Oral History Interview with Willard Hurst (1981)

University of Wisconsin Law School Library
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00:00:00 - Introduction/Hurst's Background, Education, and Training

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Partial Transcript: I'll just say, to begin with, this is an interview with Willard Hurst.

Segment Synopsis: April 15, 1981- introduction to interview with Hurst (interviewed by Laura Smail of the Oral History Project).

Hurst's father was the superintendent of a piano factory in Rockford, IL (where Hurst was born). Hurst wanted to go to college in New England, so he toured and decided to go to Williams College in MA. It was a very small school (800 students), but he had very good professors and experiences there. All of his classes were small sections. Hurst was involved in the college newspaper and became editor.

Hurst majored in economics but also studied a lot of history. He then went to Harvard Law School as he had an interest in the government and wanted to know more about the law. He had no trouble getting in to Harvard; it was 1932 when he graduated from college and although he also had high academic standing, Harvard was taking most anyone who could afford to pay the tuition (as this was during the Great Depression).

Hurst didn't plan to be a practicing lawyer; but wanted the legal education.

Keywords: Harvard Law School; Williams College

00:05:41 - Time at Harvard Law School

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Partial Transcript: So I found myself in a highly competitive atmosphere in the Harvard Law School.

Segment Synopsis: Hurst talks about his experiences at Harvard Law-- it was difficult, with a big student body (1600 students even during the Depression).

After his first year, Hurst made the Law Review, which he very much enjoyed. The quality of the Law Review work was very high-- Hurst cites the fact that the Harvard Law Review is sometimes cited by the U.S. Supreme Court. It was a great honor to get on the Law Review- at the time it was entirely a matter of academic standing.

Hurst mentions that this is done differently at UW and that things have changed since the 1960s and now most law review selections are done partially on the basis of academic standing and partially on the basis of a writing competition.

Hurst thinks the new way is better since merely being in the top 5% of the class did not mean that you would be a good writer.

Hurst also talks about the tremendous amount of work the Law Review was-- in that Law Review members didn't do all of their readings for class or work on classes much until the Law Review edition was put out. Hurst says that Law Review members typically worked every day of the week (including Sunday) at least 8-10 hours per day on the law review. Hurst became Law Review note editor in his third year.

Hurst also says that this type of work is excellent preparation for top level law office jobs since it teaches one to combine high-pressure work with high-level accuracy.

Hurst says that there were 35-40 Law Review members (out of 1600 students).

Keywords: Harvard Law Review; Harvard Law School

00:13:41 - Year as Felix Frankfurter's research assistant

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Partial Transcript: 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.

Segment Synopsis: During his third year, Hurst took a class with Felix Frankfurter and also interacted with him as part of his duties as Law Review note editor. After graduating, Hurst became Frankfurter's research assistant for one year (with the tacit understanding that after this he would go to Washington to become law clerk to Justice Louis Brandeis of the Supreme Court).

Hurst also took and passed the IL bar exam after graduation.

For his work for Frankfurter, Hurst researched the Commerce Clause and its history in relation to the Supreme Court from 1789-1890. Hurst also audited two of Frankfurter's courses.

After all of the research was done, Frankfurter went through all of it and then he and Hurst worked together on Frankfurter's speeches. Frankfurter would talk through his ideas until he came up with the perfect way to say them and then Hurst would type them up on the typewriter and then give critiques and suggestions.

Keywords: Felix Frankfurter; Justice Louis Brandeis; Supreme Court of the United States

00:19:43 - Year as law clerk for Justice Brandeis of the Supreme Court

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Partial Transcript: 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 off Connecticut Avenue there in Washington.

Segment Synopsis: Hurst talks about starting to work for Justice Brandeis as his law clerk-- Brandeis did not like the new Supreme Court building so Hurst did most of his work in the small efficiency apartment below Brandeis' apartment in Washington.

Brandeis also did the majority of his work at home and did not use his Supreme Court offices at all, and in fact only went to the Supreme Court building when he had to be in court.

Hurst's main job as law clerk was to assist Brandeis in the final preparation of his opinions. To start out, though, Brandeis had Hurst write short memoranda on petitions for certiorari. Hurst learned through this activity that the Supreme Court's job wasn't to see justice (that was the job of the lower federal courts), but to take cases where some broad important public policy of concern to the country was involved.

After a week of argument, Brandeis would get assigned 2-3 opinions. He would write a draft and then Hurst would find authorities to cite where Brandeis had not cited anyone, and also check everything Brandeis had said about the lower court cases very carefully against the court record. Then Hurst would write an extensive annotation of Brandeis' opinions, showing Brandeis where everything cited was located in the case record.

Brandeis also encouraged Hurst to argue with him if Hurst did not agree or thought Brandeis had said something incorrectly.

Hurst found this an exciting time to be working at the Supreme Court since it was the time of FDR's court-packing bill.

Keywords: FDR; Justice Louis Brandeis; United States Supreme Court

00:29:16 - How Hurst came to Wisconsin

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Partial Transcript: This 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.

Segment Synopsis: In spring 1937, Lloyd Garrison (at that time dean of UW law school) contacted Hurst and asked him to come to UW to become a professor. Hurst turned down invitations from the University of Buffalo Law School and University of Iowa Law School to come to WI, largely because Hurst liked Lloyd Garrison's ideas and personality, especially Garrison's ideas about blending social science learning with legal learning.

Hurst became interested in law and social sciences during college, when he wrote papers on law and economics, and wanted to bring this idea of combining the two to his own teaching. Garrison was a supporter of this.

Keywords: Lloyd Garrison; University of Wisconsin Law School

00:33:39 - Development of the Law & Society Course

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Partial Transcript: 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.

Segment Synopsis: Lloyd Garrison wanted Hurst to develop an introductory course for first-semester law students to introduce them to methods of legal analysis and thinking and methods of thinking about public policy problems dealt with in law. This is typical today and there is almost no law school that does not have such a course, but in 1937, UW was one of 2-3 schools trying this out. UW's model has had a lot of influence on the way this course has been structured throughout the country.

Lloyd and Hurst came up with the curriculum together and made as a central topic workers' compensation acts (specifically in WI). This topic showed how policy could be made through litigation, legislation, and administration. Garrison and Hurst wanted the course to be an introductory course in jurisprudence and legal philosophy.

Hurst thought that the course was a success while it was taught by himself and Garrison. Hurst worked very hard on creating the course and learning enough to be able to teach it.

Eventually the course was dropped, but the idea of introducing the students to law and society was not.

After this, Hurst realized that what he was really interested in was legal history.

Keywords: Lloyd Garrison; William Herbert Page; law and society

00:44:37 - Lloyd Garrison as dean of the UW Law School

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Partial Transcript: OK, now I'll interrupt you because I have quite a few questions about Garrison and this seems like a good time to do it.

Segment Synopsis: Lloyd Garrison became dean of UW Law School in the early '30s. The faculty was very happy with him from the start but the WI Bar was distrustful of him as a radical.

Garrison also had the idea that all lawyers should be members of the bar (it used to be a voluntary organization).

Hurst thought Garrison was an excellent dean as he believed that the law school should be a place of ideas and he encouraged his faculty to be "idea people" and to research and publish. He also was a very positive person. Garrison also was ambitious for the law school in order to keep making the UW law school a better place.

Hurst is of the opinion that Garrison was the best law dean in the country (at least in the time that Hurst has been active; 1937-1981). Hurst says this because most law schools' intellectual leadership has come out of individual faculty members, not out of administration.

Hurst also clarifies and gives context to a remark made by Garrison and says that Garrison was not at all anti-Semitic.

Hurst then talks about Garrison's break with Phil La Follette due to La Follette's politics, and Garrison's opinion that the US should not become involved in WWII.

Hurst also details why Garrison left the job as dean-- he was seen as having radical political opinions due to his involvement in labor management relations.

Keywords: Lloyd Garrison; Phil La Follette

01:08:42 - During World War II

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Partial Transcript: Well I got back here after the war.

Segment Synopsis: Hurst talks about his experiences during WWII-- he worked in General Counsel's office of the Board of Economic Warfare and also in the Navy in the planning and control division. He did work as a lawyer for both of these positions. He also ran a policy-history unit in the Bureau of Naval Personnel and performed a public administration study until he came back in 1946. Through this he learned a lot about the techniques of interview research.

Hurst also was married in 1941.

Keywords: Navy; WWII; World War II

01:12:00 - Return to UW after the war

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Partial Transcript: Uh, I had made contact and I can't remember-- oh, I know now, the Social Science Research Council had published a bulletin which somehow fell into the hands of lots of academics who were in the services, announcing that they were providing, I think primarily with the help of Rockefeller money, a series of what they called demobilization awards which would buy a limited amount of free time for academics who'd been in the services to try to retool and get relaunched on research and publication efforts right after the war.

Segment Synopsis: Hurst received a demobilization award from the government after the war, so for the first two years after the war, he worked half time and started to seriously focus on research rather than teaching.

Hurst also started to seriously advocate for his research in legal history, and he received a grant from the Rockefeller Foundation and was thus able to teach half time for more years. The UW agreed to this because Hurst made it a condition of his coming back as he was also offered jobs at other law schools (such as Columbia).

Hurst found this time (1946-49) to be an excellent time in his career as most students were GI Rights Bill students who were very motivated and engaged.

Keywords: Rockefeller Foundation

01:16:32 - Developing the field of American Legal Economic History

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Partial Transcript: But right from the start when I came back I was on a half-time basis.

Segment Synopsis: Hurst began to develop the field of American Legal Economic History-- the relation of law to the development of economics in the US.

Hurst planned to stay on half-time for the indefinite future so that he could really focus on his research. He had no secondary sources to work with since he was the first one really working in this field, so this was a very long process. He didn't want to be on a full-time research schedule, though-- as teaching was a "reviving experience" and he thought that full-time research may get stale after a while.

Hurst then received an 8-year grant from Rockefeller (the longest ever at this time in history) to continue his half-time research. Due to this, Hurst also became a member of the SSRC board.

The money from the 8-year Rockefeller grant also allowed Hurst to hire a research fellow each year to do research in WI economic legal history. Out of this came about 8 published monographs. Hurst thinks that this could only happen at WI at this time; he told the dean of Harvard Law school about it and the dean agreed. Later, however, the dean offered Hurst a job as Harvard's first legal historian, but Hurst turned it down.

Keywords: American legal economic history; Rockefeller; SSRC

01:24:41 - Research and Writing- Developing the Field of Legal Social History

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Partial Transcript: You know, at some point, I'm going to ask you how you schedule your research and your teaching and how you go about doing it when you're writing.

Segment Synopsis: Hurst describes how he goes about scheduling doing his research and his teaching.

For the first two years after the war, he read intensively and learned as much as he could about the history of the development of the major legal historical agencies. This resulted in a book published in 1950, The Growth of American Law: The Law Makers.

At this time there was very little in print about American legal history, and what did exist was about colonial times. Therefore Hurst saw a need for his kind of work.

Hurst wrote his book in segments, but he found the writing process difficult. His first manuscript was rejected, so he rewrote the whole thing with more emphasis on writing in a manner that was easier to understand. To help him with this, he used techniques by Rudolph Flesch.

Hurst also describes how the process of putting his book together was difficult as he was really the first person to be putting these ideas together. Effectively, he was inventing the field of legal history or legal social history.

Hurst's work built on the ideas of the class he had created with Lloyd Garrison when Hurst first came to UW.

Hurst did not go out of Madison to do his research-- he used the law library, the historical society, and the library at the Capitol.

Hurst then began to give lectures, including the Cooley Lectures at the University of Michigan. These lectures always focused on sociological aspects of legal history. He continued to give many series of lectures at various universities, focusing on different topics but always under the umbrella of legal history.

Hurst also published a big book about the legal history of the lumber industry in Wisconsin from the early 1800s to the early 1900s. He is very proud of this book and thinks it is his best, but it was a small printing as it was not a "money making" kind of book.

Hurst did most of the research for this book himself- he had the assistance of various year-long legal research assistants, but Hurst was very closely involved with the research process and did all of the editing himself.

Hurst says that all of his publication has been about legal history except for one small book based on a legislation course he has been teaching for the last 30 years.

Hurst did most of his writing at his office, but he also did work at home at night and on the weekends. Hurst finds writing to be a difficult process but he enjoys it. He works slowly and carefully so that he doesn't have to do a lot of drafts; he takes painstaking notes on the typewriter as he reads secondary sources.

Hurst says that the hardest part of his work has been the conceptualizing part, since he effectively created this field, so there weren't any starting ideas there already and he had to create them. This has made the work somewhat lonesome. In general, no one was really interested in this field at UW before Hurst; there were a few in the history department (Merle Curti, Stan Katz) who had a vague interest, but no one focused on it like Hurst was.

Keywords: Lloyd Garrison; Merle Curti; Rudolph Flesch; Stan Katz; legal history; legal social history

01:58:13 - Lloyd Garrison and isolationism

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Partial Transcript: Going back a moment to Lloyd Garrison, I would not want to characterize him as even an isolationist let alone a determined or dogmatic isolationist.

Segment Synopsis: This was the beginning of the second session of the interview. Hurst had looked through the index of the first session and wanted to clarify a point about Lloyd Garrison.

Hurst says that Garrison was not an isolationist; he was just distrustful about the US' involvement in the world situation during World War II.

Keywords: Lloyd Garrison; World War II; isolationism

01:59:06 - Social Science Funding

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Partial Transcript: Well, I'd like to start off today with a remark you made in our preliminary interview when I asked you what you particularly would like to say about your career and about the University and you said the thing you'd most like to get across is your feeling that the administration hadn't done well by the law school, with a few exceptions you specified for me.

Segment Synopsis: The Ford Foundation began to give out open-ended, sizable grants to a small number of universities, but WI was not initially one of them, although this disturbed faculty (along with Hurst) because they thought that WI should have been one of them due to its merits.

The (social science) faculty went to the administration to have them talk to the Ford Foundation, but the administration (Mr. Fred) wasn't really interested in it since he wasn't very interested in expanding social science at UW. Hurst doesn't think that Fred was hostile to the social sciences; he just didn't see a lot of merit in them.

Later on, the law school received a Ford Foundation grant, but this was all on their own and not with the help of the university administration/Mr. Fred.

Keywords: E.B. Fred; Ford Foundation grants; Mr. Fred

02:05:59 - The Deanship

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Partial Transcript: Well, we can go back to the law school then.

Segment Synopsis: Hurst talks about how he doesn't feel that the greater University administration has ever really cared about the law school, and any resources the law school received were because the law school pushed very hard for them.

E.B. Fred and the regents wanted an outsider as law school dean, although many of the faculty (including Hurst) wanted Jake Beuscher (an insider).

Hurst does not think that he himself had ever been thought of as dean and would not have wanted the job.

The regents would not accept Jake Beuscher as dean, because Mr. Fred did not want him, since he felt that Beuscher would press for a social science emphasis in the law school and Mr. Fred did not think this would be worth resources.

Jack Ritchie was chosen instead. As dean he was not a forceful man of ideas, but he did help the law school to get a new building, which was desperately needed.

There was thought of putting the new law building further down Johnson St. so there would be more parking and it would be more accessible, but the faculty (including Hurst) were strongly opposed to that. They felt that the central location of the law school helped foster communication with other departments.

Ritchie then left to go to Northwestern Law School, and there was another search for a new dean. Hurst and others still wanted Beuscher as dean, but this did not happen. George Young was chosen.

A discussion of George Young's time as Dean follows, as well as the search for the Dean that would eventually follow George Young.

At the time of the next search, the faculty still wanted Beuscher and voted for him 18-3, but Fred went against this. Hurst laments this as he thinks that Beuscher could have been one of the best deans in the country.

Keywords: E.B. Fred; George Young; Jack Ritchie; Jake Beuscher; Mr. Fred

02:20:18 - Vilas Professorship

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Partial Transcript: I'm more or less proceeding chronologically... your Vilas professorship came in 1962.

Segment Synopsis: Hurst got a Vilas professorship in 1962. He had offers many other places but loved Madison and wanted to stay. He used the outside offers as bargaining pressure, though.

Keywords: Vilas professorship

02:21:33 - Fred Harrington and Hurst's salary raise

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Partial Transcript: Well, I don't recall that Fred ever showed any such positive signs.

Segment Synopsis: Hurst received a higher salary (highest of any faculty) from Fred Harrington (administrator). Hurst was embarrassed about this since he was not the most senior faculty member and therefore thought that he should not be making more than the senior faculty (Nate Feinsinger). However, Feinsinger was seen to have more of a "suspect character" by the regents since he was involved with the field of labor and collective bargaining.

Keywords: Fred Harrington; Nate Feinsinger

02:25:10 - Law School Salaries

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Partial Transcript: Who instituted the salary raises for the law school- did that go back a long time?

Segment Synopsis: Hurst talks about how the law school did salary raises for faculty.

The law school faculty did not like "merit raises" but instead felt that the money should be shared equally since it was only a small amount of money and could foster hostility between faculty.

02:27:26 - A Second Law School in Wisconsin?

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Partial Transcript: Now, there are two other things that were happening.

Segment Synopsis: In 1966, there was talk about either expanding the law school or adding another public law school in Wisconsin. Hurst says that the faculty was divided on this issue but they did not want a school of 1200-1600 students since they wanted to preserve student-faculty interaction.

They also didn't think that the legislature would give more money for two law schools, so they would end up using half of the money for each law school and therefore ending up with two mediocre law schools rather than one good one.

02:29:10 - Law School Standing

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Partial Transcript: Another thing that was happening was the rating by Clark Kerr which was showing up the law school for some of its policies like admitting second-rate students.

Segment Synopsis: WI had a history of admitting students with more mediocre academic records since a former dean (Oliver Rundell) had felt that students with mediocre academic records often became excellent lawyers.

Then in more recent years there was a push for enrollment and WI substantially raised its admission standards.

Keywords: Oliver Rundell

02:30:56 - George Young's resignation as dean

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Partial Transcript: So they began to get disturbed, Harrington and Fleming.

Segment Synopsis: Hurst talks more about talking to the administration about George Young and possibly replacing him as Dean.

Hurst says that Young was a very nice man and supportive of his faculty but not very good at leading the law school. There were about 4 or 5 faculty strongly advocating for a change in deanship, including Hurst and Bill Foster.

The administration started another outside search for a new dean, and Young resigned. There were angry letters to the administration from around the state about Young's resignation and wanted him to withdraw it.

Keywords: Bill Foster; George Young

02:36:30 - Robben Fleming and William Sewell

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Partial Transcript: Well, were you-- what about Fred Harrington, and in that period Clodius, Fleming, Sewell.

Segment Synopsis: Law faculty salaries were very low and it was difficult to keep faculty. Robben Fleming was provost and he was embarrassed of this fact and tried to give the law school more resources, but it was difficult due to Young's passivity. Hurst thinks that Fleming could have made a big difference with someone else as dean (like Jake Beuscher).

Hurst also thinks that Bill Sewell (University executive) would have been helpful to the law school but since the Vietnam War protests were going on at that time he was preoccupied with other things.

Keywords: Bill Sewell; Bob Fleming

02:39:16 - Edwin Young and Irving Shain

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Partial Transcript: And then Young followed him.

Segment Synopsis: Hurst feels that Edwin Young (chancellor of the University) placed value on individual members of the law school faculty but not on the law school as a whole, so he didn't give it a lot of resources.

However, in 1967 there was a change as the law school had some deans (Spence Kimball; George Bunn) who were very strong and started to push the university for more resources for the law school. Unfortunately, they were met with tepid responses from the University and therefore left the deanship quite soon.

Hurst thinks that this was just because the University as a whole did not see the value of the law school or have confidence in it as an institution-- he thinks that they simply did not understand it, since the law school has been an outstanding law school for a long time.

Irving Shain, another chancellor, also said that the law school was receiving money from other departments in this time period. It would usually be the other way around.

Keywords: Edwin Young; George Young; Irving Shain; Spence Kimball

02:43:42 - J.D. versus LL.B. degree

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Partial Transcript: Oh, the J.D. degree?

Segment Synopsis: Hurst talks about the transition from the LL.B. degree to the J.D. degree. Hurst thinks that it should be kept as an LL.B. degree (and has never switched his over), since it finds it to be a cosmetic change.

Keywords: J.D. degree; LL.B. degree

02:45:11 - The Student-Protest Era

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Partial Transcript: The student protest is going on at about this period of 1966, '67, '68.

Segment Synopsis: Hurst talks about the time of student protests at the time of the Vietnam War. Hurst does not think that the University should put itself on record as having any one opinion on something like this since there is so much diversity within the faculty that it really can't speak as a group.

Hurst also thinks that faculty members should be careful to not talk about political things as experts but instead as citizens. They should only publicly speak as faculty on issues on which they are experts. Hurst thinks that "the more you speak as professor on things in which you don't profess the more you depreciate the title."

Hurst found the time of student protests to be a very bad time since it led to degeneration of moral protest into violent mob protests. At times it was impossible without physical contact for people to enter academic buildings to attend class. However, Hurst felt that he had a moral obligation to continue to hold class for the people who elected to want to come to class.

Hurst says that this was a time of great hostility between students and faculty which he had never experienced before in his career. Hurst says that he thinks all faculty felt this to some extent but that he may have felt it somewhat more due to the courses he taught.

Hurst also talks briefly about the TA strike period but says he doesn't know a lot about it.

Keywords: Vietnam War; student protests

02:56:07 - United Faculty

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Partial Transcript: Are you on United Faculty, by the way?

Segment Synopsis: Hurst says that he is not a member of United Faculty and is mostly opposed to it for practical reasons.

Keywords: United Faculty

02:57:18 - Ways of Teaching Law/Controversy About Clinical Training

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Partial Transcript: Let's get on to your feeling-- you said that over the last ten years the law faculty has been split up over the issue of clinical training for lawyers.

Segment Synopsis: Hurst talks about the discussions and disagreements among faculty about whether there should be a clinical component to law school. He thinks that all faculty do believe that students should have some client or practical experience before exiting law school, but it is more a problem of limited means.

Hurst thinks that clinical programs can be good but that they are only as good as the quality of the supervision, which means full time clinical faculty who are devoted to small numbers of students. This is very expensive.

Hurst mentions as another option having a different type of "clinical" which involves very little supervision, but which carries the danger of doing disservice to the clients and allowing students to form bad habits.

There is a competition for resources between clinical and research since research faculty also need money to have time to do research.

This also makes it hard when it's time to hire a new faculty member since there is a difference between those who are good at teaching in the classroom, clinical supervision, and researching. It's very rare to find an individual who can do two, much less all three. Therefore it must be weighed which is most important at the time. Hurst explains that there is a two thirds faculty vote for hiring-- anyone who is voted down by a third of the faculty will not be hired.

Hurst does think it's important for students to have clinical experience, but he does not think that it should take up the majority of the resources of the law school, as this would be unfair to classroom teaching and research.

Hurst also explains that the law school is not going to hire someone to replace him, exactly, but he feels all right about this as he thinks there are several younger faculty who are interested in the legal history field and will continue researching in the area.

Keywords: clinical

03:11:19 - Marriage and the Academic Life

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Partial Transcript: I wanted to ask you what role your wife has played in your career.

Segment Synopsis: Hurst talks about how he feels badly about not being as involved in raising his children as he feels he should have been, although at the time he was really getting into the research.

Hurst also mentions the difference between now [the time of the interview] and then-- now he says many wives of faculty also work, but that this wasn't so much a thing during his time.

Hurst then talks about how when he was in law school it was very rare for a law student to be married, out of 500 or so students, only 3-4 would have wives (there were no women in law school at this time). He says that this doesn't mean that law students didn't go out on dates, but reemphasizes that it was very exceptional for one to be married.

Hurst explains that law students spent most of their time together- eating, studying, in class, living, etc, "living and breathing the law," although this has changed and now more and more law students are married and do not give so much undivided attention to their law studies. Hurst thinks that because of this, today's law students get a little less out of law school than he and his contemporaries did just because they were always talking about the law with their fellow students.

Keywords: marriage