1. MUSIC: Beethoven Violin Sonatas #5 (1801) & #9 (1803) Recordings: Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano (1973-74)

2. Pierson v. Post: DQ4 Significance of Facts Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal?

3. Pierson v. Post: DQ4 Significance of Facts Assume (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.

4. 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.

5. CASE BRIEF: Issue/Holding CASES 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.

6. Pierson v. Post: DQ4 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

7. Pierson v. Post: Holding To 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!!!)

8. Pierson v. Post: Holding To 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)

9. Pierson v. Post: Holding Version 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 ???]

10. Pierson v. Post: Holding What Constitutes Possession of Wild Animal? Actual Physical Possession (Uncontested)

11. Pierson v. Post: Holding What Constitutes Possession of Wild Animal? Actual Physical Possession (Uncontested) Majority Refers to Two Other Possible Ways to Get Possession: – Mortal Wounding – Traps & Nets

12. Pierson v. Post: Holding What Constitutes Possession of Wild Animal? 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

13. Pierson v. Post: DQ5 Holding v. Dicta Courts 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?

14. Pierson v. Post: DQ5 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”

15. Pierson v. Post: DQ5 Holding 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)

16. Pierson v. Post: Holding Version 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???]

17. Pierson v. Post: Holding Substantive 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.

18. Pierson v. Post: DQ5 Holding v. Dicta *How/when will you know for sure whether language in case is dicta or part of holding?

19. Pierson v. Post: DQ5 Holding v. Dicta 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!!

20. Pierson v. Post: DQ5 Holding v. Dicta After case comes down, often left with uncertainty as to exact scope of result.

21. Pierson v. Post: DQ5 Holding v. 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.

22. Pierson v. Post: DQ5 Holding v. 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. MUST LOOK TO RATIONALES

23. 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.

24. CASE BRIEF: Rationales Generally: Reasons supporting the court’s decision to resolve the issue as it did. Doctrinal Rationales: Result required or strongly suggested by prior authorities

25. CASE BRIEF: Rationales Generally: Reasons supporting the court’s 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 …]

26. 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

27. 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]

28. 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?

29. Pierson v. Post: DQ6 (Certainty) Majority says its rule promotes “certainty”: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All.

30. 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”

31. Pierson v. Post: DQ6 (Certainty) Majority says its rule promotes “certainty”: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All. Can you think of situations where the majority’s approach would not promote certainty?*

32. Pierson v. Post: DQ6 (Certainty) Majority says its rule promotes “certainty”: 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”?

33. Pierson v. Post: DQ6 (Certainty) Why is certainty desirable for society more generally?* (not just in this context)

34. Pierson v. Post: DQ6 (Certainty) Benefits of Certainty Include: Reduces Anxiety Related to Uncertainty Allows Planning Creates Stability Majority’s “Peace & Order”: May Reduce Quarrels/Violence

35. Pierson v. Post: DQ6 (Certainty) Benefits of Certainty Include: 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).

36. Pierson v. Post: DQ6 (Certainty) Three Kinds of Certainty: 1.Easy for parties to apply at the relevant time 2.Easy to apply in court 3.Everyone aware of rule

37. Pierson v. Post: DQ6 (Certainty) 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?*

38. Pierson v. Post: DQ6 (Certainty) Concerns with Certainty: Any student who fails to show up on time for the midterm fails the class. Why Problematic?*

39. Pierson v. Post: DQ6 (Certainty) Concerns with Certainty: When property is owned jointly by a male-female married couple, all management decisions will be made by the man. Why Problematic?*

40. Pierson v. Post: DQ6 (Certainty) Benefits of Certainty Include: 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

41. BRIGHT-LINE RULES v. FLEXIBLE STANDARDS

42. 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.

43. Pierson v. Post: 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.”

44. 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.

45. 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?