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"Glimmers of Life": A Conversation with Hendrik Hartog

BARBARA YOUNG WELKE
HENDRIK HARTOG


[December 2008]
In January 1994, the Law and History Review published an interview of Willard Hurst by Hendrik Hartog.1 Michael Grossberg, as editor, introduced the interview as the first of "an occasional series of discussions with legal historians." Over a decade has elapsed since that conversation. Willard Hurst was known both for his scholarship and his commitment to mentoring. Planning for the 4th Biennial Hurst Summer Institute at Madison in June 2007, I could think of no better way to conclude an Institute focused on nurturing legal historians at the beginning of their careers than with a conversation focused on a life in legal history.		 1
      We began the 2007 Hurst Summer Institute by reading Hendrik (Dirk) Hartog's classic article "Pigs and Positivism."2 Following that were wonderful guest visits by Lawrence Friedman and Robert Gordon, Margot Canaday, and Holly Brewer. In the second week, we focused primarily on the work of the Hurst Fellows,3 but then wrapped up with a guest visit by Dirk Hartog and this conversation.

 2
[Madison, Wisconsin, June 22, 2007]
BARBARA WELKE: This morning we talked some about how your 1994 conversation with Willard Hurst came about. You explained that you were reluctant—a nineteenth-century historian thrust into the twentieth century dealing with a live subject and the technologies of taping, etc.—but that Willard really wanted to have the conversation. And now, here we are: I'm the one who really wants to have the conversation and you are again, but for different reasons, the reluctant one. I saw this as a great opportunity and I'm delighted that I was able to twist your arm into having a conversation. I've made up a sort of grid of areas that I hope we can talk about—career path, influences, the field of legal history, and then what I've called some bigger questions. They overlap, of course, so it won't be that orderly.		 3
      You were an undergraduate at Carleton. Were you a history major?

 4
DIRK HARTOG: I was a history major, not a very good one, but I was a history major. I was not somebody who was singled out to read Charles Beard, as Willard Hurst had been at Williams. I was an okay student who did reasonably well in a few courses that I got interested in. But that was who I was.

 5
BARBARA WELKE: Now, had you planned to go to law school?

 6
DIRK HARTOG: No. My wife left, not yet wife, my girlfriend didn't like Carleton and moved to New York to go to the New School for Social Research. And so I chased her there. And when I got there, I had to figure out something to do with my time. And so I thought why don't I go to law school? So I applied to law school in March of that year. It was an easier time. I got into NYU and got rejected by Columbia, so I went to NYU.

 7
BARBARA WELKE: Now, had you thought of yourself as going to law school? I mean, once you got there, okay, so you hadn't planned it, but had you thought of yourself as planning to practice law when you finished law school? Or were you thinking, I mean, had you thought about going to graduate school at all?

 8
DIRK HARTOG: You know, in the way that twenty-two-year-olds think of a thousand different possibilities in their lives and a thousand different things that they might do, I thought of lots of things. But if the sense is the quality of having a life plan, I didn't have a life plan. To bring Willard into the story one more time, I remember seeing a memo Willard wrote to himself (or at least I assumed it was to himself) around 1939, just a few years after he had started teaching, which described the books he was going to write over the next twenty years of his life. He didn't know that he was going to write about the lumber industry. But he said, "Pick a Wisconsin industry and write the full and complete history of that industry." To me this is, you know, this is like talking to an alien.

 9
BARBARA WELKE: Well, what led you from NYU to a graduate program?

 10
DIRK HARTOG: We were talking about that at lunch, and I have multiple answers. One was that the one job I had while I was in law school was working for the office of the mayor of the City of New York. I spent a year trying to remove lead paint poisoning from a part of New York City that had the worst lead paint poisoning in the world, probably, at that time. And after a year of work, I succeeded in removing not one wall of lead paint. 11
      And maybe I was a sort of an incipient historian, because I kept thinking, there are historical reasons why I'm failing at this. And I also realized from that, though I was pretty good at the job—though I didn't get any lead paint removed—I didn't want to spend my life doing that. And I didn't want to do a lot of other things that lawyers were doing. 12
      I had taken all of John Reid's courses. And I loved John Reid. So he was a big influence on me. He really did give me a kind of inkling of what was possible. And I had read Willard's Law and the Conditions of Freedom, picked up, I think, at a used bookstore in New York somewhere, and I thought, boy, this is amazing.4

 13
BARBARA WELKE: I was wondering when that was. So it was in law school.

 14
DIRK HARTOG: It was sometime in my second or third year of law school. And then the last thing that just occurs to me is I was supposed to clerk for Earl Warren. He had already retired, but he was writing his memoirs, and John McKay was the dean at NYU at the time. He called me up and said, "I hear you're interested in history, would you want to go clerk for Earl Warren?" And I said, "Well, yes, I would." I didn't have a resume. I went home and banged out a resume on my ...

 15
BARBARA WELKE: Times have changed.

 16
DIRK HARTOG: ... portable typewriter. And I was told, "Okay, just wait, it'll all work out." They wanted somebody right away (somebody had left this clerkship) and Warren supposedly was willing to have me start even without my law degree completed, but his clerk said, "You can get somebody better." And so I was turned down, but with the assurance that I could have the clerkship a year later. But a year later he was dead.

 17
BARBARA WELKE: Wow. So then what took you to Brandeis?

 18
DIRK HARTOG: I applied to Wisconsin; it was the other place, but I didn't get money to go here. And I got money to go to Brandeis. And we had a child at that point, so Brandeis was an easy decision. 19
      I worked with Morton Keller primarily, but also with John Demos and Marvin Meyers, all of whom were then at Brandeis. And it turned out that Morty Horwitz, who had just arrived at Harvard Law School, was totally ignored by the Harvard History Department, and Brandeis, being an entrepreneurial place, had made him an adjunct faculty member. So it was actually easier for me to work with him through Brandeis than it would have been if I'd been at Harvard.

 20
BARBARA WELKE: Now did you start on the corporation then; was that your dissertation?5

 21
DIRK HARTOG: Yes it was, yes.

 22
BARBARA WELKE: Today we have an increasing number of students who are doing J.D./Ph.D.s and face the decision about whether to teach in a law school or a history department. But this was in the 1970s, right?

 23
DIRK HARTOG: Yes.

 24
BARBARA WELKE: The history job market was totally in the tank.

 25
DIRK HARTOG: Didn't exist, did not exist. There was the famous story: I started in '73; probably in '74 there were more graduate students at UCLA than there were jobs in the country.6

 26
BARBARA WELKE: Before you were finished with your Ph.D., you took a job at Indiana Law School, right?

 27
DIRK HARTOG: Yes. As I think I've indicated, I hated law school. But I liked studying law. NYU is now an extraordinarily interesting place, but when I went there it was oddly boring, though full of political tension. Academically, it was sort of Harvard Law School in 1958, but with lots of Jewish student radicals from New York creating lots and lots of conflict. 28
      Putting aside John Reid, the teaching was not interdisciplinary. It was an anti-intellectual place in many ways. But I did find law interesting. 29
      When I went to graduate school, it was like coming home. For the first time in my life I realized I was doing what I wanted to do. And I've never had any regrets or second thoughts about graduate school. 30
      But then in my third year of graduate school I was meeting with Morty Horwitz one day, and he said, you know, you could probably get a job teaching at a law school. And we'd just had a second child at that point, and the fellowship check was nice compared to other fellowship checks, but it was, we were pretty, you know, my wife was working in the experimental theater company, so the big bucks weren't coming in. And so it suddenly seemed like a good idea, and I went onto law teaching. 31
      We moved in July because it seemed easier with little kids to move and get settled early. And in late July or early August, I walked into the law school in Bloomington and into a classroom and my heart sank. I suddenly realized, this is what I'm going to spend my life doing? I'm going to be the people whom I so detested? It had never occurred to me through the whole process. Somehow I had managed to skip thinking about what it was that I was going to do.

 32
BARBARA WELKE: Do you think that maybe part of that was because you were thinking of yourself as a student?

 33
DIRK HARTOG: I'm sure. I'm sure. I was thinking like a student. I was sort of, you know, it was sort of sociologically or ethnographically interesting to go through the interview process. But I didn't really take it terribly seriously. And I didn't know what I was. And then I had to learn to teach property law and that was a nightmare. But I did get it eventually.

 34
BARBARA WELKE: Now, the corporation book—I was thinking about themes that run through your work. And one of the obvious ones is property. But you came to that before you started teaching property. So how did being in a law school shape that book? And then that book doesn't come out until right when you had moved to Madison, right?

 35
DIRK HARTOG: Just as I was moving to Madison. I wrote it all at Indiana. I didn't do very well in property law in law school, but I loved property law.

 36
BARBARA WELKE: So you did better teaching it.

 37
DIRK HARTOG: Yes, well, I did better eventually, I mean not at first. What did teaching in the law school do for my writing? Having to teach technical and complex things was an incredibly good lesson for writing. I realized somebody is going to be reading this, and will they understand what you're trying to say? And so I think it did help. While teaching at Indiana, I was working to figure out the water laws and land use laws of New York City in the eighteenth century. It was very technical stuff. But perhaps because of my inadequacies as a law student and law teacher, I was avid to acquire some technical expertise, some arcane knowledge of property doctrine. But I needed help figuring some of it out. And my faculty colleagues at Indiana helped a lot. I wouldn't have had such help if I had stayed in graduate school. There was nobody at Brandeis with whom I could have talked about that. And Morty Horwitz would have thought I was a fool to ask questions like that (or at least I would have worried that he would have thought me a fool). So, being at Indiana helped, also the threat that I was going to be denied tenure.

 38
BARBARA WELKE: That's a powerful motivator. You know, one of the other things that you and I have talked a little bit about is premature professionalization—being pushed out, taking a job before you'd even come close to finishing your dissertation. I wonder about the costs of taking a law school job where the way of thinking is so different when you're still very much in your early development as a historian. You were an early person in that regard.

 39
DIRK HARTOG: I was. I always tell students not to do it. This is a do as I say, not as I did. I think it was very difficult. I don't have an answer other than that it was very difficult. Nancy, my wife, ended up doing more of the child care than I meant for her to have done, because I was stuck, you know, trying both to write a dissertation and to learn to teach at the same time. And, you know, I just think it's a very difficult thing. 40
      I think people get pushed very hard towards things. And it would be good if people could resist the sort of quick push.

 41
BARBARA WELKE: Now, when you were in graduate school, social history is coming into its own in a big way.

 42
DIRK HARTOG: And Brandeis is one of the centers of it, between David Fisher and John Demos, it's a kind of ...

 43
BARBARA WELKE: And how did that shape you?

 44
DIRK HARTOG: It was the central conversation of our lives as graduate students. For legal historians it was, "Was there anything to learn about law?" "Was it real?" "Could you make something real out of it?" that is, out of legal doctrine. I had Morty Horwitz as a kind of alternative voice to go to. He was very dismissive of what one might call the social history problematic. And I had Morton Keller to provide a kind of institutional methodological alternative. 45
      It isn't that social history was all there was at Brandeis or anywhere else. But the sexy stuff was all the social history, and if you wanted to be a sexy historian, and, of course, I did, you wanted to do social history. And it also captured my desire to discover something real, because social historians claimed to have access to the real. 46
      And then there was a politics to it too. And that's the part that I think people forget today, which is that it was a deeply democratic impulse. And that's how I read Hurst's Law and the Conditions of Freedom. It probably was a misreading, but I read Hurst as this deeply democratic, everybody is involved in law. It's not just elites; everybody is in it, and everybody's making it. 47
      And that was one part of the social history impulse: that we should make the people, people who haven't spoken before, speak. And that was a big deal.

 48
RAY SOLOMON: One thing you might want to amplify a little bit there about the Brandeis experience was the incredible cohort you had.7

 49
DIRK HARTOG: Absolutely. The class that started with me had eight students the first year. And there were two of us left after the first year, because the faculty decided there were no jobs, they might as well kick some of them out, and others left voluntarily. It was pretty brutal. 50
      But that other person was Mike Grossberg. So Mike Grossberg became my oldest friend in history. Fred Hoxie, who is an eminent Native American historian, was a year ahead of me. Ray Arsenault was two years ahead. It was an incredibly good group, in part, because Brandeis had figured out at that moment what other schools have figured out since: that if they gave reasonable fellowships to us, they could actually sort of jumpstart themselves into a first rate history program. 51
      So it was an amazing group. And we had wonderful conversations; we taught each other a lot. Having Mike Grossberg as my cohort was a wonderful, wonderful experience. 52
      And we were all obsessed with this soft left-wing problematic of are we just irrelevant academics? Issues of relevance were deep in our lives, issues of what would be a democratic practice of history. And that was part of the social history impulse as well, though later on that gets sort of lost out of the story.

 53
BARBARA WELKE: You know, I should back up a minute, because you talked about law, you talked about social history. But did you just become a legal historian because you'd gone to law school? What led you down that particular application of social history?

 54
DIRK HARTOG: I don't know the answer to that except that I'd gone to law school. I could have moved intellectually elsewhere, but I got reinforced all the time. People like Keller, John Demos, and others, they were all entranced with the idea, because then it was deeply unusual to have someone with a J.D. in a Ph.D. program in History. I don't think they'd come across many people like that. And so they thought that was great. 55
      It was a few years later, the same thing occurred when an occasional doctor wanted to get a Ph.D. ... because it wasn't imagined as a choice. Now we have a world of law students who might get Ph.D.s in history. But it was highly unusual in the 1970s, so I was reinforced and encouraged to work on legal history. It was seen as my comparative advantage.


 56
BARBARA WELKE: I asked about property as a theme that runs through your work. Another theme is questions about the meaning of law—questions about whether law matters and legal positivism.

 57
DIRK HARTOG: I don't have an answer other than that I was deeply shaped by the legal realists. I was deeply shaped by reading Holmes's "The Path of the Law."8 I've been struggling with that essay since my second year of law school. 58
      I think my own misunderstanding of how social history connects to law is articulated in "Pigs and Positivism"—that there's a world of culture and custom and communities that come in and that actually make a difference. 59
      Probably in part for personality reasons, I never began with the assumption of the repressive power of law. I began with how law is shaped by others. I can certainly see the plausibility of the other side. These are probably matters of personality as much as anything else. 60
      I recently read a wonderful essay called "Domestic Violence," in the American Poetry Review9 by the Irish poet Eavan Boland. She was writing about the ways in which Irish poetry has avoided the domestic and the local and the particular. Or, better, has avoided seeing large politics, important themes, in the domestic and the local and the particular. And she contrasted that with, say Emily Dickinson. 61
      And I've been thinking that I am actually deeply shaped by a certain desire for—to touch or get close to—the domestic and the local. I think that may come out of the social history revolution of the 1970s, which made it fashionable for a moment to do family history. I have taken it from my expatriate Dutch background. I resonate to a certain kind of Dutch domestic scene in Dutch paintings. The shaping images in my imagination may come from the kind of painting in which there's the table, and there's the mess on the table, and there are people quarreling or engaging in sexual banter on one side, and there's a little child urinating into a pot in the corner. That is one version of reality for me. And that somehow it is a version of reality that draws me.10

 62
BARBARA WELKE: Now you just said a minute ago your "misunderstanding" of social history.

 63
DIRK HARTOG: Well, I think there's another version of social history that is a very systematic social science, very quantitative. I read that and I worked with it. But the point of quantitative social history is not to find out the messy things in the domestic, but to find out the sort of coherent rational things—how everybody married and how and when did first births occur.11

 64
BARBARA WELKE: So, in a sense you're pointing not to your misunderstanding, but to a major division in the practice of social history, right?

 65
DIRK HARTOG: Yes, yes.

 66
BARBARA WELKE: As you know, we began the Hurst Institute this summer reading your article "Pigs and Positivism." And I have to say, in reading a good amount of your work, I'm still not sure where you come down on that line or if you think there's a need to. We had a debate among ourselves on that point.

 67
DIRK HARTOG: You mean the line between the law as articulated structure of power and the law just as an arena of struggle?12

 68
BARBARA WELKE: Yes.

 69
DIRK HARTOG: I don't, I'm on both sides. And I will always be on both sides of that line.

 70
BARBARA WELKE: And is that the message? What led you to write "Pigs and Positivism"? The pigs of New York, after all, made their first cameo appearance in your corporation book.

 71
DIRK HARTOG: The answer is because I had this trial transcript and I couldn't deal with it in the book, because I didn't have time and I had to get it done—first the dissertation and then the book. Also, it didn't fit. The article was the first time I'd really worked through a trial transcript. There was the pleasure of dealing with the text. I think this is true of many historians; we get more pleasure out of working with certain kinds of primary sources than others. And when you find out you can do something with it, then you get addicted to the doing of that.

 72
BARBARA WELKE: What was the response to the article?

 73
DIRK HARTOG: People loved the title. The article has had a long life. I understand that it gets used in lots of jurisprudence courses. I have no idea what they do with it, maybe they read Holmes or Austin on positivism and then read me. I don't know exactly how it plays out. You know, you just throw it out and it has a certain life of its own.13

 74
SOPHIA LEE: I'm curious. "Pigs and Positivism" was part of a trio of articles, with Martha Minow and William Forbath. And there was a preface to them. And when you look at them all together, there's much more of the sense that it wasn't just a trial transcript that captured your imagination. I have this sense that you three thought you were really making an intervention in legal history in some way.14

 75
DIRK HARTOG: We did, after the fact. That is, after the fact, we constructed a preface.15 The articles were written all totally independently. I had written this piece for a New York conference. The second half of it actually came about because I realized, after I'd worked through the transcript in the first half of the piece, that I'd never gone to the minutes of the common council and read them, and there were the pigs in the minutes of the council. They kept coming back to the pigs, so I had to go back and change what I had written before. 76
      And then after they were all in, the editor in chief called me and said, "You know, we should really have a preface for this." So it was at a Law and Society meeting and over dinner we outlined a preface out of our conversation. And then because the meeting was in Madison, I went and banged out a draft on my typewriter. Willy was gone, but Martha edited it dramatically. And that was the preface. So, as with everything else, there was no strong planning.

 77
JOSHUA BARKAN: You talked about this interest in the messiness of the domestic. And what fascinates me about the corporation book is about this transformation in the other side—the kind of structural part of the law. So I'm wondering if "Pigs and Positivism" is really an attempt to again consider how those two are related.

 78
DIRK HARTOG: Yes, yes. I don't have anything else to say. I actually liked the corporation book, but it was clearly written as a dissertation within a discourse. It made a limited set of historiographical interventions. One was about the history of the corporation and the corporate form. Most historians who had dealt with those questions assumed that the story was necessarily about the rise of the business corporations all the way. And it did come out of my own history of working for the City of New York. So there was a certain way in which it connected to my own history. 79
      And then there was a second intervention about the ways in which the city itself was the agent in the story rather than the state, so it was very much shaped by the kind of stuff that Jerry Frug was writing. He and I were sending stuff back and forth at the time. But it's written very much out of a kind of state-centered, public-policy-oriented legal history.16

 80
DIANA WILLIAMS: I'd like to go back to your mention of poetry and a question about interdisciplinary angles other than the legal.

 81
DIRK HARTOG: I think I'm a straight-ahead historian. I run the American Studies program at Princeton and I enjoy it, and I like being able to talk to other people. But that's not what I do. I applied to the History of American Civilization program because I was warned away from the Harvard History department. And I knew there was this young hotshot Morty Horwitz at the law school whom I was told, if you wanted to work with him, you should stay out of the history department.

 82
DIANA WILLIAMS: You talked a little bit about there being a lot of room for law and literature.

 83
DIRK HARTOG: There's a limited set of literatures that I can deal with. I can deal with historiography. If you're in law, you've got to read a certain amount of legal theory, and I like reading legal theory. 84
      But, you know, mastering literary theory would take a lot of work that I'm just not willing to do. This is a very workaday answer. It's not that I couldn't be somebody else, but this is, because of the sort of choices I made at various points, these are the ways one gets funneled.


 85
BARBARA WELKE: One of the other questions that I wanted to ask you about is everyday life. Certainly one aspect of social history is positing the notion that you can know, that there is something called everyday life. I wondered if we might talk about that.

 86
DIRK HARTOG: Let me give two answers. One is, I do read a lot of social theory about everyday life, about the social theory of everyday life. Some of it I understand, some of it I don't understand.17 87
      Second, I worry about the knowability of everyday life. I disagree with a certain kind of naïve everyday life understanding that assumes that life is predictable and takes a certain kind of ordinary course except when planes crash into the World Trade Center. 88
      I love reading trial transcripts because of the glimmers of life that are in them. It is seductive to me. It's in your book all the way through.18 I mean, that woman, with her skirts that are too long, who trips trying to step off the train, that's a certain kind of real life. And, you know, it's like the kid pissing at the side, in the backdrop of the painting. 89
      There's a certain way in which, as a writer and a historian, I want to capture that, that thing. I want to capture other minds that are thinking real thoughts. And I want to capture that thing that gives the illusion of reality. It's always an illusion at a lot of levels. 90
      There's a kind of parenthesis on this. One of the things I noticed moving from a law school to a history department is that in law, the one thing that everybody agrees, whether they say it or not, is that it's all rhetoric all the way down. They all believe it's just another argument that you can make at some point. 91
      The one thing I found when I moved from teaching in a law school to teaching in a history department is that historians, no matter how sophisticated they may be, deep down, believe there's a reality they are speaking of. 92
      So, I probably moved from being on the conservative end in the law school world to being on the sort of slightly weirdo end from the historian's perspective. But there is a way in which in history everybody actually believes that when you're reading sources, that if you work really hard at those sources, you will find something that is real and concrete. And I guess I buy into that, at least as a rhetorical practice, that this is what I do, whether epistemologically, whether analytically, it's true, is different.

 93
ANNE KORNHAUSER: Social history certainly contributed to the study of actual everyday life. But, especially when you were coming of intellectual age, there was another element of social history that dealt with the political. This more social scientific approach to social history dealt with the structure of power, and one of its goals was to overturn the liberal sense that history was not about power struggles, that instead it represented a consensus of sorts. And one of the ways it tried to do this was to amplify the ways in which culture, politics, and certainly the law were arenas of struggle. So I want to try to fit you into the history of history. Given what you said this morning about consensus history and law as a source of hegemonic ideas and institutional structures, how do you reconcile this view with the sense of law as a site of struggle that comes through in your article "Pigs and Positivism," for example?

 94
DIRK HARTOG: When I was a graduate student in the mid- to late 1970s, the hegemonic power of the law was everywhere in our conversations. Hegemony was a way to give significance to the law, at a time when a good bit of lefty and Progressive opinion still took "law" as mere superstructure. Social historians for the most part had no interest in law, since it seemed unconnected to the project of bringing nonelites into history. To generalize, social historians of the late '60s and early '70s thought that their subjects existed beneath, to the side, or outside of the law. The law might inadvertently provide sources or access, but not insight. The entry of "hegemony" into the discourse changed that conventional wisdom. And it made law-oriented people like me feel like we were doing something important.19

 95
And hegemony also seemed—loosely and crudely—just obviously true. How could it not be the case that having to shape desires and needs and wants to the demands of courts run by elites reinforced and supported the structure of power in the society? Worse yet, what if those "on the bottom" believed that their desires, needs, and wants would be "satisfied" by legal means, that the law offered their best hope for satisfaction? And, of course, so much in the empirical literature supported (and still supports) a hegemonic understanding: everyone knows that personal stories are distorted and shaped—made acceptable and recognizable—when they come in to court.20 96
      Hegemony seemed so obviously true to me, at least it did sometime in the late 1970s, that I remember being shocked—"shocked"—to discover that my mentor Morton Keller did not think hegemony offered a useful description of the role that law played in structures of power.21 Only later did I come to appreciate his criticisms. It is, of course, impossible to separate the impulses of one's own sensibility from what one actually sees in historical records—out there. But all I can say is that when I read documents like the trial transcript at the heart of "Pigs and Positivism" (and even more when I wrote "The Constitution of Aspiration"22) what I saw was the openness of legal language to multiple goals—not to all goals of course—but to many. In an odd way, I guess my sensibility was always postmodern (which may be a synonym for being somewhat legally sophisticated) in that I was always interested in the "play" in legal language. And I loved finding the ways lawyers and clients took legal language and made it their own. 97
      Now, such modest discoveries are no challenge to hegemonic understandings of the law. Indeed, they may be crucial. How else will law retain its loyalty and legitimacy, if it is not available for use by those who will remain its victims? 98
      But still, it is also probably the case that as one expands the interpretive possibilities in a legal context, as one shows how diverse and diversely situated people found varying and conflicting meanings in this apparently singular phenomenon, "the law," there is a shift of view. Law becomes a site rather than a mechanism. And eventually one may come to see the law as a field or arena of struggle between competing normative understandings, as a place where conflict occurred, rather than as a "modality of rule" (to use Chris Tomlins' useful phrase).23 At least that is what happened in my case.


 99
BARBARA WELKE: I'd like to think about transitions in your work. While both the corporation book and your book on marriage involve property and the line between private and public, still there is a leap, if you will, from your first book to your second.24 What was it—things going on in your own life, the circles that you were moving in, influences—that brought you from that first book to your second project?

 100
DIRK HARTOG: I was talking with Joyce Appleby about the inheritance project25 and she said, "You Baby Boomers, you just want to write about your own life."

 101
BARBARA WELKE: And what did you say back?

 102
DIRK HARTOG: I said you're right. I mean, I felt hurt. But she's also right. The New York City book was shaped by my having worked for New York City. But it was also shaped by my interest in local governance and teaching local government law at Indiana and a set of problematics about the local that I worried about. The social history that really shaped me was the colonial, local, social history of New England, the works of John Demos and [Kenneth] Lockridge and all the others. I wanted a locality, and New York City, which was after all not very large in the eighteenth century, became my focus partly because of records. 103
      The marriage book was a product of the intellectual ferment of the 1980s. Feminist legal theory was exploding, and I was involved in several readings groups. At Wisconsin, I was very close to Martha Fineman, who was one of the leaders in the field. In the mid-'80s Martha began a feminist legal theory workshop. And then there was Betsy Clark26 who came as the first legal history fellow at Wisconsin, and Linda Gordon who arrived as a faculty member. 104
      So there were these new colleagues, new ideas, and issues that were fascinating to me. And Mike Grossberg had published his book on the history of the family so there was all this stuff around focused on marriage and family.27 105
      You know, I should have mentioned before, my wife and I married in 1969. And so we were longtime married people. And we'd watched all this change. And we'd had the usual stresses and anxieties and strains that a longtime marriage has. So Joyce Applebee was not wrong in intuiting that it was about my life. It was about my life in Wisconsin and the particular conversations I'd had. 106
      And then there was a kind of, you know, this sort of strategic side of me which is all this feminist legal theory stuff was not really talking about marriage. It was talking about lots of different stuff. It was about women leaving marriages. But it wasn't really about marriage. And it's why I saw a kind of target. Obviously, Nancy Cott saw exactly the same thing at the same time, as did Norma Basch.28 There was a whole group of us who obviously made exactly the same strategic calculation at exactly the same time. And it's sort of interesting that we all saw the same thing not being talked about.

 107
BARBARA WELKE: What led you to decide, I mean, one of the strengths of the book is that you decided that you could best see marriage by looking at exits.

 108
DIRK HARTOG: That's because I didn't see what I wanted to see in the project. When I started the book, my image for it was a sentence out of the opening to Genovese's Roll Jordan Roll, in which he says he's going to write the history of two peoples who have been locked together.29 I can't remember exactly the terms. Locked together inescapably, who have to find a way to accommodate each other. And I thought, that's husband and wife, you know, sort of locked in. 109
      But, of course, the minute I started reading the cases, they were never locked together. They were off in one direction or another. Now one could tell exactly the same story about slave studies. Walter Johnson's book is about the slave market and what do we write, what are our slave studies today?30 Slave studies are about the market and about all the ways master and slave were never stuck together. They were always being sent away from each other, sent apart from each other. 110
      So in some ways I was locked in, call it a 1970s frame of reference, in Genovese's world, which was probably wrong for slave studies, but it was certainly wrong for marriage where the reality in the United States was that husbands and wives were never locked together. This is historically contingent. One could imagine lots of worlds in which husband and wife would be stuck together in a relationship, though probably never so much as in my naïve beginnings.


 111
BARBARA WELKE: What is it about the nineteenth century and law in the nineteenth century that has so grabbed you?

 112
DIRK HARTOG: There are lots of answers, but one answer would be it's a manageable quantity of messiness that I can deal with. The twentieth century, I've never figured out how to choose records for a twentieth-century project. I mean, it comes up talking to graduate students all the time. How does one make the kind of selection? This is my social historian's background; I come out of a world in which I would like a sense of covering something. And I never know how I would ever cover anything for the twentieth century. 113
      But, on the other hand, I like a world that's sort of chaotic. And I like a world that is sort of modern. I'm not a medievalist; I'm not an early modernist. There's something about the nineteenth century that speaks to my middle ground sensibility, to my desires for a kind of middle ground space where things are relatable to the present, but not, clearly not, the present. 114
      The availability of trial transcripts—I think the other thing is, part of this is just a source thing. That there are these transcripts and there are enough of them and there is a lot of stuff. 115
      When I went to graduate school, and actually through my first years of teaching, everything was about the early nineteenth century. Everything was about the "formative era," as reinvented by Morty Horwitz in The Transformation of American Law and by Bill Nelson in Americanization of the Common Law.31 116
      Twenty-five or thirty years ago what we talked about in relation to Hurst32 was not the absences of women and Native Americans and immigrants and African Americans. We would have talked about Hurst in terms of his lack of a theory of change. It wasn't about consensus exactly. It was about change. 117
      And what Horwitz gave was a dramatic—transformative—story of change in the first half of the nineteenth century. And like many other legal historians, Horwitz's story assumed that at the end the law is the law, recognizably so for the educated late twentieth-century lawyer. The era was, as Pound characterized it, "formative."33 And formative meant formative of a certain kind of recognizable modernity. In that sense it is hardly surprising that social and cultural historians of the "market revolution" have relied so heavily on Horwitz's work. 118
      And my New York City book is then just part of the normal science of that moment, except that I began the story earlier than most of the other normal science works of that time did. Unlike others I wanted to know concretely how the "before" worked. But like others, I asked a question about when a part of the law—the law of municipal corporations in my case—became "modern." 119
      I think sometime in the 1980s I began to think that what I and others have called "the long" nineteenth century was amazingly interesting on its own terms. Fascinating, really. Part of what draws me to the nineteenth century is the wonderful historical writing on the nineteenth century. But gradually I have come to love the period not just because of its causal relationship to something later ("our era," "the present," "modernity," or "postmodernity"), but more because it presents continuing and absorbing historical problems and questions. 120
      And then one also stays with a period because over time one gets the advantages of a certain kind of familiarity. One knows a bit, even if one never knows what one most wishes to know. And so it becomes hard to leave, to go elsewhere. I can build on what I have already done. So, if I need to figure something out about infancy in the nineteenth century, I will have five sources in my head. If I have to think about infancy in the 1940s, I would be much less likely to have such sources available or even to know where to look for them.

 121
BARBARA WELKE: Is there something about the particular relationship between law and the public and the private in the nineteenth century?

 122
DIRK HARTOG: You are absolutely right to see in my writing something close to an obsessive interest in the public-private split. I could claim that I was simply reflecting what was there, in nineteenth-century legal thought: my obsessions are/were their obsessions. How to understand public and private "persons" and identities; what is the nature of a corporation; what is family law? These were core questions articulated by so many nineteenth-century legal thinkers. But my focus was certainly more than just a reflection of primary texts. Early on, I was much shaped by parts of Pocock's Machiavellian Moment.34 The notion of the early modern householder, who as the ruler of a private domain, a household, becomes someone fit for civic life, for "self" government, and for public governance, struck me as an apt and crucial image for what became a major set of problems in nineteenth-century American political and legal and constitutional life (and in the history of marriage and the family). And I was deeply shaped by the "instrumental" characterization of private law—that I identified both with Morton Horwitz's first Transformation of American Law and with Hurst's lumber book.35 I was both convinced of their emphasis on the political and distributive significance of private law, and troubled by it. While Hurst and Horwitz (and all of us who followed them) clearly captured something true about American judging, it was also a partial truth. But for many years I lacked much of an alternative. 123
      Today, I wonder if some of the intensity of attention to the public-private split—by me and others—was not a displacement of twentieth- and twenty-first-century concerns on to the nineteenth century. These were all histories written by historians who lived all their lives with constitutionalized civil liberties and civil rights, with a right to privacy, and also people who have experienced a public discourse that is genuinely obsessed with distinguishing what belongs to the public as opposed to the private. Many (including me) were shaped by critical discourses that challenged rigid and naïve versions of the separation of public from private. But all of us have also been threatened by modern invasions of private space. And as legal actors and professors and citizens, many of us have been participants in policy debates and litigation about public services and constitutional rights. 124
      I suspect that a serious rethinking of nineteenth-century law and legal thought—and of judging—would emphasize different categories, and might deemphasize the public-private split. What would be the core terms in that rethinking? Off the top of my head, I would think property and contract would be at the top, along with a complex of understandings about mobility, variety, and unity that are inadequately captured by the term federalism, along with a dense inherited and evolving religious and legal understanding of corrective justice. But that is something for the future. And I certainly can't claim to have clarified or resolved or escaped the public-private split in my own work.


 125
BARBARA WELKE: A few minutes ago, and this is a different tack, but a few minutes ago, you mentioned Betsy Clark. One of the things as I have been listening to you talk that I've thought about, we've talked about different kinds of influences, you know, wonderful teachers, wonderful colleagues. But I wondered about working with graduate students and how that has shaped you as a scholar.

 126
DIRK HARTOG: It's been the most wonderful thing. I've gotten so much from it. You get something miraculous, right? Because the miraculous part is that you engage with people who are interested in what you're interested in. It's an unimaginably narcissistic experience to get people who actually want to engage with what matters most to you. 127
      And then they have their own thoughts beyond yours, about the things that you're most interested in, thoughts that also go well beyond the conventional wisdoms of the field. I have students keep a journal of their readings. And I read the journals, and it's just amazing to read them. Some of the time they're discovering things that you knew already. I mean, they've got to go through certain hoops, what everybody has to go through. But then on every page there's some insight about the readings that I didn't have and that I wouldn't have but for reading their stuff. So it's, you must know this, it's ...

 128
BARBARA WELKE: It's a way of being reborn.

 129
DIRK HARTOG: It's also scary.


 130
BARBARA WELKE: Moving to a different tack, the field of legal history. You know, how you saw it when you came into it, how you, I mean, it's changed incredibly, grown incredibly.

 131
DIRK HARTOG: Let me talk about it in three ways: about the American Society for Legal History, about legal education more generally, and about history teaching. 132
      The society has always, at least in my lifetime, been an incredibly receptive and gentle place. The first meeting I ever went to was in Philadelphia. I met Ray Solomon there. All I thought on the train going back to Boston was the Groucho Marx line, you know, do I want to be in a club that will have me so easily? I mean, that's not exactly the line, but it is what I thought.

 133
BARBARA WELKE: I think he said he didn't want to be ...

 134
DIRK HARTOG: Okay, yes. He didn't want to be. But I was putting it as a precedent. I went down there thinking I'm just going to sit by myself, and no one is going to pay any attention. But people introduced themselves, old guys, famous guys, people were incredibly kind. 135
      Now, there were almost no kids at that time. In 1976, Ray and I and one other person were the only people probably under the age of thirty, maybe under the age of forty. Well, probably, Bill Nelson and Morty Horwitz weren't 40 yet. But ...

 136
BARBARA WELKE: That's hard to imagine, I mean the age of the group generally.

 137
DIRK HARTOG: In those days legal history was a field for the deviant and marginal. They were tolerated because they added a certain scholarly gloss to their institution, because law schools had to pretend to be scholarly institutions. 138
      There were a few people who were breaking that perception down by that time—Horwitz at Harvard, Buzz Arnold first at Indiana and then at Penn, Tom Green at Michigan, Stan Katz at Chicago, and Bill Nelson. There were people who were clearly going to be players in their institutions, even though they were legal historians. 139
      But in the general culture of the law schools there was a perception that to want to be a legal historian was to want to join a really weird club of people, of obsessives and of people who had left the main road of legal education. 140
      That changed so dramatically, so quickly, in the late 1970s. And, you know, somebody should write the history of that change. It's worth some attention. Some of it was when Morton Horwitz won the Bancroft Prize for The Transformation of American Law. Suddenly legal history became a big deal. Some of it had to do with the entry of people our age into the field. And a little later some of it had to do with the entry of people from outside of the law schools into legal history. Suddenly, you had self-defined women's historians and historians of slavery and a whole world of others who were attending meetings, so that by the mid-1980s, the ASLH had become this booming and exciting place. 141
      Some of it also had to do with CLS. Some of the best debates about critical legal studies occurred at legal history meetings. I remember one about labor history in particular. CLS made history matter. And it made history matter to lots of people outside of our tiny professional group. For lots of young legal academics, history suddenly became important. In law schools you suddenly had a kind of engagement around questions that were central to your own intellectual and professional identity. And so the field—both in the ASLH and beyond—just became richer and richer. 142
      But what is also marvelous about the society, and I think Ray plays a big part in this and should get credit, is it has never lost its receptiveness and its openness to new voices and new people. I don't know how or why that has happened, because other subdisciplinary communities, as they become more successful, often become more rigid. But that's never happened in legal history. It's been one of the treats of my life. 143
      The second way of talking about what has changed would be through the lens of the law schools more generally. There has been a broader transformation in law teaching. Now, this is both a good thing and a bad thing, right? I mean, it's been a good thing for us as people who were once at the margins, if that. But it is a totally weird phenomenon. When I went on the law teaching market in 1976–77, I remember at several interviews—it happened at least a couple of times—I would be taken aside by some kindly older faculty member who would say a sentence or sentences that would go roughly like this: "You seem like a nice bright young man. Why would you want to go into a field like legal history?" 144
      And he meant this as advice and as counsel. He would have had this sort of sense that I was just being dumb. I could do something real with my life. 145
      In any case, within a dozen years, law schools went from a situation where maybe a dozen law schools in the country had real legal historians and of those, probably, say there were five or six people who were seriously engaged with it, you went very quickly to a place where every law school had to have a legal historian. And I have heard eminent law school deans in the last few years speak as if there were no limits on the numbers of legal historians their schools might hire. "We just regard it as a methodology." 146
      There's something wrong with this, speaking as someone who confessedly felt nurtured by the sense of deviance and marginality. But it is, in terms of our field, a remarkable and amazing change. 147
      The third part of that story is there's actually less change in history departments. The good thing that's happened in history departments is that people in all sorts of fields of history look to law as a source and read cases. So women's, gender history, queer history, race, labor, I mean, there's almost no field where historians aren't looking at legal materials. In the 1970s, when I was starting out, looking at a case would have been seen as a sort of odd thing to do. Everybody looks at legal materials now. But legal history, the sustained study of legal doctrine and the history of practices that we identify with the idea of law, that is still pretty much outside of what is done in history departments. And constitutional history has been colonized by political science departments.

 148
BARBARA WELKE: You would think we planned this, because actually I had two more questions that I was going to ask. And one of them was that right now there is this incredible proliferation of law in historical work. It sometimes seems that everyone, or at least lots and lots of historians are using law in writing history. But that's not the same as legal history. So how do you see the difference? Is it a particular kind of self-consciousness about what people are thinking about? Is it a matter of thinking about law as an actor in the equation in a different way as opposed to seeing it as just a source or a site for getting into social history?

 149
DIRK HARTOG: Some might draw a sharp distinction between the subject of legal history, as I just defined them, legal history pure, and the historical uses of matters legal, that is, the uses by historians of legal materials. I wouldn't. I think that what makes a legal historian a legal historian might be nothing more than the difference between assuming that law is a window and assuming that you have to understand the window as an artifact and as having a shaping effect on what you see through it. Legal historians are curious about the windows. And I guess all historians should be, at least a bit. 150
      I wouldn't want to tell someone interested in the history of child abuse that they should stop thinking about child abuse. But I would want her or him to think about the testimony in the trial that they are relying on. The trial is not an unmediated record about who abused whom and what happened to whom. And that strikes me as a continuing issue with a lot of both cultural and social history. There is a certain kind of cultural studies work nowadays that picks a particular trial and assumes that the world is all in one trial. That may be so. But it may also be that this trial is part of a sequence of similar trials across a very long period. Or the trial may be a genuine outlier. Some of the testimony in the trial may be entirely formulaic, even though it sounds incredibly revealing. And the pleadings will almost certainly be disconnected from any particular felt experience of the litigants. It is important to understand what is going on in a trial, the ways lawyers shape clients' concerns, the need to understand that judges and lawyers, when they recite facts, aren't reciting facts. They are telling stories that will justify their conclusions. These are things that anyone, with a bit of self-criticism or reflection, can deal with. It's not arcane knowledge. 151
      For the most part though, it's pretty wonderful what goes on nowadays. It's such a different world. Again, to go back to the training I had as a graduate student in the 1970s: part of the conversation that Mike Grossberg and I used to have endlessly is how do we explain that law is important. Is it important? Or, are we ourselves just products of a particular false consciousness? 152
      Of course, our anxiety connected to the general leftism of the time. If you wanted to be a lawyer, and were a lefty, you were supposed to think of your social role as being to keep radicals out of jail. That was your job, not actually to change anything in the law, because the law was not that important, was merely an expression of something else. In the same way in history, almost everyone thought of law as "mere" superstructure.36 153
      And that understanding has just broken apart. I mean, it's not neat nowadays, but it is very different. And law matters to almost everyone.

 154
BARBARA WELKE: That was great. I have two final questions. I know I said something like that before, but I promise that I won't just keep adding two questions. The first is, 9/11, what impact do you think 9/11 has had on the doing of history, on social history, on legal history?

 155
DIRK HARTOG: I'm not sure. I think that there is a general shift back to political history that probably preceded 9/11. You can see this shift in the Princeton History Department, which once was the mothership of cultural history. This is part of a shift, beginning in the 1990s, towards internationalization of history, towards global legal history, towards the history of human rights. And for me, one consequence of recent days is that once again I worry that studying the kind of law I study—legal doctrine, private law as expressed in family relations—is irrelevant and unimportant. Once again, I worry a lot that I'm pursuing insignificant subjects. I worry that it's just trivial to do what I do, that Guantanamo Bay is more important, that the privatization of government is much more important, and that spending time on conflicts between disgruntled parents and children is a trivial occupation. Am I just, once again, internalizing the zeitgeist? Anyway, there's a sense today that there are too many important things out there that need the attention of historians, that social history becomes a luxury we can't afford.

 156
BARBARA WELKE: I'd be happy to talk more with you about that one. In closing, I'd like to come back to "Pigs and Positivism" one final time on a point that in a way connects with what you were just saying about the nature of the times we're living and doing history in. One of the things that I love about "Pigs and Positivism" is the humor. We take ourselves so seriously in everything we do. Do you think there's room for humor, more humor in our writing generally, or are there some projects that lend themselves to humor and most projects that never will? Or do we take ourselves too seriously?

 157
DIRK HARTOG: I can't speak for other people. I think that a lot of historical writing is deeply tendentious. And I don't mean this, actually, critically. People write to discover what they already know and to ... I'm not exactly answering your question about humor. 158
      But one thing I think about in my writing—and actually my wife sometimes criticizes me for going too far with this—is I want to surprise people. The surprise may be just a sentence or an ironic twist or just a rhetorical term. And perhaps that becomes a goal because I don't have a strong sense that I know in advance what I'm doing or looking for. It may be that humor is the recourse of people who don't have strong political visions. 159
      So, Sean Wilentz is not funny in The Rise of American Democracy.37 Sean can be very funny, but he's not funny there, because he knows where he's going. He's got to get to Lincoln and the Civil War. And he's going to march on. And irony is not the way to get there. And I think, as you know, Willard Hurst was not funny. There are lots of reasons Willard was not funny. But one reason Willard was not funny was because he had a very strong political vision. And Morty Horwitz is not funny. 160
      These are all people with very strong understandings of the political meaning of what they are about. I have some political impulses and political values, but I don't have that strong sense of political mission, of what my history solves or even articulates for the present or maybe even for the medium-long term. What I want to do is create senses of surprise, irony, paradox. And I want to get others to share my pleasures in exploring the past. And I guess that becomes, maybe, something that can be read as humor.

 161
BARBARA WELKE: I'd like to let you close with whatever you'd like to close with, because I've probably asked all kinds of questions that you weren't interested in answering.

 162
DIRK HARTOG: I actually realized there's one other question, you asked me about a few weeks ago, about collaboration.

 163
BARBARA WELKE: Yes, okay. Well, let's talk about it.

 164
DIRK HARTOG: Okay. I want to distinguish collaboration from coauthorship, which I've never done. I like the solitude of writing and the solitude of research. And that's probably where I'm going to be. But I've been so shaped by, you know, a variety of other people. And, you know, we've focused here on my writing. 165
      But in some ways I don't know that my writing is what's most important. I haven't done enough of it. And, you know, it may be that teaching and other stuff is maybe where I'm more naturally suited than for writing. I don't know the answer to that. 166
      But, you know, there have been friends, people like Ray Solomon and Mike Grossberg for a very, very long time, and Betsy Clark, so long as she lived. And teachers also. I mean, people like Demos and Keller and Horwitz, and Hurst later on in a kind of avuncular mentorship role. And so that's one level. 167
      A second, that really changed my life—and I hope all of you have a chance for collaboration like this—is the Institute for Legal Studies at Wisconsin. I mean, when I came to Madison, I thought I was going to be denied tenure at Indiana. The dean wanted to deny me tenure. 168
      And then I got a job offer at Madison. And to come into the Institute for Legal Studies was to come into a place where people took ideas seriously, where everything mattered. It was endless. I mean, talk about conflict. There was endless conflict; there were very strong personalities. 169
      Dave Trubek taught me incredible lessons about how to be entrepreneurial about ideas and how to make ideas work with other people, how to work with other people. 170
      There's a University of Chicago story connected with this which is that I gave a talk at the University of Chicago shortly before I left for Princeton. I gave a talk there, and I stayed overnight with Dick Helmholz. And Dick's an incredibly sweet person. I said I have to get up at 5:00 in the morning to get back to a meeting at the Institute for Legal Studies. 171
      And Dick said, so what are you going to be doing there? And I said, well, we're going to be spending four hours fighting over $5,000. Which was exactly true. I got up at 5:00 and got to Madison by 8:00. By 8:30 we were in the meeting and it went until noon, and we fought for hours about how to distribute $5,000. 172
      And, of course, Dick Helmholz had said, "Isn't there somebody who can write a check?" And the answer about the Institute for Legal Studies was no, there wasn't. Wisconsin is actually a wealthier place than it was then. But in the 1980s the law school was incredibly impoverished. Everything we did was dependent upon applying for grants and for very limited support. 173
      But it was so moving, you felt like you were engaged in changing the world. I'm sure this is like if you were involved in SDS (Students for a Democratic Society) in 1963 or something: you were at war with elite legal education and you were right and they were wrong. That was an amazing experience. And that really did shape me. 174
      And that fell apart, and it wasn't going to last. And, like marriage, there always were forms of exit. And it wasn't going to stay, and in part it was its poverty, it was not going to last. But it was wonderful. 175
      Two more quick collaborations. One is graduate students at Princeton who have just been wonderful in exactly the same way that I talked about. And the last is Tom Green as an editor. I was the coeditor of the legal history series, and Tom and Dave Trubek are the best editors I've ever met. 176
      They also are models of intellectual generosity. I watched them, and I wanted to be like them. I learned to be more generous from them. With Tom it didn't matter if you were going to publish with him or not, he gave scholars the best readings of their dissertation they'd ever had. And Dave Trubek has a similar quality. He would enter into your world and figure out how to make your argument better. 177
      Watching people like Trubek and Green do that, that's a model for how an intellectual community generates itself and reproduces itself. They were really, really important. That's what I wanted to say.

 178
BARBARA WELKE: Thank you. 179


Barbara Young Welke is Associate Professor of History and Professor of Law at the University of Minnesota <welke004@umn.edu>. She wishes to thank Dirk Hartog for graciously agreeing to the interview; Howard Erlanger, Pam Hollenhorst, and the Institute for Legal Studies, University of Wisconsin Law School for hosting the Hurst Biennial Summer Institute in Legal History and for technical support in making this interview possible; the 2007 Hurst Fellows for their enthusiastic support and participation; and David Tanenhaus and the anonymous reviewers for Law and History Review.
      Hendrik Hartog is Class of 1921 Bicentennial Professor in the History of American Law and Liberty and director of the Program in American Studies at Princeton University <hartog@princeton.edu>.


Notes

1.  Hendrik Hartog, "Snakes in Ireland: A Conversation with Willard Hurst," Law and History Review 12 (1994): 370–90, <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/lawhst12&id=1&size=2&collection=journals&index=journals/lawhst>.

2.  Hendrik Hartog, "Pigs and Positivism," Wisconsin Law Review (1985): 899–935, <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/wlr1985&id=1&size=2&collection=journals&index=journals/wlr>.

3.  2007 Hurst Summer Institute Fellows: Joshua Barkan, Nandini Chatterjee, Roman Hoyos, Anne Kornhauser, Sophia Lee, Lisong Liu, Masako Nakamura, Steven Porter, Honor Sachs, Stelios Tofaris, Laura Weinrib, and Diana Williams.

4.  James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, 1956).

5.  "The Properties of the Corporation: New York City and its Law, 1730 to 1870" (Ph.D. diss., Brandeis University, 1981). This became Hartog's first book, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730 to 1870 (Chapel Hill: University of North Carolina Press, 1983; paperback edition Ithaca: Cornell University Press, 1989).

6.  For a brief overview of the history of the job market for historians, placing the 1970s in broader perspective, see Anthony Grafton and Robert B. Townsend, "Historians' Rocky Job Market," The Chronicle of Higher Education (July 11, 2008), <http://chronicle.com/free/v54/i44/44b01001.htm>.

7.  The question is by Raymond Solomon, a longtime member of the ASLH who, as a chair of the Hurst Fellow Selection Committee, had joined us for the final day of the Hurst Institute.

8.  Oliver Wendell Holmes, Jr., "The Path of the Law," Harvard Law Review 10 (1897): 457–78, <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/hlr10&div=55&collection=journals&set_as_cursor=2&men_tab=srchresults&terms=Law|and|History|Review&type=matchall>.

9.  Eavan Boland, "Domestic Violence," American Poetry Review 36 no. 2 (March/April 2007): 33.

10.  Hartog was unable to find an exact source for this "shaping image." He refers readers to the paintings of Jan Steen and David Teniers the Younger.

11.  Consider, for example, Emmanuel LeRoy Ladurie, The Peasants of Languedoc, trans. John Day (Urbana: University of Illinois Press, 1974); Stephan Thernstrom, The Other Bostonians: Poverty and Progress in the American Metropolis, 1880–1970 (Cambridge, MA: Harvard University Press, 1973); and Peter Laslett, The World We Have Lost (New York: Scribners, 1965).

12.  See Hartog, "Pigs and Positivism." Hartog notes, "In a way, these two understandings represent the tensions between the Critical Legal Studies movement and the Law and Society Association, both circa 1984 or 1985. For clear and comprehensive articulations of the conflict between those two understandings, as well as attempts to reconcile them, see two essays from the Stanford Law Review's famous symposium on Critical Legal Studies: David M. Trubek, "Where the Action Is: Critical Legal Studies and Empiricism, 36 Stanford L. Rev. 575 (1984), <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/stflr36&id=1&size=2&collection=journals&index=journals/stflr>; and Robert W. Gordon, "Critical Legal Histories," 36 Stanford L. Rev. 57 (1984), <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/stflr36&id=1&size=2&collection=journals&index=journals/stflr>.

13.  I began the 2007 Hurst Institute with "Pigs and Positivism" for several reasons. First, it is the most accessible consideration I know of fundamental questions of what is law and who decides. Though I don't believe much in canons, it is certainly a work that I think any young scholar beginning work in legal history ought to read. Moreover, it is written in such a way, it seems to me, to spark and invite discussion. One of the goals of the Institute is to form an intellectual and social community among the Fellows—I hoped (as it turned out, correctly) that "Pigs and Positivism" would serve this goal. I also appreciate its tone. Though pigs were no doubt a serious issue for New Yorkers in the early nineteenth century (more serious than the article's humor perhaps suggests), the subject matter of the piece is sufficiently distant and unproblematic to a modern day reader to enable the reader to engage with the fundamental questions at the heart of the piece. Another reason for using the article was its focus on law in everyday life—this is an interest that Dirk and I have in common and that I wanted represented in the readings for the Institute. And, finally, there was also the symmetry of beginning with a piece by Dirk since he would be joining us for the final day of the Institute for this conversation.

14.  William E. Forbath, "The Ambiguities of Free Labor: Labor and the Law in the Gilded Age," Wisconsin L. Review (1985): 767–818, <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/wlr1985&id=1&size=2&collection=journals&index=journals/wlr>; Martha Minow, "'Forming Underneath Everything that Grows:' Toward a History of Family Law," Wisconsin L. Review (1985): 819–98, <http://www.heinonline|.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/wlr1985&id=1&size=2&collection=journals&index=journals/wlr>; Hartog, "Pigs and Positivism," <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/wlr1985&id=1&size=2&collection=journals&index=journals/wlr>.

15.  William E. Forbath, Hendrik Hartog, Martha Minow, "Introduction: Legal Histories from Below," Wisconsin Law Review (1985): 759–66, <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/wlr1985&id=1&size=2&collection=journals&index=journals/wlr>.

16.  See, in particular, Gerald Frug, "The City as a Legal Concept," 93 Harvard L. Rev. 1059 (1980). It is reprinted in City Making: Building Communities Without Building Walls (Princeton: Princeton University Press, 1999).

17.  See, in particular, Pierre Bourdieu, The Logic of Practice (New York: Cambridge University Press, 1990); and Michel de Certeau, The Practice of Everyday Life (Berkeley: University of California Press, 1985). See also several articles by the legal anthropologist Barbara Yngvesson. For example, Maureen A. Mahoney and Barbara Yngvesson, "The Construction of Subjectivity and the Paradox of Resistance: Reintegrating Feminist Anthropology and Psychology," Signs: Journal of Women in Culture and Society 18 (1992): 44–73, <http://web.ebscohost.com.floyd.lib.umn.edu/ehost/pdf?vid=4&hid=15&sid=a7e3a313-1361-49ae-b07b-38c924187dd5%40SRCSM2>; and Yngvesson, "Negotiating Motherhood: Identity and Difference in 'Open' Adoptions," Law & Society Review 31 (1997): 35–80, <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/lwsocrw31&id=1&size=2&collection=journals&index=journals/lwsocrw>.

18.  Barbara Y. Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001).

19.  Dirk notes, "As I remember it, we all turned to "hegemony" by way of Eugene Genevose's Roll Jordan Roll: The World the Slaves Made (New York: Pantheon, 1974). Then came, quickly, David Brion Davis's second volume of his history of antislavery, The Problem of Slavery in the Age of Revolution, 1770–1823 (Ithaca: Cornell University Press, 1975). And then we all began to read Gramsci directly. In my own case, I had read a bit of Gramsci earlier, but it had not had that much impact on me until after I had read Genovese."

20.  Examples in recent work of the point Hartog is making here include "Junction: Truth, Legal Storytelling, and the Performance of Injury," in Welke, Recasting American Liberty, 235–46; and Ariela J. Gross, "Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South," Yale Law Journal 108 (1998):109–88. See also Lucie E. White, "Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the hearing of Mrs. G.," 38 Buffalo L. Rev. 1 (1990), <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/buflr38&id=1&size=2&collection=journals&index=journals/buflr>.

21.  Hartog was referring here to a conversation he had with Keller. For an expression of something of this view in Keller's published work, consider Morton Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–1933 (Cambridge, MA: Harvard University Press, 1990), 1–6.

22.  Hartog, "Pigs and Positivism"; "Mrs. Packard on Dependency," Yale Journal of Law and the Humanities 1 (1988):79–104, <http://www.heinonline.org.floyd.lib.umn.edu/HOL/Page?handle=hein.journals/yallh1&id=1&size=2&collection=journals&index=journals/yallh>; "The Constitution of Aspiration and 'The Rights that Belong to Us All,'" Journal of American History 74 (1987), <http://www.jstor.org.floyd.lib.umn.edu/stable/1902163?&Search=yes&term=%22constitution+of+aspiration%22&list=hide&searchUri=%2Faction%2FdoAdvancedSearch%3Fq0%3D%2522constitution%2Bof%2Baspiration%2522%26f0%3Dti%26c0%3DAND%26q1%3D%26f1%3Dall%26c1%3DAND%26q2%3D%26f2%3Dall%26c2%3DAND%26q3%3D%26f3%3Dall%26wc%3Don%26Search%3DSearch%26ar%3Don%26sd%3D%26ed%3D%26la%3D%26jo%3Djournal%2Bof%2Bamerican%2Bhistory&item=1&ttl=1&returnArticleService=showArticle>, reprinted in The Constitution and American Life, ed. David P. Thelen (Ithaca: Cornell University Press, 1988).

23.  Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 19–34.

24.  Hendrik Hartog, Man and Wife in America, A History (Cambridge: Harvard University Press, 2000).

25.  Hartog's current book project focuses on the legal culture from the mid-nineteenth through the mid-twentieth centuries in which legal battles over inheritance promises flourished in American courts and is tentatively titled, "Someday All This Will Be Yours: Aging Parents, Adult Children, and Inheritance in the Modern Era."

26.  Elizabeth ("Betsy") Clark was the first Legal History Fellow at the University of Wisconsin Law School. Before her untimely death after a long battle with cancer, she published a number of pathbreaking articles and was an important member of the legal history community.

27.  Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985).

28.  Hartog, Man and Wife in America; Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000); Norma Basch, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999).

29.  The reference here is to Eugene D. Genovese, Roll Jordan Roll: The World the Slaves Made (New York: Pantheon Books, 1974).

30.  Walter Johnson, Soul by Soul: Life Inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 1999).

31.  Morton J. Horwitz, The Transformation of American Law, 1780–1960 (Cambridge, MA: Harvard University Press, 1977); William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Athens, GA: University of Georgia Press, 1975).

32.  Reference is to the discussion in week 1 of the Hurst Summer Institute of Hurst's Law and the Conditions of Freedom.

33.  Roscoe Pound, The Formative Era of American Law (Boston: Little, Brown and Company, 1938).

34.  J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, N.J.: Princeton University Press, 1975).

35.  Horwitz, The Transformation of American Law, 1780–1960; J. Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, MA: Belknap Press of Harvard University Press, 1964).

36.  See the introduction to the first edition of Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973).

37.  Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2000).

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