June 05, 2008

Pildes: Statutory Interpretation and American History

Here is a guest post from Rick Pildes:

    For those who teach legislation, are interested in statutory interpretation, or are just curious, I want to recommend an engaging book I just finished that is likely to fall below the radar screen in the law-school world. The book, Trying Leviathan (Princeton Press 2007), by a young historian at Princeton, D. Graham Burnett, focuses on a celebrated early 19th-century trial that turned on whether a whale should be considered a "fish" for purposes of an early inspection statute that applied to "fish oil." Lest that sound overly arcane, Burnett shows how the several-day jury trial of that question--and remember, in those days (1819) questions of law concerning statutory meaning could be matters for juries--opens a window onto all sorts of fascinating issues in the history of science, in early American democratic culture, and in emerging industrial, trading, and other commercial practices. For those who remember, Moby Dick, too, was still wrestling with this question 30 years later (Ishmael submits the naturalists' view "to my friends Simeon Macey and Charley Coffin, of Nantucket, both messmates of mine in a certain voyage"), and the whaling industry was one of early America’s leading industries and most prominent manifestations around the globe. The trial featured leading men of science, naturalists and advocates of comparative anatomy, who were certain the whale was not a fish; sailors and captains of whaling vessels, who spent their lives observing, dissecting, drawing, and analyzing whales; men in trade who traded in these oils, which were central to some of early America’s most important industries, like tanning; and "common sense" perspectives, in which the whale was generally thought to be a fish. The political economy of early American regulatory ventures is on display, as are conflicts between elite and popular understandings and between regionally divisive issues concerning "New England" versus New York cultures and politics. This fun, constantly illuminating, and engrossing book shows how many worlds can lie behind seemingly simple questions of statutory meaning. I intend to recommend the book as background reading for my students in the future, and I wanted to flag the book for others who might also find this mix of issues and history similarly engaging.

Posted by Rick Hasen at June 5, 2008 08:46 PM