Oral History Interview with Willard Hurst (1981)

BACKGROUND, EDUCATION, TRAINING

SMAIL: I'll just say, to begin with, this is an interview with Willard Hurst, in his office in the Law School. Today is April 15, 1981, and I'm Laura Smail with the Oral History Project. Well, I’m going to ask you to begin with why you were born in Rockford, Illinois, and why you went to Williams and why you decided to go into law.

HURST: Well, as to why I was born in Rockford, Illinois, my parents lived there. I went to Williams because I—

SMAIL: Well why? That's part of the question. What were they doing?

HURST: Oh, my father was the superintendent of a very good piano factory in Rockford for years. It eventually closed under the impact of the Depression. But that was his central occupation and then he and his business associate got involved in local motion picture exhibition which turned out to be his main line of business. At one stage they ran most of the motion picture houses in 00:01:00Rockford. I grew up for a long span of years seeing every movie that- came to town.

SMAIL: So your future career had nothing to do with your upbringing?

HURST: No.

SMAIL: What about your mother?

HURST: She was a very quiet woman who stayed close to her home. So do you want to go to Williams?

SMAIL: All right.

HURST: I had a—I don't know quite where I got it, probably from some good teachers in high school, a rather romantic attachment to the idea of going to college in New England. We did a little touring one summer and were very much taken with Williamstown which is a beautiful place. It's up in the northwest corner of Massachusetts, a classic New England village, very broad main street, houses set back hundreds of feet from the street, a white spired Congregational church on a green and the college in the midst of all this—no local 00:02:00industry—and a rather small college at that point, 800 students. Today it's more than double that. It was also at that point an all-men's college, today its co-ed. But it was a very good college. I got exactly what I'd hoped to get out of it. It was a college with a great respect for learning and very good teaching in small classes with a good deal of emphasis on putting the students into the experience at the best level right off the bat. In my freshman year, for example, out of five courses that I had, all but one were taught by senior members of the faculty in small sections. I don't think I was ever in a section of more than thirty or forty people, at the most—usually smaller. It in some ways was a rather rough atmosphere to come into for a young fellow from a 00:03:00Midwest high school because Williams at that point was still much dominated by a student-body drawn from eastern prep schools who set the whole social tone and pretty much ran the politics in the place. But that was sort of a growing-up experience, too, to come into such a totally different cultural atmosphere—social strata atmosphere—-as that was. I got very much involved in the college newspaper in addition to being very much engaged in the regular curriculum—eventually I wound up as editor of the college paper. And then went on from there to Harvard Law School.

SMAIL: What did you major in?

HURST: Economics with almost as much in history. It was really sort of a mixed history-economics course that I took. By the time I was through college I had 00:04:00toyed seriously with the notion of going on to do graduate work in economics but I had also gotten very much interested in college in governmental processes. I decided I wanted to know more about the law from the standpoint of people who were technically competent in running legal operations. The logical place to go, especially for anybody who'd been four years in Williamstown, seemed to be the Harvard Law School which I had no trouble getting into. I had good academic standing to get into it but I wouldn't have had much trouble anyhow because this was—when I graduated from Williams it was 1932, this was the depths of the Depression. By that point seven out of nine banks in Rockford, Illinois had closed their doors, things were really bad.

SMAIL: But everybody was going to the movies I suppose.

HURST: Yes, still to some extent, so that kept the family afloat—only sort of barely. But from the standpoint of getting to Harvard Law School there was no trouble at that point because they were happy to take anybody who could pay the 00:05:00tuition, not like it has been in recent years.

SMAIL: So you didn't expect to become a lawyer then? You didn't—

HURST: No, I didn't, no. I went to law school to get a legal education, all right, but at that point I wasn't quite sure what use I expected to make of it except I did want to become a good lawyer. I did not go with this notion which so frequently is bandied about that three years of law school won't do anybody any harm because you can always use it in so many ways. I think that's a rather poor judgment to make. Three years of law school, at least if you take it at all seriously, is too big a thing to use up in that rather casual fashion.

HARVARD LAW SCHOOL

I found myself in a highly competitive atmosphere in the Harvard Law School. It was a very tense place then and it still is today, but in some ways a rather desirable testing place. You sort of figured that at the end of your first year at the Harvard Law School if you could survive and make it there you could 00:06:00probably survive and make it any place. It was that kind of an atmosphere—a very cold impersonal place—the faculty quite remote, a big student body even at the depths of the Depression, a sixteen hundred student-body.

SMAIL: At Harvard?

HURST: At Harvard Law.

SMAIL: At Harvard Law?

HURST: Yes.

SMAIL: My goodness.

HURST: Yes, it’s always been a very big school, it's the biggest. I guess it still is the largest law school in enrollment in the country. I wound up at the end of the first year with grades which got me in the law review which was a very fortunate occurrence, because then, as now, at Harvard as at every place including the University of Wisconsin Law School, there's a tendency for law student morale to drop seriously after the first year. The first year is an exciting year, it's so new and the intellectual approach is so challenging, but the second and third years tend, even today when we've tried to introduce more variety, to be repetitious enough of the first so that students tend to lose 00:07:00interest, and that was emphatically true when I was in law school in the '30's. So that what really made the second and third years of law school alive for me was being on the law review which was like being in a very advanced seminar. The whole law review staff at that point was only about forty people. It's about doubled in today's Harvard Law School. We were doing research and writing jobs which were supposed to be of top flight quality and generally were, as indicated by the fact that Harvard Law Review student output is from time to time cited even by the United States Supreme Court.

SMAIL: So this- is it an honor to get on it?

HURST: Yes.

SMAIL: It's not like being on the Crimson, for Instance, which is to some extent—

HURST: —I think people have to earn their way on the Crimson—I just don't know— but getting into Harvard Law Review at that stage was entirely a matter of academic standing.

SMAIL: So somebody'd write to you and say you've been appointed—

HURST: Yes.

SMAIL: And the same thing is true here also?

HURST: No that has been changed at the University of Wisconsin. It used to be that way. That was the standard norm across the country for law reviews but there was a curious almost populist egalitarian strain to the student discontents of the 1960's which turned into an emotional crusade against anything that the students liked to call elitism, and they figured that naming people to the law review simply on the basis they were in the top 5 percent of their class was a form of elitism which they wouldn't stand. So over the years, at practically all American law schools, entering the law review has been opened up so that today, and this is true here, and it's true today at Harvard, true at most law schools I know anything about, the law review staff is selected only partly on the basis of academic standing and partly on the basis of a writing competition which is open to people who wouldn't fit the academic standing requirement. When I got on, it was purely a matter of grades which in some ways 00:09:00was not too good for the law review because the fact that you wound up in the top 5 percent of the class did not necessarily mean at all, and this often proved out in experience, that you had the right attitude or temperament to be a good independent researcher and to be able to write the English language. So there were always a certain number of people on the law review staff who turned out to be more or less duds because they had succeeded in accumulating high grade standings but didn't have what it took to put out good published work. However, the law review itself was a stimulating environment you had there a group of about forty who were engaged on, an enterprise they ran entirely themselves. It was a terribly time-taking enterprise. If you were on the law review the norm was that at most, in your second and third years, you went to classes, you tried if you could to read assigned material so you'd have some idea of what was being talked about in class, but you didn't settle down to do 00:10:00any work, any real work, to be able to stand an examination in the course, until the law review had run through its publishing season which ended approximately the early part of April every year. So law review members would start about the second week of April, with exams coming up at the end of May and the first part of June, to get on top of their courses, which up to that time they'd been merely sort of auditing. This was excellent training in many ways—really superb training and still is—and the law review is the best seminar any law school offers. Even if it's under rather indifferent direction. Because on the one hand you learn to be a completely independent worker researching and writing on your own, and you learn secondly to stand the rigors of a very tough editing process. The editing of the law review is done by the third-year students.

SMAIL: Oh, I see.

HURST: A number of the staff are selected as top editors, and the tradition of editing, on the Harvard Law Review in particular, is very rigorous so that again 00:11:00you learn if you can survive that you figure you'd probably survive about anything. In the third year I was elected one of the editors. I became note editor and the notes were the longest student contributions. They would be student printed essays that would run between ten and twenty printed pages liberally laced with footnotes so that I got the experience in the second year of working as an independent researcher-writer and surviving the process of merciless editing, and then the third year I became a merciless editor myself. I sort of turned around the experience. What this meant, working on the law review, was that one typically worked every day of the week including Sunday at least an eight-hour day on the law review, frequently a ten-hour day. When I was editing a note, for example, in my third year, I would typically be closeted with a member of the law review from right after lunch say starting around one 00:12:00or two p.m. and he and I would be together With only a break for dinner until ten or eleven at night. And to do this usual editing job took about a week, so the two of us would be hammering out his original draft together in those intensive sessions for a week. And once I dealt with him I had to turn to the next ones—

SMAIL: Did this start in September?

HURST: Yes.

SMAIL: My goodness.

HURST: It's a very high pressure operation so that anybody who lives through it learns to work under a great deal of pressure which is one reason why being on the law review staff has always been an almost sure point of entry into top level law office jobs. Law offices want people who have been through this apprenticeship. You learn how to economize your time very well. You learn how to combine high-pressure work with high- level accuracy because you're going to withstand an extremely critical editing process. So altogether it's an 00:13:00absolutely triple-A educational experience for anybody who can live through it. It's pretty rigorous. We used to consider it wild abandon to take a Saturday night off and go down to the theater maybe occasionally in Boston—always felt a little guilty at doing it.

SMAIL: How many people are on the law review?

HURST: At that point about forty, between thirty-five and forty, sixteen from each class.

SMAIL: —that means from sixteen hundred—

HURST: Oh, out of sixteen hundred students there'd be thirty-five to forty on the law review, yes. This was a very select seminar.

YEAR WITH FELIX FRANKFURTER

Well, in the course of that third year I took two courses—no, took one course from Felix Frankfurter but I also had some connection with him growing out of my law review editor's work. The tradition was that while the editing was done by 00:14:00the student editors and they had the final word, there was always consultation with relevant faculty members on whatever the subject matter made appropriate and in the normal course in dealing with that I got to know various faculty members in a way I never would have just as another student at the school. Among these people was Felix Frankfurter and the upshot of all that was that when I graduated I went back here to the Midwest promptly in the summer of 1935 with an engagement to return to Harvard the next year as Frankfurter's research assistant with the more or less tacit understanding, and this followed regular practice, that a year following that I would go on to Washington to be law clerk to Louis Brandeis of the Supreme Court of the United States. That was how Brandeis got his law clerks, he got them through—filtered through Frankfurter's selection based almost invariably on the clerk having worked for a 00:15:00year for Frankfurter.

SMAIL: That's what you did, wasn't it?

HURST: That's what I did, yes. Anyway, I came back here in the summer of '35 and took the Illinois bar exam. I wanted to become a member of the bar as soon as possible somewhere. I didn't have any idea whether I'd eventually want to practice in Illinois but it seemed the logical place to take a bar exam. So I went through an intensive six-week cram course for that during the typical Chicago heat and finally took it over a course of about—I think it lasted four and one-half days at the end of July and to my relief I passed it finally. But after that summer was over I came back to Cambridge. Oh, I should say that, just to see what it would be like, during that summer I made the rounds of big Chicago law offices, behaving as if I were a normal job-seeking candidate. But the indications were I probably couldn't have gotten a job there. This was again the depths of the Depression. They weren't taking on too many people and the indication was that probably a starting salary might be on the order of $200 or 00:16:00$300 a month. Today starting salaries in those comparable offices are running— for people just out of law school and with law review experience—are running on the order of $2,000 to $2,500 a month—some measure of where the Depression years were and where we are now. So I went back for the year with Frankfurter. He had contracted to give three lectures at the University of North Carolina Law School the following spring on the Commerce Clause and what the Supreme Court of the United States had done with it in the course of United States history. So my chore for him for that year was to bury myself in all the material I could find about the Supreme Court dealing with Commerce Clause issues from 1789 up to—he chose the period at the end of the 19th century— approximately 100 years, about 1789 to 1890 and I worked intensively on that, meanwhile auditing his two 00:17:00seminars in federal jurisdiction and administrative law. I was an auditor, not taking them for credit. I could have been doing a graduate year there with a degree in prospect but I'd been around the school for three years and seen that a graduate year at the Harvard Law School was not a satisfactory experience for the people that took it. I had gotten to know people taking a graduate year and it was really just a fourth year of law school. And I'd been through three years of law school. Because the attitude of the Harvard Law School then, as it pretty much still is today, was the rather supercilious one that they would offer a graduate year at the Harvard Law School with a master's degree in law in prospect and, at the end, possibly a doctorate in law, but essentially organized on the assumption that during the year in residence for the advanced degree anybody who hadn't had the advantage of a Harvard Law education would be polished. So they would take people who had the disadvantage of going to law 00:18:00school somewhere in the Mississippi Valley for example and let, them take what amounted to simply a year of Harvard Law School courses. If you were going to write an important dissertation you'd do it after you completed that year. Well, I'd seen enough of that so it was not for me. In contrast, I had complete freedom and was my own boss completely, doing this job for Felix Frankfurter, and I had the additional advantage of having him as a sort of one-man committee whom I could see whenever I needed to. And that was a very nice experience, particularly when we got to just about this time of the year, in early April—that would be in 1936. It came time for him to really get these three lectures of his onto paper, and I could type—I had prepared him lengthy memoranda, typed memoranda of my own on all the relevant background. He took those and digested them and then I went out to the house and instead of using a stenographer he and I in his study would proceed, and we proceeded this way for almost two weeks. He'd pace the floor and talk, and when he had what he thought was the right way to grab the thought he had in mind I'd knock it off on the typewriter. Then my job was to criticize it. So it was a very nice relation because it was a very real give-and-take criticism and I was supposed to criticize in the light of the year's work I had done as background on what he was putting together. If I thought he wasn't getting the proper emphasis or was not getting the proper material out of the case, I was supposed to barge in and argue with him. So we had sort of a one-man seminar there for two weeks out at his house on Brattle Street and that was very nice, I enjoyed that.

SMAIL: Did he—you hadn't put your ideas together in such a way that he would use them? He'd put himself into what he wrote?

HURST: He put himself into what he wrote. I had not written him a rough draft of three lectures. What I had done was to write him lengthy memoranda on successive phases of the court's development of the Commerce Clause.

SMAIL: Then could you get the material from Boston or did you have to go down to—

HURST: No it was—mostly it was drawn from the court's own opinions and from records and briefs so far as they've been preserved in the court, and the library resources at Harvard are immense. There might have been some things we could have picked up in Washington, but as a practical fact we had all we needed.

Law Clerk for Justice Brandeis

So at the end of that year—in September 1936—I reported to Justice Brandeis at his apartment on California Street which is right up as you mount the hill 00:20:00off Connecticut Avenue there in Washington. He had an apartment in an old-fashioned apartment house with a magnificent view from his own study over to the Washington Monument toward downtown Washington. California Street's up on quite a rise of ground there, so you see all of Washington spread out before you. He had a small—and I don't know what you call it—a kitchenette, utility type apartment on the floor below his apartment, just a place that would have been a small living room, bedroom and bath and a kitchenette which he rented regularly for his law clerk to work in—not to live in but to work in, and for himself occasionally to work in. So I did my daily work down there for the most part. Brandeis did not like the newly opened Supreme Court Building. He was a very austere person who did not like fanciness or show, and he thought the new Supreme Court Building was rather vulgar, with sort of the Roman imperial vulgarity that characterizes so much of the building that was done in Washington 00:21:00in the first part of the twentieth century. So that he never went to the court except for court days when he had to be down there because the court was sitting in argument or having conference. He made practically no use of his palatial offices down in the court except to hang his hat in them. And so we did all of our work out there on California Street except for when I would occasionally go down to the Supreme Court or the Library of Congress digging up research material. Meanwhile, I lived in a rented apartment across' the Connecticut Street Bridge opposite the Shoreham Hotel which was an easy walk from the apartment. The general routine there was that—for the most part my job was to assist in the final preparation of his opinions. At the start of the year, just to get me into the swing of things and keep me busy until the court began to hear argument and he began to get assigned opinions to write, he assigned me the job of writing him short memoranda on what are known as petitions for 00:22:00certiorari. The overwhelming bulk of cases that come to that court get there only with the court's permission. There's very little appeal as of right to that court. It couldn't function otherwise because it couldn't handle the volume of business that people try to bring it. So you get these preliminary briefs—they're rather limited briefs—filed by counsel on both sides of a case where one side wants to get the Supreme Court to review what's been done down below. On the basis of these preliminary briefs the court weeds out the cases the court thinks merit court attention. Some justices use their law clerks very extensively to write them preliminary memoranda on these preliminary briefs—

SMAIL: All the justices have to go through all of the—

HURST: Yes, all the justices go through all of these petitions. Brandeis clearly didn't need a youngster just out of law school to help him to do this. He'd been on the court as a master at the job now ever since 1916. So as I say he was keeping me busy essentially but also giving me some introduction to the flavor 00:23:00of the court. I would bring my memoranda to him and occasionally he would indicate to me what his reaction was as to whether they ought to take a case or not. It was usually much more strict than mine. I've never forgotten the occasion in which I got very exercised in what appeared to me to be gross injustice done to some poor Hindu by the Immigration Service out in San Francisco and I wrote a hot little piece. These memoranda were always very short, they were only a typewritten page or so, but I wrote a pretty strong memo that such obvious injustice had been done to this poor individual and that the court ought to take and rectify the injustice. The Justice apparently thought this was a proper occasion to give me a little instruction in the business of the Supreme Court because he took the trouble to explain to me why he wasn't going to vote to take the case. He said the court's job wasn't to see justice done, that was the business of the lower federal courts. Their job, since they could only take 250 cases a year, was to take those cases where some important broad public policy of concern to other than the immediate individual was involved—in some ways a rather hard-boiled attitude but a necessary functional 00:24:00one for that court. When the opinions started to get assigned, the usual routine then was that at the end of a week of argument the court would have conference, and at the end of the conference the chief justice would assign opinions to members of the court to write. Brandeis would get an assignment of one or two or three opinions to write out of that conference. By the following weekend but certainly by Monday morning he'd have them, and he would set to work himself and write a draft opinion and then turn it over to me. My job was—in the first place, in so far as he had not cited authorities I was supposed to find appropriate authorities to cite where they were appropriate either in the body of the opinion or in footnotes. Also very important, the opinions would always tell the history of the lawsuit—what had happened that caused—that brought the lawsuit about, including the key relevant evidence of the court's ruling 00:25:00down below and a summary of what the lower courts had done. Brandeis would have set this all out in his opinion. My job was to check it carefully against the record of the case to be sure that every statement of fact that the justice made in his opinion could be verified—if necessary, if somebody challenged it—could be verified by a citable portion of the record of the case. So that I did an intensive annotation of his opinions. I would write him a memorandum in which, sentence-by- sentence in the opinion, I would indicate precisely where in the record of the case one could find supporting data to show that what he said was correct. Which again was very excellent training and very precise work in handling documentary evidence. And he invited—as with the year with Felix Frankfurter, it was a nice year because he treated it as a working partnership here between an aged master of the craft and a very young apprentice. The whole atmosphere was that I was there not of course to waste his time on just raising 00:26:00points of academic interest but I was there to argue with him wherever I found anything that I felt called for arguing. And particularly and above everything else if I thought he was doing anything incorrect either in statements of matter of fact or even most rashly of all, if I didn't think he was correctly stating the law on the basis of what was there on the statutes of the cases I was supposed to quarrel on that, and he made it very apparent very early that this was not a polite facade—that he really wanted me to do this.

SMAIL: Did you find it hard to do—were you timid to begin with?

HURST: No he—right from the start, the atmosphere was very encouraging, I felt completely free. I felt as free—as much as if I were back at the Harvard Law Review editing some piece of writing written by one of my classmates. It was a very nice working relation in that respect. There is the famous story which sort of gives the whole temper of the thing which. Dean Acheson tells in the first 00:27:00volume of his autobiography—Dean Acheson was I think about the third Brandeis law clerk way back—of the time when an opinion of which the Justice had written and Acheson had checked went through and only after it was in print was it discovered there was some sort of a mistake in a footnote. Brandeis left a note on Acheson's desk one morning pointing out the error and the accompanying little note simply said—and Brandeis' notes were always very succinct- said, "Dean Acheson; Your job is to correct my mistakes, not to add your own." There was in some ways a very stem atmosphere but a very responsible one. It was an exciting year, of course, politically because I was there in the October term 1936, that is from the opening of the court in the fall of '36 through the end of that term of court in the following June of '37 that was the period of 00:28:00Franklin Roosevelt's court-packing bill. Needless to say the justice, who had very strict ideas about the confidentiality about everything that pertained to the court, did not sit down and just gossip with me about the- whole controversy But it was an exciting time to be in Washington and to be involved with the court and I picked up various shreds of gossip about the controversy elsewise. I just remember one occasion when—I can't remember precisely what I said to the justice— I saw every morning routinely about nine o'clock in the morning. I'd go up from my office to his study to see if he had anything to say about memoranda I'd left him. We fell into—the only time I can recall ever falling into conversation with him about the court—packing bill, and I can't remember just what came up but he ventured further than he would ordinarily venture in a comment and indicated he profoundly disapproved of what FDR had done and said he thought it betrayed a characteristic weakness of Mr. Roosevelt, that he had that 00:29:00defect which Yankees called being a "smart man" which they do not mean as a compliment. They mean smart as in a horse-trader’s sense.

THE LAW SCHOOL

HURST: It was in the spring of 1937 when Lloyd Garrison who was then the Dean of the law school at the University of Wisconsin wrote me and said he understood that I had some interest in law teaching. He was going to be in Washington, would I meet him for breakfast at the Washington Hotel and we'd talk about it. The connection had been made essentially by the justice's daughter, Elizabeth Brandeis Raushenbush, who was on the faculty here at the University and whom I had met as she visited her parents from time to time in Washington. I think that's how Lloyd particularly got connection with me although he then had written the justice who had written a recommendation to him. The upshot of all that was that I accepted an invitation to come here on the faculty as against 00:30:00invitations I then at that time had from what was then a very lively beginning new law school at the University of Buffalo, and also from the law school of the University of Iowa. I talked to the deans of both places but I was struck right off the bat with the extraordinary quality of Lloyd Garrison, whom I had not heard of before, who was a man of tremendous warmth and excitement of personality, a very capable operating man and at the same time a man of ideas. He had an unusual combination of operational and intellectual capacity and he had very ambitious ideas about extending the intellectual range of legal education, particularly in the direction of involving it more with the social sciences and with knowledge about social structure and process. He brought me out here on a very open-ended assignment.

SMAIL: Could you wait a moment? Had you—you had thought of teaching then, he was right?

HURST: Yes.

SMAIL: Had you been aware and thinking in terms of the social sciences and wanting to—

HURST: I knew I didn't want to do just conventional law school teaching. I wasn't quite sure at that point what I meant myself by this.

SMAIL: Where did you get the idea from?

HURST: Well, I really don't know. I guess I got it partly out of my college major in economics and history where I had written a couple of papers, at college, on legal matters, but relating them to historical and economic currents. Maybe this was partly the beginning of it. Otherwise I just don't really know.

SMAIL: Is the work you did for Frankfurter—did that—because that was historical wasn't it?

HURST: That was historical, yes.

SMAIL: Was that related, was—

HURST: It was related because it was largely economic, most of what we talked about there—the Commerce Clause after all, is a central economic aspect of the Constitution. So that probably had some effect on it.

SMAIL: So when Garrison came to talk to you, you had a long conversation and you 00:32:00sounded him out and he explained what he was—

HURST: Yes.

SMAIL: —wanting to do?

HURST: Although I wouldn't want to exaggerate how much either he or I knew at that point, what directions we were going in. We just knew both of us shared an enthusiasm for doing some things which as of that time were rather unconventional.

SMAIL: So he hadn't started doing them yet here?

HURST: He hadn't started very much here although he'd made some beginning, particularly in the way—when I got here there already were functioning two or three joint seminars, with economics particularly, to some extent I think with sociology but particularly with economics, in which members of the economics faculty and the law faculty were joining and running joint seminars on anti-trust agricultural co-ops and collective bargaining.

SMAIL: This was realist law, is that right?

HURST: Well it's broader than realist law. The so-called realist movement was itself a break with the past but only a limited one. The realists were mainly 00:33:00interested only in courts, and in a more realistic understanding of what moves judges to decide the way they do. Whereas the general direction Garrison and I were interested in was much broader than simply fastening on the work of appellate courts and their opinions. We were interested in legislation, administrative process and~

SMAIL: But these seminars were accomplishing that broader—

HURST: They were moving in that direction, yes. Particularly because these—the typical joint seminar, that is, joint between the law school and some other faculty, almost invariably centered on law which was mainly statutory and administrative rather than conventional judge-made law.

THE COURSE ON LAW AND SOCIETY

Well I came here then in the fall of '37 with a very open-ended assignment from Dean Garrison, rather extraordinary—and again this shows that he was a rather extraordinary dean. Ordinarily when a young person is recruited to join a law 00:34:00faculty it's just routinely expected that he will be given as many hours as he can possibly fill a day with in teaching already established conventional courses: contracts, property, that sort of thing. Instead, Lloyd told me he wanted to develop an introduction, an introductory course to be offered in the first semester of law school to introduce students to methods of legal analysis and thinking, and methods of thinking about public policy problems dealt with in law. Today this is a very conventional thing. Today there's almost no law school in the whole law school world which doesn't have some sort of legal orientation course of this type. When we put one together here we were one of two or three that were even trying this, and I think it's fair to say that Wisconsin's model is at least let's say one-third the influence that today has spawned a course like this in almost every law school in the country."

SMAIL: Did you frame the course?

HURST: Lloyd and I framed it together. What we did was to—and this melded into my early interest in history—we decided we wanted a course which would expose students to a much broader range of legal agencies than just courts. We wanted something that would involve the development of legislation and administrative law particularly. But we wanted to give them a sense of the processes of how public policy through law grows and develops, that it isn't all just there, that somehow it took time for it to be the way it is and it went through certain processes getting there. And therefore the course should be in a sense a history course, not in any antiquarian sense but a history course in the sense it would deal with the development of public policy in the dimension of time. We picked for our purposes the growth toward the workers' compensation acts because that gave you a very nice sequence which fit our desires, in which you started with a body of law about the possibilities such as they were of a worker who was hurt 00:36:00on the job trying to recover money damages from his employer for Injuries suffered on the job. Under the law as this stood at common law, that is, law totally made by court decisions, the common law was very stringent on this. It was very difficult for an employee to find any relief in law, but there were some possibilities. But this was nice for our purposes because you moved promptly into, from about the 1870's on, into an increasing stream of legislation as the Wisconsin legislature—and this was all centered in Wisconsin—as the Wisconsin legislature began to pass specific statutes on factory safety and creating statutory" rights of employees to a safe place regarding unguarded machinery and that sort of thing.

SMAIL: This was pioneer legislation?

HURST: This was pretty much pioneer legislation in Wisconsin, although other 00:37:00states were beginning to have it too, we weren't unique. That gave us two of the phases we wanted. We started the students with a picture of how the law stood and how it had grown at the hands of judges. Then we moved from the 1870's on into the development of legislation. And then in 1911 with the first Workers Compensation Act we got our third phase we wanted, the administrative process, because of course Wisconsin created an industrial commission to administer the Workers Compensation Act. And we were able to interweave, throughout here, the courts, still, because we had—with our statutes, we had court cases construing the first statutes and then statutes which reacted to the way the courts construed the earlier statutes. And then we had court cases under the Workers Compensation Act, and then court cases dealing with-judicial review and administrative action under the Workers Compensation Act. So that we were able to present students with a picture of the making of public policy over a gamut 00:38:00of the major agencies involved, in the modern United States, in making policy, where it gave them an opportunity to compare the strength and weaknesses in making public policy through litigation on the one hand, and through legislative process and lobbying on the other, and through administrative process finally. All of this—our intent had been to make this also sort of an elementary course in jurisprudence, legal philosophy. And therefore we interwove with the specific Wisconsin story extracts from treatises and law review articles on general problems of jurisprudence. We would, for example, take the first Wisconsin decisions which had followed the earliest employer-employee liability decisions laid down in Massachusetts and South Carolina where the first basic cases arose. We took then the first Wisconsin cases which established rights and duties of 00:39:00employer toward employee here largely on the basis of those east coast states' precedents. And having spent some time in the class on first the Massachusetts precedents and then what the Wisconsin courts did with them we then broke off, temporarily broke off, following the Wisconsin story and would present the students with an extract from an article on the problems of adherence to precedent in law and the way in which law grows by adherence to precedent. Later on when we started dealing with statutes we'd present them first with concrete statutes but then we'd break off and present them with a piece of writing on problems involved in the interpretation of statutes. So that we were constantly weaving back and forth between a very particularized concrete case history of the actual growth of a body of public policy doctrine and a body of general jurisprudential writing, the hope being that both sides of that would take on more meaning for the students by being interwoven that way. If they were exposed 00:40:00simply to jurisprudential writing without anything concrete to match it against it might seem abstract and not particularly significant to them. We hoped that in light of what they were seeing going on in this concrete experience the jurisprudential writing would seem richer and more meaningful. But on the other hand, the particular details of how the courts operated or the legislatures operated would take on more meaning for them in the light of the concurrent reading they were doing on general thinking about these processes. I think the course was a success so long as it was taught by its founding fathers. Lloyd and I had great enthusiasm for it—

SMAIL: Did he teach too?

HURST: He taught it too.

SMAIL: How—

HURST: Different sections.

SMAIL: It must have taken you a long time to get ready—to learn enough to do it?

HURST: Well, it was a very intensive job and I worked the way I had worked on the law review at that point. It helped that I wasn't married so I didn't have to think about that I owed something to a wife, to be home with her once in a 00:41:00while. The course continued on in later years in other hands. Some of my colleagues liked it as much as we did and I think it was a reasonably successful course. Later colleagues didn't share enthusiasm for the basic idea, and the course finally dropped by the wayside. The general idea didn't, however. We still offer general orientation-type materials to our students. That particular course, however, proved to be one which would work only if it was taught by people who were quite fired up with enthusiasm for it because basically it was in large part a course in legal history. I've discovered over the course of years in which my own interest had focused principally on legal history that you have to be rather odd to be an historian, apparently. Most people don't find the time dimension of things that intriguing. They want to deal with the current temper of things and they—I think most people are curiously short-sighted in not realizing that there are important respects in which history is part of the 00:42:00present. In any case—

SMAIL: Was it mostly third-year students?

HURST: No, these were all first-year students.

SMAIL: Oh, first-year.

HURST: —In some ways we were up against a dilemma. We deliberately wanted this as a course for students in their first semester with the thought that it would enrich their understanding of everything else they took. On the other hand, time and again we had students who had more or less rebelled against the experience of the course when they were exposed to it in the first semester. Both Lloyd and I had this experience time and again of students who in their third year or after they graduated would come back to us and say, "You know, now that I've been through all of law school, or now that I'm out in practice I can see that the stuff you were giving us in that course" (we called it Law and Society) "was terribly important and very practical, but why didn't you offer it in the third year when we'd appreciate it?"

SMAIL: They're anxious to get into things the first year.

HURST: The trouble is though, that as I say, we may have been wrong pedagogically but our theory was that we would make all the rest of the law 00:43:00curriculum have more depth and be approached by the students with better perception if they were hit with this at the outset.

SMAIL: People have to want to know history before they're willing to learn it.

HURST: Something like that. It also demonstrates something that was once said to me by the man who was the senior member of the faculty when I first came here, William Herbert Page, who said everything ought to be taught last. And who also said on one occasion that education was the only commodity he knew of for which people did not want their money's worth.

SMAIL: Those are both very nice.

HURST: Yes. Well, I got into—I already was in legal history more or less with that course, putting that course together and running it, but I knew by the end of my first three years here, I'd say 1940 or so, that in the long run I wanted to make American legal history my central focus of interest and I wanted to treat it in a very broad way. I wanted to treat it in a social-scientist way—I 00:44:00wanted to be interested in legal history not as the purely internal institutional history of legal agencies but a history of law in relation to the surrounding society. In effect what I wanted to do was to try to do what Roscoe Pound had preached years ago. He preached what he called a sociological jurisprudence in which he preached the need of more legal research and writing which would relate the institution of law to the other key institutions of the society and how they interplayed with each other. Then the war came along, of course, and I went off, and that provided an interruption until I got back here in 1946 to resume this historical emphasis.

LLOYD GARRISON

SMAIL: O.K. Now I'll interrupt you because I have quite a few questions to ask you about Garrison and this seems like a good time to do it.

HURST: O.K.

SMAIL: So we'll sort of turn to him for a while. Do you happen to know who got him here?

HURST: I know very little about that but I do know he was one of the products of 00:45:00several dean searches conducted by the then president Glenn Frank who, judging by—I'm speaking now very much at secondhand—but my impression is that while Mr. Frank became an object of a good deal of criticism he was an extraordinarily good man at picking deans. He picked several deans around this place who were very creative and capable people and one of them was Lloyd Garrison whom he plucked out of a busy New York law practice at that point and brought here in the early 1930's.

SMAIL: So you attribute it largely to Frank?

HURST: Well that's my understanding—again this is secondhand—but I was always told* that Lloyd had been in large part Frank's recommendation. He came out—Lloyd came out, of course, and apparently made a considerable hit with the law faculty in sitting around talking with them and whatnot. He, in other words, came into a situation where he found colleagues—it was a small faculty then. When I joined it in 1937 I think I was the fifteenth member: today we have 00:46:00forty-six full time, I think. I was told that the law faculty was quite enthusiastic about Lloyd right from the start, in contrast to the bar. The Wisconsin Bar over the course of Lloyd's years here—I'm not quite sure what was his first year here, I think it was about 1934 or '35.

SMAIL: '32.

HURST: Was it '32—as early as that? The bar over the course of his some nine years then that he was actively on campus in large measure acquired a very great distrust of him as a wild-eyed radical. You didn't have to be very far left of center to be a wild-eyed radical in those years, at least in Wisconsin. And some of this attitude, I gather, made itself felt on the Board of Regents. I'm speaking now completely at third or fourth-hand. I have no firsthand knowledge of all this. Lloyd had gotten involved by past experience, and then when he was 00:47:00dean, with the beginning—the first beginnings of the law's protection of collective bargaining. He was drawn into this first in the period of the National Industrial Recovery Act, the famous Section 7A of the National Industrial Recovery Act which was sort of the very pale forerunner of the Wagner Act. And then the first body set up to try to do something under 7A. Lloyd got involved in, and he was off and on—without neglecting his work here, he nevertheless was off recurrently in Washington as one of the first people who got actively involved in the efforts to keep labor peace on the national front, and this I think did him in in the eyes of the conservative Wisconsin Bar at the time. I think the temper of the time is considerably changed today. I think today the Wisconsin Bar would pretty much take in stride a dean in the law school who was actively involved in the administration of modern labor law. In 00:48:00fact I think the sophisticated conservative bar, at least as represented, say, by the big law offices in this city and in Milwaukee, would regard it as essentially conservative for I don't mean it in a political sense as much as in a social sense—it's desirably conservative that a member of the law faculty be involved in trying to help the system of labor-peace work. But in the 1930's this was a very different temper of affairs and merely to be involved at all with the law's efforts to protect and promote collective bargaining was regarded as radical. This stamped Lloyd in the eyes of many influential lawyers in Wisconsin, as, I gather—again as I say, second or third-hand—as a rather suspect character.

SMAIL: Now his effort to incorporate the Wisconsin Bar which—I don't ' understand what that means but I know it's something he tried to do. Would that—

HURST: He became very enthusiastic about the notion that the bar needed more 00:49:00internal discipline in order to assure that lawyers were rendering proper service to clients, being both efficient, conscientious, and honest, and that existing methods of disciplining the bar were inadequate to this. And secondly that the bar needed more policy leadership, and that the bar should be a leading opinion factor in the improvement of the legal order and he thought it was slack and largely indifferent and ineffective in that respect. And to all that end he thought there ought to be created a stronger bar organization which would not be a voluntary organization. The typical bar association of the past has always been a voluntary club—people joined it if they chose to and didn't join it if they didn't want to, Lloyd thought that all lawyers should automatically be a member of the bar association simply by being admitted to the bar and being required to stay in the bar association as a condition of practice. This is a 00:50:00way he hoped of elevating the efficiency and the conscientiousness and the basic honesty of the bar and of, as I said, increasing its sense of responsibility to play a creative role in public policymaking. He wasn't around here to see this idea come to fruition as it now has in the integrated bar, and I think in many respects he'd be quite disappointed by the fruition. There's been a good deal of discontent inside the bar today with various aspects of the leadership of the integrated bar,

SMAIL: It took a long time then?

HURST: Oh it took a long time. It didn't happen while he was here. It came after—sometime after the war.

SMAIL: Was that what made him unpopular with the bar?

HURST: That idea?

SMAIL: Yes.

HURST: I'm sure it would have made him unpopular with some but he didn't— that wasn't a principal thing that he was involved with while he was on campus here so I don't think it really figured significantly in the degree of distrust of him.

SMAIL: Maybe if he—some of the letters I've read suggested that he was very 00:51:00much concerned about it.

HURST: Oh he was. He was propagandizing for the idea.

SMAIL: But you mean he wasn't actually doing anything substantial, he was—

HURST: Well I can't testify from first hand. I think it was in the talk stage.

SMAIL: So that just happened recently?

HURST: Yes—yes. Lloyd was a terrific dean in many respects but in two in particular. He believed that the law school should be a place which would have a great ferment of ideas about legal order. And he encouraged his faculty to be idea people, and corollary to that he encouraged them to be research and publication-minded people. And on top of all that he was a man whose whole instinctive approach to life was positive. Some administrators, we fortunately have never had one of this type here—

SMAIL: Here in the law school?

HURST: In the law school. Some administrators seem by instinct to be negative. Their whole instinct if a member of the faculty brings them an idea is to find a reason why you can't do something about it. Some of them are passive and that has been more characteristic of our deans other than Lloyd Garrison. There's something to be said for passive deans providing they are willing when their faculty stirs them into action to be willing to jump in and give backing to their faculty. There is something to be said against more active deans. An active dean can be a very dangerous character on a faculty because if he is a dogmatic, doctrinaire kind of person, and-on top of that is intellectually ambitious, and wants his school to become known as his school he is very likely to make it a bed of Procrustes and try to force all of his faculty members in their teaching, their research, and their publication to follow lines which fit his notion of what the school ought to be putting out, so that it's a very two-edged tool to go around looking for a dean of ideas and of positive 00:53:00thrust—very two-edged. The Yale Law School has had lots of troubles over all the years that I've know it, in large measure because they've always had ambitious deans whose ambition has usually led them to want to make their own personal stamp on the school. Lloyd was not that kind of a dean. He was ambitious in a very selfless way. He wanted his law school to be ambitious as a school. He wanted it to reach out to broader intellectual horizons and to be productive in scholarly research and publication and to be full of new ideas about how better to teach law, but all of this not because he wanted the Garrison idea to become known over the country. And all of this in turn flowered into the fact that particularly for younger members of his faculty he was a tremendous source of encouragement. If you had an idea about doing something 00:54:00different and you needed scope to do it, say by being allowed to teach an experimental seminar or to change course content, or if you were seeking for some form of released time in order to pursue a research line, you always knew with Lloyd that the first reaction was going to be—he would want to hear you out and then secondly his almost instinctive reaction was, "Now let's see how we can do this." You just never heard from him, "Well that might be a good idea but the budget won't allow it," or, "I don't think I could sell that on Bascom Hill," or what have you. It was always a positive approach of a very unselfish kind in which he was not trying to make himself the center point. The result was that he had a faculty which just crackled—it was a very alive place, naturally enough.

SMAIL: The older members took to him also.

HURST: The older members liked him on the whole. Some of them liked him in sort of a tolerant way. They thought he had some newfangled ideas that they didn't 00:55:00always go along with, but he was personally very popular with his faculty. I was never aware of any degree of serious personal friction between him and anybody on the faculty, which, with some men, of course, might mean that he was a cream puff or that he didn't amount to anything. It definitely did not mean that with Lloyd Garrison, who was very much of a character.

SMAIL: You could tell from his letters. They're really just wonderful.

HURST: Yes.

SMAIL: He wrote a recommendation for the daughter of a friend who wanted to get into Brearley and he said her father had come up from the ranks and was a good man; her mother had had a nervous breakdown, and the last time he saw the girl she'd been a skinny young thing but he rather thought they ought to take her.

HURST: Lloyd is the best law dean—in my mind, is the best law dean that has been in the- law deaning business in the whole United States in the years that I've been involved in this business. There are only two or three people I would remotely rank with him. One of them is Edward H. Levi who was dean at Chicago 00:56:00for some time—a very first rate dean; maybe Frank Strong of Ohio State. I'm probably leaving out one or two, but at the most the law school world has not been—I'd add Carl Auerbach up in Minnesota—the law school world as I've known it from 1937 up here to 1981 has not been characterized by any great quantity of intellectual leadership in its administrative ranks. It's true in good law schools generally as it's been true here that the intellectual leadership in the law school world has come out of individual faculty members and not out of administrative ranks. So that when I say Lloyd is—in one sense when I say he's the best law dean in the business and that he'd certainly rank in the best three or four I'm not giving him awfully high praise because I'm comparing him with a level which on the whole has been conscientious, devoted to 00:57:00duty and all that, but on the whole unimaginative.

SMAIL: That's interesting you should say that because in his letter to somebody who asked whether he'd be Interested in the Harvard deanship in I guess 1934, he said, "It's nice of you to ask and I would be interested but you ought to get a much more intellectual—" I don't think he used that word but somebody who'd done a lot more publishing and was—maybe he did use that word.

HURST: Lloyd was still a little conventional himself at that point. He changed rapidly over the years between then and 1941.

SMAIL: Oh I see.

HURST: He himself grew immensely I think. He just took fire out at this place; he loved the Madison setting.

SMAIL: When he was the head of the National War Labor Board in 1934 they wanted him to stay and apparently he wanted very much to stay—he felt he was still 00:58:00needed—but Glenn Frank said he must come back and the regents did also. Do you—this was before you came—

HURST: Yes. I'm very glad they got him back as a matter of fact. I think he was-

SMAIL: Did he ever talk to you about it?

HURST: No, he never did. I just know he was always very deeply interested in the role of national law in the labor relations field as he showed of course during World War II when he was deeply involved with it again. No, he never talked to me—

SMAIL: But they were right, then, you think?

HURST: I think they were right from the standpoint of legal education. I think he made a more unique contribution to legal education than he did to the labor relations field. There were other people around with his savvy and enthusiasm for that field but a great scarcity of people like him in legal education.

SMAIL: I would like you to—I saw a reference—and you know someone else reading these files would find this too—he's recommending several men for a 00:59:00position and he refers to Katz at Chicago whom he said is the outstanding person in his field and he goes on to say, "He is a Jew but he has a fine personality and is a gifted teacher and an outstanding scholar," and I was struck by the comment.

HURST: Well I think Lloyd had not a trace of anti-Semitism in himself. I think in the first place I'd have to know something about the person he's writing that letter to. He may well have figured he was writing someone to whom the Jewish factor would be a bother and that therefore he had to grapple with it.

SMAIL: Yes—that's very likely it. From what Phil Cohen said I can imagine that one would have to do that with many administrators.

HURST: Well, and Lloyd had come out of—just immediately out of the atmosphere of top level law practice in New York City which in the early 1930's was very anti-Semitic. He would be aware of the fact that you'd be likely to encounter 01:00:00anti-Semitic attitudes among many lawyers, particularly lawyers of influence of the sort you might be writing letters recommending somebody to. Again I say Lloyd had not a trace of anti-Semitism- in him, but he would be all too well aware that many of his confreres at the bar of that day would be anti-Semitic. In fact, in the early 1930's I think it was still true that it was almost impossible for an able Jewish law graduate of the Harvard Law School to get a job in one of the—any one of the top New York law offices. It's only in recent years that that factor has disappeared. If you were a Jew in the early 1930's and were ambitious to get into a big corporate law office in New York you'd better look to one which was known more or less as a Jewish firm.

SMAIL: I see, it's a—

HURST: That would all tinge this little episode.

SMAIL: Yes, it certainly would. In fact I'm glad I asked you because I did read it the other way and as soon as you say that I realize that, of course, would be 01:01:00the consideration. And he didn't actually get Nathan Feinsinger here—

HURST: No-Nate was already here.

SMAIL: Yes. But I gather that—

HURST: They became very close, personally very close.

SMAIL: —Feinsinger in effect, well—worshipped is too strong a word, but was very strongly-oh, Abner Brodie was telling me that, that he—

HURST: Well, they were very devoted to each other. They found themselves very much in tune, and I think Nate Feinsinger of course went on to become one of the country's outstanding experts in the field of modem labor law and collective bargaining. This I think can almost completely be attributed to the influence of Lloyd Garrison because Nate Feinsinger started here never having had the slightest connection with labor law. He taught commercial law fields and domestic relations and it was Lloyd's influence and interest which brought him into the labor field.

SMAIL: Actually I gathered it was chance in a way. Bill Rice left and Nate Feinsinger had to teach his course in labor law. Were there any other Jews on 01:02:00the faculty here in the 1930's—in the law school?

HURST: I don't believe so. I can't remember any Jewish colleague. Since then, of course, a number of the faculty have almost always been Jewish.

SMAIL: Phil Cohen's remarks on the medical school really—because he was accepted personally, they liked him, but he would get open reactions to himself.