Document Type

Article

Publication Date

2000

Abstract

This article follows Willard Hurst from his undergraduate days at Williams College through the start of his teaching career at Wisconsin in the fall of 1937. During these years Hurst acquired an abiding interest in the rise of the administrative state as well as some of the insights he would use to account for it in his mature work. For the most part, the article proceeds chronologically through four episodes in Hurst's training: (1) his year-long study of Charles and Mary Beard's "Rise of American Civilization" undertaken as an undergraduate at Williams College; (2) his three years as a student at the Harvard Law School; (3) his research fellowship with Felix Frankfurter during the 1935-36 academic year; and (4) his service as legal secretary to Louis D. Brandeis during the October 1936 Term of the U.S. Supreme Court. The first and third episodes inclined Hurst to see history less as an aid to the judicial interpretation of precedents, statutes, and constitutions than as a way to divine where the state should strike the "balance of power" in regulating the American economy and society. The second and fourth episodes show that Hurst embraced the Legal Realists' skepticism toward judge-made law, but also went beyond them to address that "large field of present human activity ... governed not alone by court decisions and statutes, but by administrative regulations and decisions." More enthusiastically than his mentors Frankfurter and Brandeis, Hurst accepted the growth of unreviewable discretion by administrators, and he was quicker to accord "the regulations, rulings and decisions of administrative agencies" the same status as judge-made law.

Each of the four episodes contributed something to Hurst's mature understanding of the Rule of Law in the new American state, but their lessons did not add up to a complete answer. His experiences of the late 1930s and 1940s taught him new lessons and gave him cause to discard or rework what he had already learned. A complete account of the origins of Hurst's mature work would have to address his activities as a law professor before Pearl Harbor, his service in Washington's wartime bureaucracies, and his period of study under a Demobilization Grant of the Social Science Research Council. Even so, a study of Hurst's education and apprenticeships is enough to suggest how much his social history of American law owed to the political history of his young adulthood.

Publication Citation

18 Law & Hist. Rev. 1-36 (2000)