Ludwig van Beethoven Symphony

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Ludwig van Beethoven Symphony 3 Eroica (1804)

• Vienna Philharmonic Orchestra
• Karl Bohm, Conductor
• Recorded 1972

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Version of Substantive Holding

• To get property rights in a wild animal found on
  unowned property, you must be the first to
  occupy it, which means you must do more than
  pursue it. ?
• To get property rights in a wild animal found on
  unowned property, 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. ???

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5. Holding and Dicta. How/when will you know for
sure whether language in case is dicta or part of
holding?
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5. Holding and Dicta

• After case comes down, often left with
  uncertainty as to exact scope of result.

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5. Holding and Dicta

• After case comes down, often left with
  uncertainty as to exact scope of result.
• BUT
• Need to counsel clients.

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5. Holding and 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.

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RATIONALES
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RATIONALES

• Doctrinal Rationales Result required or
  strongly suggested by prior authorities

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RATIONALES

• Doctrinal Rationales Result required or
  strongly suggested by prior authorities
• Policy Rationales Result is good for society

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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

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Pierson Kind of Case Where Policy Discussion
Likely/Useful

• DQs 6-9 Discuss Relevant Policy Rationales
• Particularly note in context of choice between
  two proposed rules

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TWO COMPETING RULES

• Majority more than mere pursuit needed More
  than Pursuit
• Dissent sufficient if pursuit inevitably and
  speedily would have terminated in corporal
  possession Hot Pursuit

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DQ6. Certainty in Pierson

• 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.

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DQ6. Certainty in Pierson

• Majority Too Difficult to Determine How Much
  Pursuit is Hot Enough or Even if Theres
  Pursuit at All.

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Sample Policy Rationale 1

• The majority stated that its decision would
  provide certainty and preserve 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

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DQ6. Certainty in Pierson

• Majority Too Difficult to Determine How Much
  Pursuit is Hot Enough or Even if Theres
  Pursuit at All.
• BUT If mortal wounding creates property
  rights, how do you tell if a wound is mortal?

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DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty
• Allows Planning
• Creates Stability
• Majority Peace Order May Reduce Quarrels

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DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty
• Allows Planning
• Creates Stability
• Majority Peace Order May Reduce Quarrels
• BUT these benefits may require that people be
  aware of the rule.

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THREE KINDS OF CERTAINTY

• Easy to apply at the time
• Easy to apply in court
• Everyone aware of rule

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Concerns with Certainty

• Admit all students with minimum LSAT in
  alphabetical order until class filled.
• Or in reverse order of height.
• Or in order of parents 2006 income.

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Concerns with Certainty

• Admit all students with minimum LSAT in
  alphabetical order until class filled.
• Any student who fails to show up on time for the
  midterm fails the class.

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Concerns with Certainty

• Admit all students with minimum LSAT in
  alphabetical order until class filled.
• Any student who fails to show up on time for
  midterm fails the class.
• When property is owned jointly by a married
  couple, all management decisions will be made by
  the man.

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DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty
• Allows Planning
• Creates Stability
• Majority Peace Order May Reduce Quarrels
• BUT Sometimes at cost of fairness or
  sensitivity to particular circumstances or
  awareness of changing times

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BRIGHT-LINE RULES v. FLEXIBLE STANDARDS
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DQ7. LABOR

• The majority suggests that it will confer
  property rights on those who, using their
  industry and labor, have captured animals.

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DQ7. LABOR

• Encompassing 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.

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DQ7. LABOR

• Generally Understood Good idea to provide
  rewards for industry labor as an incentive to
  encourage working hard.

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DQ7. LABOR Are there some categories of
labor you would not want to reward?

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DQ7. LABOR Are there some categories of labor
you would not want to reward?

• Ineffective Labor
• Harmful/Dangerous Labor
• Related Problem Setting Optimal Reward

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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.

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DQ7. LABOR

• Suppose Post pays somebody to kill foxes for
  him? Who should get property in the foxes? Why?

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DQ7. LABOR

• Suppose Post pays somebody to kill foxes for him?
  Who should get property in the foxes? Why?
• NOTE Law Commonly Equates
• Investment of Labor
• Investment of

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TWO COMPETING RULES

• Majority more than mere pursuit needed More
  than Pursuit
• Dissent sufficient if pursuit inevitably and
  speedily would have terminated in corporal
  possession Hot Pursuit

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DQ8. ECONOMIC BENEFITS

• Our 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?

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DQ8. ECONOMIC BENEFITS

• Who 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?

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DQ8. ECONOMIC BENEFITS

• Why does the dissent think its rule will result
  in more foxes being killed? Unhappy Posts Choose
  Alternative Activity
• Argument that Majoritys Rule will result in
  more foxes being killed?

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DQ8. ECONOMIC BENEFITS

• Why does the dissent think its rule will result
  in more foxes being killed? Unhappy Posts Choose
  Alternative Activity
• Argument that Majoritys Rule will result in more
  foxes being killed?
• Posts Work Harder at Killing (cf. Whaling)

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If you dont get expected reward for labor, what
happens?

• Substitution Effect Choose different activity
  that pays more or costs less
• OR
• Income Effect Increase labor until you achieve
  desired reward