Angela Fernandez recently published
a review of Robert Deal's
The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (Cambridge UP, 2016) at JOTWELL. There's a lot here--on the environmental background of law, on efficiency and fairness, on the relation between law on the books and law in action, and more. Some highlights:
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163....)
Most of the text centers on the period from Colorado’s 1858 Gold Rush to the early twentieth century. Heavy doses of environmental determinism appear throughout. Crifasi argues that failed adventures in ditchdigging and the need to move water across property lines pushed farmers to enlist the aid of the territory/state of Colorado to form water districts and employ water commissioners and state engineers to oversee water management. Shared need propelled farmers to pool their resources to form mutual irrigation companies. The evolution of Colorado’s Doctrine of Prior Appropriation was a commonsense response to shared need that enabled users to quantify and prioritize water rights as well as prevent property owners from hoarding the resource. In Crifasi’s telling, even corporate attempts to monopolize and privatize water in the late nineteenth century were a natural part of the region’s agricultural evolution since concentrated capital propelled the development of sophisticated canals that could bring uplands into production.
