provenance of Hurst’s unpublished manuscripts that later fed directly into the collaboration with BJ.”
Ard and Novak resolved to get the manuscript published, and with the permission of Hurst’s heirs and the assistance of John Lavanga (UW Law Class of 2023), they published a lightly edited version in the Wisconsin Law Review along with a foreword putting it in context. They also delivered the original manuscript to the UW Law Library, whose staff made the original manuscript available online.
Beyond the literal finding of this “lost manuscript,” the piece presents a puzzle, said Ard.
“Although it was never published, its title was ‘Chapter Eight: Technology and the Law: The Automobile,’” he explained. “It begs several questions: Chapter Eight to what? When was this written?”
The first and only clue comes from a letter Hurst had written to Supreme Court Justice Felix Frankfurter in 1949.
“From those letters, we learn that this Chapter Eight was intended as a continuation of Hurst’s book, ‘The Growth of American Law: The Law Makers,’ and that he seemed to have already typed this draft by the time he wrote the letter,” Ard explained.
In the foreword to the publication of the manuscript, Ard and Novak further explain Hurst’s plans for the manuscripts wherein chapters on automobiles and antitrust were expected to be the centerpiece of a whole separate sequel volume to “The Growth of American Law” on “Law and the Balance of Power.” But as is sometimes the way with academic projects, Hurst’s subsequent research agenda took him in different productive directions.
Beyond legal history per se, this manuscript is an exciting addition to law and technology scholarship, said Ard.
“Hurst anticipated several arguments and theories that still loom large today,” he said. “He discusses the interplay of technology and norms as extra-legal regulators of behavior; he also discusses what’s now known as the ‘pacing problem,’ or the difficulties that law and legal institutions may face in regulating new technologies.”
Hurst was “truly ahead of the curve in using this case study on the impact of the automobile not simply to make sense of the law’s response to the automobile, but to theorize law’s relationship to technological change as a larger phenomenon,” Ard added.
“In the chapter, Hurst engages in comparative analysis of the law’s response to the automobile, on the one hand, and airplanes and radio, on the other, to expose the dynamics at play in the regulation of technology,” he said. “Countless law review articles over the past several decades trace the impact of specific technologies on the law, but very few engage in this sort of cross-technology analysis.”
In Hurst’s automobile manuscript, then, we get one of his earliest accounts of the dramatic historical turn from courts and common law to legislatures and modern administrative regulation, said Novak.
“Hurst called it a ‘watershed’ and a ‘turning point,’ expanding legal regulation beyond judges,” he continued. “While many commentators still view Hurst primarily as a 19th century legal historian attending to the relationship of law and economic freedom, his earliest writings—as this manuscript shows—reveal him to be an equally powerful chronicler of the rise of the modern American regulatory state.”