James Willard Hurst as Entrepreneur for the Field of Law and Social Science

BRYANT G. GARTH

Celebrations of the career of Willard Hurst tend to concentrate, quite understandably, on his scholarship in legal history. Most of those who now read and comment on his works are professional legal historians, and they tend to read and define Hurst according to that professional identification. This article takes a different approach, concentrating on Hurst's own role in the more general politics of legal scholarship. Hurst was not content with making a mark in legal history. He sought to challenge the legal establishment. We see the legacy of his efforts in the development of the field of law and social science, institutionalized in the mid 1960s in the Law and Society Association (LSA). Therefore, my focus is on the sociology and politics of scholarship rather than on intellectual history. I will not examine the relationship of Hurst's particular works to those who came before or after him, nor will I go through the exercise of suggesting what was good or lasting or useful about his work for present purposes.	1
Rather than examining what Hurst happened to read or which scholars evidently influenced him, I will explore what we might learn by treating Hurst as an ambitious actor trying to make his way in the field of law. The assumption of this exercise is that Hurst followed a strategy constrained by his own resources and relative position (in Bourdieu's terms, his social and symbolic capital) in relation to those of his competitors and by his own understanding of what defined success as a legal actor. The intellectual stance that he developed was a product of his imagination, what he happened to read, and who he happened to know, but he was also embedded in a field that shaped what opportunities appeared to be available to him. That is not to say that he necessarily chose positions calculated to make him famous or successful. What I mean by his strategy was that he sought to take what he represented and make it central to legal scholarship and law more generally. As we shall see, his enemies in his strategic battles were typically Harvard, the established names, legal philosophy, and legal traditionalism, and his allies were typically social science, detailed micro-study, and the Midwest. Recognizing that the traditional hierarchies were against him, he sought to grow a new generation of allies. At the same time, however, his tactical alliance with social science against legal traditionalism did not preclude him from drawing on all the prestige of law's dominant institutions to assert the priority of law over social science. Hurst used social science to fight for a more important position in law.	2
Hurst is important enough to study on his own, but this approach to Hurst may also serve more general purposes. An examination of his activities helps to frame the post-World War II period and the developments that culminated in the Law and Society Association. In particular, we can posit a kind of crisis within the elite of the legal profession after the war. The question in the minds of the legal elite was whether lawyers had the tools to provide the political leadership that they had traditionally provided in the United States. Social science and economics were gaining ground, and law had no apparent relevance to the major issues of the Cold War. This challenge created an opening within law for nontraditional approaches and people. Drawing on his training, his earlier links to Legal Realism, and his connections in the Eastern establishment, including those within the philanthropic foundations, Hurst served as a key broker between the social science disciplines and law—in the interest above all of renovating law to maintain its elite position. Competing to promote his own expertise and approaches in law, he sought not only to reform law to conform to what he represented in law, but also to create a counter elite that could take over the core of the traditional law schools.	3
He created disciples and set in motion a dynamic that helped to establish the Law and Society Association, and he and those around him stamped it with an imprint that remains important. His descendants in the LSA, therefore, despite the nuances of their own intellectual contributions, can be understood only by seeing their relationship to the position that Hurst developed and the conflicts that Hurst sought to resolve. By relating the LSA to Hurst's position, we can therefore see some of the disciplinary conflicts and hierarchies embedded in the approaches that have characterized LSA—including "law in context," centered in Madison, and the "Amherst seminar," which represented the second generation of law in context. In defense of this approach to Hurst and LSA, Lawrence Friedman and others identified with law and context have emphasized that, while Hurst was not particularly active in the founding of the Law and Society Association in 1964, he was the most important single influence. In fact, the approach that Hurst developed and the people that he galvanized in Madison, including Friedman, dominated the history of the LSA in the 1970s and well into the 1980s.	4
The first part of this article simply describes the relationship between Hurst and the movement that established the LSA. As detailed elsewhere, Hurst's Wisconsin was one of the four recipients of a grant in the early 1960s from the Russell Sage Foundation to establish centers for law and society, and those four centers provided the raw material and personal networks that resulted in the LSA. 1 The second part retreats into events preceding the establishment of the LSA. It examines Hurst's activities in two contexts in which the relationship between law and social science was central. The most important was a program with the Rockefeller Foundation that began in the late 1940s, 2 and the other was the activities of the Walter E. Meyer Research Institute of Law, which was established in the late 1950s. 3 In each case, Hurst was a major figure in helping to define the program, and available sources provide material with which to explore Hurst's position in relation to those programs. While one purpose of this article is simply to highlight Hurst's activities in this neglected part of his academic life, the third part will try to place Hurst's activities in a broader context. It will suggest that the movement that Hurst helped to produce—and which helped to produce his reputation—endured. But rather than mounting a lasting challenge to the legal establishment, it evolved into a shield against aggressive challenges from the social sciences.	5
Hurst's Legacy in the Law and Society Association: The Law in Action
We can start by looking at Hurst's legacy in the Law and Society Association, founded in 1964. The institutions that came together at that time to provide an intellectual network organized around social science approaches to law were the University of California-Berkeley, the University of Denver, Northwestern University, and the University of Wisconsin-Madison. The Russell Sage Foundation made grants to each to promote closer relationships between law and social science. It also supported the establishment of the LSA and the publication of the Law and Society Review. Hurst's role appears in a number of key instances.	6
At Madison Harry Ball was the leading proponent of the Russell Sage grant. He was a sociologist who had come to Madison to work on the Survey of the Administration of Criminal Justice, directed by Frank Remington, a professor at the Wisconsin Law School (who clearly was himself influenced by Hurst). The survey combined sociology and law in a study specifically of the criminal justice system "in action." Ball described the genesis of the Russell Sage grant as follows: "in consultation with Slats [Cottrell of Russell Sage] and with Willard [Hurst] and what not we sort of designed a three-year proposal for several hundred thousand dollars." 4 Ball was to be the administrator of the program. According to him, "The way we designed the thing was to pair off social scientists with lawyers, depending on what their interests were." Wisconsin, in his words, "was moving faster than any place else" at that time. The second phase of the project was to buy scholars' time for research and to train students from law and from social science. According to Ball, "I asked Willard, you know, on the law side, how do I recruit people? And he said, ignore the law review and go after the great undistinguished middle. Because, he said ... they are very, very talented people who simply aren't that motivated to be lawyers, but they are interested in law, but they don't want to be lawyers, and they also don't really want to be political scientists."	7
The successes of the program, according to Ball, made it sensible to try to build a new association. In conjunction with individuals in the other Russell Sage centers, they began to organize. In Ball's words, "Red [Schwartz, a sociologist at Northwestern,] and I got the idea of starting an organization, and I think we were the original two." 5 Ball was very active in working to set up the LSA organization in 1964, becoming the first leader. Law professors, including Hurst, were not very active initially in setting up the formal organization, but Hurstians came quickly to play a dominant role.	8
Stewart Macaulay is a well-known example. He came to sociology with some prejudice from his undergraduate days: "it was a football player's major." He began teaching in Wisconsin in 1957 as a law professor with no interdisciplinary interests, but that changed under Hurst's influence. Hurst had grants from a series of foundations at the time, most notably Rockefeller (discussed below), based on the notion that, after World War II, "law professors ... need history, they need economics, they need these kinds of things." Hurst at that time, again according to Macaulay, "simply knew everybody and he had this block of money and I remember getting a semester and a summer where I just did reading, worked my way through Talcott Parsons...." Hurst's vision matched well with Macaulay's predisposition to criticize legal formalism, allowing him to develop a positive research program. In addition, Macaulay was able to use Robert Merton, whom he met through Hurst, to publish his famous article on non-contractual relations in business. 6 Hurst thus trained him and placed him well in the emerging field of law and social science.	9
Lawrence Friedman provides another obvious example. He came to Madison after writing traditional law review articles at St. Louis University and soon became, in Ball's words, the new "identified Hurstian." In 1959, Hurst, again using Rockefeller funding, gave him "a small amount of money to come up in the summer and work on one of a series of projects that he was directing in Wisconsin legal history." Friedman joined the faculty in 1961. At Wisconsin, according to Friedman, Hurst "dominated" the law school and "he was pushing what we would now call law and society." Indeed, in Friedman's retrospective account, "as far as I am concerned, Willard Hurst, although he's primarily a legal historian, is the founding father of law and society studies because his legal history is sociolegal history.... Because Willard Hurst didn't say you have to do history. There were people who were interested in history but it was the approach—the approach of treating law as a dependent variable, treating it in context...." Hurst encouraged Friedman—and many others—to write about Wisconsin, which led to the publication of Contract Law in America in 1965. 7 The law school had an identity and mission that came from Hurst. The perspective of the law school, in Friedman's terms, was that, "we know that there are other schools and they have a lot more prestige and money, but we know that we're doing the work that's valid and they're just horsing around with formalism." Again, Hurst provided the social science tools and approach to build this attack on legal traditionalism.	10
Hurst's progeny became the dominant group in the LSA. Among the former presidents of the association, Harry Ball, Joel Handler, and Herbert Jacob, in addition to Friedman and Macaulay, were all inspired by Hurst. Friedman and Macaulay also wrote one of the first texts to combine law and social science, published in 1969. 8 A former editor of the Law and Society Review was Joel Grossman, also a product of Hurst's Wisconsin. Carl Auerbach and Jack Ladinsky, other early leaders of the LSA, were also shaped very much by Hurst. Ladinsky and Grossman served as the executive officers of the LSA at the time of its formation. The University of Wisconsin and the products of Wisconsin thus dominated the 1970s and early 1980s in the LSA. Behind the scenes, in short, Hurst's institution building in Madison translated directly into the Law and Society Association.	11
These scholars also represented a general scholarly approach that came from Hurst. As Friedman suggested, the Wisconsin tradition, opposed to that of legal formalism, could be characterized as that of "law as the dependent variable," "law in action," or "law in context," and it has been central to the LSA tradition. 9 The approach can easily be identified in the historical and sociological writings of Lawrence Friedman and in the writings of Stewart Macaulay and Joel Handler.	12
Macaulay's article on non-contractual relations in business (1963) remains one of the most famous examples of this approach. Macaulay found that the formal law was not particularly important in shaping the rights, obligations, and remedies used for business relations. Personal relations of trust were far more important. Consistent with the attack on legal formalism, he thus found the formal law a poor guide to actual social practices. Joel Handler's early articles on welfare reform were similar in their emphasis. He attacked the proposition, identified with Yale's Charles Reich, that the legalization of welfare and the provision of due process hearings would be sufficient to deliver concrete gains for welfare recipients. 10 Handler argued that a faith in legal rights was insufficient to understand welfare processes and how to improve the position of the poor. In both famous examples, the Hurstian point was that an understanding of the context was crucial in order to explain the impact of the law—and how effectiveness might be improved. Social science or socio-legal history could provide the necessary context. Friedman's histories, showing that changes in law can be explained by changes in economy and society, follow a very similar approach.	13
This justification for an alliance between law and social science can also be found in Hurst's writings directed to the reform of legal education. The allies Hurst created fit his approach perfectly. In an article in the Journal of Legal Education (originally prepared as a "consultant's memorandum" on "the relation of law and the social sciences"), for example, Hurst maintained that "The law school world today seems, on the whole, a distressingly complacent and limited world." 11 Arguing for more research generally and especially a different kind of legal research, he stated that "one of the most striking deficiencies in our legal scholarship has been its complacence in sharing the layman's preoccupation with doctrine to the neglect of sanctions." 12 This call for research points precisely to investigation that looks beyond doctrine to the context that makes the law effective or ineffective.	14
The Hurstians who dominated the history of the Law and Society Association were thus critics of the case method, legal formalism, and the neglect by law professors of the insights provided by empirical research. But it is also important to recognize that the formal law was at the center of their research program. The point was that the context around the formal law was necessary to understand both formal law itself and the impact that it had on social life. Social science theory was useful only for the contribution it could make to an understanding of the law. Even if law was the dependent variable, it was nevertheless placed at the center of the research. Indeed, Handler's scholarship suggests the typical pattern. The most prestigious legal scholarship, at Yale represented by Reich, is taken as the target and criticized for its lack of attention to social context.	15
The influence of this particular approach has continued to the present. A generation after the LSA was founded, for example, the "Amherst seminar" became its dominant group, replacing the leaders from Wisconsin and the "law in context" paradigm. Their focus, it is true, was less on the law in context and more on the law's constitutive role. The group thus would not be considered Hurstians, but such scholars—and presidents of the association—as David Engel, Susan Silbey, Sally Merry, and Austin Sarat can only be understood in relation to the approach that was dominant in Madison. Many of the individuals associated with the Amherst seminar were in fact disciples of the Wisconsin group, including Austin Sarat, Kristin Bumiller, Christine Harrington, and Ron Pipkin. Their generational rebellion still has much in common with their predecessors. What changed was the identity of the targets in the centers of elite legal education.	16
Drawing on the scholarship produced by the Critical Legal Studies Movement, they sought to give an empirical component—or context—to the cases and doctrines of CLS scholars. When CLS scholars argued that the categories and approaches of law inhibited social change, the scholars of the Amherst seminar said that only empirical research could show whether or how that phenomenon occurred. They showed that CLS law professors could not support their pronouncements simply on the basis of case law and legal texts, which could be seen as a new kind of legal formalism. The formalists doing the new legal philosophy needed empirical research to learn about the "legal consciousness" on the ground that prevented social change, and they also needed to learn the circumstances under which legal consciousness could support or mobilize for such change. To the extent that there were debates between CLS and LSA, in fact, they tended to revolve around these concerns. 13 Thus, while very critical of the traditional "law in context" approach that gained prominence in Madison, the Amherst seminar's position represented an updated version of that approach. Both posited certain goals of progressive social change engineered by law, and both sought to use empirical research to understand the conditions under which law advanced or hindered that effort.	17
The preceding discussion of the Hurst legacy is not meant to provide a critique of the scholarship nor to suggest that nothing has changed. What is suggested, however, is that Hurst's position in the field of law and social science was oriented toward the centers of the legal establishment and that this position has remained dominant. It implies a particular role for social science, which is almost by definition subordinate to law. There are implications that follow from this orientation, which I will discuss in the conclusion. But it is first important to look at Hurst's activities before the Russell Sage Foundation grant and before the founding of the Law and Society Association. Indeed, by examining these activities, we can better understand the sources of the LSA tradition and, in particular, the Madison position within it.	18
Hurst in Action: Activities with the Rockefeller Foundation
The Rockefeller Foundation archives tell the story of Hurst's involvement with a program established in late 1949. The program, evidently the brainchild of Winthrop Aldrich, the brother-in-law of John D. Rockefeller, Jr., and one of the founders of Milbank, Tweed, Hadley and McCloy, was directed specifically to the perceived inadequacies of the legal profession. 14 According to Joseph Willits of the Rockefeller Foundation, the legal profession was not properly trained to assume its postwar leadership responsibilities. The profession was complacent. In Willits's words, "It would be possible to give myriads of illustrations to show the way in which the law and lawyers are content with smartness and understanding." 15 He therefore contemplated the formation of a program on "Morals, Ethics, and the Law." In preparing this assault, Willits discussed the issue with a number of the legal profession's elite members, including Aldrich, John W. Davis of Davis Polk, and John Foster Dulles of Sullivan and Cromwell, as well as Hurst and Max Rabin of the University of California at Berkeley. The Rockefeller Foundation, Willits hoped, could "try to alter this situation." Hurst, as we shall see, was eager to offer his services to this effort to respond to what elite lawyers perceived as a crisis. At the same time, they were looking for new approaches that could shake up the academic establishment.	19
Willits summarized the possibilities in a memorandum. 16 Winthrop Aldrich had suggested a study of equity jurisdiction, perhaps as a way to gain legal flexibility for postwar issues. Willits doubted that such a task should be a high priority. Instead, he promoted an effort to remedy the lack of "adequate work, in this country, on the relation between law and ethics, or, stating the issue more broadly, work in the philosophy and sociology of law." Explaining the problem, he noted that, "If the lawyers, and especially the products of our law schools, have an inadequate sense of the philosophy of what they are about, or the deeper-lying moral issues involved, then their contribution is not likely to be an enrichment of government—but more technical and power opportunism." 17 He singled out for criticism the case method as inadequate to this lofty purpose. 18 It was fine for teaching what the law is, but lawyers needed to retool to respond to the challenges of leadership in government.	20
Mentioning the research funds already granted to Willard Hurst, he recommended searching "for young men in the law field, interested and competent to develop themselves in these directions; and then give them support." Traditional law schools, he suggested, were the source of the problem: "I would avoid getting caught in the web of the law schools as they are at present. They will use the money but they won't hatch the chickens." The program was thus organized to challenge the legal status quo in the name of improving the leadership role of lawyers.	21
Willits turned over the task of developing a program to Norman Buchanan, who produced a document entitled "Law, Morals and Ethics." In the spring of 1951, Willits asked Hurst for comment on the memorandum. Hurst prepared extensive comments, focusing less on the memorandum and more on "a rough sort of prospectus for a possible investment of funds." 19 He first emphasized that "the heart of the problem posed by your interest is that of providing a nucleus of trained and motivated men. We do not have such a nucleus today, and so far, at least as the law school world is concerned, I see little prospect of it developing without some planned effort." Outside of the law schools, "There may possibly be more natural initiative toward the field among non-lawyers, but the non-lawyers need some legal grounding to do really effective work, and they will not get that without some planned effort from some source." Non-lawyers had skills that lawyers needed, but lawyers were not willing to look outside without prodding.	22
Focusing "on the law side, of which alone I can speak with assurance," he argued that "the established work and reputations have a high percentage of personality coloration and of vested interests in stands taken and positions opposed." He thus urged the Rockefeller Foundation not to stick to the usual professional hierarchies. He wrote that they should avoid "too close a focus of a program on, say, Yale or Chicago (or, I would add, Harvard)." Accordingly, Hurst advised that the program be "broad-based—not to 'represent' schools of thought or particular institutions"—and that individuals be selected for their promise rather than their "established reputation." Further, since the field was relatively undeveloped in the sense either "of the numbers of people active or in terms of the atmosphere of anything approaching scientific criticisms," it was important "to move cautiously indeed."	23
He also provided a more detailed memorandum, entitled "the law and values." 20 Hurst began with a quite scientific definition of law as	24
(a) both the declared and the actually operative value judgments and means thereto (b) expressed both in words and in action (behavior), by (c) those agencies (institutions) which at a given time are accepted by the preponderant opinion of a given society as holding the legitimate monopoly of physical force in the society.... By "values" the memorandum refers to what people in a given social context want, or believe that they want, or want in practice apart from conscious plan or demand.
As Hurst also pointed out, the definition is not court centered, but concerns "all levels," and the definition emphasizes institutions and "cultural and historical context." He called for bibliographical work and "scientific empirical study," including historical study, the "analysis of comparative data afforded by anthropology," quantitative research "most likely in the new field of opinion or attitudes research," and even "controlled experiment." He thus drew on social science across the board in his attack on the complacency of the legal establishment.	25
This research would be a way to overcome "one of our most dangerous internal weaknesses, as the United States faces up to the challenge of this generation, (which) is that we do not know ourselves well enough.... [W]e run the danger of overestimating strengths, underestimating weaknesses in crisis," which "confirm outsiders in their convictions of our hypocrisy." One way to be more realistic and therefore more legitimate is to explore "what dangers may be hidden in the gaps and inadequacies or little-seen inconsistencies of our formally declared positions and our working positions." As a means to understand society, moreover, "the legal record provides an unusually clean body of material from which to see the resolution of conflicts in values and the ideas and feelings which express them." Law should be central to the challenges of the postwar generation, but it was not enough to examine only the formally declared positions.	26
Emphasizing again that the answers would not come from the academic establishment, he suggested that the elite represented by the Rockefeller Foundation invest outside the usual places. According to Hurst, "jurisprudence in the United States has been something of a dead end street; at least in professional legal circles, discussion seems too much to elaborate well worn theses and refight old battles." Pound had "sounded a call to adventure into new studies of law-in-society," but "Pound and his disciples and the new 'realists', too, have chiefly gone on sounding the call only. We have had very little grubby down-in-the-raw-materials work done to realize the new kinds of inquiry to which we were summoned." This new inquiry must avoid the prevailing jurisprudential focus on "the judicial process," putting the "courts in proper perspective as only one facet of law."	27
Hurst thus sounded his own call for empirical research and social science against the old school of jurisprudence that he more or less identified with the elite schools and established names. That does not mean, however, that Hurst wanted to turn the project over to social science:	28
The non-lawyers are hampered chiefly by their ignorance, first, of the law's jargon, and, secondly, of the techniques of reading between the lines so that one does not take more seriously than he should what the law declares. The non-lawyers have pretty well stayed clear of legal territory, and when they venture into it, it is a rare case in which they do not—from a lawyer's standpoint—either belabor the obvious, or fall into errors of treating words as if they were substances.
Hurst was in fact suggesting ways that the legal elite should retool to maintain a dominance over social scientists. Retooling required looking outside of the complacent academic establishment and building bridges to the social sciences that were gaining prestige at the expense of legal traditionalism.	29
Lawmen need the stimulation of some firsthand contact with some disciplines outside law, calculated to bring them into working and not merely hortatory relations to social science. Non-lawmen need the technical expertness, primarily, to permit them to use legal materials of a wide range, and with deftness, so that they may get beneath verbal surfaces.
In concrete terms, Hurst urged the Rockefeller Foundation to make a strong investment "to equip a small nucleus of promising young men with the cross-disciplinary techniques which should enable them to produce more effective work, even as the very possession of the instruments should provoke their holders to use them." That is to say, if young scholars are given new techniques, they will use them and thus redefine the field. To oversee this investment, which he proposed to be $300,000 for a six-year program, he recommended a planning committee of twelve—"four lawyers, and two men each from political theory, philosophy, sociology and anthropology, and social psychology." The committee would invest ultimately in "six lawyers and six non-lawyers, at the rate of two of each class per year for three successive years." The nominated students would be armed "with tools for their long-range advance in dealing with law-and-social values problems."	30
A few months later, early in October 1951, Hurst wrote to Willits with specific suggestions. 21 He reiterated his lack of faith in the "obvious leading names in the field of jurisprudence today," recommending a group that included Lon Fuller of Harvard, Edward Levi and Karl Llewellyn of Chicago, Myres McDougal of Yale, Jerome Hall of Indiana, and Felix Cohen practicing law in Washington, D.C. Beyond the list of jurisprudential scholars, he also proposed other law professors, including Carl Auerbach, Charles Bunn, and Jake Beuscher at Wisconsin, John Dawson of Michigan, John Frank of Yale, Ralph Fuchs of Indiana, Wilbur Katz of Chicago, Jerome Michael of Columbia, Frank Newman of California, Stefan Riesenfeld of Minnesota, Eugene Rostow of Yale, Herbert Wechsler of Columbia, and some nonacademics, including Lloyd Garrison, Justice Douglas, and Judge Learned Hand.	31
The Rockefeller Foundation then sponsored a conference on Legal and Political Philosophy, held from October 31 to November 2, 1952. Hurst wrote to Dean Rusk, the President of the Rockefeller Foundation, a week after the conference with typically detailed observations. 22 Noting the need "to steer a course among great perils and opportunities," including the problem of the "overselling of democracy," he called for theory "on the unique role of the modern state as a decision-making institution," and "the business of law as the fixing of structures or procedures within which life can go on." Consistent with his earlier observations, he insisted again that, "The state of work in these fields is not good." Indeed, he noted, there has been a "conspicuous failure of legal research to take hold of important new problems." Despite "many bold calls to a sociological legal research or, more generally, to an effective mingling of legal and other social science inquiry," "there has been discouragingly little product of it." Further, "the troubling thing is that the last younger generation of law men has on the whole contented itself with more work on the model of the masters of taxonomy." And in particular, Hurst noted, there had been very little work on "comparative utilities of different legal agencies and processes and the choice of sanctions," on Pound's concept of "the limits of effective legislation," or on the "ordered change" that is "the essence of what law aims at." Pointing to social questions such as "the role of minorities," he called for "arrangements which put inertia behind rather than against desirable social adjustments."	32
Hurst's more concrete recommendations on ways and means are especially instructive. Suggesting a need to recapture the pre-1937 "excitement" of the "debates between the realists and their critics," he also urged that, this time, the movement needed to go beyond "ground-clearers" to the "formulation of affirmative hypothesis." Hurst lamented what he called "undertones of depreciation of empirical research" at the Arden House meeting. Somewhat defensively, he suggested that "political theory or jurisprudence" would not "attract top talent today if these fields present themselves as abstracted from concrete policy problems.... [T]here is the need for the stimulus of concrete research, bringing hypotheses to bear on the knobby, resistant facts of particular, observed situations, whether of the past or the present." Siding with Pendleton Herring of the Social Science Research Council, he stated that he "would reject any retreat from the social sciences." Arguing against Lon Fuller, he emphasized the payoff, already observed at Wisconsin, of "sending researchers into the field to observe law in action." In short, growth in the field of "political or legal philosophy" could come best from "particular, empirical research."	33
Hurst also emphasized the potential gain available through investment in young lawyers and law professors. As he wrote to Rusk, "The law-trained man, I would suggest, offers a peculiarly apt subject for a variety of experiments in subsidy. The law education itself is rather unique in its continued emphasis on the hard-headed relating of particulars to generals." With some experience, the "'tough-minded' training for intellectually able men ... ought to make them superior bets for contributing something to political thinking." What was important, Hurst emphasized, was to "catch them young," in law school or after four to six years of practice. Hurst concluded his memorandum to Rusk by proclaiming himself "an enthusiast for lawyers and law-trained men, as potential contributors to an enriched political or legal philosophy." To make his point, he highlighted the experience of practical lawyers in Washington's wartime agencies. 23 Lawyers, he suggested repeatedly, should be the leaders in government, but they could only maintain their elite status if they invested in what Hurst was offering: detailed empirical work, links to the social science, and a self-conscious creation of a new group of legal academics—a new academic elite—closer to what he offered.	34
The next exchange of memoranda helps to clarify not only what Hurst was fighting for, but also some of the positions with which he was in conflict. H. A. Deane's lengthy memorandum of suggestions from the Arden Conference on Legal and Political Philosophy provides a convenient source. 24 Deane began by emphasizing the importance of "general analysis" as opposed to specialized knowledge. He was somewhat critical of the quantitative sociologist Paul Lazersfeld, for example, suggesting that Lazersfeld's sociology might bear "a share of the responsibility for the rise of this new barbarism" (2). Pointedly listing twelve of the conference participants, not including Hurst (who was then mentioned in the following sentence), Deane said he agreed with the twelve that "it is essential that undergraduates be given proper and stimulating training in the philosophical, historical and literacy traditions of our Western civilization" in order to provide the key leadership skills that were needed to think "clearly about inherently vague subjects."	35
Deane supported the general argument "that law is a social phenomenon of vital importance, and that sociologists, political scientists, economists, historians, etc., should be encouraged to give great attention to legal data and problems and to the relationship between their own disciplines and the study of law." Thus, "the RF should be alert to the possibility of encouraging significant research projects by lawyers and social scientists...." Nevertheless, he stated, "These research projects do not ... fall within the compass of political and legal philosophy, although some of the problems mentioned may be susceptible to philosophic treatment as well as scientific research investigations" (3). There was, therefore, a particular need to support individuals "who wish to engage in philosophic analysis of legal problems and concepts." Noting also the needs in political theory, he sought to distinguish "the questions of RF interest in legal and political philosophy ... [from] the more general problem of RF concerns with empirical studies in law and politics."	36
To promote these ends, Deane suggested that the Rockefeller Foundation constitute two committees, one of political theorists and the other of "law-men," including Fuller, Judge Wyzanski, and Hurst, and that each committee concentrate on finding and aiding individuals. Again, however, in discussing particular suggestions from Hurst, Deane expressed doubts about the study of "law-and-values" and the explicit support of cooperation between law and social science, suggesting that such a program would be fine, but only if "RF is prepared to encourage this sort of cooperation between law and economics, sociology, psychology, history, etc." If so, he wrote, "I should think that Hurst's proposals would be worth serious consideration" (7).	37
Later on in the memorandum, Deane specifically criticized Hurst's proposal "to promote a volume of critical bibliographic essays on selected aspects of the study of the relation between law and values" (10). He stated that "I am somewhat disturbed by the thought that there is no limit to the topics that might be brought under the heading of "law and values." In contrast, he wrote, "Within the more limited field of legal philosophy, I believe that there is much merit in the suggestion of Hurst and Wyzanski that RF subsidize the preparation of a volume of the best essays, dealing with problems in jurisprudence that have appeared in the leading English and American law journals" (10).	38
The discrete conflict was evident in a report by Willits on a telephone conversation with Hurst about Deane's memorandum. 25 First, Hurst suggested, the work "on a broad canvas" was not the best approach. More gains would come from "work done on something concrete" than through an investment in persons "who just sit and think great thoughts." Hurst reemphasized also the importance of "interdisciplinary studies." Finally, Hurst drew particular attention to "the relative conventionality in legal education." He insisted that "The 'case' of customs in legal education needs to be broken.... The law schools tend to encourage more taxonomic work. The able young men try to get past that." Hurst recognized that any focus on "leading" law journals and "jurisprudence" was bound to favor the core of the existing legal academic establishment. His challenge from outside depended on undermining legal philosophers who—because they were at Yale or Harvard—could think "great thoughts" and expect them to be taken seriously solely by virtue of who and where they were. Outside of that elite, legitimacy required hard work, detailed study, and bridges to other disciplines.	39
Hurst's arguments gained some success. Rusk invited Hurst to become a member of the Advisory Committee on Legal and Political Philosophy, and the first meeting took place in June 1953. The committee initially included V. O. Key, Robert MacIver, George Sabine, and Lon Fuller. The agenda of the committee suggests the very strong presence of Hurst. 26 One proposal was for a fellowship for law graduates to return to law schools for a year, a second was a program of subsidies to publicize monographs in jurisprudence and political philosophy, and a third was for a series of critical bibliographic essays on "law and values" problems. A month after the meeting, Hurst returned to his recurring theme: "Whatever else we may try to do in that committee, however, we shall inevitably come back in substantial measure to the problem of trying to locate some promising men and to explore whether there are sensible ways to advance work they would like to do." 27 Hurst sought to produce a counter elite and, in order to do this, he looked for potential recruits in the biographical listing of American law teachers.	40
He sent a list divided into three categories. 28 The first group included those he could recommend on the basis of personal experience, including Edgar Bodenheimer of Utah, Kenneth Culp Davis of Minnesota, Harry Jones of Columbia, Samuel Mermin of Wisconsin, Monrad Paulsen of Minnesota, and Louis Schwartz of Pennsylvania. The second group was composed of professors whose worth he had discussed with persons whose judgment he trusted. These promising law professors included Marcus Mallett of Virginia, Gray Dorsey of Washington University, Albert Ehrenzweig of Berkeley, and Henry Skeele of Washington University. The third group comprised people Hurst thought worth investigating further.	41
A month later, Hurst sent still another detailed memorandum, this time elaborating on an idea that had surfaced at the prior meeting for small grants to law reviews. 29 He suggested grants to Harvard, Columbia, Yale, Indiana, California, Chicago, and Wisconsin, and he called for the grants to encourage comparative work that would include careful counts of cases dealing with matters of burden of proof and statutory interpretation.	42
Still persuaded that the academic establishment needed some shaking up, Willits relied greatly on Hurst, going through the names and responding to the law review idea in some detail. As he wrote to Hurst in August 1953, "I cannot tell you how much I appreciate your willingness to devote so much of your time and thought to our problems and concerns." 30 Hurst wrote back the next day that he had contacted many of the individuals to ascertain their willingness to go along with the new Rockefeller program in legal and political philosophy.	43
In October, Willits suggested a relatively modest program of $125,000 for one year, focusing on predoctoral and postdoctoral students in political and legal philosophy along with an $8000 allocation for law reviews. 31 He also suggested $75,000 to the Social Science Research Council to support political and legal philosophy, in part to promote "intellectual companionship" "between those whose approach is behavioral and those whose approach is philosophical." Hurst agreed that the SSRC would be better than, for example, the Association of American Law Schools, which might lead "to still further monotonous exaggeration of problems connected with court litigation." 32 He feared, however, that the SSRC might discriminate against law professors, because the law professors would typically require more money to buy a year for research.	44
The advisory committee as constituted included, along with Hurst and Fuller, George Sabine, Robert MacIver, V. O. Key, Jr., and Frank H. Knight. The first meeting was in late March 1954, and evidently the committee mainly looked at applications from within political theory. Sounding a theme that was to resurface again and again, Hurst quickly wrote a letter to Willits, suggesting the need to pay special attention to law: "I continue to have the feeling that there may be some useful money investments to be had, in stimulating work in the law school world in the field of jurisprudence." 33 Hurst had helped to discredit traditional law, but now he was worried that other disciplines might gain the upper hand.	45
Law, he insisted, had to be a focus of concern: "Lawyers continue to be a key policy-making and high policy-executing group in our society; the law schools are, therefore, one of the truly strategic points for moving social science knowledge, and philosophy about society into the currents of decision in the community." Again, however, he lamented the "doldrums" within the field. He suggested the need to reach "outside the formally identified field of jurisprudence," even to the extent of finding creative people in "technical areas of the law." He suggested summer seminars to broaden the horizons of scholars in particular technical fields.	46
The advisory committee met again the following year, and the minutes of this third meeting are quite instructive. 34 First, Dean Rusk's remarks made clear that the Cold War was implicated in the quest for advancement in political and legal philosophy. Reporting on a conference in Europe on the subject of why "some of Europe's best intellectuals [were] attracted to communism," he asked why the Rockefeller Foundation was not getting "pressed with applications" "to clarify our ideas of what democracy requires." Fuller agreed that "we need a real restatement of democratic ideas and beliefs." Hurst, confident that his recipes would serve government better whatever the goal, added typically that the Federalist Papers "came out of grappling with specific problems"—not generalities (6). After the meeting, John B. Stewart of the Rockefeller Foundation talked with Lon Fuller and reported that there was beginning to be serious conflict on the committee. 35	47
Fuller, according to Stewart, believed "a couple of the members at least seem to have contracted 'projectitis', and ... two or three [Key, Knight, and Hurst] only have peripheral interests in the kind of work that the RF has been trying to do in this connection." He proposed changes in the committee. By projectitis, he meant the "academic disease" of believing "that the right way to give money away is for projects"—as opposed to subsidizing a purer form of reflection. Fuller, coming from a very different position than Hurst, felt the money should go to the big thinkers who did not want to be—or need to be—bothered by such chores as empirical research or specific "projects."	48
Despite Fuller's suggestion, the committee remained intact for another year. The next time it met, Rusk began the meeting with a special focus on law schools. 36 In his words, "we feel that there has been much less interest in the legal side of the program from the law schools than from the political theory side.... When the program was started, we had in mind more legal participation than has resulted" (1). This introduction produced a revealing exchange between Hurst and Fuller. Hurst saw the problem as requiring perseverance: "In the law field there is remarkably little spontaneous response to the Program you have offered. Lawyers and law students are potentially our most important leaders in the country." Fuller, in contrast, opined that "Legal philosophy has not been adequately represented on the Committee. The main difficulty in the law field is that a man can't make his interest into a project.... A man often needs study at another school, other library facilities—not so much money as time, leisure and perhaps some secretarial assistance.... American scholarship is being greatly endangered by demanding a particular project. It is important to stick to the man rather than to the project."	49
Hurst, somewhat later in the discussion, insisted that outreach was crucial, "many people feel that they have to identify themselves as legal philosophers in order to get into this program." Further, in Hurst's words, "I would like to see more people dealing with the more grubby fields of law. I would like to see people come to this field not for its own sake, but because they are exasperated with the tools that they have in, say, contracts" (5). After 1957, the committee was changed and a completely new group appointed. Hurst maintained his position and held back the academic core from taking over. Riding the growing prestige of the social sciences, he could keep the pressure on the more traditionally oriented representatives of the academic elite—comfortable with thinking great thoughts. Indeed, he even had allies at Harvard, including especially David Cavers, who played a leading role in the development of the Meyer Institute.	50
The Walter E. Meyer Research Institute of Law
Hurst's stature in the legal field came from his national reputation as a legal scholar mixing social science and law. This stature was evident in the consulting he did, described earlier, and it was similarly clear in the next national venture, the Walter E. Meyer Research Institute of Law. We have less detail on Hurst's activities here, but he was consulted at the outset. David Cavers, then a Harvard law professor still imbued with Legal Realism, secured a bequest from Walter Meyer, who died in 1957, to establish a research institute with trustees from Harvard, Columbia, New York University, and Yale law schools. In trying to determine the precise mission of the Meyer Research Institute, which later became—with the Russell Sage Foundation—one of the key funders of activities that brought law and social science together in the 1960s, the board decided to hold a conference in the summer of 1958. It invited four scholars to offer suggestions: Harry Kalven, a law professor at the University of Chicago who had been doing social science research on juries; Hessel Yntema, a Michigan law professor who had been involved in the Legal Realist effort to set up the Institute for the Study of Law at Johns Hopkins in the 1930s; Adam Yarmolinsky, whose ties were to private practice, government, and philanthropy; and Hurst.	51
In this new context, where the enemies were not so much legal philosophy and traditionalism, Hurst renewed his effort to build a counter elite. He reiterated his criticisms of existing law school research, stating that "in most schools there is a comfortable satisfaction that they are contributing to knowledge if they produce a ragbag of essays, most of which consist of little more than logical critiques of judicial opinions, and a few of which show that the authors are literate enough to have read some books on economics or social psychology." 37 Hurst suggested that the key was to invest in individuals, "perhaps not more than sixteen in all." 38 According to Cavers's characterization of Hurst's proposal, "The principal objective of this program would be to provide for a model of productive and balanced research-and-teaching careers for the law schools, and status symbols that should attract young faculty to research." 39 The discussion at the conference, however, did not tend to favor Hurst's approach, although the ultimate plan to support social science research on law certainly was consistent with Hurst's general approach. As it turned out, the Meyer Institute funded considerable research, including much that was connected with the University of Wisconsin.	52
Conclusions
These activities in three sectors make it clear that Hurst focused considerable attention on the need to develop young scholars who would try to shake up the complacency of the legal establishment. Through the Rockefeller Foundation and the Meyer Institute, he recommended the same approach that he himself implemented at Wisconsin—patiently building allies who would produce scholarship that placed the law in its social context. The major point is simply that Hurst invested a considerable amount of his time and energy in developing allies—in Madison and around the country. In doing so, he consistently promoted the ideals of detailed scholarship rooted in real life against what he found to be the complacency and arrogance of the eastern establishment. Recognizing very well the incentives that pulled legal scholars in traditional directions, he emphasized again and again the need to "catch them young."	53
In building his case, Hurst drew on whatever resources he could mobilize against the traditional academic elite. He promoted all the positions that were available to him, including social science (and "projects") against dilettantism and philosophy, "grubby" detail against general theory, specifics against broad brush, social context against formal law, and, as best he could, the Midwest against the east, public schools against private schools. His memoranda produced for the Rockefeller program, in particular, used every tool available against those who stayed in their comfortable offices in the most prestigious schools and continued to spend their energy in "well-worn" jurisprudential battles.	54
Hurst had turned down an opportunity to move to Yale Law School, but he had not renounced any ambitions to move to the top of the legal profession. He could see that the legal profession was in a state of defensiveness after World War II, and there was considerable concern among U.S. leaders that lawyers were not up to the challenges and social problems that were emerging. Hurst's complaints about complacency made sense to many key leaders of the period, and Hurst could draw on the growing prestige of social science to mount his own challenge. There was obviously competition about how best to bring the legal profession up to date. Hurst's allies against the older generation agreed that there was a problem, but differed on the potential solution. Hurst and Fuller, for example, saw very different cures for the profession's deficiency in scholarship. Fuller wanted power to stay with the philosopher generalists of the elite schools. Hurst, lacking Fuller's elite position at Harvard, maintained his call for systematic social science and empirical and historical research. He also worked assiduously to build allies for his position both from within law and without. More than anyone else, in fact, he brought Legal Realism into the 1950s and linked it more strongly with social science. In any event, we can see that the Wisconsin Hurstians were not only people who recognized the abilities and tools that Hurst embodied. They were the conscious product of Hurst's own strategy to attack the eastern citadels with a new generation of talented and committed scholars.	55
At the same time, it is also apparent that Hurst was arguing for a way to build or maintain the hegemony of lawyers in U.S. governance. He drew extensively on social science in his critiques of the legal establishment, but he did not place social scientists on an equal footing with lawyers. At times he deprecated social science for its inability to understand sufficient law, and he worked to design programs that would above all build up the skills and position of lawyers. Hurst thought that lawyers should be at the top in the alliance with social science and that investment in social science would help to protect the position of lawyers. Hurst, not surprisingly, was building his position in law at the same time as he sought to maintain law's position. Put another way, Hurst was using social science and bridges with social science to fight on behalf of his own position—against the new forms of high-minded and high status philosophy represented by Lon Fuller—as the embodiment of what law needed to maintain leadership in the postwar period.	56
Most of the commentary on the history of the LSA ( for instance, that of Neil Duxbury, Laura Kalman, and John Henry Schlegel) tends to emphasize the failure of the Hurst legacy to catch fire in the law schools, especially in relation to the success of law and economics in the 1980s. If we see Hurst's strategy as, in part, one designed to protect law from the challenges of social science by making a somewhat larger place for social science in law, the evaluation might be different. Hurst and his followers did not succeed in rearranging the hierarchies in favor of empirical research, but it is doubtful that Hurst ever expected the context to topple the law in legal academia. Instead, Hurst helped set in motion processes by which law could make a place for social science challengers by recognizing and rewarding a portion of them and by encouraging legal academics outside of the most elite circles to take social science and orient it toward law. In doing so, Hurst helped to pave the way not only for LSA but also for law and economics. The idea was for ambitious legal scholars to make friends with the most distinguished social scientists—"pairing"—and then use what they had to offer to fill in the context necessary to keep the law up-to-date and academically legitimate and thus keep lawyers themselves in a leadership position—as opposed to sociologists, political scientists, or economists.	57
Bryant G. Garth is the director of the American Bar Foundation. Notes       1. The material on the history of law and society is developed more in Bryant G. Garth and Joyce Sterling, "From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State," Law and Society Review 32, no. 2 (1998): 409-72.
2. I am grateful to Dan Ernst for bringing my attention to papers on Hurst's role in the Rockefeller Foundation and to the Rockefeller Foundation for making the papers available to me. All the documents cited here are courtesy of the Rockefeller Archive Center.
3. The Walter E. Meyer Research Institute of Law is discussed in David Cavers's history, edited and completed by John Henry Schlegel. David Cavers, A History of the Walter E. Meyer Research Institute of Law (Amherst, N.Y.: Walter E. Meyer Research Institute of Law, 1997), ed. J. H. Schlegel.
4. Transcripts of the interviews cited in this article are on file at the American Bar Foundation.
5. Also "somehow Red and I got the idea of convening a breakfast meeting ... at the ASA."
6. See Macaulay, "Non-Contractual Relations in Business," American Journal of Sociology 28 (1963): 55-69.
7. Lawrence M. Friedman, Contract Law in America: A Social and Economic Case Study (Madison: University of Wisconsin Press, 1965).
8. Stewart Macaulay and Lawrence M. Friedman, Law and the Behavioral Sciences (Indianapolis: Bobbs-Merrill, 1969).
9. The tradition already existed to some extent when Hurst joined the faculty in the late 1930s. As Hurst stated in an interview with Hendrik Hartog, "it was apparent right from the very outset that this was a law school unlike most law schools, that did not exist in isolation from all the rest of the university. It was just taken for granted that we would have working contact with the economics department, with sociologists, only later with historians, because legal history was still regarded as not really a subject. But economics and sociology, it was taken for granted that people there were interested in the law school, and the law school was interested in them." Hendrik Hartog, "Snakes in Ireland," Law and History Review 12 (1994): 37The materials that Hurst originally put together with the then-dean, Lloyd Garrison, for the "Law in Society" course at Wisconsin further developed this approach within law.
10. Joel Handler, "Controlling Official Behavior in Welfare Administration," California Law Review 54 (1966): 479-5
11. James Willard Hurst, "Research Responsibilities of University Law Schools," Journal of Legal Education 10 (1957): 147, 161.
12. Ibid., 160.
13. The tension between the two sides is well exemplified in the work of David Trubek, who bridges the two sides of CLS and LSA. See, e.g., David Trubek, "Where the Action Is: Critical Legal Studies and Empiricism," Stanford Law Review 36 (1984): 575-622.
14. According to the memorandum from Willits, dated 17 June 1949, "I would like to put down some of the steps that we have taken as a result of the recommendations on morals and ethics by the Trustee Review Committee and, more specifically, by Mr. Winthrop Aldrich."
15. Ibid., 2.
16. Law and Ethics, dated 12 Sept. 1949.
17. Ibid., 1.
18. "The emphasis on the case method in law schools is excellent as a practical means of teaching what the law is. But such preoccupations by law school faculty, along with their interest in the design of current administrative devices for reform, is not the best atmosphere out of which to develop philosophers in law and government.... RF's [Rockefeller Foundation] opportunity is to endeavor to strengthen these basic deficiencies in law and law schools. If we can do this we will make a basic contribution to law and ethics (and not just add to sound and futility) and also serve the cause of wise government. And incidentally we will be making a flank attack on the weakness in political science." Ibid., 2.
19. Hurst letter to Joseph Willits, 9 May 1951, p. 1.
20. From Willard Hurst, Law and Values, 9 May 1951.
21. Letter from Willard Hurst to Joseph Willits, 1 Oct. 1951.
22. Letter from Willard Hurst to Dean Rusk, 10 Nov. 1952.
23. "Anyone who had a little experience of the comparative records of law-trained men and men of business or other 'practical' background, when they were all thrown into the novel demands of Washington's wartime agencies, could hardly help emerging with a high opinion of the capacity of lawyers to adapt themselves with superior readiness and perspective to the needs of policy-making posts." Ibid., 7.
24. Herbert A. Deane, Suggestions Emerging from the First Conference on Legal and Political Philosophy, 12 Jan. 1953. Page numbers of this document appear in parentheses in the text.
25. Memorandum by Joseph Willits, 20 Feb. 1953.
26. Agenda for the First Meeting of the Advisory Committee on Legal and Political Philosophy, 17 June 1953.
27. Letter from Willard Hurst to Joseph Willits, 22 July 1953.
28. Letter from Willard Hurst to Joseph Willits, 31 July 1953.
29. Letter from Willard Hurst to Joseph Willits, 11 Aug. 1953.
30. Letter from Joseph Willits to Willard Hurst, 24 Aug. 1953.
31. Letter from Joseph Willits to Willard Hurst, 28 Oct. 1953.
32. Letter from Willard Hurst to Joseph Willits, 31 Oct. 1953.
33. Letter from Willard Hurst to Joseph Willits, 12 Apr. 1954.
34. Legal and Political Philosophy Advisory Committee Meeting, 21 Mar. 1955.
35. Excerpt from Interview by John B. Stewart with Professor Lon L. Fuller, 25 Apr. 1955.
36. Legal and Political Philosophy Advisory Committee Meeting, 12 Mar. 1956.
37. Cavers, History of the Walter E. Meyer Research Institute of Law, 45 (quoting from Hurst memorandum).
38. Ibid., 45.
39. Ibid., 46.

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