Panel: Sovereignty and Neutrality after Legal Realism
 Friday, October 23, 1:30-3:00

Chair: TBA

Carrying Legal Realism into the Arena of International Law, 1935-1953: The Debates over Neutrality, the Rule of Law, and Ocean Resources
Harry N. Scheiber, School of Law, University of California, Berkeley

The three-mile limit for offshore jurisdiction had long been a foundational concept in American policy regarding ocean law when, beginning in 1935, this concept was challenged by a group of scholars and lawyers who carried Legal Realism into the arena of international law. The ensuing debate had a regional dimension as well, with West Coast figures such as William Bingham and Edward Allen leading the assault on the three-mile rule, inspired by the need to defend American fishing interests in Alaska and State of Washington against potential new competition from the Japanese distant-water fleet. (I have termed this group the "Bristol Bay Realists," since it was the protection of salmon fisheries in Bristol Bay that concerned them initially.) This offshore-waters debate soon became intertwined with the political and legal disputes over FDR's responses to the European war--especially the Administration policies alleged to violate terms of the Neutrality Acts and principles of international law. American entry into the war mooted the neutrality issues, but the debates over offshore waters and fishery rights continued unabated. Some of the same figures in the government and academic life, such as William Bishop, Philip Jessup, and Willard Thorp, were participants in both cross-cutting debates.

This paper reviews the pre-war background and then will present new archival evidence concerning how the U.S. Government was maneuvered by the Realists into a disastrously ambiguous new policy (embodied in what was known as the 1945 Truman Proclamation) that seemed to repudiate the three-mile rule and extend American claims far out into what had historically been international waters. Also considered very briefly will be the subsequent efforts of the U.S. Government and other states to formulate new legal principles for control of high-seas resources, culminating in the UN Law of the Sea movement. In addition to addressing these interpretive questions, this history raises some methodological issues. I am concerned here mainly with how historians of resource management and international law--like those who study the history of domestic resource law and policy--cannot avoid the need to investigate how innovations in science establish the limits and potentialities for law as variously perceived by contemporary policy actors. We also have to confront the complex interrelationships of legal principles, scientific research, and political process, including the economic realities and technological imperatives of resource industries such as the commercial fishing interests, in the shaping of new law.

Comment: William T. Burke, University of Washington School of Law
Robert L. Friedheim, School of International Relations, University of Southern California
TBA

 

 

 
they could fix responsibility for the decisions they were forced to make. Just as there was one true set of facts, there was one right rule to be applied to those facts. Juries hungered for law, and their predicament helped to create a common law for England.

The Emergence of the Rule Against Hearsay
Richard D. Friedman, University of Michigan School of Law
Michael R.T. Macnair, Department of Law, University of Lancaster

The law of hearsay is one of the most significant aspects of the law of evidence in common law jurisdictions, with important effects on trial procedure and on the body of information presented to the factfinder. Associated with it is the right, protected by the Sixth Amendment to the Constitution, of a criminal defendant to confront the witnesses against him.

Historians of evidence have tended to view the emergence of the rule against hearsay as having occurred largely in one piece. Wigmore located the years 1675-1690 as the critical period, and Holdsworth largely followed Wigmore's account. More recently, Langbein and Landsman, emphasizing records from the early and mid-18th century, have suggested that the critical developments occurred later than Wigmore believed.

In our view, the story is richer and more complex than might be inferred from these accounts -- which, to a significant extent, we reconcile. What we now know as the law of hearsay developed in different pieces and at different times, some well before the time on which Wigmore focuses and others well after the time on which Landsman and Langbein focus. Indeed, it was not until the early 19th century that the modern conception of hearsay was articulated, as the various strands of development began to merge.

Comment: The Chair
James C. Oldham, Georgetown University Law Center