Twenty-five years after his death, the Wisconsin Law Review has published a long-lost manuscript by Professor J. Willard Hurst, beloved UW Law School professor, renowned scholar, and one of the great originators of modern legal history and law and society scholarship. It is believed that the work entitled, “Technology and the Law: The Automobile,” was written in the early 1950s as one of several chapters intended as a supplement to his successful book, The Growth of American Law.
According to a foreword by Professors BJ Ard (UW Law) and William Novak (Univ of MI Law), the chapter was likely saved from the dumpster in 1991 when Hurst invited Novak, who was serving as a Legal History Fellow and student administrator at the Institute for Legal Studies at the time, and several others to select materials when he was vacating his office.
In clearing the final bookshelves, however, Novak’s archival interest was piqued by a remaining stack of faded manila envelopes wedged onto a bottom corner shelf. The contents of the envelopes and folders were as strangely random as they were decidedly aged—classroom lecture notes, hand-cut file-card notes for subsequently published projects, stray correspondence that eluded file cabinets, and old newspaper clipping files on subjects ranging from “morals” to “corporations.” But the two folders that especially captured Novak’s attention contained what seemed to be wholly complete and carefully hand-edited manuscript chapters: “Chapter Eight—Technology and the Law: The Automobile” and “Chapter Eleven—Law and the Balance of Power: The Federal Anti-Trust Laws.”
Pieced together through Hurst’s correspondence with Felix Frankfurter and others, the foreword explores his plans for these chapters as a supplement to The Growth of American Law and why it was never completed. It also examines the “Technology and the Law: The Automobile” chapter as an early study of the interaction of law and technology.
For all Hurst’s case study on the automobile tells us about the limits of tort law or the pitfalls of assembling a regulatory apparatus, he offers still deeper insights by contrasting the law’s responses to different technologies… Half a century before parallel discussions of norms in the emergence of cyberlaw, Hurst recognized that the automobile’s capacity to undermine the regulatory force of social norms opened the door for law, somewhat ominously, “to carry added burdens of social control.” Further, Hurst recognized that technology may not only present new challenges, but also shape the law’s priorities.
I’m thrilled that the UW Law Library can offer permanent, open access to the original “Technology and the Law: The Automobile” manuscript in our UW Law School Digital Repository at https://go.wisc.edu/x01r1x and provide archival preservation of the original print document in our J. Willard Hurst Collection, a large, well-indexed collection of materials by and about Professor Hurst. We hope to make the complete digitized collection available in our UW Law School Digital Repository very soon.