Thinking Like a Historian: Erie in the Dimension of Time

Abstract

At the start of his lectures on American legal history at the University of Wisconsin Law School in 1978, Willard Hurst paused to tell his students what he believed his course had to offer them. The principal utility of history, in Hurst's judgment, was not the recovery of original understandings that specifically proscribed or endorsed particular practices. Nor was it to facilitate more loose-jointed form of argument from authority, sort of reasoning by analogy to the present from concededly different past. Nor was it simply the destabilizing of the present that comes when one realizes that seemingly permanent and universally rational legal institutions are in fact historically contingent. Rather, Hurst saw the greatest value of legal history as way of developing a certain poise of judgment. He offered his charges Marcus Aurelius's ideal of mind that attained the trained bearing of wrestler, so centered in the cosmos that its possessor kept his equanimity even in the face of sudden onslaughts.1 One of the axes along which the poised mind knew its place was the dimension of time. As the professional wielders of organized power, Hurst argued, lawyers in particular