Lumber and the Legal Process
![handle is hein.journals/wlr1972 and id is 132 raw text is: COMMENTARY
LUMBER AND THE LEGAL PROCESSt
MARK TUSHNET*-
When J. Willard Hurst's Law and Economic Growth' was pub-
lished in 1964, it received little attention. A book, so obviously
ambitious, by the leading historian of American law, would seem
to have deserved a widespread and thoughtful readership. Instead,
it has until recently, been largely ignored,2 and Hurst has been
more honored than read. The sheer heft of the book might have
deterred some,3 and its subtitle, The Legal History of the Wisconsin
Lumber Industry 1836-1915, others.4
However, there are more important reasons for the lack of schol-
arly response to Law and Economic Growth. Hurst aptly invokes
the words of Holmes in his epigraph and in his concluding remarks,5
for his work is in the tradition of The Common Law. Like Holmes,
Hurst is interested in jurisprudence, history, and social theory, and
the combination of these interests in a single book, which purports
to have a narrow focus on Wisconsin lumber law, may cause read-
ers to lose their bearings. A discussion of the jobs a legal system
should fulfill, for example, which seems to be jurisprudence, is
followed, in the next paragraph, by an explanation of why the Wis-
consin legal system did not do one of those jobs successfully, which
seems to be history. And Hurst writes with such tact and ele-
t I would like to thank Duncan Kennedy, who encouraged me to de-
velop an earlier version of this essay, and Bliss Cartwright, who helped
greatly in leading me to understand Hurst's work; much of my discussion
simply elaborates on their offhand comments.
* Law clerk to Judge George Edwards, United States Court of Ap-
peals for the Sixth Circuit; A.B., 1967, Harvard University; J.D., 1970, M.A.,
1971, Yale University.
1. J. HURST, LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE
LUMBER INDUSTRY IN WISCONSIN, 1836-1915 (1964) [hereinafter cited as
HuRST].
2. Hurst's work has been reviewed recently in Flaherty, An Approach
to American History, 14 AM. J. LEG. HIST. 222 (1970); Schreiber, At the
Borderland of Law and Economic History: The Contributions of Willard
Hurst, 75 AM. HIST. Rsv. 744 (1970).
3. The text comprises 609 pages, the notes an additional 302 pages of
double-columned fine print.
4. My favorite review, Quinney, Book Review, 5 NAT. RESOURCES J. 187
(1965), considers the book a narrative of the destruction of the Wisconsin
forest. It is that, among other things.
5. HURST xxvi, 608-09.](ViewImageLocal?handle=hein.journals/wlr1972&div=13&collection=&method=preview&ext=.png&size=3)
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