Symphony #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?

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 .
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.

Pierson v. Post: DQ7 (Labor)
*Suppose Post pays somebody
(“Sharpshooter”) to kill foxes for him? Who should get property in the foxes, Post or
Sharpshooter? Why?

Pierson v. Post: DQ7 (Labor)
*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

Liesner v. Wanie: DQ12
Liesner and another, by next friend,
Respondents, v. Wanie, Appellant

Liesner v. Wanie: DQ12
Next Friend
Legal representative for party who cannot adequately represent own interests.

Liesner v. Wanie: DQ12
Next Friend
Legal representative for party who cannot adequately represent own interests.
• Minors
• Mentally Incompetent
• Married Women (at Common Law)

Liesner v. Wanie: DQ12
Next Friend
Legal representative for party who cannot adequately represent own interests

Liesner v. Wanie: DQ13
Second paragraph of opinion begins:

Liesner v. Wanie: DQ13
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, it had become the property of plaintiffs….

Liesner v. Wanie: DQ13
It is conceded that
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….

Liesner v. Wanie: DQ13
Second paragraph of opinion begins:

Liesner v. Wanie: DQ13
Two Ways to Challenge Directed Verdict
1. Trial Judge Incorrectly Assessed Evidence
Presented
2. Trial Judge Applied Incorrect Legal Standard

Liesner v. Wanie: DQ13
Appellant (Wanie) has conceded the relevant legal rule, so must be challenging assessment of evidence.

Liesner v. Wanie: DQ13
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.”

Liesner v. Wanie: DQ13
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.”

Liesner v. Wanie: DQ13

• 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

Pierson v. Post: DQ8 (Economic Benefits)
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?

Pierson v. Post: DQ8 (Economic Benefits)
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?”

Pierson v. Post: 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?

Pierson v. Post: 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? Determined Posts
Work Harder at Killing (cf. Whaling)

Pierson v. Post: DQ8 (Economic Benefits)
If you don’t get expected reward for labor, what happens?
• Substitution Effect: Could choose different activity that pays more or costs less
-OR-
• Income Effect: Could increase labor until you achieve desired reward.

Pierson v. Post: DQ8 (Economic Benefits)
If you don’t get expected reward for labor, what happens?
• Substitution Effect: Could choose different activity -ORIncome Effect: Could increase labor
• Often hard to predict how people will actually react in particular situation
(empirical Q)

Pierson v. Post: DQ8 (Economic Benefits)
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)?*

Pierson v. Post: DQ9 (Intangible Interests)
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.

Pierson v. Post: DQ9 (Intangible Interests)
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?”

Pierson v. Post: DQ9 (Intangible Interests)
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”?*

Pierson v. Post: DQ9 (Intangible Interests)
PROOF OF INTENT
• Required in Intentional Tort & Criminal Cases
• Often Not Legally Relevant in Property
Ownership Cases

Pierson v. Post: DQ9 (Intangible Interests)
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”

Pierson v. Post: DQ9 (Intangible Interests)
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)

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
• First-in-Time different from, e.g.,
– Most Deserving Gets
– Lottery (Winner Randomly Selected)
– Auction (Highest Bidder Gets)

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

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

Pierson v. Post: DQs10-11 (Types of Rules)
• DQs 10-11: Opportunity to Compare Firstin-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)

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

Pierson v. Post: DQs10-11 (Types of Rules)
First-in-Time:
Likely Winners & Losers