music: beethoven violin sonatas #5 (1801) & #9 (1803) recordings: itzhak perlman, violin &...

MUSIC: Beethoven Violin Sonatas #5 (1801) & #9 (1803)

Recordings: Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano (1973-74)

Pierson v. Post: DQ4

Significance of FactsAssume (as is likely) that the jury

found that the facts were as Post alleged. Relevance to this appeal?


Significance of FactsAssume (as is likely) that the jury found that the

facts were as Post alleged. Relevance to this appeal?

None. Claim on appeal is that even if all facts are as alleged, Post cannot win because he had no property rights in fox.

REPLYING TO DECLARATION/COMPLAINT:

• Motion to Dismiss for Failure to State a Claim (“So What?”) v.

• Answer (“Did Not!!”) Defendants often try versions of both, either

concurrently re different claims or consecutively re the same claim.

CASE BRIEF: Issue/HoldingCASES FREQUENTLY HAVE TWO OR MORE

ISSUES/HOLDINGS•If so, your brief should separately list each issue followed by

– One or more versions of the holding deciding that issue – All rationales supporting that holding

•Most of the cases in our first two units only have one issue.


Why might it matter that the hunted animal is some other animal as opposed to a fox? Might want different rule for:

• Pets/Domestic Animals• Endangered Species• Very Valuable Animal• Fox in Yankee Uniform

Pierson v. Post: HoldingTo get property rights in [a fox] found on unowned land, you must be the first to

“occupy” it, which means you must do more than pursue it. (Narrower)

To get property rights in [an animal] found on unowned land, you must be the first to

“occupy” it, which means you must do more than pursue it. (Too Broad!!!)

Pierson v. Post: HoldingTo get property rights in [a fox] found on unowned

land, you must be the first to “occupy” it, which means you must do more than pursue it.

(Narrower)

To get property rights in [an animal ferae naturae] found on unowned land, you must be the first to “occupy” it, which means you

must do more than pursue it. (Broader)

Pierson v. Post: HoldingVersion of Substantive Holding:

To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means you must do more than

pursue it. To get property rights in an animal ferae naturae found on unowned land, you must be the first to

“occupy” it, which means … [specifics ???]

Pierson v. Post: HoldingWhat Constitutes Possession of Wild Animal?

•Actual Physical Possession (Uncontested)


•Actual Physical Possession (Uncontested)•Majority Refers to Two Other Possible Ways to Get Possession:

– Mortal Wounding– Traps & Nets


•Actual Physical Possession (Uncontested)•Majority Refers to Two Other Possible Ways to Get Possession:

– Mortal Wounding– Traps & Nets

Note: Court discusses these two options although not raised by case itself


Holding v. DictaCourts often comment about fact situations

different from the cases before them.

*What are some of the pros and cons of judges discussing facts not before them?


Some pros and cons of judges discussing facts not before them:

• PRO: Provides instructions to lawyers in future cases• PRO: Helps clarify reasoning & scope of opinion• CON: Want limits on judicial power (killing fox death

penalty)• CON: Helpful for judges to make decisions in context of

real facts with interested parties arguing

Supports distinction between “holding” and “dicta”

Pierson v. Post: DQ5Holding v. Dicta (Simple Version)

HOLDING• Decision court

made that resolved a disputed issue

• Language necessary to reach result

• Binding on future courts

DICTA• Statements court made

that did not resolve a disputed issue

• Language not necessary to reach result

• Not binding on future courts (can be very persuasive)

Pierson v. Post: HoldingVersion of Substantive Holding:

To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which

means you must do more than pursue it.

To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means you must take physical possession, mortally wound it, or capture it in a net or trap. [Holding or Dicta???]

Pierson v. Post: HoldingSubstantive Holding?

•Pursuit alone is insufficient to create property rights in a wild animal

-OR-•To create property rights in a wild animal, you need to physically possess it, mortally wound it, or catch it in a trap or net.

Pierson v. Post: DQ5Holding v. Dicta

*How/when will you know for sure whether language in case

is dicta or part of holding?


How/when will you know for sure whether language in case is dicta or part of holding?

Often can’t know for sure until same court explains in subsequent opinion!!


• After case comes down, often left with uncertainty as to exact scope of result.



BUT:• Need to counsel clients.• Need to craft arguments in litigation.



BUT:• Need to counsel clients.• Need to craft arguments in litigation.

MUST LOOK TO RATIONALES

CASE BRIEF: Rationales• Generally: Reasons supporting the court’s

decision to resolve the issue as it did. – Can be express or implied (or even speculative).– Different cases state different numbers of rationales;

your job is to identify as many as you can.


decision to resolve the issue as it did. • Doctrinal Rationales: Result required or

strongly suggested by prior authorities


decision to resolve the issue as it did. • Doctrinal Rationales: Result required or

strongly suggested by prior authorities• Policy Rationales: Result is good for society

[because …]

Pierson v. Post: Rationales

Pierson: Kind of Case Where Policy Discussion Likely/Useful

•General agreement that property in animals ferae naturae created by “first occupancy”•No binding precedent on what that means•No consensus among treatise authors

Pierson v. Post: Rationales

• DQs 6-9 Discuss Relevant Policy Rationales• Helpful to examine in context of choice between

two proposed rules for when hunter gets property rights in wild animal: – Dissent: sufficient if pursuit “inevitably and speedily

[would] have terminated in corporal possession” [Hot Pursuit Sufficient]

– Majority: more than “mere pursuit” needed [Hot Pursuit Insufficient]

Pierson v. Post: DQ6 (Certainty)

Majority says its rule promotes “certainty”:

“We are the more readily inclined to confine possession or occupancy of beasts ferae naturae, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society.”

*Why does Majority think its rule is more certain than Dissent’s rule?


Majority says its rule promotes “certainty”:• Too Difficult to Determine How Much Pursuit is

“Hot” Enough or Even if There’s Pursuit at All.

Pierson v. Post: Sample Policy Rationale #1

The majority stated that its decision would provide “certainty” and “preserv[e] peace and order,” presumably because it is difficult for a hunter that sees an animal to tell if another hunter is pursuing it, and, if pursuit was enough to create ownership, the resulting confusion would create “quarrels and litigation”



“Hot” Enough or Even if There’s Pursuit at All.• Can you think of situations where the majority’s

approach would not promote certainty?*



“Hot” Enough or Even if There’s Pursuit at All.• BUT: If “mortal wounding” creates property

rights, how do you tell if a wound is “mortal”?


Why is certainty desirable for society more generally?*

(not just in this context)


Benefits of Certainty Include:

•Reduces Anxiety Related to Uncertainty•Allows Planning•Creates Stability•Majority’s “Peace & Order”: May Reduce Quarrels/Violence



•Reduces Anxiety Related to Uncertainty•Allows Planning•Creates Stability•May Reduce Quarrels/Violence

BUT these benefits may require that people be aware of the rule (not always true).


Three Kinds of Certainty:

1.Easy for parties to apply at the relevant time2.Easy to apply in court3.Everyone aware of rule


Concerns with Certainty:

•Law school admits all students with minimum LSAT in alphabetical order until class filled.

– Or in reverse order of height.– Or in order of parents’ 2011 income.

Why Problematic?*



•Any student who fails to show up on time for the midterm fails the class.

Why Problematic?*



•When property is owned jointly by a male-female married couple, all management decisions will be made by the man.

Why Problematic?*



•Reduces Anxiety Related to Uncertainty•Allows Planning•Creates Stability•May Reduce Quarrels/Violence

BUT Sometimes at cost of fairness or sensitivity to particular circumstances or

awareness of changing times

BRIGHT-LINE RULES

v.

FLEXIBLE STANDARDS

Pierson v. Post: DQ7 (Labor)

The majority suggests that it will confer property rights on those who, using their “industry and labor,” have

captured animals.


“[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”


Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard.


Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard.

*Are there some categories of labor you would not want to reward?

music: beethoven violin sonatas #5 (1801) & #9 (1803) recordings: itzhak perlman, violin &...

Documents

broader slide

possession of wild animal

property rights

unowned land

hunted animal

animal ferae naturae

valuable animal fox

yankee uniform slide