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Taking Legal Realism Offshore: The Contributions of Joseph Walter Bingham to American Jurisprudence and to the Reform of Modern Ocean Law

Published online by Cambridge University Press:  18 August 2010

Harry N. Scheiber
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Extract

A conscientious reading of the rich historical literature on the American Legal Realist movement would provide no suggestion that any of the academic writers and other commentators in that movement ever gave the slightest attention to international law.1 It is entirely understandable that the Realists should be remembered as having been concerned exclusively with the analysis and reform of domestic jurisprudence and legal process; for there was only one exception, in this regard, and this was the Stanford law professor Joseph Walter Bingham. Bingham (1878-1973) is a figure who has been almost entirely neglected by historians of legal thought.2 And yet he was one of the earliest American legal commentators to promote an iconoclastic, reformist approach to the common law and American constitutional law. His writings in the 1910s and 1920s, as will be discussed further here, were important early-day contributions to the development of what would become the central canon of Legal Realism. His uniqueness among the Realists rests in the fact that he would go on to play a prominent part in contending for a basic reform in international law during the decades that followed.

Type
Part III. Governing Space in International Law
Information
Law and History Review , Volume 26 , Issue 3: Law, War, and History: A Special Issue , Fall 2008 , pp. 649 - 678
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Copyright © the Board of Trustees of the University of Illinois 2008

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References

1. Among the numerous important studies of Legal Realism, one may mention in particular Rumble, Wilfred E., American Legal Realism: Skepticism, Reform, and the Judicial Process (Ithaca: Cornell University Press, 1968)Google Scholar ; Twining, William, Karl Llewellyn and the Realist Movement (London: Wiedenfeld and Nicolson, 1973)Google Scholar; Purcell, Edward A. Jr, “American Jurisprudence between the Wars,” American Historical Review 75 (1969): 424–46Google Scholar, 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; Kalman, Laura, Legal Realism at Yale, 1927-1960 (Chapel Hill: University of North Carolina Press, 1986)Google Scholar; Horwitz, Morton, The Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1992)Google Scholar; Schlegel, John Henry, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995)Google Scholar; Hull, N. E. H., Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997)Google Scholar; andMitchell, Dalia Tsuk, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca and London: Cornell University Press, 2007)Google Scholar. For excerpts from the writings of the best remembered Legal Realists, with insightful scholarly commentary, see American Legal Realism, ed. Fischer, William W. III, Horwitz, Morton J., and Reed, Thomas A. (New York: Oxford University Press, 1993)Google Scholar.

2. 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; and brief mentions inHull, , Roscoe Pound and Karl Llewellyn, 75 n.122, 204–5Google Scholar. Bingham himself left a 110-page informal commentary on his own writings and a partial memoir, List of Writings of Joseph Bingham (1965)Google Scholar, on deposit with the Stanford Law School Library. The provenance of this document is documented in Torzsay-Biber, George, “A Preliminary Bibliography,” Stanford Law Review 17 (1964-1965): 1017–18Google Scholar. An informative appreciation of Bingham as a teacher and as a scholar is provided in an unpublished memorial statement byHancock, Moffatt et al.Google Scholar, “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, 366Google Scholar.

3. 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 Riesenfeld'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.” Bartley, Ernest R., The Tidelands Oil Controversy (Austin: University of Texas Press, 1953), 208–9Google Scholar.

4. The phrase was used frequently, for example, in the internal correspondence and minutes of the British Foreign Office, as will be discussed in a book by the present author, in progress, on the development of modern ocean law, 1937-58.

5. 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 theInternational Journal of Marine and Coastal Law 21 (September 2006): 263–373Google Scholar; and, for the recent, accelerating developments in the Arctic region, seeKressey, Daniel, “Russia at Forefront of Arctic Land Grab,” Nature 448 (August 2, 2007): 520–21Google Scholar; “Cold War: Russia Claims Arctic Land,” Geotimes, August 2007Google Scholar, 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.

6. 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 Vidas, Davor and Østreng, Willy, eds., Order for the Oceans at the Turn of the Century (The Hague: Kluwer Law International, 1998)Google Scholar; and Scheiber, Harry N., ed., The Law of the Sea: The Common Heritage and Emerging Challenges (The Hague: Martinus Nijhoff Publishers, 2000)Google Scholar.

7. See text at note 14, below. The objectives of the later Realists varied, of course, with some of them mainly concerned to advance empirical research (and teaching of empirical legal process) and others with more theoretical or policy-reform preoccupations. See Schlegel, , American Legal Realism, passimGoogle Scholar. Bingham's early writing anticipated all these variants, though he made no pretense of pursuing empirical research himself and merely advocated bringing social science and psychology into the analysis of law.

8. Rumble, Wilfrid E. Jr, “Legal Realism, Sociological Jurisprudence, and Mr. Justice Holmes,” Journal of the History of Ideas 26 (1965): 547-66 at 547 n.1CrossRefGoogle Scholar.

9. Kirkwood, Marion R. and Owens, William B.Google Scholar, “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.”Google Scholar

10. In most of the historical studies of Legal Realism, the focus of course is upon Yale, Chicago, and Columbia, with Harvard and Pennsylvania as part of the landscape. But Stanford finds mention only insofar as there is passing reference to Wesley Hohfeld's having been on the law faculty there before moving to Yale in 1915. In the last forty years, Lawrence M. Friedman's eminent position in Law and Society scholarship, including his work in legal history and in sociology, and the writings of many of his colleagues over the years have given Stanford a highly important place among the major American institutions that carry on the tradition of Realism in legal scholarship. In her important studies of the subject, N. E. H. Hull uses the term “Progressive-Pragmatic, anti-Formalist movement” to describe the contributions of Pound and others in what I call here the “pre-Realist” period; and she distinguishes it from the later Legal Realism in jurisprudence associated with Llewellyn and the other major figures (see text at note 13, below) who were writing in the late 1920s and the 1930s.Hull, , “Reconstructing the Origins of Realistic Jurisprudence: A Prequel to the Llewellyn-Pound Exchange over Legal Realism,” Duke Law Journal 1989 vol.: 1334. See also note 39, belowGoogle Scholar.

11. 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, 34Google Scholar. Hohfeld is the subject of much attention in the standard histories and in studies of legal theory. See, e.g.,Hull, N. E. H., “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): 235–81Google Scholar; and Singer, Joseph William, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” Wisconsin Law Review (1982): 975–1059Google Scholar. Hohfeld was appointed at Stanford in 1905 and remained on the faculty there until taking a sabbatical leave in 1914-15, when he accepted the position at Yale. A Stanford Class of 1913 alumnus later recalled that the influence of Bingham and Hohfeld in the classroom “stimulate[d] deep thought that pierced far below any superficial rust which rested lightly on vague legal terminology.”Spence, Homer R., “Joseph Walter Bingham,” Stanford Law Review 17 (1964-1965): 1009, 1016Google Scholar. Unfortunately little documentation seems to have been discovered that can yield robust information regarding the intellectual or personal relationship of the two men. In a letter to Roscoe Pound, written when Hohfeld was at Stanford and ardently seeking Pound's support in his career, Hohfeld referred rather sarcastically to Bingham's recently published article “What Is Law?” and omitted to mention Bingham by name. One is left with the impression, taking this letter as a whole, that Hohfeld felt obliged to refer to the article-but that he was not going out of his way to give “marquee recognition” to his colleague; and that he was distancing himself from what he characterized as excessiveness in Bingham's wholesale critique of previous jurisprudential scholarship. Hohfeld to Pound, Feb. 25, 1913, Roscoe Pound Papers, Harvard University Law Library, microfilm, Reel 7. In one of Bingham's later writings (see text at note 38 below), Bingham was explicitly uncomplimentary with regard to Hohfeld's intellectual style. Withal, one sees no sign of cordial colleagueship between the two men in these glimpses from what scant evidence is apparently available.

12. See “Llewellyn's ‘Sample’ of Realists,” in Twining, , Karl Llewellyn and the Realist Movement, 76Google Scholar; the successive lists are reproduced inHull, , Roscoe Pound and Karl Llewellyn, 343–46Google Scholar; and the published version in the footnotes of Llewellyn's article,“Some Realism about Realism,” Harvard Law Review 44 (1931): 1222, 1227 n.18Google Scholar.

13. See the full account in Hull, , Roscoe Pound and Karl Llewellyn, 202–19Google Scholar.

14. Quoted in Twining, , Karl Llewellyn, 76Google Scholar; see also Hull, , Roscoe Pound and Karl Llewellyn, 204Google Scholar.

15. Hull, , Roscoe Pound and Karl Llewellyn, 204Google Scholar.

16. Pound to Llewellyn, March 21, 1931, quoted in Ibid., 204.

17. The list sent by Llewellyn to Pound, April 6, 1931, reproduced in Ibid., 344.

18. Frank, Jerome, Law and the Modern Mind (New York: Brentano's, 1930), 275n. and 274–79Google Scholar. 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. See alsoHancock, Moffatt, “Joseph Walter Bingham,” Stanford Law Review 17 (1964-1965): 1111Google Scholar.

19. Bingham, , List of Writings, 7Google Scholar.

20. As Twining has noted, when Llewellyn was still a student in 1919, papers were already in print by Bingham, along with others by Corbin and by Hohfeld, that “foreshadowed the growth of the Realist movement.”Twining, , Karl Llewellyn, 366Google Scholar.

21. Bingham, Joseph Walter, “Some Suggestions Concerning the Law of Fixtures,” Columbia Law Review 7 (1907): 1Google Scholar; “Some Suggestions Concerning ‘Legal Cause’ at Common Law,” Parts 1 and 2, Columbia Law Review 9 (1909): 16, 136Google Scholar; “What Is the Law?” Parts 1 and 2, Michigan Law Review 11 (1912-1913): 1, 109Google Scholar (1912) with a “Supplementary Note” entitled “The Nature of Legal Rights and Duties,” Ibid., 12 (1913-1914): 1 (1913);“Some Suggestions Concerning ‘Legal Cause’ at Common Law,” Parts 1 and 2, Columbia Law Review 9 (1909): 16, 136Google Scholar.

22. See quotations in text at notes 15-18, above.

23. Bingham, , “What Is the Law?” 9-11, 13–14Google Scholar.

24. Ibid. 4.

25. Ibid., 11.

26. Pound, as quoted approvingly in Cardozo, , Nature of the Judicial Process (New Haven: Yale University Press, 1921)Google Scholar, discussed in Horwitz, , Transformation of American Law, 190Google Scholar.

27. Bingham, , “What Is the Law?” 119Google Scholar.

28. Horwitz, , Transformation, 154 and passimGoogle Scholar.

29. Hohfeld, , “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26 (1917): 711–70Google Scholar. 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, 120Google Scholar. 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.” Spence, Homer R., “Joseph Walter Bingham,” Stanford Law Review 17 (1964-1965): 1016Google Scholar.

30. 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 Macaulay, Stewart, “The New Versus the Old Legal Realism: Things Ain't What They Used To Be,” Wisconsin Law Review (2005): 365–403Google Scholar.

31. Bingham, , “What Is the Law?” 14Google Scholar.

32. Ibid., 17.

33. Ibid., 18.

34. Ibid., 22.

35. Cohen, Felix, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 809, 833Google Scholar; also in Fischer, et al., eds., American Legal Realism, 218Google Scholar.

36. Bingham, Joseph Walter, [untitled essay] in My Philosophy of Law: Credos of Sixteen American Scholars (Boston: Boston Law Book Company, 1941), 25Google Scholar.

37. Ibid.

38. Ibid., 11. Although he is easily lumped together with Hohfeld as an Austinian, Bingham in one of his major articles took specific issue with Austin's commitment to traditional usage of the concept of “law.” It is “an essential error of Austin's work,” Bingham wrote, “that it examines the paraphernalia of the law rather than its substance …. [H]is attempt to harmonize and unify led him into artificialities … [His] emphasis was so strongly laid on definition that the work does not approach a scientific exposition of the field of law and its elements.” Bingham, “What Is the Law?” 3 n. 4.

39. Bingham, , “My Philosophy of Law,” 7Google Scholar. Emphasis added.

40. Kirkwood, and Owens, , “Brief History of the Stanford Law School,” cited above, in note 9Google Scholar.

41. [Joseph Walter Bingham, Reporter], Draft Convention on Piracy (Harvard University Law School, Research in International Law)Google Scholar, in American Journal of International Law 26, Supplement (1932): 739–49Google Scholar. 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.Dubnev, Barry Hart, The Law of International Sea Piracy (The Hague: Martinus Nijhoff, 1980), 37–93Google Scholar. A remarkably prescient aspect of the report was the attention it gave to the possibility of acts of terrorism or piracy “in or from the air,” in light of the advances in aviation. Whether or not this was a contribution we can specifically identify with Bingham, the willingness to go beyond the traditional wisdom and historical definitions of piracy (confined to acts at sea) was certainly consistent with his intellectual style. See Ibid., 52-64.

42. 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)CrossRefGoogle Scholar.

43. Bingham, , “The American Law Institute vs. The Supreme Court—In the Matter of Haddock v. Haddock,” Cornell Law Quarterly 21 (1936): 393Google Scholar. The Supreme Court decision on “divisible divorce” that adopted his position was in the case of Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957)Google Scholar, as is discussed in Hancock, , “Joseph Walter Bingham,” 1011Google Scholar. 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): 1–27Google Scholar.

44. Bingham, Joseph Walter, Cases and Materials on Wills, Descent and Administration, by George P. Costigan, 3rd ed. (St. Paul: West Publishing Co., 1941)Google Scholar. Bingham years earlier had published as sole author and editor,Estates of Decedents (Chicago: LaSalle Extension University, 1913)Google Scholar.

45. 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 byRiesenfeld, Stefan A., Protection of Coastal Fisheries under International Law (New York: Carnegie Endowment for International Peace, 1942)Google Scholar; and also Masterson, William E., Jurisdiction in Marginal Seas, with Special Reference to Smuggling (New York: Macmillan, 1929)Google Scholar; Swarztrauber, Sayre A., The Three-Mile Limit of Territorial Seas (Annapolis: The Naval Institute Press, 1972)Google Scholar; and the brief discussion in Johnston, Douglas M., The International Law of Fisheries: A Framework for Policy-Oriented Inquiries (New Haven: Yale University Press, 1965), 171–76Google Scholar.

46. For the classic argument that the three-mile rule was “established international law,” see Jessup, Philip, The Law of Territorial Waters and Maritime Jurisdiction (New York: G. A. Jennings Co., 1927), chap. 1, passimGoogle Scholar. 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, isJuda, Lawrence, International Law and Ocean Use Management: The Evolution of Ocean Commerce (London: Routledge, 1996)Google Scholar.

47. Scheiber, Harry N., “Ocean Governance and the Marine Fisheries Crisis: Two Decades of Innovation-and Frustration,” Virginia Environmental Law Journal 20 (2001): 119–23Google Scholar.

48. Cushing, David, Fisheries Resources of the Sea and Their Management (Oxford: Oxford University Press, 1975)Google Scholar; Russell, F. S., The Overfishing Problem (Cambridge: The University Press, 1942)Google Scholar. See also Scheiber, Harry N. and Carr, Christopher J., “From Extended Jurisdiction to Privatization: International Law, Biology, and Economics in the Marine Fisheries Debates, 1937-1976,” Berkeley Journal of International Law 14 (1998): 10–54Google Scholar.

49. E.g., Jessup, Philip C., “The Pacific Coast Fisheries,” American Journal of International Law 33 (1939): 134Google Scholar. Riesenfeld calculated that in the literature published during 1800-1899 of 113 acknowledged legal commentators on ocean law, 94 accepted the three mile (or “cannon-shot”) rule as authoritative; but from 1900 to ca. 1939, of 114 commentators, only 61 regarded the rule as definitive as a matter of customary law. Coastal Fisheries, 279. Taking account of the nationality of each writer would, of course, be a useful indicator of bias in the aggregate numbers. Nonetheless, there is no question that Bingham was on firm scholarly ground in saying that the three-mile rule had been challenged in important ways, both in state practice and in learned commentary. Indeed, one of the central objectives of the Harvard project on the law of piracy, for which Bingham served as rapporteur, was to advance the concept of an “extraordinary basis of jurisdiction” in offshore waters for actions enforcing against pirates (quoted inDubner, , Law of International Sea Piracy, 48Google Scholar). As noted above (note 41), the Harvard project's report was remarkable in going beyond the prevailing intellectual boundaries of ocean law and in foreseeing that piracy might one day, “with rapid advance in the arts of flying …,” take the form of action by “bands of malefactors” who would “engage in depredations in or from the air.” Quoted in Ibid., 68.

50. 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, Leonard, Larry, The International Regulation of Fisheries (Washington, D.C.: Carnegie Endowment for International Peace, 1944)Google Scholar.

51. Interviews with the late Stefan A. Riesenfeld by the author, 1988, and later conversations on the subject with Prof. Riesenfeld.

52. Riesenfeld stated that insiders at the time believed that the State Department had encouraged the commission by the IPR. Ibid. In the research for the present study, no documentation was found either in the IPR records or State Department archives to confirm that this was so. The State Department records leave no doubt, however, that lawyers in the department were keenly interested in how the study would come out; and they referred to it often in their memoranda after its publication. Bingham wrote years later that he was first drawn into the project by his friend the attorney Edward W. Allen of Seattle, who was a board member of IPR. Allen had been a fraternity brother of his at the University of Chicago, and in the 1930s he was prominent in international law circles and served as counsel to the salmon fishing and cannery industries of Alaska and Seattle. By the late thirties Allen was campaigning vigorously for a change of U.S. policy that would keep Japanese ships out of the Bristol Bay waters that were so important for American and Canadian salmon. Bingham, , List of Writings, 43–45Google Scholar. On Allen's role in this regard, see text at notes 74-76 below.

53. Scheiber, Harry N., “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 lawGoogle Scholar.

54. 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), 768–69Google Scholar.

55. International law scholars in the traditionalist camp who served on the IPR board or as advisers were aghast at what they regarded as Riesenfeld's attack on “rule of law,” and IPR asked Riesenfeld to accept publication with a preface by Philip Jessup or another senior scholar. He refused. When the United States entered the war in December 1941, the Riesenfeld position, regarded as aggressive vis-à-vis Japan, no longer seemed objectionable; and the Carnegie Endowment stepped in and agreed to publish Riesenfeld's study as a major book publication. Information from the manuscript correspondence files in the IPR archived records, Special Collections, University of Washington Library, Seattle.

56. Report on the International Law of Pacific Coastal Fisheries (Palo Alto: Stanford University Press, 1938)Google Scholar. The story of how IPR withdrew support and the intervention and subsidization by the packers is recalled by Bingham in Bingham, , List of Writings, 49Google Scholar.

57. Bingham to William Lockwood, June 7, 1939, copy in Allen Papers, University of Washington Library.

58. Bingham, , Report on the International Law of Coastal Fisheries, preface, v-vi. Italics addedGoogle Scholar.

59. Bingham, , List of Writings, 49Google Scholar.

60. Report, vi. His account is confirmed by correspondence in the IPR Papers, University of Washington Library. See note 55, above.

61. Bingham, , Report, 9–10Google Scholar.

62. Ibid., 23.

63. Jessup, , “The Pacific Fisheries,” 134–38Google Scholar. The ASIL panel is discussed briefly, in broad historical context, inJuda, , International Law, 112–13Google Scholar.

64. Bingham, , Report, 49Google Scholar.

65. American Society for International Law, Proceedings, 1940, 54–55Google Scholar.

66. Ibid., 56.

67. Ibid., at 56.

68. Ibid., at 61-62.

69. Ibid., at 58-59, 62-63.

70. Ibid., at 64.

71. Ibid., at 62-66.

72. Ibid., at 66.

73. 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,” 136–38Google Scholar.

74. See, e.g., Allen, Edward, “Control of Fisheries beyond Three Miles,” Washington Law Review 14 (1939): 94Google Scholar. See note 52, above, for Allen's key role in commissioning Bingham to write his 1938 report on fisheries and offshore jurisdiction.

75. Cf. text at note 16 (regarding Pound's view of Bingham as perhaps extreme).

76. Letter from Roscoe Pound to Edward W. Allen (September 19, 1939, Edward W. Allen Papers, University of Washington Library).

77. For a review of the controversy in political and academic discourse over the Neutrality Acts, seeFellmeth, Aaron X., “A Divorce Waiting to Happen: Franklin Roosevelt and the Laws of Neutrality, 1935-1941,” Buffalo Journal of International Law 3 (1996-1997): 413–517Google Scholar.

78. Jessup and other speakers, on the panel reported in ASIL Proceedings, 54 ff.

79. Hollick, Ann L., U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981), 18–61CrossRefGoogle Scholar.

80. Ibid.; andWatt, D. C., “First Steps in the Enclosure of the Oceans,” Marine Policy 3 (1979): 219–20 et passimCrossRefGoogle Scholar.

81. Proclamation No. 2668 (Sept. 28, 1945), Federal Register 10 (1945): 12304Google Scholar, on which see Hollick, , U.S. Foreign Policy, 47–61Google Scholar; and Scheiber, , “Origins of the Abstention Doctrine,” 34–35Google Scholar.

82. Attard, David Joseph, The Exclusive Economic Zone in International Law (New York: Oxford University Press, 1987), 1–20Google Scholar; cf. Garcia-Amador, F. V., “The Latin American Contribution to the Development of the Law of the Sea,” American Journal of International Law 78 (1974): 33Google Scholar. For a perceptive contemporary analysis, seeYoung, Richard, “Recent Developments with Respect to the Continental Shelf,” American Journal of International Law 42 (1948): 849. See also note 84, belowGoogle Scholar.

83. Within the State Department, there were many top officers who were dogmatic on the three-mile rule, as reported by the insider Wilbert Chapman, who served for three years as chief fisheries officer in the department. But Chapman later told the salmon industry lawyer and champion Edward Allen that the most effective source of pressure in this regard had come from the Department of Defense and the National Security Council, motivated by a concern to maintain U.S. naval strategy, as stated in the text above. Letter from Chapman to Edward Allen, April 3, 1956, American Tunaboat Association Papers, Scripps Institution of Oceanography Archives, University of California, San Diego.

84. Ecuador, whose actions were particularly hostile to U.S. tuna-fishing interests, stopped and held U.S. flagged fishing boats as far as twenty-five miles offshore in 1953-54, and Peru seized and detained five Onassis fleet Greek-flag whaling vessels 160 to 364 miles offshore in November 1954, holding them from release until stiff fines were paid.Hollick, , U.S. Foreign Policy, 87Google Scholar. It is important to mention, however, that in his ocean law writings from 1938 to the 1950s, Bingham often contended for the need to respect the interests of less developed coastal countries; they were short of resources and lacking in naval power, and for economic reasons they needed to extend their fisheries jurisdictional claims to considerable distances offshore. In 1939 he had urged the United States, as a powerful state whose example would win emulation, to lead the way in extending jurisdiction, as America had “a clearly just claim” in the Bering Sea case and could mobilize “skillful diplomatic support” of a new rule.Bingham, , Report, 41Google Scholar. He wrote in 1952: “We live in a revolutionary age when the peace and welfare of the world urgently demand in international affairs cooperation and just recognition of the interests of small states as well as large ….”Bingham, Joseph Walter, “Juridical Status of the Continental Shelf,” Southern California Law Review 26 (1952): 8Google Scholar. Bingham later blended his concern for emerging nations with a bitter critique of U.S. policies in the Cold War-a phase of his career that can be mentioned only parenthetically here: He stated in his later memoir that, since the end of World War II, he had been largely ostracized by the American community of academic international lawyers for the beliefs he freely voiced concerning U.S. policies. In foreign affairs, Bingham wrote, the citizens were “illy [sic] informed and led, and have been incited to intolerance and hatred of necessary social, economic and political developments throughout the world … The deaths and sufferings of millions of people all over the world is another consequence of our policies.” He persisted in these criticisms during the period when the anti-Communist agitation, epitomized by Senator Joe McCarthy, was silencing so many critics.Bingham, , List of Writings, Postscript, 5–6Google Scholar. Instead of pursuing humane and altruistic policies “[to] further the needs and possibilities of the masses of humanity,” America had pursued an aggressive and arrogant course-“the most shocking development,” he wrote, “in all my knowledge of history.” Ibid., at 86. So far as I can learn, Bingham conveyed these ideas in meetings and conversations for the most part, not in formal writings. In any event, Bingham recalled, he had been denied salary raises and recognition by his own faculty at Stanford. The isolation he felt at home was in contrast to the continuing interest, as he recounted, in having him participate in academic and policy discourses with his British and other European colleagues. Ibid., at 66, and Postscript, 1-7. Even in 1936, Bingham was concerned about his advocacy of reform being misinterpreted and alienating, stating in a lead footnote that his critiques of the law should not be taken as advocacy of socialist or communist alternatives. “It is significant of the turmoil of passion and prejudice in our current debates on matters of politics and government,” he wrote, “that a credo caveat of this sort is necessary even in a studious discussion of a legal problem.”Bingham, , “The American Law Institute vs. the Supreme Court,” 393nGoogle Scholar.

85. Bingham, , List of Writings, 107–8Google Scholar; and reports and quotations of Bingham's draft in letters of William W. Bishop, Jr., to Bingham, February 26, 1956, and March 16, 1956 (in the Chapman Papers, University of Washington Library). Bingham wrote later that he had been able to exert some influence with the Department of State during the Truman administration years, but that in the Eisenhower Administration there was renewed dedication to the three-mile doctrine, and thereafter he received a more respectful hearing for his views in foreign countries than in his own. Bingham, , List of Writings, 63–66Google Scholar. Actually the State Department's reversal on the three-mile doctrine began earlier. See text at notes 87-88, below.

86. Letter from Bishop to Chapman, March 21, 1956, Chapman Papers, University of Washington Library; also, letter from Bishop to Bingham, Feb. 26, 1956, Ibid.

87. Chapman, Wilbert M., “U.S. Policy on High Seas Fisheries,” Department of State Bulletin 20 (1949): 67–7Google Scholar. 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. For analysis of Chapman's role in its political context, seeScheiber, Harry N., “Pacific Ocean Resources, Science and Law of the Sea: Wilbert M. Chapman and the Pacific Fisheries,” Ecology Law Quarterly 13 (1986): 383, 455–61Google Scholar.

88. 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 Jónsson, Hannes, Friends in Conflict: The Anglo-Icelandic Cod Wars and the Law of the Sea (London: C. Hurst, 1982)Google Scholar.

89. For reference to the Truman Proclamation and its unintended consequences as a case of the genie let out of the bottle, seeFriedheim, Robert L., Negotiating the New Ocean Regime (Columbia: University of South Carolina Press, 1992), at 21Google Scholar.

90. See Johnston, Douglas M., The International Law of Fisheries: A Framework for Policy-Oriented Inquiries (New Haven: Yale University Press, 1965), 232-33, 332–44 andGoogle ScholarHollick, , U.S. Foreign Policy, passim. Insofar as the United States resisted as long as it did, no doubt the principal influence on its policy was the U.S. Navy's interest, as noted above (note 83)Google Scholar.

91. Hancock, , “Memorial Resolution.” (The commission in question was the International North Pacific Fisheries Commission, established in 1953 in implementation of a Canadian-U.S.-Japanese fisheries convention for the Northeast Pacific.)Google Scholar

92. Testimony [on effects of the Truman Proclamation and on the continental shelf doctrine] inHearings on S. 1901 Before Senate committee on Interior and Insular Affairs, 83d Cong., 1st Sess. 438–43 (1953)Google Scholar.

93. Bingham, , “Juridical Status of the Continental Shelf,” 4–20Google Scholar; see also his earlier article,Bingham, Joseph Walter, “The Continental Shelf and the Marginal Belt,” American Journal of International Law 40 (1946): 173Google Scholar.

94. Bingham, , “Juridical Status of the Continental Shelf,” 6Google Scholar.

95. Ibid., at 8.

96. Ibid., at 9. 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.Tsarev, V. F., “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? 531nGoogle Scholar. Law of the Sea Institute, 20th Annual Conference, Proceedings, ed. Thomas A. Clingan, Jr., n.d. See generallyBurke, William T., The New International Law of Fisheries: UNCLOS 1982 and Beyond (Oxford: Clarendon Press, 1994)Google Scholar, for authoritative analysis, with historical background of modern ocean law.

97. 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. SeeScheiber, Harry N., “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. Caron, David D. and Scheiber, Harry N. (Leiden: Martinus Nijhoff, 2004), 29–54Google Scholar.

98. Bingham, , “Juridical Status of the Continental Shelf,” 19Google Scholar.

99. Ibid. at 20.

100. Scheiber, Harry N. and Carr, Christopher, “Constitutionalism and the Territorial Sea: An Historical Study,” Territorial Sea Journal 2 (1992): 67Google Scholar. The 1966 act referred to in the text is Public Law 89-658, 80 U.S. Stat. 908 (Oct. 14, 1966).

101. Scheiber, and Carr, , “Constitutionalism,” 68–70Google Scholar. 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.

102. See Scheiber, and Carr, , “From Extended Jurisdiction to Privatization,” 13–16Google Scholar.