Pierson v. Post: DQ3
CUSTOM & LAW
When might conforming to custom be a bad idea?
(Includes…)
• Bad customs
• Uncertain customs
–Disputed; or
–Hard to apply
• Surprise to Parties Affected
Pierson v. Post: DQ3
CUSTOM & LAW
Gov’t can change law to conform to custom.
Is Pierson v. Post a good situation to
have law conform to custom?
Pierson v. Post: DQ3
CUSTOM & LAW
Is Pierson v. Post a good situation to have law
conform to custom?
Lawyering Note: Often focus on “Who
is appropriate decision-maker?”,
rather than “Is particular decision
best one possible?”
Pierson v. Post: DQ3
CUSTOM & LAW
When should law conform to custom?
• Recurring question in many areas of law
• e.g., Contract Law v. Business Practices
• We’ll return to this question with regard to
whaling customs in Unit Two
Qs on Custom?
ELEMENTS B1/B2
Three Common 1L Issues
Class #1: Control
Class #2: Competition v. Cooperation
Class #3: Confusion
ELEMENTS B1/B2: CONFUSION
ELEMENTS B1/B2: CONFUSION
SOME REASONS FOR CONFUSION:
• Real World Analogy: Missing the Key
ELEMENTS B1/B2: CONFUSION
SOME REASONS FOR CONFUSION:
• Real World Analogy: Missing the Key
• Immersion in New Language/Culture
– Should Read No More Than 10 pages/hour
– Fall Break Warning
ELEMENTS B1/B2: CONFUSION
SOME REASONS FOR CONFUSION:
• Real World Analogy: Missing the Key
• Immersion in New Language/Culture
• Hard Qs & Easy Qs
ELEMENTS B1/B2: CONFUSION
•
•
•
•
SOME REASONS FOR CONFUSION:
Real World Analogy: Missing the Key
Immersion in New Language/Culture
Hard Qs & Easy Qs
Old Techniques May Not Work
ELEMENTS B1/B2: CONFUSION
BE PATIENT WITH
OTHER STUDENTS
ELEMENTS B1/B2: CONFUSION
BE PATIENT
WITH OTHER STUDENTS
& ESPECIALLY
WITH YOURSELF!!
CASE BRIEF: Generally
LIKE A RESUME
•
•
•
•
Standardized Information
Range of Successful Ways to Present
Alter for Different Audiences
Rarely the Whole Story
CASE BRIEF: Statement of the Case
• Succinct Statement of Nature of Original
Lawsuit (complete Statement unlikely to
be stated explicitly in case itself)
CASE BRIEF: Statement of the Case
• Succinct Statement of Nature of Original
Lawsuit
• In Case Brief: Reminds You Quickly
What Case Is About
CASE BRIEF: Statement of the Case
• Succinct Statement of Nature of Original
Lawsuit
• In Case Brief: Reminds You Quickly What
Case Is About
• In Court Submissions: Quickly Explains
Nature of Cases You Discuss In Your
Arguments
CASE BRIEF: Statement of the Case
1. Who Sued Whom? (in initial
lawsuit)
Pierson v. Post: Who Sued Whom?
• “Plaintiff Sued Defendant”
(always true; provides no info)
Pierson v. Post: Who Sued Whom?
• “Plaintiff Sued Defendant”
• “Post Sued Pierson” (provides
no info about lawsuit)
WHO SUED WHOM?
Describe Parties in Way that Gives
Sense of Subject of Lawsuit
• Apartment Landlord Sued Former Tenant …
• Purchasers of Leaky New House Sued
Developer ...
• Consumer Injured By Exploding Blender
Sued Manufacturer and Seller of Blender ...
WHO SUED WHOM?
Helps Clarity to Include Parties’ Names
• Matheson, Apartment Landlord, Sued
Jacobs, Former Tenant …
• Ortiz, Consumer Injured By Exploding
Blender, Sued Gemco, Manufacturer, and
Walmart, Seller of Blender ...
Then can reference by name in rest of brief.
Pierson v. Post: Who Sued Whom?
Post, … (?)
sued Pierson, … (?)
Think about what info helps you
understand what lawsuit is about.
Pierson v. Post: Who Sued Whom?
• Post, a blond 27-year old
Dutch-American asthmatic
unemployed son of a hero of
the Revolutionary War ...
Pierson v. Post: Who Sued Whom?
• Post, a hunter who had been
pursuing a fox, sued Pierson, who
killed the fox knowing of the
pursuit ...
One of several plausible versions.
CASE BRIEF: Statement of the Case
1. Who Sued Whom?
2. Under What Theory (Legal Cause
of Action)?
Pierson v. Post: Under What Theory?
• “Trespass on the Case”
(See 1st Sentence of Case)
= Indirect Injury to П’s Property
Pierson v. Post: Under What Theory?
• “Trespass on the Case”
= Indirect Injury to П’s Property
• Compare “Trespass”
= Direct Injury to П’s Property
• Why Indirect Here?
Pierson v. Post: Under What Theory?
• “Trespass on the Case”
= Indirect Injury to П’s Property
• Maybe here because property in Q (fox)
harmed by bullet & not directly by Pierson
• Distinction not especially important for purposes
of our class, but good to get used to noting things
like this.
CASE BRIEF: Statement of the Case
1. Who Sued Whom?
2. Under What Theory (Legal Cause of
Action)?
3. For What Remedy?
Pierson v. Post: For What Remedy?
– Not Stated in Majority Opinion
Possibilities?
Pierson v. Post: For What Remedy?
– Not Stated in Majority Opinion
– Dissent: “In a court … constituted [of
hunters], the skin and carcass of poor
reynard would have been properly
disposed of ...” (suggests remedy
requested is return of property)
Pierson v. Post: For What Remedy?
– Not Stated in Majority Opinion
– Dissent: Suggests remedy requested is
return of property
–Normal remedy for Trespass on the
Case is “Damages” (= $$$)
Pierson v. Post: Sample Statement
• Post, a hunter who had been pursuing a fox,
sued Pierson, who killed the fox knowing of
the pursuit, for trespass on the case,
presumably seeking damages.
• Again, Number of Possible Versions
• Qs
CASE BRIEF: Procedural Posture
• Procedural Steps After Lawsuit Filed Up
To Step That Gets Case to the Appellate
Court that Issued the Opinion You are
Briefing
CASE BRIEF: Procedural Posture
• Procedural Steps After Lawsuit Filed Up
To Step That Gets Case to the Appellate
Court
• Try to Limit to Steps Necessary to
Understand Case (usually have to edit
what’s given in opinion)
Pierson v. Post: Procedural Posture
• After Trial Resulted in Verdict for Plaintiff,
Appellate Court Granted Defendant’s
Petition for [Certiorari] Review
CASE BRIEF: Facts
• Try to limit to facts arguably relevant to
court’s analysis.
CASE BRIEF: Facts
• Limit to facts arguably relevant to court’s analysis.
• Can’t determine relevance on 1st read
– Initial description of “facts” usually
includes more detail than you need
– Important facts may only appear later in
opinion
– Select/edit facts after reading whole case.
CASE BRIEF: Facts
• Limit to facts arguably relevant to court’s analysis.
• Can’t determine relevance on 1st read
• We’ll come back to for Pierson after DQs 4-5
CASE BRIEF: Issue
• Party Appealing Always Claims the
Lower Court Made a Mistake. To
Identify the Issue, Identify the
Mistake.
CASE BRIEF: Issue
• Party Appealing Claims the Lower Court
Made a Mistake. Identify the Mistake.
• Procedural Component of Mistake:
What Should Lower Court Have
Done Differently?
CASE BRIEF: Issue
• Party Appealing Claims the Lower Court Made
a Mistake. Identify the Mistake.
• Procedural Component of Mistake: What
Should Lower Court Have Done Differently?
• Substantive Component of Mistake:
What Misunderstanding About the Legal
Rule Caused the Lower Court to Err?
Pierson v. Post: Issue
End of 1st paragraph: Pierson claims that “the
declaration and the matters therein contained
were not sufficient in law to maintain an
action.”
What does he think was insufficient
about it?
Pierson v. Post: Issue
SUBSTANTIVE MISTAKE: Allegation
that plaintiff pursued the fox is
insufficient because pursuit alone
does not create property rights in the
fox.
Pierson v. Post: Issue
WHAT SHOULD THE LOWER COURT
HAVE DONE DIFFERENTLY?
Pierson v. Post: Issue
WHAT SHOULD THE LOWER COURT HAVE DONE
DIFFERENTLY?
PROCEDURAL MISTAKE: The Lower
Court Should Have Dismissed the Case
for Failure to State a Claim on Which
Relief Could Be Granted
Pierson v. Post: Issue
PROCEDURAL MISTAKE: The Lower Court
Should Have Dismissed the Case for Failure to
State a Claim on Which Relief Could Be
Granted
In other words, even if everything stated in
Declaration was true, Post was not entitled to
any legal remedy (or “SO WHAT?”)
Pierson v. Post: Issue
Combine Both Alleged Mistakes:
PROCEDURAL MISTAKE: The Lower Court Should
Have Dismissed the Case for Failure to State a Claim
on Which Relief Could Be Granted
+
SUBSTANTIVE MISTAKE: Allegation that plaintiff
pursued the fox is insufficient because pursuit alone
does not create property rights in the fox.
Pierson v. Post: Issue
Combine Both Alleged Mistakes:
Did the Lower Court Err by Failing To
Dismiss the Case for Failure to State a
Claim on Which Relief Could Be Granted
Because Pursuit of a Fox Is Insufficient to
Create Property Rights in the Fox?
Pierson v. Post: Issue
Simple Substantive Issue
(Appropriate for Torts or Property)
Is Pursuit of a Fox Sufficient to Create
Property Rights in the Fox?
Pierson v. Post: Issue
Simple Substantive Issue
Is Pursuit of a Fox Sufficient to Create Property
Rights in the Fox?
Cf. p.3: “[W]hat acts amount to occupancy, applied
to acquiring right to wild animals[?]”
For Elements, try to state issue as a yes/no question.
CASE BRIEF: Issue  Holding
Simplest Version of Holding:
• Issue is a question.
• Answer question “yes” or “no.”
• Repeat issue in statement form (adjust for
positive or negative).
Pierson v. Post: Issue
Did the Lower Court Err by Failing To
Dismiss the Case for Failure to State a
Claim on Which Relief Could Be Granted
Because Pursuit of a Fox Is Insufficient to
Create Property Rights in the Fox?
Pierson v. Post: Issue  Holding
YES. The Lower Court Erred by Failing To
Dismiss the Case for Failure to State a
Claim on Which Relief Could Be Granted
Because Pursuit of a Fox Is Insufficient to
Create Property Rights in the Fox.
CASE BRIEF: Issue/Holding
HOW MUCH DETAIL DO YOU INCLUDE
• Try to include factual detail that seems
relevant to analysis/outcome.
• Can have different versions that incorporate
more or less detail (narrower/broader).
• DQ4-5 intended to help you start thinking
about how to do this.
CASE BRIEF: Issue/Holding
HOW MUCH DETAIL DO YOU INCLUDE
• Try to include factual detail that seems
relevant to analysis/outcome.
• Can have different versions that incorporate
more or less detail.
• DQ4-5 intended to help you start thinking
about how to do this.
Pierson v. Post: Issue/Holding
Version of Substantive Holding:
To get property rights in a fox, you must
be the first to “occupy” it, which means
you must do more than pursue it.
Pierson v. Post: Issue/Holding
Version of Substantive Holding (adding detail):
To get property rights in a fox [found on a
deserted beach], you must be the first to
“occupy” it, which means you must do
more than pursue it.
Pierson v. Post: DQ4
Significance of Facts
Why might it matter that the fox is
found on a deserted beach?*
Pierson v. Post: Issue/Holding
Version of Substantive Holding (Generalizing):
To get property rights in a fox [found on a
deserted beach], you must be the first to
“occupy” it, which means you must do more
than pursue it. 
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.
Pierson v. Post: DQ4
Significance of Facts
Suppose fox fell into a well before it
was shot. Change the result?*
Assume well is also unowned.
Pierson v. Post: DQ4
Significance of Facts
Suppose fox fell into a well before it was shot.
Change the result?
• Could treat as trap(“toil”) or net discussed in case as
possibly creating possession
• Could say equals possession if fox cannot escape: see
language: “deprive them of their natural liberty, and render
escape impossible.”
• BUT Could say that 1st hunter still does not have actual
possession.
Pierson v. Post: DQ4
Significance of Facts
Suppose fox fell into a well before it was shot.
Change the result?
Contemporary accounts outside the legal
record suggest this may really have
happened. Assuming it did, why isn’t
this discussed in the case?
Pierson v. Post: DQ4
Significance of Facts
Suppose fox fell into a well before it was shot.
Change the result? Assuming it did, why isn’t this
discussed in the case?
Probably not in declaration. Why wouldn’t lawyer
include it?
Pierson v. Post: DQ4
Significance of Facts
Suppose fox fell into a well before it was shot. Why
wouldn’t lawyer include it in declaration?
• Maybe strategic decision (seems unlikely).
• Maybe lawyer didn’t think it was important.
• Maybe lawyer didn’t know (asked wrong Qs)!
Note Importance of Lawyer
CASE BRIEF: Narrow v. Broad Holdings
NARROW
• Covers fewer
situations
• Includes more facts
• More specific
BROAD
• Covers more
situations
• Includes fewer facts
• More general
Pierson v. Post: Issue/Holding
To get property rights in a fox [found on a
deserted beach], you must be the first to
“occupy” it, which means you must do more
than pursue it. (Narrower) 
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. (Broader)
Pierson v. Post: Issue/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???)
Pierson v. Post: DQ4
Significance of Facts
Why might it matter that the hunted
animal is some other animal as
opposed to a fox?
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