UNIVERSITY OF WISCONSIN-MADISON ARCHIVES
ORAL HISTORY PROGRAM

Interview #197
HURST, J. WILLARD

HURST, J. WILLARD (1910-1997)
Professor of Law
At UW: 1937-1980

Interviewed: 	1981 (2 sessions)
Interviewer: 	Laura Smail
Index by: 	Stephen A. Pierce
Length: 	3 hours, 19 minutes

Abstract: In his two 1981 interviews with Laura Smail, J. Willard Hurst discusses his education, research, and involvement in the Law School at the University of Wisconsin-Madison. Hurst emphasized the influence of Justices Brandeis and Frankfurter and Lloyd Garrison in his development as a legal historian and social scientist. He also chronicled the growth and changes in the Law School through several of its deans and the University more generally over the span of his over 40 years of teaching. Hurst spoke frankly about his influence in the creation of legal history as a field and about numerous colleagues and University officials.  This interview was conducted for inclusion into the UW-Madison Oral History Program.

Key Words: Rockford IL; Williams College; Harvard Law School; the Depression; Harvard Law Review; Felix Frankfurter; Louis Brandeis; University of Wisconsin-Madison Law School; Lloyd Garrison; legal history; anti-Semitism; Talcott Parsons; social process; Bill Sewell; Ford Foundation; social science; Edwin Broun Fred; Robben Fleming; Jake Beuscher; Jack Ritchie; George Young; Fred Harvey Harrington; George Bunn; Spence Kimball; United Faculty; 1960s protests.

First Interview Session (April 15, 1981): Digital File

Time	Keywords
00:00:00	Start of Interview/Interviewer’s Introduction [begin tape 1; side 1]

00:00:15	Question: Talk about growing up in Rockford. Answer: Hurst talked about his father’s occupation as a worker in a piano factory and later in motion pictures; and his mother’s occupation as a homemaker.

00:01:21	[no question] Hurst went on to discuss his romantic idea of going to college in New England, which led him to attend Williams College, which he said taught him a respect for learning from the best faculty. He also described student politics in a school dominated by Northeastern elites.

00:03:47	[no question] He talked about how as an economics/history major, he’d gotten interested in studying governmental processes, and so went on to Harvard Law School in 1932, in the depth of the Depression, when Harvard took anyone who could pay tuition. He said he intended to become a lawyer.

00:05:43	[no question] He reminisced about the cold, tense, and impersonal atmosphere of Harvard Law, which he saw as a good test for him. He felt grateful to have succeeded enough to get onto Harvard Law Review in his second year, which kept his interest in law school alive in later years of his studies. He discussed how students were chosen for law reviews purely on grade rank, which had changed during the 1960s at UW and elsewhere due to anti-elitism attitudes among students during that decade.

00:09:35	[no question] Hurst talked about his activities on the Harvard Law Review, which involved intensive work that amounted to “the best seminar any law school offers” because it taught one to work independently, survive rigorous editing standards and live under a high-pressure environment. He described the process of moving through the ranks from a note editor to a writer to an editor.

00:13:40	[no question] He explained how he got to know Felix Frankfurter through his work at Harvard Law Review, which led to his engagement as Frankfurter’s research assistant for a year after graduation and passing the IL bar exam and “making the rounds” of big Chicago law offices as if he were looking for a job. Depression conditions made finding a job untenable that year.

00:16:25	[no question] He described his work during 1935-36 with Frankfurter, researching the history of the Commerce Clause, and why he chose to audit a course with Frankfurter rather than take the class for credit, because a graduate year in law at Harvard was of little value to him. He also described his work with Frankfurter as a kind of “one-man seminar” as they discussed his work on the Commerce Clause.

00:19:44	[no question] In Sept 1936, then, as expected Hurst went to work as a clerk for Justice Louis Brandeis. He described how Brandeis’ apartment also became Hurst’s work space because Brandeis disliked the architectural style of the new Supreme Court and worked mostly from home. He explained his role preparing Brandeis’ opinions and going through writs of certiorari—and he quipped about an instance when he thought a case was important but Brandeis had a different view of the role of the Court. 

00:24:06	[no question] Continuing to describe his work for Brandeis, he detailed how he went about writing, researching, annotating and then debating the opinions. He explained how this rigorous but encouraging environment was good training in rigorous precision with the documentary evidence of cases. He told an anecdote about Dean Acheson’s experience as Brandeis’ clerk to emphasize this stern environment.

00:27:47	[no question] Hurst recalled the excitement of that year, during which Roosevelt tried to pass his court-packing bill, of which Brandeis deeply disapproved.

00:29:18	[no question; end side 1; begin side 2] He explained how he came to UW-Madison, particularly through his connection with Brandeis’ daughter who was teaching there. He remembered being impressed by Lloyd Garrison, the dean of the Law School, both personally and in his vision for law education.

00:31:03	Question: Did you know you wanted to teach? Answer: He explained that he knew he didn’t want to do conventional law school education, but didn’t know precisely what he meant by this. He thought his background in economics and history was part of it, and talked about some steps Garrison had taken to integrating social sciences (sociology/economics) into legal education. 

00:33:40	[no question] He discussed his “assignment” when coming to UW in 1937—to develop an introductory course on methods of legal analysis, which was a ground-breaking innovation at the time. This would give students a broader sense of the legal process rather than just the law itself, integrating how policy grows into law, etc. in a historical sense. 

00:35:44	[no question] Continuing to talk about his introductory legal methods course, he detailed why he and Garrison used workers’ compensation legislation as an example to teach through these processes. This allowed them to teach a) how the law stood, which was mostly common law, then b) how it grew into a policy project of the WI legislature toward factory safety, and then c) how it became an administrative process with the 1911 Workers’ Compensation Act. It also allowed them to weave concrete historical examples with jurisprudential writing that could be abstract.

00:40:25	[no question] Hurst opined that as long as he and Garrison taught the course, it was a great success because they brought enthusiasm for history, but some later colleagues lacked enthusiasm for it. He also talked about how some students couldn’t appreciate the course in their first year of Law School, using Wm. Herbert Page’s quip, “Everything ought to be taught last.”
 
00:43:32	[no question] After this particular course, he decided to make legal history his primary focus academically—a kind of sociological jurisprudence.

00:44:37	Question: How did Garrison get here? Answer: Hurst only knew that president Glenn Frank had brought him in from a successful NY law practice, and immediately found enthusiastic colleagues at UW, though the WI Bar (and hence the Regents) distrusted him as a radical due to his early involvement with collective bargaining. This showed the conservatism of the time in the 1930s.

00:48:44	Question: And his effort to incorporate the WI Bar? Answer: Hurst explained how Garrison became enthusiastic about generating more internal discipline to the Bar and more policy leadership by it, in order to properly serve clients. He conceived of this by making the Bar an involuntary, rather than voluntary, organization. Hurst suspected that Garrison would have been disappointed with the integrated Bar.

00:51:16	[no question] He evaluated Garrison as a “the best law dean...in the law deaning business” during his career for 2 reasons: a) that the Law School should be a place of great ideas driven by research-minded faculty; and b) that his instinctive approach to life was positive, active, and selfless. He compared this approach to other deans (including Levi, Strong, and Auerbach) and schools (including Yale and Chicago), and discussed how faculty responded to him in various ways. He also opined that more direction in the field of law had come from faculty rather than from deans.

00:58:46	[no question; end tape 1/begin tape 2] After prompting by Smail, Hurst averred that Garrison was not an anti-Semite, but often had to grapple with anti-Semitic attitudes among his colleagues, especially in NYC. While Garrison hadn’t brought Nate Feinsinger to UW, he was very fond of him.

01:02:26	Question: Talk about the relationship with LaFollette. Answer: He said that Garrison fell out with Phil LaFollette over his formation of the National Progressive Party.

01:03:31	Question: What about his views of WWII? Answer: Hurst recalled that Garrison opposed the US’ involvement in both World Wars. 

01:05:03	Follow up: And his departure? Answer: He contextualized that Garrison was essentially a New Yorker, though he fit well in at UW; so his perceived political radicalism bred distrust on the Regents and in the legislature and forced him to decide not coming back to UW after wartime service in Washington.

01:08:44	[no question] He noted that his wartime service at the Board of Economic Warfare taught him a great deal about bureaucracy and political process. When it was discovered that he had historical interests, he was also pressed into service studying policy history for the Bureau of Naval Personnel. This involved doing interview research, which was a different experience for him.

01:11:38	[no question] Returning to UW in 1946 (having married in 1941), he said, he obtained at Rockefeller/SSRC funded “demobilization award” which gave him a half-time research schedule. He discussed how he came to the conclusion that serious researchers had to “ruthlessly” look out for resources for themselves for research, and then protect that research time against university demands.

01:15:17	Question: Had you considered other schools? Answer: He’d been offered a position at Columbia, but didn’t want to live in NYC and came back to an exciting educational environment because of a highly motivated ex-GI student body.

01:16:34	[no question] He discussed developing his research program on American legal economic history, which had little precedence in the secondary literature—thus he knew he needed to permanently get a half teaching/half research appointment. He saw merit in regular contact with law students, but explained the dangers of part-time research leave. So, he pursued Rockefeller at the end of his SSRC grant to give him an 8-year half-time research grant for himself and later a research fellow each year. Many of these research fellows had produced significant monographs.

01:22:44	[no question] He mused about the fact that such a high proportion of American legal economic history had been written about WI, which was a comment on even the current interest at Harvard and Yale Law Schools in legal economic history.

01:24:43	Question: How do you schedule a research program? Answer: He noted that he’d mixed teaching and writing from day to day. He chronicled how he used his first two years studying the historical growth of the 3 major branches of American government. He discussed the painful process of writing pieces of his first manuscript on the history of American law and lawmakers, and especially feedback he’d gotten from publishers about his writing style. This led him to avail himself of Rudolph Flesch’s The Art of Plain Talk, after which he rewrote the manuscript, which was accepted by another publisher.

01:31:17	Question: You were just summarizing? Answer: He disagreed, observing that he was inventing the field of legal history organized around social structure and process, rather than just a series of legal opinions. This included studying the history of lawyers and the Bar, which no one had done.

01:33:50	[no question] After his first manuscript, he felt competent to tackle his main objective, the relationship of law to the development of the American economy—in effect to extend what he and Garrison had tried to do in their 1937 course, toggling between a concrete history of a WI industry (lumber) that had gone through an entire life cycle and larger theoretical work about law and economy. 

01:36:50	[no question] While he was working on these two projects, he continued, he began getting lecture appointments with publication opportunities. He discussed several examples of these publications, some of which were quite successful, which related sociological, historical, and economic processes to legal history.

01:40:59	[no question] He related that in the meanwhile, by the mid-1960s he finished his large manuscript on the lumber industry, which he saw as a model of relating law to the growth and conduct of business. He wondered if any press would take the manuscript, but Harvard Press published it under its Belknap imprint. He regretted that it was out of print, since it was ahead of its time and was his favorite work.

01:44:02	Question: You did all the research yourself? Answer: Pretty much, though he reviewed the research fellows he’d assisted in turning out their own manuscripts, which helped him learn a good bit. But he traced the continuities of his work going back to his and Garrison’s teaching, some of which he’d published later on.

01:46:36	Question: Did you find writing difficult? Answer: He said it was difficult when he did it—he worked slowly and carefully, not writing many drafts—but he enjoyed it. He talked about note-taking and indexing his notes. Follow up: What’s the hardest part of writing? Answer: He supposed conceptualizing was the hardest, but also most enjoyable part. He viewed his job as one of mapping a relatively unknown field, which allowed later scholars to debate over his conceptualizations. Connected to this, Hurst related how the great sociologist Talcott Parsons became interested in his work, because he connected legal history to social process

01:52:11	Follow up: So you didn’t really have anyone to bounce ideas off?  Answer: No, in some ways it was lonesome, which was why he was eager to take lecture invitations —it was kind of a missionary zeal. Follow up: Why is that necessary? Answer: He supposed it was because American pragmatism undervalued history with condescension, and law was also highly pragmatic. Follow up: But you’d think the history of law would have practical use. Answer: Potentially yes; but he didn’t think it had been realized.

01:55:26	Follow up: Did you find interest from historians? Answer: Not very much until recently. Merle Curti was the closest approach early on and Stan Kutler and Stan Katz later became interested in it. Follow up: Did you ever have any doubts when you started? Answer: No; he was always convinced of the importance of understanding the past for policy reasons. Follow up: Who were interested on the law faculty? Answer: Not very many, even today.

01:58:05	End of First Interview Session

Second Interview Session (April 20, 1981): Digital File

Time	Keywords
00:00:00	Start of Interview

00:00:00	[no question] Hurst, upon reviewing the index from the first interview session, made some further comments about Garrison’s view of the World Wars, which he characterized as skeptical rather than isolationist.

00:00:53	Question: Talk about the formation of the social science committee. Answer: Hurst remembered Bill Sewell as the “principal sparkplug” for the committee, which sought a Ford Foundation grant. He explained how several faculty pressured E. B. Fred to approach Ford to include UW in its significant early grants, but Fred’s passive approach to the meeting led to a largely unsatisfactory result. Follow up: Was he hostile to social science? Answer: He didn’t think so; he just didn’t think it amounted to much. And there was little recourse for social scientists with Fred.

00:05:37	[no question] He related how later efforts to get Ford Foundation money were more successful, but entirely independent of the administration. Follow up: Was Fred worried about big foundations? Answer: He doubted it, though he related a legend about UW turning down a significant Rockefeller grant for the Medical School.

00:07:47	Question: How do administrators demonstrate concern in schools? Answer: Funding and choosing of deans. Hurst related how, excepting Chancellor Fleming, the law school got what it had completely of its own effort. 

00:09:11	Question: Talk about Deans Rundell and Ritchie. Answer: He said that when Ritchie was appointed, many faculty wanted Jake Beuscher (an insider), but were informed that the Regents wouldn’t accept him. He thought this an indication of how little the administration understood the internal dynamics of the school or wanted an energetically social science-oriented dean. 

00:11:20	Follow up: So why Ritchie? Answer: Ritchie wasn’t energetic intellectually, but was chosen because he was the best of the external candidates who would keep internal harmony. Hurst credited Ritchie with having pushed for a better building.

00:13:42	Question: There was a suggestion that the school be built on University Ave. Answer: He said that the faculty strongly opposed losing the School’s physical advantage so close to the other social sciences. 

00:15:03	Question: Why did Ritchie leave? Answer: He got a good offer from what he thought a more prestigious Northwestern Law School. Follow up: So after Ritchie what did Fred do? Answer: He assumed Fred didn’t want Beuscher, and the faculty knew that, so everyone accepted George Young primarily to keep harmony in the School (unlike Harvard and Yale). But over time, the lack of ambition and vision took its toll over 

00:19:37	[no question] He also talked about short-lived flirtation with energetic outside candidates, and the misstep of the administration in turning down Beuscher against the faculty vote, which he thought just underlined how unusual Lloyd Garrison was.

00:22:08	Question: Talk about your Vilas Professorship. Answer: He said he’d been getting offers from other places, and leveraged them to bargain for a more agreeable research appointment.

00:23:07	Question: Harrington wasn’t supportive? Answer: He didn’t recall him showing any such positive signs, which was curious considering his social science leanings. This despite the fact that Harrington had raised Hurst’s salary above Feinsinger’s at one point, against seniority. He related this to mistrust of Feinsinger’s “radicalism”.

00:25:56	Question: Were you part of discussions concerning Bohannon? Answer: Yes; he tried to help get him here.

00:26:59	Question: Who instituted “equal salary raises?” Answer: He noted that the Law faculty disliked merit raises, primarily because the minimal level of economic benefit wasn’t worth stirring up ill-feelings among faculty.

00:29:15	Question: The expansion of the Law School? Answer: He recalled debates between creating a second law school or expanding UW’s, which they thought would either created “two mediocrities” or lose the advantages of a smaller school.

00:30:59	Question: Admissions policy problems? Answer: He said this started with Oliver Rundell, who had a populist kind of philosophy of admission. It was only recently that this policy had changed significantly to raise standards.

00:32:49	Follow up: Did you speak with Harrington and Fleming about George Young? Answer: He recounted the reluctance with which he spoke out against Young, because he was an affable person. Follow up: How did they get Young to leave? Answer: He didn’t remember, but recalled speaking with Young about it. He credited Young with handling it well, though he was hurt by it; he also criticized the ill-informed way the WI Bar called for a revoking of Young’s resignation.

00:38:19	Question: You didn’t think the administration was doing enough for the Law School? Answer: Yes; he thought Fleming would have done more, but felt inhibited by his role as chancellor and Young’s unwillingness to push for more resources. Bill Sewell, he thought, never had a chance to show his interest in the School.

00:41:07	Follow up: Ed Young? Answer: Young, he said, was a puzzle to him, because while he obviously valued individual law faculty members, he didn’t seem to value the School. He cited the vigorous deanships of Bunn and Kimball as evidence of this. His impression was that Irving Shain had been more positive in his response to the School

00:45:24	Question: Talk about changing from the LLB to the JD. Answer: He described this as a “tempest in a teapot,” asserting that the degree name was just a cosmetic change.

00:47:01	Question: Student protest? Answer: Hurst did not think that the entire UW faculty should have openly opposed the Vietnam War, being too diverse to give it clear title to speak as a group. Specific specialties could do so, or individuals as private citizens, but not all of UW.

00:50:55	Follow up: Memories of the protests? Answer: He described it as a bad time, with legitimate moral protests against the war quickly turning into a self-righteous and violent crusade that viewed those with different opinions as lesser human beings. 

00:53:24	Follow up: Did you talk to your students? Answer: Yes, but he found talking about the issues to be unproductive because of the hostile atmosphere. He supposed he was the object of hostility because he taught about the history of public policy and the American legal order, which students saw as an affirmation of policy.

00:55:46	Follow up: Were you disillusioned by your students? Answer: Not really; the US has a history of these movements, but it was upsetting to live through it. Follow up: Views on the TAA? Answer: He was not involved, though he was outraged by their demands

00:57:57	Question: What about United Faculty? Answer: He was less than enthusiastic for it, remembering his early involvement in AFL teachers union.

00:59:08	Question: Talk about clinical training for lawyers. Answer: He said that disagreement in the Law School was not over the desirability of clinical experience for students, which was recognized as beneficial, but the expense of it within the competition for limited mean, especially to the detriment of faculty research or small class settings. These limited resources showed up especially in hiring situations.

01:05:28	Follow up: And you have to agree on hires? Answer: He explained the 2/3rds rule in hiring votes, which are generally well attended. Follow up: Would you eliminate the clinical side? Answer: No; he thought it was necessary, especially since his interests lay in research, but he was opposed to the clinical interest damaging the long-term research agenda of the School.

01:08:21	Follow up: Students like clinical experience? Answer: Yes; but he emphasized that the danger was meeting the needs of present students to the detriment of future students. Follow up: How do you balance it? The dean? Answer: You just bargain. He discussed active vs. passive deans in determining the limits of the budget for personnel and where that money goes, especially when it’s limited. He couldn’t recall instances of people going over the deans’ head to request resources from the administration, and talk about who would replace him in the School.

01:13:08	Question: What role has your wife played in your career? Answer: She’d been very understanding at his fixation on his profession during the years when parenting responsibilities were acute, which he regretted presently. He and Smail discussed the contributions of women to their husbands’ careers, especially during the period when it was more common for women not to pursue careers outside the home.

01:16:38	[no question] He discussed differences between the social life of the law school during his days at Harvard Law and currently at UW Law School, where more students were married and were able to give less attention to their studies and got less out of law school than in earlier years.

01:19:40	Follow up: That’s true of faculty too? Answer: He observed that faculty, when he joined, had more social contact than they did now. This he attributed partly to the growth of UW and the generation gap it had led to.

01:21:04	End of Second Interview Session

End of Oral History #197