Taking legal realism offshore: The contributions of Joseph Walter Bingham to American jurisprudence and to the reform of modern ocean law

Law and History Review

Volumn 26, Issue 3, 2008, Pages 649-678

  Scheiber, Harry N ^a,b,c  

^a Department of Law and History ^*

^b Institute for Legal Research

^c UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 60950607872     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000002601     Document Type: Article

References (91)

1. Among the numerous important studies of Legal Realism, one may mention in particular Wilfred E. Rumble, American Legal Realism: Skepticism, Reform, and the Judicial Process (Ithaca: Cornell University Press,1968);
2. William Twining, Karl Llewellyn and the Realist Movement (London: Wiedenfeld and Nicolson, 1973);
3. Edward A. Purcell, Jr., "American Jurisprudence between the Wars," American Historical Review 75 (1969): 424-46
4. reprinted in American Law and the Constitutional Order, ed. Lawrence M. Friedman and Harry N. Scheiber (expanded edition, Cambridge: Harvard University Press, 1988), 359-74;
5. Laura Kaiman, Legal Realism at Yale, 1927-1960 (Chapel Hill: University of North Carolina Press, 1986);
6. Morton Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1992);
7. John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995);
8. N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997);
9. and Dalia Tsuk Mitchell, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca and London: Cornell University Press, 2007).
10. For excerpts from the writings of the best remembered Legal Realists, with insightful scholarly commentary, see American Legal Realism, ed. William W. Fischer III, Morton J. Horwitz, and Thomas A. Reed (New York: Oxford University Press, 1993).
11. Exceptions with regard to recognizing Bingham's early contributions to Realism are the references to his early writings provided by Rumble some forty years ago, in American Legal Realism, 32, 82-83, 104, 140-41 ;
12. on deposit with the Stanford Law School Library. The provenance of this document is documented in George Torzsay-Biber, "A Preliminary Bibliography," Stanford Law Review 17 (1964-65): 1017-18.
13. An informative appreciation of Bingham as a teacher and as a scholar is provided in an unpublished memorial statement by Moffatt Hancock et al., "Memorial Resolution: Joseph Walter Bingham (1878-1973)," http://histsoc.stanford.edu/pdfmem/BinghamJ.pdf. Twining notes that when Llewellyn first entered on law studies as a young man, the published writings of Bingham and Pound were already laying the groundwork for Legal Realism. Twining, Karl Llewellyn and the Realist Movement, 366.
14. There were other legal scholars who joined with Bingham to pursue the Realist approach in debates of international law, most prominently Stefan Riesenfeld and William W. Bishop. But in any event they were not of sufficient reputation as of 1938 to be identified as members of the Realist school; their major contributions to international law would come later. On Rie'senfeld's collaboration with Bingham, see text at notes 51-57 below. Bingham, it may be noted, is referred to in one respected scholarly study as being in 1950 among "the most eminent authorities in the field of international law." Ernest R. Bartley, The Tidelands Oil Controversy (Austin: University of Texas Press, 1953), 208-9.
15. I use the phrase "in a basic sense" because the essential question in the debate from 1935 to 1982 was whether the old rule in customary ocean law, predominantly a three-mile claim for sovereignty (the territorial sea) with only a few exceptions such as for the hot pursuit of smugglers or protection against pollution out to twelve miles, should yield to a rule that a coastal nation's jurisdiction should be extended out as far as a realistic assessment of practical need for special purposes (e.g., for protection of coastal fisheries resources) would warrant it. The EEZ as provided for by the UN 1982 Convention authorized the 200-mile limit for purposes of regulating economic activity; it did not authorize full sovereignty and in that sense too was fully consistent with Bingham's basic idea that specific types of activity should be covered by offshore jurisdiction to the distance that was warranted by their character and their effect on interests of the coastal state. An important aspect of the controversy-one that was not explicitly considered by Bingham until after World War II-has to do with the distance to which a contiguous continental shelf may extend, for a particular state, beyond the 200-mile EEZ limit and thus (as the 1982 Convention permits) authorize a claim to economic use of the seabed in the shelf area in question. This potentially dangerous issue is in play, at this writing in 2007, in the Polar area, as Russia (which has planted a flag on the seabed under the North Pole, to highlight its claim of a continental shelf extension to that distance), Denmark, and Canada have all announced claims to shelf distances in the Arctic far beyond 200 miles offshore. See the papers in the special symposium issue on international law relating to the Continental Shelf and offshore jurisdiction of coastal states, in the International Journal of Marine and Coastal Law 21 (Sept. 2006): 263-373;
16. and, for the recent, accelerating developments in the Arctic region, see Daniel Kressey, "Russia at Forefront of Arctic Land Grab," Nature 448 (Aug. 2, 2007): 520-21;
17. "Cold War: Russia Claims Arctic Land," Geotimes, Aug. 2007, at http:// www.geotimes.org/aug07/article.html?id=WebExtra080107.html. Assertive continental shelf claims by the Soviet Union have generated international tensions in the Barents Sea region of the Arctic dating back to the 1960s.
18. The term "the oceans," in this legal context, is invoked as including the regimes for use of airspace and economic exploitation of the seabed in the jurisdictional area in question, not only fishing, scientific activity, and maritime and naval operations or other activities on the surface or in the water column. See generally the essays in Davor Vidas and Willy Østreng, eds., Order for the Oceans at the Turn of the Century (The Hague: Kluwer Law International, 1998);
19. and Harry N. Scheiber, ed., The Law of the Sea: The Common Heritage and Emerging Challenges (The Hague: Martinus Nijhoff Publishers, 2000).
20. Wilfrid E. Rumble, Jr., "Legal Realism, Sociological Jurisprudence, and Mr. Justice Holmes," Journal of the History of Ideas 26 (1965): 547-66 at 547 n.l.
21. Marion R. Kirkwood and William B. Owens, "A Brief History of the Stanford Law School, 1893-1946," http://www.law.stanford.edu/about/history/ historysls.pdf-2003-05-22. See also Hancock et al., "Memorial Resolution."
22. Twining describes Hohfeld as of 1913, when he submitted his first article for editorial consideration, as a "hitherto unknown professor at Stanford." Twining, Karl Llewellyn, 34. Hohfeld is the subject of much attention in the standard histories and in studies of legal theory. See, e.g., N. E. H. Hull, "Vital Schools of Jurisprudence: Roscoe Pound, Wesley Newcomb Hohfeld, and the Promotion of an Academic Jurisprudential Agenda, 1910 to 1919," Journal of Legal Education 45 (1995): 235-81;
23. and Joseph William Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," Wisconsin Law Review (1982): 975-1059.
24. See "Llewellyn's 'Sample' of Realists," in Twining, Karl Llewellyn and the Realist Movement, 76;
25. the successive lists are reproduced in Hull, Roscoe Pound and Karl Llewellyn, 343-46
26. and the published version in the footnotes of Llewellyn's article, "Some Realism about Realism," Harvard Law Review 44 (1931): 1222, 1227 n. 18.
27. Quoted in Twining, Karl Llewellyn, 76;
28. Jerome Frank, Law and the Modern Mind (New York: Brentano's, 1930), 275n. and 274-79. Frank stated that Bingham's work had not come to his attention until after the book had actually been sent to editors for consideration. Ibid., 275n. When Llewellyn sought advice on his list of Realists, in preparation for his response to Pound, he had some correspondence with Bingham - who recommended that Pound himself should be included in that list! Hull, "Reconstructing the Origins," 1317.
29. See also Moffatt Hancock, "Joseph Walter Bingham," Stanford Law Review 17 (1954-65): 1111.
30. Bingham, List of Writings, 7.
31. Joseph Walter Bingham, "Some Suggestions Concerning the Law of Fixtures," Columbia Law Review 7 (1907): 1;
32. "Some Suggestions Concerning 'Legal Cause' at Common Law," Parts 1 and 2, Columbia Law Review 9 (1909): 16, 136;
33. "What Is the Law?" Parts 1 and 2, Michigan Law Review 11 (1912-1913): 1, 109 (1912) with a "Supplementary Note" entitled "The Nature of Legal Rights and Duties," ibid., 12 (1913-1914): 1 (1913);
34. Bingham, "What Is the Law?" 9-11, 13-14.
35. Pound, as quoted approvingly in Cardozo, Nature of the Judicial Process (New Haven: Yale University Press, 1921), discussed in Horwitz, Transformation of American Law, 190.
36. Bingham, "What Is the Law?" 119.
37. Horwitz, Transformation, 154 and passim.
38. Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning," Yale Law Journal 26 (1917): 711-70. Horwitz points out, however, that Hohfeld essentially "reintroduced a theme highlighted by Holmes forty years earlier-the theme that "duties precede rights, logically and chronologically"-a comment that certainly applies with equal accuracy to the way in which Bingham advanced his arguments on duties and rights. Bingham in his early studies gave explicit credit to Austin, Holmes, and Pound, as well as to J. B. Thayer and others, e.g., in text and footnotes in Bingham, "What Is the Law?" 112-13
39. A Stanford law student recalled as follows the impact of Hohfeld and Bingham upon teaching in his day: "With the zeal of crusaders, these men, each in his own way, started to do some pioneering in the field of attempted clarification of legal concepts and reasoning . . . [and] stimulate[d] deep thought that pierced far below any superficial crust which rested lightly on vague legal terminology;" and that this attribute could leave "[an] indelible imprint upon the mind of every law student who is fortunate enough to experience its influence." Homer R. Spence, "Joseph Walter Bingham," Stanford Law Review 17 (1964-65): 1016.
40. The term "pre-Realist" evokes, in this context, the continuing controversy among historians and legal scholars on basic issues of chronology and the proper classification of individuals with regard to Legal Realism. There is a fascination with the questions, Who specifically can be identified as the Legal Realists? And was Realism in a defensible sense actually a "school"? and, in either case, When did the movement begin-and when did it end, if ever? (if indeed it was a "movement" or "school," rather than the term "Legal Realism" being applicable merely as denoting no more than a congeries of loosely interrelated related legal theorists-and legal theories). There is no need here to rehearse the debate of whether Law and Society studies represent a departure in fundamental ways from Legal Realism, or instead (a view to which I adhere) are embedded in Realism's legacy. For an insightful recent commentary, see Stewart Macaulay, "The New Versus the Old Legal Realism: Things Ain't What They Used To Be," Wisconsin Law Review (2005): 365-403.
41. Bingham, "What Is the Law?" 14.
42. Felix Cohen, "Transcendental Nonsense and the Functional Approach," Columbia Law Review 35 (1935): 809, 833;
43. also in Fischer et al., eds., American Legal Realism, 218.
44. Joseph Walter Bingham, [untitled essay] in My Philosophy of Law: Credos of Sixteen American Scholars (Boston: Boston Law Book Company, 1941), 25.
45. Bingham, "My Philosophy of Law," 7. Emphasis added.
46. Kirkwood and Owens, "Brief History of the Stanford Law School," cited above, in note 9.
47. [Joseph Walter Bingham, Reporter], Draft Convention on Piracy (Harvard University Law School, Research in International Law), in American Journal of International Law 26, Supplement (1932): 739-49.
48. This report would later have an important influence on the project of the UN International Law Commission when it worked on codification of the law of the sea in the 1950s. Barry Hart Dubnev, The Law of International Sea Piracy (The Hague: Martinus Nijhoff, 1980), 37-93.
49. Bingham, "Some Suggestions Concerning the California Law of Riparian Rights," California Law Review 22 (1934): 251-76, proposing a procedural change that the California Supreme Court adopted in Peabody v. City of Vallejo, 2 Cal. 2nd, 351, 40 Pac. R. 2nd 486 (1935).
50. Bingham, "The American Law Institute vs. The Supreme Court-In the Matter of Haddock v. Haddock," Cornell Law Quarterly 21 (1936): 393.
51. The Supreme Court decision on "divisible divorce" that adopted his position was in the case of Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957), as is discussed in Hancock, "Joseph Walter Bingham," 1011. Bingham returned to the theme of the Haddock Case in his article, "Song of Sixpence: Some Comments on Williams v. North Carolina," Cornell Law Quarterly 29 (1943): 1-27.
52. Joseph Walter Bingham, Cases and Materials on Wills, Descent and Administration, by George P. Costigan, 3rd ed. (St. Paul: West Publishing Co., 1941). Bingham years earlier had published as sole author and editor, Estates of Decedents (Chicago: LaSalle Extension University, 1913).
53. This can be said with reference to the standard Anglo-American legal literature up to the mid-1930s, though historically the three-mile limit had been made subject to exceptions by even the United States and the United Kingdom; and it was not accepted universally, since many coastal states claimed up to nine or in some cases twelve miles for purposes of regulating fisheries or other activities, and (as noted in the text, below) a few claimed full sovereignty (not just special jurisdiction for limited purposes) over territorial seas of more than six miles. See the standard historical and legal analysis by Stefan A. Riesenfeld, Protection of Coastal Fisheries under International Law (New York: Carnegie Endowment for International Peace, 1942);
54. and also William E. Masterson, Jurisdiction in Marginal Seas, with Special Reference to Smuggling (New York: Macmillan, 1929);
55. Sayre A. Swarztrauber, The Three-Mile Limit of Territorial Seas (Annapolis: The Naval Institute Press, 1972);
56. and the brief discussion in Douglas M. Johnston, The International Law of Fisheries: A Framework for Policy-Oriented Inquiries (New Haven: Yale University Press, 1965), 171-76.
57. For the classic argument that the three-mile rule was "established international law," see Philip Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York: G. A. Jennings Co., 1927), chap. 1, passim. An authoritative work on ocean law, unique in the literature for its integration of legal development and related changes in technology, science, resource exploration, and public policies, is Lawrence Juda, International Law and Ocean Use Management: The Evolution of Ocean Commerce (London: Routledge, 1996).
58. Harry N. Scheiber, "Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation-and Frustration," Virginia Environmental Law Journal 20 (2001): 119-23.
59. David Cushing, Fisheries Resources of the Sea and Their Management (Oxford: Oxford University Press, 1975);
60. F. S. Russell, The Overfishing Problem (Cambridge: The University Press, 1942).
61. See also Harry N. Scheiber and Christopher J. Carr, "From Extended Jurisdiction to Privatization: International Law, Biology, and Economics in the Marine Fisheries Debates, 1937-1976," Berkeley Journal of International Law 14 (1998): 10-54.
62. E.g., Philip C. Jessup, "The Pacific Coast Fisheries," American Journal of International Law 33 (1939): 134.
63. In addition, the United States and Canada had put into effect a treaty by which they applied a joint regime of regulation to conserve and manage the halibut resources of the West Coast; they were still in process of working out the bilateral agreement for regulation of the salmon fisheries of the two nations. Also, the United States had invested millions in salmon hatcheries operations on salmon streams in Alaska. See, inter alia, Larry Leonard, The International Regulation of Fisheries (Washington, D.C.: Carnegie Endowment for International Peace, 1944).
64. Harry N. Scheiber, "Origins of the Abstention Doctrine in Ocean Law: Japanese-U.S. Relations and the Pacific Fisheries, 1937-1958," Ecology Law Quarterly 16 (1989): 29-32. Parts of the discussion in the immediately following paragraphs of this article draw upon material in this article and several other, later writings of mine on the history of modern fisheries oceanography and international law.
65. Franklin D. Roosevelt to R. W. Moore (Legal Counsel, Dept. of State), Nov. 21, 1937, in Foreign Relations of the United States, 1937, vol. 4 (Washington, D.C.: Government Printing Office, 1954), 768-69.
66. Bingham, Report on the International Law of Coastal Fisheries, preface, v-vi. Italics added.
67. Jessup, "The Pacific Fisheries," 134-38. The ASIL panel is discussed briefly, in broad historical context, in Juda, International Law, 112-13.
68. American Society for International Law, Proceedings, 1940, 54-55.
69. In 1937 a bill had been introduced in the U.S. Senate to declare Bristol Bay within the continental shelf limits of the United States, hence territorial waters and not open to foreign fishing operations. A variant approach debated in Congress later was for a declaration that the United States had a proprietary interest in the salmon stocks; and, since they were thus declared to be "owned" by this country, they could not be fished by foreigners without U.S permission. See Jessup, "The Pacific Coast Fisheries," 136-38.
70. See, e.g., Edward Allen, "Control of Fisheries beyond Three Miles," Washington Law Review 14 (1939): 94. See note 52, above, for Allen's key role in commissioning Bingham to write his 1938 report on fisheries and offshore jurisdiction.
71. For a review of the controversy in political and academic discourse over the Neutrality Acts, see Aaron X. Fellmeth, "A Divorce Waiting to Happen: Franklin Roosevelt and the Laws of Neutrality, 1935-1941," Buffalo Journal of International Law 3 (1996-97): 413-517.
72. Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981), 18-61.
73. and D. C. Watt, "First Steps in the Enclosure of the Oceans," Marine Policy 3 (1979): 219-20 et passim.
74. Proclamation No. 2668 (Sept. 28, 1945), Federal Register 10 (1945): 12304, on which see Hollick, U.S. Foreign Policy, 47-61;
75. and Scheiber, "Origins of the Abstention Doctrine," 34-35.
76. David Joseph Attard, The Exclusive Economic Zone in International Law (New York: Oxford University Press, 1987), 1-20;
77. cf. F. V. Garcia-Amador, "The Latin American Contribution to the Development of the Law of the Sea," American Journal of International Law 78 (1974): 33.
78. For a perceptive contemporary analysis, see Richard Young, "Recent Developments with Respect to the Continental Shelf," American Journal of International Law 42 (1948): 849. See also note 84, below.
79. Wilbert M. Chapman, "U.S. Policy on High Seas Fisheries," Department of State Bulletin 20 (1949): 67-7. This policy paper declared that it would be U.S. policy to foster the development of scientific international fisheries management through bi- and multi-lateral agreements. Privately, Chapman told leaders of the fisheries industry on the West Coast that the Truman Proclamation was politically unworkable precisely because of its "broad sweeping implications-its new philosophy and its radical departure from holy precedent" on the matter of the three-mile limit. Letter from Chapman to Montgomery Phister, Nov. 24, 1947, Chapman Papers.
80. The phrase was used explicitly, for example, by British Foreign Office officials in meetings with U.S. diplomatic planners, 1950-51. See note 4 above and accompanying text. On one of the earliest of the dangerous post-1945 ocean conflicts over fishing in territorial waters, see Hannes Jónsson, Friends in Conflict: The Anglo-Icelandic Cod Wars and the Law of the Sea (London: C. Hurst, 1982).
81. For reference to the Truman Proclamation and its unintended consequences as a case of the genie let out of the bottle, see Robert L. Friedheim, Negotiating the New Ocean Regime (Columbia: University of South Carolina Press, 1992), at 21.
82. Bingham, "Juridical Status of the Continental Shelf," 4-20;
83. see also his earlier article, Joseph Walter Bingham, "The Continental Shelf and the Marginal Belt," American Journal of International Law 40 (1946): 173.
84. Bingham, "Juridical Status of the Continental Shelf," 6.
85. The trend toward extended claims accelerated in the 1970s, as the UN meetings that led to the new Convention were going forward. As of 1986, four years after signature of the Convention, of 136 coastal states, there were 114 claiming full territorial jurisdiction offshore from 3 to 12 nautical miles (89 of them at 12 miles). Ten states had extended their territorial sea claims to more than 12 miles, fifteen claiming territorial sovereignty up to 100 miles. V. F. Tsarev, "Maritime Legislation of Coastal State and the 1982 UN Convention on the Law of the Sea," in The Law of the Sea: What Lies Ahead? 531n.
86. Law of the Sea Institute, 20th Annual Conference, Proceedings, ed. Thomas A. Clingan, Jr., n.d. See generally William T. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Oxford: Clarendon Press, 1994), for authoritative analysis, with historical background of modern ocean law.
87. Italics added. It was ironic that the Japanese distant water tuna-fishing interests- which were now focused heavily on fishing tuna in high seas waters off other nations' coasts, as the Japanese salmon fleet had been when threatening Bristol Bay in 1937-38-was in the period from the mid-1950s to the 1990s an important ally of the U.S. tuna-fishing fleet interests in contending internationally for non-jurisdiction by any coastal state over "highly migratory species," a category that consisted almost exclusively in commercial terms of tuna. See Harry N. Scheiber, "U.S. Policy, the Pacific Tuna Economy, and Ocean Law Innovation: The Post-World War II Era, 1945-1970," in Bringing New Law to Ocean Waters, eds. David D. Caron and Harry N. Scheiber (Leiden: Martinus Nijhoff, 2004), 29-54.
88. Bingham, "Juridical Status of the Continental Shelf," 19.
89. Harry N. Scheiber and Christopher Carr, "Constitutionalism and the Territorial Sea: An Historical Study," Territorial Sea Journal 2 (1992): 67. The 1966 act referred to in the text is Public Law 89-658, 80 U.S. Stat. 908 (Oct. 14, 1966).
90. Scheiber and Carr, "Constitutionalism," 68-70. The bill in question became known as the Magnuson Fishery Conservation and Management Act, and in later amended form as the Magnuson-Stevens Act. 16 U.S.C. 1801=1882, April 13, 1976 as amended 1978-80, 1982-84, 1986-90, 1992-94, 1996 and 2006.
91. See Scheiber and Carr, "From Extended Jurisdiction to Privatization," 13-16.