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

Harry N. Scheiber (Univ. of California, Berkeley - Law) has posted 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, forthcoming). Here's the abstract:

The writers on jurisprudence who are well remembered today as the American Legal Realists focused their analyses of law and their reform agendas entirely upon domestic law and legal process. The Stanford law professor Joseph Walter Bingham (1878-1973) was an important exception, in that he made international law a principal focus of his work. Bingham has been largely neglected by historians of Legal Realism and its antecedents. Yet his iconoclastic, antiformalist approach to jurisprudence in articles on common law and public law published in the 1910s and 1920s were later explicitly recognized by Llewellyn, Pound, and Frank as having expressed some of the central canons of later-day Legal Realism. The present article thus is concerned, first, to locate Bingham’s largely forgotten role in the history of Legal Realism and American jurisprudence more generally. Second, it offers an appraisal of how Bingham took into the arena of legal and policy discourse in international law the same antiformalism and reformist philosophical approach as had marked his early writings. His reform ideas in the late 1930s regarding territorial waters and the definition of “high seas” won him wide attention. Welcomed by some academics and policy makers, his ideas for reforming ocean law were roundly denounced by traditionalists in the academy (now including Pound!) as being a provocative to Japan when war was threatening; and, beyond that, as a crude abandonment of “rule of law” that put pragmatic concerns about legal principle. World War II changed the terms of the ocean-law debate, in which Bingham remained an active reformist contributor. The core idea of his reform agenda was that a realistic view of new technology and ocean resources required abandonment of the long-established customary “three-mile rule” that limited the jurisdiction in their offshore waters of coastal states. He did not live to see this idea, once regarded as so hopelessly radical, incorporated formally into international law when the 1982 U.N. Law of the Sea Convention adopted a 200-mile limit for an Exclusive Economic Zone for coastal states - now a key element in the new global legal order for the oceans.