Whales, seals, and foxes

Chris Tomlins recently posted "Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America", an extended and thoughtful comment on three articles from the University of Toronto Law Journal’s symposium on ferae naturae and the law of property (by Angela Fernandez, Robert Deal, and Bruce Ziff), containing, as well, extended reflections on Moby-Dick and on Robert Ellickson's Order Without Law.

The article, and the works it discusses, have a lot to say about the legal histories of whale-, seal-, and fox-hunting. Tomlins ends with some thoughts (condensed here, and with footnotes omitted) about directions that have not been taken in these histories:

from a diligent observer

Throughout Moby-Dick, the whale remains enigmatically silent. Historians don’t think much of those who ventriloquize (speak for) silent others. It is considered better form to try to find their voices so they can speak for themselves. Still, the void is sorely tempting. We know what Ahab said to the whale, at the end, on the way down: ‘to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.’ One wonders what the whale might have had to say in reply. I fancy what we would hear would be sad and bemused: these humans, their God, His promise of redemption, His grant of dominion . . . all so unfortunately unavoidable.

*****

Perhaps these cases may eventually help us to find our way to the animals rather than just to the law. 

Green Capitalism?

Here's a call for papers by the German Historical Institute in Washington that may be of interest to those working at the intersection of legal and environmental history: "Green Capitalism? Exploring the Crossroads of Environmental and Business History", a conference to be held October 30-31, 2014 at the Hagley Museum and Library in Wilmington, Delaware. From the call:

from Alex Hetherington
Sustainability Blog

We invite papers that consider in specific historical contexts the extent to which the business enterprises that are central to capitalism operated in an environmentally sound or detrimental manner by the way they dealt with their refuse, by managing their use of resources, and mitigating or ignoring any harmful impact on those who handled their products or are affected by their waste. Though business activities have had many deleterious environmental consequences, businesses sometimes have acted to protect the environment, reduce their direct and indirect environmental impact, and promote environmental reform in society. That is true now, but it also was sometimes the case long before the rise of modern environmentalism.

Proposals are due May 14, 2014. More here.

The history of precaution

A little while back Noga Morag-Levine posted on "The History of Precaution" over at RegBlog. Her work on the topic is a good example of how historical research can help make sense of current legal and policy issues, in this case the proper understanding of the much hyped and much maligned "precautionary principle".  As Morag-Levine explains,

comparative environmental scholars have recently focused their attention on whether, when, and why Europe has become more precautionary than the United States. This inquiry has entailed a debate on the capacity of distinct American and European regulatory traditions to account for transatlantic divisions. The Reality of Precaution, by Jonathan Wiener with several co-editors, and The Politics of Precaution, by David Vogel, are among the most notable contributions to this discussion.  The two books concur that any such legal-institutional traditions are irrelevant to the question at hand.

Morag-Levine thinks otherwise:

These disparate views of regulatory autonomy correspond closely to the divergent administrative law traditions of continental and Anglo-American law.   Debate over health and safety regulation in both Britain and the US during the 19th Century revolved around competing models of administration—the first termed “nuisance,” the second “police.”

Environmental-legal history in the US Supreme Court

The 1920 US Supreme Court case Missouri v Holland (252 U.S. 416), which upheld the constitutionality of the federal law implementing the US-UK/Canada Migratory Bird Treaty Convention of 1916, an early environmental treaty, is at issue in a case currently before the Supreme Court. The case's soap-opera details (described by Holly Doremus over at Legal Planet), involving a woman's attempt to poison her best friend, pregnant with a child fathered by the poisoner's husband, raises the constitutional issue of whether an international treaty gives the federal government jurisdiction over an activity taking place within a single state. Doremus explains the historical background:

Congress’s first effort at protecting migratory birds from lax state hunting regulations had been struck down as exceeding federal constitutional authority. After the President negotiated the Migratory Bird Treaty with Canada, Congress tried again, imposing essentially the same restrictions based on the Treaty. This time the litigation reached the Supreme Court and the US won. The Court held that:

It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could . . .

Environment at ASLH - Report

I wasn't able to make it to all the environment-related papers at this weekend's annual meeting of the American Society for Legal History in Miami, but here's a brief report of the papers I heard:

Friday morning's exchange panel with the Israeli History and Law Association had two papers on environmental topics. Yair Sagy and Nadia Tzimerman's “‘The Responsible American Oil Men’ and the Israeli Petroleum Law of 1952” uncovered the decisive influence of an American oilman and his Israeli son-in-law on the shape of the statute governing oil and gas exploration and exploitation in Israel, a law which has emerged from its longstanding obscurity in the wake of recent major finds of natural gas off Israel's coast. (Sagy and Tzimerman's research was the subject of recent press coverage in Israel, where legal and political battles over the law are raging.) Orli Sela's “TVA on the Jordan River: American Influence on Water Resources Management and Regulation in the End of the British Mandate and the First Decade of the State of Israel” talked about the influence of American law and figures such as Walter Lowdermilk on the Israeli Water Law of 1959.

Later in the day I heard a paper by myself as part of a panel on attitudes to American law in nineteenth-century Canada. My paper, “How Smoothly Did U.S. Water Law Flow Northwards?”, examined the use that Canadian riparian-rights cases made of American sources in the first half of the nineteenth century, noting that Canadians often cited these sources not only for their statements of American law, but also for their statements of French water law.

At the same time, at the Kathryn T. Preyer Prize Panel, Matthew Axtell presented his “Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy”, a paper that we've noted previously.

Additional reports or comments on these papers or others are welcome!

Environment at ASLH

The upcoming meeting Annual Meeting of the American Society for Legal History in Miami (Nov. 7-9) looks to be strong on a variety of topics, but papers on the environment seem to be few and far between. Nevertheless the program promises a number of legal history papers, noted below, with an environmental angle (going by their titles). If you know of more, please let us know in the comments section.

Please also contact me if you're planning on attending the conference and are interested in meeting up with others interested in environmental aspects of legal history, or if you're interested in contributing a blog entry on some of these papers.



Friday

Panel A.5

Yair Sagy & Nadia Tzimerman, University of Haifa
‘The Responsible American Oil Men’ and the Israeli Petroleum Law of 1952

Orli Sela, Bar-Ilan University
TVA on the Jordan River: American Influence on Water Resources Management and Regulation in the End of the British Mandate and the First Decade of the State of Israel

Panel C.3

David Schorr, Tel Aviv University
How Smoothly Did U.S. Water Law Flow Northwards?

Panel C.6

Matthew Axtell, Princeton University
Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy

Saturday

Panel D.4

Daniel S. Margolies, Virginia Wesleyan College
Imperial Reorderings in United States Extraterritorial Trade, Resource, and Regulatory Regimes, 1945-1958

An administrative history of the US Bureau of Land Management

The latest Environmental History has a review by James C. Lewis of James R. Skillen's "The Nation's Largest Landlord: The Bureau of Land Management in the American West" (University Press of Kansas, 2009). Lewis writes:

The BLM has always operated in the shadow of the Forest Service. To most easterners—and probably many westerners—the agency... still remains largely unfamiliar, its purpose unclear and amorphous. It has been that way since it formed in 1946 when Congress merged the Grazing Service and the General Land Office. For its first thirty years the BLM did not even have an organic act that laid out its mandate. Originally nicknamed “the Bureau of Livestock and Mines” because of the resource uses the agency emphasized, which also included logging, during those thirty years western congressmen deliberately limited its political power and worked to keep it a decentralized agency responsive to the needs of local users.

Passage of federal environmental legislation in the 1970s and an organic act in 1976 forced the agency to change how and why it managed its nameless lands (they finally received a name in 2008—the “National System of Public Lands”). In the 1990s, after ordered by the Clinton administration to manage ecosystem preservation, the BLM was dubbed the “Bureau of Landscapes and Monuments” because it became an agency more focused on preserving landscapes and welcoming of recreationists than it had been historically. The election of George W. Bush in 2000 saw the pendulum swing back toward an emphasis on resource development, leaving BLM employees and the general public confused again as to the bureau's mission and purpose.