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Hurst’s legal and historical education continued during a research fellowship with Felix Frankfurter and clerkship with Supreme Court Justice Louis Brandeis during the mid 1930s.<ref>Tomlinson, p. 956.</ref> By 1937, Hurst began teaching at the University of Wisconsin law school. At the University of Wisconsin, Hurst developed a number working relationships with faculty members in the social sciences. These relationships (along with his extensive knowledge of scholarship in history, sociology and political science) would play an important role in developing his work as a legal historian.
When Hurst began his teaching career, modern legal history was “dead.”<ref>Sugarman, David, “Reassessing Hurst: A Transatlantic Perspective,” <i>Law and History Review</i>, vol. 18, 2000, p. 215.</ref> One of Hurst’s early works, Law and the Conditions of Freedom in Nineteenth-Century United States helped revive it from its slumber. Unlike previous legal historians, Hurst believed that legal history could not be studied in isolation: “a realistic history of law in the United States must relate law to institutions and ideas derived largely from outside the law. Thus we need to study the social history of law, and not merely appraise its history as a self-sufficient institution.”<ref>Hurst, James Willard, <i>Law and Social Order in the United States</i>, Cornell University Press, 1970, p. 270.</ref>. Hurst’s shift in focus revitalized legal history by broadening its scope.
In 1956, Hurst published Law and the Condition of Freedom in Nineteenth Century America, based on series of lectures given by him at Northwestern University. This book is described by Carl Landauer as a prehistory of America’s New Deal liberalism.<ref>Landauer, Carl, “Social Science on a Lawyer’s Bookshelf: Willard Hurst’s Law and the Conditions of Freedom in the Nineteenth-Century United States,” Law and History Review, vol. 18, 2000, p. 61.</ref> In this work, Hurst explains that the legal and social order of law in the nineteenth century was defined by “working principles.”<ref>James Willard Hurst, <i>Law and Conditions of Freedom</i>, p. 3-5.</ref> According to Hurst, these historical working principles were that:“The legal order should protect and promote the release of individual creative energy to the greatest extent compatible with the broad sharing of opportunity for such expression” and that “[t]he legal order should mobilize the resources of the community to help shape an environment which would give men more liberty by increasing the practical range of choices open to them and minimizing the limiting forces of circumstances.” <ref>Hurst, p. 5-6.</ref>
Hurst was essentially arguing that American society and the economic marketplace had shaped the law. Hurst did not believe that you could understand how the law worked in society by only examining the great cases of the past or philosophers such as John Locke, instead you had to examine how society’s needs shaped the law.
Hurst in Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836-1915, an exhaustive study the Wisconsin timber industry, attempts to do just that. Hurst argued here that legal history had previously exaggerated the importance of the judicial process and common law doctrine. Instead he sought to show that “great issues of policy” were instead contained in the legislative history and the law of real and personal property.<ref>Hurst, James Willard, <i>Law and Economic Growth</i>, The Harvard University Press, 1964, p. xi-xii.</ref>
Furthermore, Hurst admits that there were not any important legal cases relating to the Wisconsin timber industry, but instead his study showed how the nineteenth century Wisconsin community was quick to use law as practical means to exploit an important and profitable resource. (Hurst, p. 607-608.) Hurst states that the story of Wisconsin’s lumber industry was of a secondary importance to him and that his primary concern was to show how “the interaction of legal and economic institutions yielded a product relevant to broader social theory.” (Hurst, p. xx.) In order to achieve this goal, Hurst analyzed “the interaction of all the relevant legal agencies (every piece of official paper) surrounding the changes in a given public policy over time.”<ref>Novak, William, “Law, Capitalism, and the Liberal State,” <i>Law and History Review</i>, vol. 18, 2000, p. 114.</ref>
Novak argues that Hurst had developed three categories for understanding law in society and used them as a metanarrative in all of his substantive books: function, value and power. Function was the “relationship of law to the functional requirements of a market economy.” Value was the “relationship of law to the amorphous realm of articulated norms in society.” Finally, power was “the relationship of law to public force.”<ref>Novak, p. 118.</ref> “Through these basic categories, Hurst explored the interaction of law with (a) economy, (b) society, and (c) polity.”<ref>Novak, p. 118.</ref> Hurst’s approach was revolutionary. Instead of examining constitutional law through judicial review, Hurst incorporated legal history into American socio-economic development, American liberalism and the constitutional state.
Hurst’s scholarship expanded the bounds of legal history and he lobbied tirelessly to promote his views. Hurst helped found and promote the Law and Society movement.<ref>Garth, Bryant G., “James Willard Hurst as Entrepreneur for the Field of Law and Social Science,” <i>Law and History Review</i>, vol. 18, 2000, p. 39-40.</ref> Hurst sought out funding from private donors to establish Law and Society centers at the University of Wisconsin, University of California-Berkley, University of Denver and Northwestern University.<ref>Garth, p. 40.</ref> Hurst hoped that these centers would play a vital role in shaping the legal education of America’s lawyers. Aside from the University of Wisconsin Law School, ultimately, very few of his ideas were incorporated into the American legal education. The traditional case study still dominates most law schools’ curriculum. Social scientists, and not legal scholars, have played a bigger role in the Law and Society movement. A cursory glance at the Law and Society Review demonstrates that most of its authors are sociologists, political scientists and historians, not legal scholars or attorneys. While the Law and Society movement is no longer dominated by legal historians, legal history was forever changed by Hurst’s work.
It is not surprising that Hurst’s work has been endlessly debated in the legal and historical communities. Both Robert Gordon and William Novak agreed legal historians were indebted to Hurst because “much of the best American legal history since the 1980s has been devoted to issues missing or minimized in Hurst’s vast body of work.” <ref>Gordon, Robert W., “Hurst Recaptured,” <i>Law and History Review</i>, vol. 18, 2000, p. 167.</ref> Any historian who inspires this much scholarship is bound to be controversial and Hurst is no exception. Despite Hurst’s advocacy of law and society, Novak argues that he probably would not be adverse to revisions to his own ideas.<ref>Novak, 144.</>ref
Hurst’s work focused almost exclusively on economic activity and policy, and there have been several valid complaints that his work ignored marginalized groups within American society who were excluded from the legal system. Since the 1980s, legal historians have started writing areas completed ignored by Hurst. Scholars have begun writing social histories of law on race, gender, and class relations and they have established new fields in slave law, Native American law, family law and immigration law.<ref>Novak, p. 140.</ref> Hurst essentially excluded all of these groups in his studies. Hurst’s studies instead focused on middle class economic activity and in or around Wisconsin. It is unsurprising that much of the diversity and character of America is left out.
Barbara Welke points out that Hurst’s academic world would have been peopled almost exclusively by men. For most of Hurst’s career, both the faculty and students at law schools were predominately men.<ref>Welke, Barbara, “The Archipelago of American Legal Historiography” <i>Law and History Review</i>, vol. 18, 2000, p. 197.</ref> Additionally, Welke is troubled that most of the discussions about Hurst are still dominated by historians who lack both gender and racial diversity.<ref>Welke, fn. 3, p. 199.</ref> According to Welke, Hurst only studied those Americans who had achieved the freedoms he describes, instead of the majority of Americans who lived various degrees of “unfreedom.” (<ref>Welke, p. 201.) </ref> Despite Welke’s criticisms, she agrees that Hurst’s work opened up the study of these underrepresented individuals in legal history by being the first to challenge its original boundaries.<ref>Welke, p. 201.</ref>
Hurst’s legal scholarship provides the foundation for modern American legal history. He believed that legal history needed to move beyond its roots and start discussions of law in society. He also directed legal historians to conduct extensive factual studies to better understand the impact of law in society. While the influence of his scholarship may ebb over time, he provided legal historians with a number of tools to further their scholarship.
