MUSIC: Beethoven
Violin Sonatas #5 (1801) & #9 (1803)
Recordings: Itzhak Perlman, Violin &
Vladimir Ashkenazy, Piano (1973-74)
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?
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.
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.
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.
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
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!!!)
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)
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 ???]
Pierson v. Post: Holding
What Constitutes Possession of Wild Animal?
• Actual Physical Possession (Uncontested)
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
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
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?
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”
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)
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???]
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.
Pierson v. Post: DQ5
Holding v. Dicta
*How/when will you know for
sure whether language in case
is dicta or part of holding?
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!!
Pierson v. Post: DQ5
Holding v. Dicta
• After case comes down, often left with
uncertainty as to exact scope of result.
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.
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
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.
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
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 …]
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
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]
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?
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.
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”
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?*
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”?
Pierson v. Post: DQ6 (Certainty)
Why is certainty desirable for
society more generally?*
(not just in this context)
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
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).
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
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?*
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?*
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?*
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
BRIGHT-LINE
RULES
v.
FLEXIBLE
STANDARDS
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.
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.”
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.
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?