Property : Week of 22 January 2008

22 January 2008

• Not much emphasis on the structure of the law and hornbook rules. We will spend our time on the materials, and we'll go through all of them (there's a little slack time on the environment built in). Altogether, there are 475 pages, and we have 54 classes. That's about 9pp/day. We will cover about one highlighted case per day. There are 54 cases-- no coincidence. There are about 70 other cases in addition. These are supplements-- read them, think about them, but we may not discuss them in class (feel free to ask questions). They are all eligible for inclusion on the exam (total of 120 cases).
• The cases here are edited down to the bare minimum needed to convey what he wants. About 10% of the length, on average, of what the court actually said. We're going to really penetrate the cases we study, not get distracted by boilerplate or back-and-forth between judges.
• So don't rely on these materials being the actual cases. Do not quote these materials in the real world. It's OK to quote them on the exam, of course.
• Recital: there will be calls for student participation. We start simple. As the course goes on, it'll be more routine.
  • What are facts? What happened? (this is the easy part, but there may be some quibbling: be prepared to say why it's interesting or relevant, or why something was omitted).
  • What are the issues? This is theoretically impossible: there are an infinite number in every case. But in practical terms, we can usually identify a few. Still, there will always be more. You need to say why we are interested in this case: why is the case here, what does the case stand for? (hint: is physical pursuit of a fox sufficient to gain property ownership?).
  • What is the court's holding? If the issue is stated as a question, the answer (i.e., "is pursuit sufficient to gain ownership") may be simple: no.
  • Now it gets interesting: what reasons does the court use to sustain its holding? Maybe there are none: it's just all brazen assertion-- didactic and circular. Lawyers can't do this. Judges can, but lawyers need to help their clients by explaining why a thing is so, not just stating the rule. So what persuasive thing can we trot out, or can we spot the absence of reason. There may be quibbles here, too: is this a real reason, is it persuasive?
  • Suppose you were the court: how do you come out, and why? Take a position. There's no penalty for doing so. :) But you need to explain why. Base this on things covered in the course so far.
  How much of this is formalistic? How much is precedent? All precedent is both distinguishable and usable. If you can't find precedent to sustain your argument, either you are not looking hard enough, or your argument is so bizarre that no lawyer in 200 years and 4M cases has thought of it. That's a sign to reconsider.

  There's a big difference between a legal argument and a policy argument. A legal argument can draw on authority, or textual interpretation. They are formalistic. A policy argument is persuasive on the basis that the world will be a better place if X wins. It's not founded on precedent or text, but on debate around economic or social policy.

  A reciter should be able to draw conclusions based on both formalistic and policy concerns. There will be disagreement: that's the process. Some may come from the class.

• Overall course goals:
  1. Cultivate the process of thinking, writing, talking, persuading. The subject matter ("property") is incidental to this. The first part of the course deals with wild animals: that's a chance to be particularly dispassionate about policy arguments, and focus on the method of the law. So: the nature of the common law.

     How do lawyers deal with statutory interpretation in a common-law system? A statute is an opportunity, not a limitation, on a good lawyer's argument on behalf of his/her client.

  How do lawyers deal with constitutions? Is that different from a statute?

  2. Property terminology and vocabulary. Some of it is feudal.
  3. Black-letter (hornbook) law rules (corpus juris law) of property, and how to use or dodge them as needed for a client.
  4. The ability to use policy arguments as they apply to property issues. Policy arguments recur, and we can amass them and identify the basic contentions.
  5. How do I advise my client? How do I use these rules to figure out what to tell a client? How do I represent my client if it comes to litigation? How do I figure out what the arguments are, and learn how to make them?

1/23/08

• Pierson v. Post
  Note that the caption looks like Pierson was the initial plaintiff, but sometimes you see this get changed on appeal. Also note that the NY Supreme Court is not the supreme court of NY.

  Ratione soli: who owned the land.

  The term "possession" when it refers to land (or other things) turns out to be ambiguous.

  A "relevant" fact has bearing on the holding in the case. We criticize lawyers for including irrelevant facts, and ourselves for ignoring relevant ones. Note also that there are facts, and there are allegations.

  Note that we have synopses of the lawyers' arguments here; that's only there with old cases-- nowadays briefs are all 50 pages long, and written. In Olden Dayes, they were sometimes oral, and so the summary of the case would be where they were preserved.

  Lots and lots of times, by the way, briefs have a ton of stuff not in the opinion that can help how you might use a case.

  Justinian did not write the Justinian code-- he formed an institute of lawyers to do it. Justinian code was the first influential European code (Hammurabi was, of course, a millenium earlier). Corpus Juris Secundum is so named by West to ride on these coattails.

  The USSC's request for a writ of certiorari is a request for a certified copy of case materials from the lower court, indicating that they plan to hear it.

  Bracton: the first English lawyer to write it all down. Fleta: a Latinization of Fleet St., where there was a prison, in which an anonymous lawyer wrote down his thoughts on common law. Fleta was the second. Blackstone was the most famous. In NY, Kent's Commentaries are the analogue-- Kent was a judge in a court above this jurisdiction. If Kent had said anything about wild animals, he would surely have been cited.

  Note that Pierson's lawyer gives no policy argument about why he should win-- he just says that precedent should be interpreted on his side. This is not adequate by our standards. :)

  Post's lawyer gives a similarly weak argument: he just says that he has some precedent too. And then the rebuttal is just "your sources are weaker than my sources."

  Neither of these lawyers earned their pay in this case, and it was substantial. One of the parties had to sell his house (to the other party) in order to pay the legal bills. HLS has the deed of sale in their library.

  Note that the dissenting judge says "full pursuit," whereas the majority opinion says "mere pursuit." They treat the facts very differently.

  One way to deal with precedent: dismiss it as irrelevant (i.e., Justinian was so long ago).

  What this case stands for: certainty has a very high value. So does precedent, incidentally: when we find it, we follow it.

  Post is Dutch (Lodowick). Pierson is a British name. There might be some tension there. This changes the meaning of the holding: the English defeat the Dutch. There was strife in 1812.

  Note that finding for Post would mean transferring (by court fiat) the fox pelt. This is part of why "possession is 9/10 of the law:" sending sherriffs in to recover property is expensive and dangerous.

  The economic arguments are not relevant-- this is not an economic case: it's spite, or ethnic strife, or petty nuisance or something. (this is an argument for Pierson).

  From Post's perspective, there's certainty as well: sportsman's code, plus if Pierson knew Post was pursuing, then there was certainty.

24 January 2008

• So what is the real holding of Pierson v Post? Some thoughts:
  • Mere pursuit is not enough to get possession
  • It's precedential: mere pursuit is not enough because precedent says it's not enough.
  • Note that the precedent in question is not comon law precedent-- it's civil law precedent from ancient times. So maybe the holding is that this precedents are perfectly good law: so the holding says that it's OK to look even at other legal systems for precedent.
  • The real holding is policy: the second hunter wins because he should win. He wins because NY will be better if he wins, and we cite the facts and the precedents to support the point, but the real meaning is the policy that certainty in the law is highly valuable.
  • Certainty is more important than economic investment (this is the meaning of the majority's domination over the dissent).
  • This suit is a spite suite-- there is no real economic issue here-- the real holding (not the stated one) is that we don't like suits that waste our time, so if you bring a spite suit to us, you lose. Obviously, this remains unstated.
  • Law should be formed by lawyers in courtrooms, not by asking other disciplines (e.g., hunters) what their customs are.
  • The English beat the Dutch. Nya-nya.
• Interesting: there are an infinite number of possible "holdings" in a case, when viewed in terms of what the court is really articulating, beyond the superficial words. You can't tell by reading Pierson what the real holding is. Even if the court says "this is our holding," should we take them at face value, and believe that they are not masking anything?
• One function of a lawyer is to make cases serve our purposes: a good lawyer makes the case work for him/her. This is a source of disquiet at exam time, but it is an opportunity for creativity. We ought to be able to make a case sing the tune we need.
• Note also that policies change (the dissent even points this out explicitly). So a policy holding may or may not still be a valid point (e.g., bending the law to encourage the maximum slaughter of foxes may not be a valid agenda any more). There's a major culture clash in England, for example, about whether fox hunting is good or should be banned.
• Also, certainty and economic policy are not necessarily in conflict: we don't want to make investment without a degree of certainty. There can be overlap, despite the apparent opposition in this particular case.
• The Barry Bonds home run ball case. Just about anything is debatable. Here's a real analyst who reads Pierson, one of the simplest cases and most difficult to distort, and he comes up with a statement that a baseball is like a wild animal. That's ridiculous! Learn to spot wild analogies, because challenging them is important. The other guy says that Pierson suggests that if you touch the baseball and drop it, it's someone else's-- in fact, Pierson says the exact opposite: manucaption constitutes occupancy! So if you can play fast and loose with simple things like Pierson, think what you can do with more complex cases!
• Some of the Pierson heritage:
  • A natural gas company wanted to have a place to store gas. They owned some land where their pipe was, and there was a cavern down below. They pumped their gas into it. But the cavern extended beyond the boundaries of their property (real property extends to the center of the earth). Other property owners sued. The gas company said, but that's not our gas: it is wild gas, so if we're not touching it, it's not ours. Finding for the gas company (obviously for policy/economic reasons). Of course, this means the neighbors can pump the gas out, should they care to.
  • In the Casner & Leach casebook (HLS), there's a lot of Cape Cod law. So sometimes a dead whale washes up, and someone has to dispose of it. The public authority wish to get out of paying for it. They wait for someone (from NY, hopefully) to get too close, and then say Pierson v. Post! It's your whale! You have to get rid of it!
• Young v. Hitchens
  Young had hired a lookout to check for fish. This is an important part of the policy issue here. The fish foolishly sit there as the net starts to go around them. Young's crew makes kind of a mistake, and has trouble getting the "stop net" into the hole. So they put some boats in the mouth of the opening and make splashes to scare the fishes back into the net. There are 1-2M fish. They are small, but that is a lot of fish.

  Into this confusion, Hichens's crew comes, and drops his net inside Young's net, and they close the net (because they know what they are doing). Hilarity ensues, and in the dispute, some fish are lost, but some are captured by Hichens, who takes them to town and sells them.

  Young sues: first off, for the damage to the net. That was 1 pound. Nice to win, but not much compared to the fish. "He converted my fish!" (the criminal version of "conversion" is theft). The lower court found for Young, saying the fish were in his possession (which means that he owned them as property). Note that it was a jury who found this fact (i.e., that the fish were in Young's possession). But this wasn't really a question of fact: Pierson makes it clear that this is a matter of law. Juries only get to decide matters of fact-- we don't trust them with matters of law and policy, in theory. In reality, lots of questions submitted to juries are policy questions in disguise.

  Still the matter of possession is a matter of law, not fact. Whether or not Hichens zoomed in between Young's boats, etc., are questions of fact. But "possession" is a legal term.

  Queen's Bench (an appellate court in England) takes up this issue. Look for Denman (the justice) again.

  This is a glaring example of a court not giving a reason. They simply say that Young did not possess the fish. The end. They note that Hichens may have acted unjustifiably, but that doesn't mean Young was a fish-owner.

  The second opinion says that whatever "possession" means, it doesn't mean something short of possession, so we can't let Young win.

  The final opinion: it would ridiculous to say that Young owned the fish, and some of the fish escaped, then we'd get trouble when someone else captured the fish. But this is a bogus premise: escaped wild animals are no longer anyone's property.

• Every legal system runs the risk of getting absurd, stale, and frustrating over time. This happened to the common law, especially with respect to land ownership. The people then had to go to the monarch and say "we will be unhappy subjects if you don't fix this." We can't do that. Because the common law got too sterile, too self-oriented, and too rigid. Thus we begin to have courts of equity: people got sick of statements that you should win, but you used the wrong terminology and the common law doesn't allow you to amend your complaint. So a competing court system, which was more flexible, arose. Parliament eventually abolished courts of equity, but there was so much demand for it, they wound up absorbing it. Today, in the US, our courts include both common law and equity.
• Why we don't listen to dicta: it's not a point that got argued, so the judge's statement is without the benefit of the adversary system. Another great thing in the common law is that decisions are limited to *this* case and *this* defendant. Dicta are theoretical statements, not pragmatic decisions.