Briefing the application of the rule of law adopted in Pierson v. Post to the facts
Pierson vs. Post
( New York Supreme Court 1805 )
FACTS: Post was hunting with his dogs and hounds on an un-owned beach when he spied a fox. He and his dogs and hounds were in hot pursuit of the fox, and apparently were about the catch the fox when Pierson, who was walking up the beach from the opposite direction and saw all of this coming towards him, killed the fox.
Majority Opinion
ISSUE: Whether Post, by his hot pursuit of the fox with his dogs and hounds and being on the verge of capturing it, acquired a property interest in it? what constitutes occupancy?
RULE: To establish occupancy, the claimant must prove that he 1) had an unequivocal intention of appropriating the animal to his individual use 2) deprived the animal of its natural liberty, and 3) brought the animal within his certain control.
PUBLIC POLICY: to promote certainty and preserve peace and order in society, and to minimize quarrels and litigation.
HOLDING: Post failed to establish occupancy in the fox and therefore has no cause of action against Pierson for trespass.
RATIONALE: Post could establish that he had the intent to appropriate the animal to his individual use as evidenced by his hot pursuit of the fox with his dogs and hounds; Post arguably had deprived the fox of its natural liberty because the fox was not free to do as it wished because it was being chased by the dogs and hounds; but Post could not prove that he had the fox under his certain control because the fox was still running down the beach and there was still the risk that the fox could have gotten away.
Dissenting Opinion
ISSUE: Whether a person who, with his own hounds, starts and hunts a fox on waste and uninhabited ground, and is on the point of seizing his prey, acquires such an interest in the animal as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the case, shall kill and carry him away.
RULE:Property in animals feroe naturoe may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking what he has thus discovered with an intention of converting to his own use.
PUBLIC POLICY:to maximize the kill of foxes
HOLDING: Post established occupancy in the fox through his actions and therefore has a cause of action against Pierson for trespass on the case.
RATIONALE: Under the dissent's proposed rule statement Post would have a property interest in the fox because his action of pursuing the fox indicates that he had the intention of converting to his own use the fox that he and his dogs and hounds had discovered, and because he was in hot pursuit of the fox and on the verge of capturing it, he was either within reach of it, or if not, he ha a reasonable prospect of capturing it.
1) FACTS - The facts are what led to the dispute, which is what started the case. Write the fact statement in chronological order and include all "outcome-determinative" facts - where the hunt occurred etc.
2) ISSUE - Majority Opinion primarily focus on the rule plane and no references to the particular facts of the case in the sentence while dissent issue statement has a lot of references to the facts.
3) RULE - extract what you think is the rule statement the court adopted in the case and write it in your brief. By practice this method, you learn to focus on the rule plane while reading the case, and easier to understand the court's analysis of the question of law and the rule it adopted. Bring this to class to assess your legal analysis skills; forces you to be more precise in your knowledge of rule ( detail knowledge ).
4) PUBLIC POLICY CONSIDERATION: the reason the court adopted this rule. what the did the court want to encourage, and why? what did the court want to discourage, and why? what type of society do we want, and why?
5) HOLDING: court's conclusion after applying the rule it adopted to the facts of this case?
6) RATIONALE: 2 rationales: 1st, explaining why the court adopted the rule that it did ( interaction between the rule plane and the public policy plane) 2nd, what was the court's explanation for it's holding.
"What-if" game
First hypothetical - what if Post kills the fox right before Pierson can get it but with a gun this time.
- outcome would be the same because post couldn't prove he brought the fox within his certain control even though he satisfied all other elements.
Second hypothetical - what if post came onto Pierson's property and kills the fox. Then this might consider a trespassing.. If this issue were one of first impression, then the court is free to adopt rule it thinks best. Whether the public policy of maximizing the kill of wild animal outweighs the public policy of protecting private property rights.If protecting private property rights is the paramount public policy consideration, it would come back to a new rule of law that promoted public policy consideration. in this case adopt " rationi soli" - a wild animal on private property deemed to be in the constructive possession of the owner of the private property.
Third hypothetical - what if the fox is exhausted and unable to move. But before Post can get it, Pierson walks up and grabs it. Post can prove the intent to appropriate the animal to individual use, deprived the animal of its natural liberty because it was unable to move. The issue is whether the fox is under his certain control. Post could argue that he did because the fox was unable to move while Pierson will argue that he did not because the fox could have gotten up and run off any moment or certain control not achieved until he grabbed the fox. To resolve the impasse, the court would look into relevant public policy consideration. Pierson has stronger argument because it is more consistent with the court's public policy considerations in trying to minimize quarrels and litigation.
Write like a judge
The diagram depicts the semester the start of the classes until the end of classes.
Cases/ Facts > Analyze/Rules & PP > Outline/Rules & PP
The Exam Process
A fact pattern > Spot Issues > Analyze / Apply Rules & PP > A well-written judicial opinion
That is a law student's circle of life. Each semester you start out reading analyzing opinions in a certain subject area of the law. By the end of the semester, the professor expects you to be able to write a well written judicial opinion about selected issues in that subject area.
Analyze/apply rules &PP means u need to apply rules and you get those rules from your Outline / Rules & PP You should created an outline and take time to write a rule. When you are creating your outline, your mindset should be " If this rule were to come up on the exam, what should i write and why?". It is crucial to write an outline of your own and consult the commercial outline until after you finish one; this serves as a check on how well you know each rule. Know know a rule statement, understand it, know when to use it and how to use it. For each rule you learn during the semester, your goal is to write the rule, the whole rule, and nothing but the rule, in one sentence. be flexible, because it can be easier to write two short sentences.
In adopting the one sentence approach to writing your rule statement, paraphrase can run the risk of changing the rule. Every rule statement has 2 types of words : filler words and operative words - free to change the filler words to the extent you don't change the scope of the rule. be very careful about how you word the key operative words in your rule statements. Practice makes perfect, and the process of creating the outline forces you to think about, and practice writing, your rule statements.
I - Issue
R - Rule
RE - Rule Elaboration
A - Analysis
C - conclusion
For a rule statement with multiple elements
I - Issue
R - Rule
1. RE (A +C) 2. RE (A+C) 3. RE (A+C)
I - Issue
R - Rule statement
RE for 1st element to be analyzed;
Application and Conclusion for element
RE for 2nd element to be analyzed;
Application and Conclusion for element
I - Issue
The issue statement starts with a reference to the party invoking the rule (Dude) and ends with a reference to the rule the party is invoking to support his or her claim. Can be a question "Can dude successfully claim the land based on adverse possession?" or a declarative sentence: "Dude will claim the land based on adverse possession?"
R- Rulethe one-sentence rule statement you have in your outline that constitutes t he rule, the whole rule, and nothing but the rule. no reference to the facts
RE - Rule Elaboration
The break the rule into its parts-it elements-and check to see if each statement is satisfied. Thus, creating an IRAC for each element. You get the rule elaboration from your outline.
The A in analysis requires discussion and analysis of the facts. Remember that it should explain why the element is satisfied. for example: "" Open and notorious requires possession that would give constructive notice to the true owner. Here, because Dude moved on to the land, built a house, lived in it, and farmed the land, if Wendel had walked the property he would have noticed Dude; the element of open and notorious is satisfied""
REMEMBER: start with the elements that are clearly satisfied and works it way to the elements in dispute.
For Competing rules:
I. who has a better claim to the fox?
Sub-Issue 1: T will claim it based on occupancy.
Rule: Occupancy requires...
Analysis: Here,....
Conclusion: T can establish occupancy over the fox.
Sub-Issue 2: L will claim the fox based on rationi soli.
Rule: Rationi Soli requires....
Analysis: Here,....
Conclusion: L can establish rationi soli with respect to the fox
Writing your outline
I - Generic issue statement - starts with a reference to the party invoking the rule and ends with a reference to the rule being invoked.
R - Rule Statement
R- Rule elaboration
For example: I. Can X claim the land based on adverse possession?
Adverse Possession requires actual entry that gives rise to possession that is open and notorious, exclusive, adverse/hostile, under a claim of right, and continuous for the statutory period.
EXAM FORMAT vs. OUTLINE FORMAT
I- Issue / I - Generic Issue Statement
R- Rule Statement / R - Rule statement
R- Rule Elaboration / R - Rule elaboration
A - Application / Analysis
C - Conclusion
Remember: The issue is not stated on the factual plane. It does not include any express reference to the particular facts of the case. generic references include " a social host" not Zaks < defendant name or " an adult guest " not gwinnell " , and obviously " the victim " not use victim name kelly
Issue statement: ""This case raises the issue of whether a social host who enables an adult guest at his home to become drunk is liable to the victim of an automobile accident caused by the drunken driving of the guest. ""
When writing memorandum, do not say that the court "argued" . The attorney argue to the court, and the dissent may argue in opposition to the court. The court held, ruled, or stated is the proper terminology.
Above material involved common law "judge made law", while legislature drafts and creates statutory law < in this case the judiciary construes and applies it.
PURPOSE: A concise summary of the book for me to refresh my memory. Also for anyone interests in reading the book.
Wendel, Peter T. Deconstructing Legal Analysis: a 1L Primer. Austin: Wolters Kluwer Law & Business, 2009. Print.
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