DEAN’S FELLOW SESSIONS

MUSIC: BEETHOVENSymphony #5 (1804-08) (rec. 1975)

Symphony #7 (1811) (rec. 1976)Vienna Philharmonic Orchestra,

Carlos Kleiber, Conductor

DEAN’S FELLOW SESSIONS

• Mondays 6:00-6:50 pm (A110)–Next Week Only Moved to Friday (Time/Room TBA)

• Wednesdays 9:30-10:20 am (F402)

Pierson v. Post: DQ7 (Labor)

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?

• Harmful or Dangerous Labor• Other Categories?


Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. Might not want to reward:

• Ineffective or Inefficient Labor• Harmful/Dangerous Labor

Note Related Problem: Hard to Determine Optimal Reward to Encourage Labor You Want

Pierson v. Post: Sample Policy Rationale #2

The majority may have rejected the hot pursuit rule because they believed that labor expended hunting should not be rewarded until the hunter has achieved a tangible result such as actual occupancy or mortal wounding.


*Suppose Post pays somebody (“Sharpshooter”) to kill foxes for him? Who should get property in the foxes, Post or Sharpshooter? Why?


*Suppose Post pays somebody (“Sharpshooter”) to kill foxes for him? Who should get property in the foxes, Post or Sharpshooter? Why?

NOTE: Law Commonly Equates Investment of Labor &

Investment of $$$

Liesner v. Wanie

DQ12-13Introductory Questions to Help

Understand Case Before Briefing

Liesner v. Wanie: DQ12

Liesner and another, by next friend, Respondents, v. Wanie, Appellant

What does “next friend” mean?


Next Friend

Legal representative for party who cannot adequately represent own interests.

Such as…?


Next Friend

Legal representative for party who cannot adequately represent own interests.

•Minors•Mentally Incompetent•Married Women (at Common Law)

Liesner v. Wanie: DQ12Next Friend

Legal representative for party who cannot adequately represent own interests

To whom might ‘next friend’ refer in Liesner itself?


Second paragraph of opinion begins:

“It is conceded that …”

What was conceded here?

Liesner v. Wanie: DQ13It is conceded that if the plaintiffs had

substantially permanently deprived the wolf of his liberty—had him so in their power that escape was highly improbable, if not impossible, before defendant appeared on the scene and with his gun pointed so as to reach within some three feet of the animal delivered a finishing shot, it had become the property of plaintiffs….


It is conceded that if the plaintiffs had substantially permanently deprived the wolf of his liberty—had him so in their power that escape was highly improbable, if not impossible, before defendant appeared on the scene and with his gun pointed so as to reach within some three feet of the animal delivered

a finishing shot, [then] it had become the property of plaintiffs….


Second paragraph of opinion begins:

“It is conceded that …”

Who conceded it?


Two Ways to Challenge Directed Verdict:1.Trial Judge Incorrectly Assessed Evidence Presented2.Trial Judge Applied Incorrect Legal Standard

What is the Challenge Here?


Appellant (Wanie) has conceded the relevant legal rule, so must be

challenging assessment of evidence.

What exactly is still contested?


What exactly is still contested? “In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape, thus permitting appellant to substantially reach it with the muzzle of his gun at the instant of delivery of the finishing shot.”


Qs?

Pierson v. Post: Rationales

• Helpful to examine rationales 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: DQ8 (Economic Benefits)

Helpful to argue to court that particular rule would tangibly improve society.

• E.g., Dissent: “[O]ur decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career.”

• Lawyers could strengthen argument with, e.g., info re– Importance of poultry farming– Extent of harm caused by foxes


Dissent: “[O]ur decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career.”

*Why does the dissent think its hot pursuit rule will result in more foxes being killed?


Dissent: “[W]ho would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together ... pursue the windings of this wily quadruped, if just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?”


Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity

*Argument that Majority’s Rule will result in more foxes being killed?


• Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity

• Argument that Majority’s Rule will result in more foxes being killed? Determined Posts Work Harder at Killing (cf. Whaling)


If you don’t get expected reward for labor, what happens?

•Substitution Effect: Could choose differ-ent activity that pays more or costs less

-OR-

•Income Effect: Could increase labor until you achieve desired reward.


If you don’t get expected reward for labor, what happens?

•Substitution Effect: Could choose differ-ent activity -OR- Income Effect: Could increase labor•Often hard to predict how people will actually react in particular situation (empirical Q)


The dissent assumes that we want to kill foxes as quickly as possible.

What Rule Would Be Appropriate if You Were Trying to Preserve Foxes Because They Were Commercially Valuable?

We’ll come back to in contexts of DQ11 & Demsetz article in 2 weeks.

Pierson v. Post: DQ9 (Intangible Interests)

Post unlikely to have cared much about monetary value of fox pelt; more likely angered by deliberate interference with activity of hunting.

Is the “right” to hunt without interference a right society should protect (where hunting is legal)?*


Post unlikely to have cared much about monetary value of fox pelt; might believe Pierson killed fox spitefully for no reason except to bother Post (ongoing family feud).

Majority says we shouldn’t care.


Majority: “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.”

Nice Version of “So What?”


Majority: “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.”

Is majority correct? Should a court take into account whether Pierson

had “bad intent”?*


PROOF OF INTENT•Required in Intentional Tort & Criminal Cases•Often Not Legally Relevant in Property Ownership Cases


PROOF OF INTENT•Required in Intentional Tort & Criminal Cases•Often Not Relevant to Property Ownership •Proof of Intent Often Expensive/Complex

– Ignoring Intent = Cheaper, More Certain Results – Determining Intent = More Fact-Specific

“Justice”


Can Use Unmade/Rejected Policy Arguments :•To support also rejecting in future cases: “The Pierson Majority treated bad intent as irrelevant, therefore….”•To distinguish future cases: “The Pierson majority did not see bad intent as important, but clearly it is more important here because ….”

Pierson v. Post: DQs10-11 (Types of Rules)

• Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights)

• First-in-Time is a type of rule• Multiple Examples Possible

– First to Actually Possess– First to Wound or Capture (if no wound)– First to See (cf. five-year-olds)



• First-in-Time is a type of rule • First-in-Time different from, e.g.,

– Most Deserving Gets– Lottery (Winner Randomly Selected)– Auction (Highest Bidder Gets)



• First-in-Time is a type of rule• Pierson opinions agree on First-in-Time, but not on

which version– Dissent: First in Hot Pursuit– Majority: First to [Something More]


• Pierson opinions agree on First-in-Time, but not on which version– Dissent: First in Hot Pursuit– Majority: First to [Something More]– Possible Options After Majority Opinion:

• First Physical Possession• First Wound• First Mortal Wound


• DQs 10-11: Opportunity to Compare First-in-Time Rules to Alternative Types of Rules in Two Contexts:– Hunting Wild Animals (in Places You Are

Allowed to Hunt)– Allocating Parking Spaces (in Places You Are

Allowed to Park)


• DQs 10-11: Opportunity to Compare First-in-Time Rules to Alternative Types of Rules

• Allocating Parking Spaces (in Places You Are Allowed to Park).

• Note that parking spaces usually allocated on First-in-Time Basis, e.g., – among permit-holders in Pavia Garage– among public in mall parking lots


First-in-Time: Likely Winners & Losers

CAPTURING ANIMALS?

DEAN’S FELLOW SESSIONS

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