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

Pierson v. Post: DQ3

CUSTOM & LAWWhen might conforming to custom be a bad idea?

(Includes…)• Bad customs• Uncertain customs–Disputed; or–Hard to apply

• Surprise to Parties Affected


CUSTOM & LAWGov’t can change law to conform to custom.

Is Pierson v. Post a good situation to have law conform to custom?


CUSTOM & LAWIs 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?”


CUSTOM & LAWWhen 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 IssuesClass #1: ControlClass #2: Competition v. CooperationClass #3: Confusion

ELEMENTS B1/B2: CONFUSION

ELEMENTS B1/B2: CONFUSIONSOME 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



•Immersion in New Language/Culture

•Hard Qs & Easy Qs



•Immersion in New Language/Culture

•Hard Qs & Easy Qs

•Old Techniques May Not Work


BE PATIENT WITH OTHER STUDENTS


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)


• Succinct Statement of Nature of Original Lawsuit

• In Case Brief: Reminds You Quickly What Case Is About


• 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


1. Who Sued Whom? (in initial lawsuit)

Pierson v. Post: Who Sued Whom?

• “Plaintiff Sued Defendant” (always true; provides no info)


• “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.


Post, … (?) sued Pierson, … (?)Think about what info helps you understand what lawsuit is about.


•Post, a blond 27-year old Dutch-American asthmatic unemployed son of a hero of the Revolutionary War ...


• Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit ...

One of several plausible versions.


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


• “Trespass on the Case” = Indirect Injury to П’s Property

• Compare “Trespass”= Direct Injury to П’s Property

• Why Indirect Here?


• “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.

• Compare “Trespass”= Direct Injury to П’s Property

• Why Indirect Here?


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?


– 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)


– 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?


SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the fox is insufficient because pursuit alone does not create property rights in the fox.


WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?


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


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: IssueCombine 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: IssueCombine 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?


Simple Substantive Issue (Appropriate for Torts or Property)

Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox?

Pierson v. Post: IssueSimple 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 HoldingSimplest 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: IssueDid the Lower Court Err by Failing To Dismiss the Case for Failure to State a


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


Create Property Rights in the Fox.

CASE BRIEF: Issue/HoldingHOW 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/HoldingHOW 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.


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.


Significance of FactsWhy might it matter that the fox is

found on a deserted beach?*


Version of Substantive Holding (Generalizing):



To get property rights in a fox [found on unowned land], you must be the first to



Significance of FactsSuppose fox fell into a well before it

was shot. Change the result?* Assume well is also unowned.


Significance of FactsSuppose 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.



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?



Change the result? Assuming it did, why isn’t this discussed in the case?

Probably not in declaration. Why wouldn’t lawyer include it?


Significance of FactsSuppose 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



“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)


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???)


Significance of FactsWhy might it matter that the hunted

animal is some other animal as opposed to a fox?


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

Documents

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