Ludwig van Beethoven Symphony #3 “Eroica” (1804)

Vienna Philharmonic Orchestra

Karl Bohm, Conductor

Recorded 1972

Version of Substantive Holding:

To get property rights in a wild animal found on unowned property, you must be the first to “occupy” it, which means you

must do more than pursue it.

To get property rights in a wild animal found on unowned property, 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. [???]

5. Holding and Dicta. How/when will you know for sure whether language in

case is dicta or part of holding?

5. Holding and Dicta

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

5. Holding and Dicta

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

BUT:

• Need to counsel clients.

5. Holding and Dicta

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.

RATIONALES

RATIONALES

• Doctrinal Rationales: Result required or strongly suggested by prior authorities

RATIONALES

• Doctrinal Rationales: Result required or strongly suggested by prior authorities

• Policy Rationales: Result is good for society

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: Kind of Case Where Policy Discussion Likely/Useful

• DQs 6-9 Discuss Relevant Policy Rationales

• Particularly note in context of choice between two proposed rules

TWO COMPETING RULES

• Majority: more than “mere pursuit” needed [More than Pursuit]

• Dissent: sufficient if pursuit “inevitably and speedily [would] have terminated in corporal possession” [Hot Pursuit]

DQ6. Certainty in Pierson

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.

DQ6. Certainty in Pierson

• Majority: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All.

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”

DQ6. Certainty in Pierson

• Majority: Too Difficult to Determine How Much Pursuit is “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”?

DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty

• Allows Planning

• Creates Stability

• Majority “Peace & Order”: May Reduce Quarrels

DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty• Allows Planning• Creates Stability• Majority “Peace & Order”: May Reduce

Quarrels

BUT these benefits may require that people be aware of the rule.

THREE KINDS OF CERTAINTY

• Easy to apply at the time

• Easy to apply in court

• Everyone aware of rule

Concerns with Certainty

• Admit all students with minimum LSAT in alphabetical order until class filled.– Or in reverse order of height.– Or in order of parents’ 2006 income.

Concerns with Certainty

• Admit all students with minimum LSAT in alphabetical order until class filled.

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

Concerns with Certainty

• Admit all students with minimum LSAT in alphabetical order until class filled.

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

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

DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty

• Allows Planning• Creates Stability• Majority “Peace & Order”: May Reduce

QuarrelsBUT: Sometimes at cost of fairness or

sensitivity to particular circumstances or awareness of changing times

BRIGHT-LINE RULES

v.

FLEXIBLE STANDARDS

DQ7. LABOR

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

DQ7. LABOR

“[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.”

DQ7. LABOR

Generally Understood: Good idea to provide rewards for industry & labor as an incentive to encourage working

hard.

DQ7. LABOR:

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

reward?

DQ7. LABOR: Are there some categories of labor you would

not want to reward?

• Ineffective Labor

• Harmful/Dangerous Labor

• Related Problem: Setting Optimal Reward

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.

DQ7. LABOR

*Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? Why?

DQ7. LABORSuppose Post pays somebody to kill foxes for him? Who should get property in the

foxes? Why?

NOTE: Law Commonly Equates

Investment of Labor &

Investment of $$$

TWO COMPETING RULES

• Majority: more than “mere pursuit” needed [More than Pursuit]

• Dissent: sufficient if pursuit “inevitably and speedily [would] have terminated in corporal possession” [Hot Pursuit]

DQ8. ECONOMIC BENEFITS

“[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?

DQ8. ECONOMIC BENEFITS

“[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?”

DQ8. ECONOMIC BENEFITS

• 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?

DQ8. ECONOMIC BENEFITS

• 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?

Posts Work Harder at Killing (cf. Whaling)

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

• Substitution Effect: Choose different activity that pays more or costs less

OR• Income Effect: Increase labor until

you achieve desired reward