Foreword: Willard Hurst's Unpublished Manuscript on Law, Technology, and Regulation

Abstract

It is with a great deal of excitement (and with thanks to so many contributing colleagues and collaborators over the years) that we are able to present to the public for the first time a newly published work by one of the great originators of modern legal history and law and society scholarship—James Willard Hurst. Hurst published his last two books, Law and Markets in United States History and Dealing with Statutes, in 1982. And, fittingly, he published his last substantive article—a very short comment on “The Use of Case Histories”—in the Wisconsin Law Review in 1992. In the latter, Hurst took one final parting shot at traditional legal scholarship focused on “tales of conspicuous political or constitutional controversies” as well as conventional legal histories that “tell only of great events and star actors.” As a pioneer of both the “Wisconsin school” of law and society and the Wisconsin monographic tradition in legal history research, Hurst’s interests were different. He aimed instead at the larger questions and the deeper causation reflected in the analytical categories that pervaded his mature work: sequence and context, particularity and generality, structures and functions, values and interests, and drift and direction.

That complex and comprehensive approach to the study of law in society is already apparent in the manuscript published here for the first time: “Technology and the Law: The Automobile.” In a document that we believe is among Hurst’s earliest substantive histories (and now over seventy years old), we can see the very beginnings of the distinctive approach to legal studies that would shape legal history and law and society for generations to come. With slight stylistic and typographical changes, we present the manuscript as we found it—as a complete and carefully hand-edited final document with endnotes in the bibliographic style that Hurst utilized early in his career. This manuscript was clearly intended and finalized by Hurst for ultimate publication, and it has been our goal to make good on that original promise. Though we could have simply archived or digitized the document at several points along the way, we were determined to see it through to publication so a new generation of students and scholars might be freshly exposed to the power of Hurst’s uniquely ambitious scholarly project in the law. After first saying a bit about the original discovery of this particular document, we close this foreword with some observations about what we see as its continued relevance today. But, for the most part, we are simply eager to have Hurst’s words speak for themselves again after all these years.

Keywords: J. Willard Hurst, Hurst, Growth of American Law, technology regulation, technology law, automobile regulation, automobile law, regulatory state