Question/Answer for January 23-24, 2013

1. I was re-reading my notes on Pierson v. Post and I had one lingering issue that I couldn't quite resolve that maybe you could help me with. I can't figure out why the plaintiff didn't make a case for relief in equity. The language of the dissent uses phrases like "who had not shared in the honours or labours of the chase" and made it seem like the work of the dogs brought the fox in direct proximity of Pierson. Could Post have argued for relief by way of restitution on the grounds that Pierson was unjustly enriched at the expense of Post?

I don't think, based on the facts as the majority states them in Pierson, that Post has a compelling case unjust enrichment case. Why is Pierson's enrichment "unjust"?

Consider an analogy from a modern context. Suppose you and I own adjoining lots.  I have a modest house.  You build a $2 million mansion next door.  As a result, the next time my house is valued, its value has increased by $30,000, primarily because the fact that you built a palatial mansion next door makes all of the surrounding houses more attractive to potential buyers. You then sue me, arguing "Hey, Freyermuth, you've been unjustly enriched. Because of my effort and expenditure, which you didn't pay for, your house is now more valuable. So you should have to pay me."

Yes, I probably did benefit from your expenditure. But you weren't obligated to build the house, and if you'd thought about it, you might have foreseen that it could have had a positive impact on the value of my land. In essence, your building the house is the opposite of an external cost or an externality — it really bestows an external benefit on me. But why should I have to pay something for the incidental benefit that I get from your conduct, when we didn't have any agreement? How am I unjustly enriched? I'm more of an innocent bystander. The law shouldn't let you "force" me to pay you for that external benefit. [By contrast, the law often requires you to take account of, or internalize, negative external costs of your conduct.]

That's the way that the majority in Pierson treated Mr. Pierson — he may have enjoyed an external benefit from the fact that Post's expenditures and efforts flushed a fox into his path, but the court views it as an accidental circumstance that Pierson did not unreasonably benefit from. The language you're quoting from the dissent reflects some rhetorical flourish on the facts, no doubt motivated by the dissenting judge being sorry to be on the losing side of the decision, and so he characterizes Pierson as an "interloper" and suggests he was reaping what he didn't sow. [Note that that this same basic argument gets made, and essentially rejected, in the Edwards v. Sims cave ownership case that we'll discuss tomorrow.]

There could be a lot of situations where the facts might justify an unjust enrichment claim. For example, suppose that in the mink example from class, Bowman captures the escaped mink (whereupon he learns it had been tagged by Lambert). He finally tracks down Lambert, who comes to get the mink two weeks later. In the meantime, Bowman had spent several hundred dollars feeding the mink, caring for it, and trying to locate Lambert. In that case, Bowman probably can't claim ownership of the mink (the fact that Lambert had tagged it would likely cause a court to conclude that Bowman had effective notice of Lambert's prior ownership claim), but he could argue that if Lambert is allowed to recover the mink without having to reimburse Bowman for the costs he incurred feeding and caring for it, then Lambert would be unjustly enriched. In that case, the court might well allow Bowman to assert an unjust enrichment claim and might only allow Lambert to recover the mink after first compensating Bowman for his reasonable costs in caring for it.

2. In the discussion in class today about the opinion in Popov, you suggested that the "pre-possessory interest" in the ball that Popov had is the same as having "constructive possession." I'm not sure I understand that, so can you elaborate?

What I was trying to say is that the Judge in Popov held that Popov had established a "pre-possessory interest" for the same reason that courts in prior cases use the idea of "constructive" possession — i.e., for policy reasons. In Popov, the court is using the idea of Popov having a "pre-possessory interest" as a way to take account of the wrongful conduct of others in the crowd and the extent to which that conduct may have effectively prevented Popov from having an opportunity to complete the catch. In the trespass example we talked about in conjunction with Pierson (trespassing hunter vs. landowner where the animal was shot), we said that a court might conclude that the landowner had prior "constructive" possession of the animal for the sake of punishing the trespassing hunter by not allocating him the superior property right in the animal and thus discouraging future hunters from trespassing. In that sense, the idea of Popov having a "pre-possessory interest" in the eyes of the judge is analogous to the idea of saying that he had established "constructive possession" of the ball.

But they aren't exactly the same, as the court's "opinion" proceeds to demonstrate. If we rule that Popov had established constructive possession of the ball, there's no question that he established that possession PRIOR to the time that Hayashi got the ball in his hands. Thus, Popov would've been "first" to possess the ball, and he should prevail over Hayashi, regardless of Hayashi's good faith. By contrast, if we rule that Popov had not established constructive possession of the ball — either because we believe he dropped it himself or because we don't think he had a legitimate expectation of being able to try to complete the catch without interference — then Popov never established a property right in the ball before Hayashi did, and Hayashi should prevail over Popov.

So in my view, the trial judge made up the concept of "pre-possessory interest" out of whole cloth because then he could rule that interest was of "equal dignity" to Hayashi's possessory claim and he could "split the baby" rather than award the ball to one party or the other. I don't think there's any justification for that in the prior case law — all of which focuses upon which party had prior possession in a temporal sense. In a temporal sense, I don't see how you can say Popov and Hayashi have claims of equal dignity. Certainly, no other cases, before or since, use the term "pre-possessory interest." So it isn't the same as "constructive possession." But, the reason that the judge characterizes Popov as having a pre-possessory interest is a policy reason (discouraging unruly crowd behavior), and in that sense, the judge is doing something similar to judges who have used the concept of "constructive possession" for similar policy reasons.

3. In the United States Steel case, could the City have condemned the plant from U.S. Steel and then operate the plant as a means to avoid the consequences of the plant closing? Would that have been a "public use"?

I think it is likely that if the City had decided to condemn the plant using eminent domain and to operate the plant itself to keep the community from losing the plant, that it would have been viewed as a legitimate "public use" within the meaning of the takings clause. However, there are several other legal and practical problems, other than the public use requirement, that would make such a taking VERY unlikely.

The first problem is the political one. Without question, taking the plant and all the equipment in it would be very expensive, and the City of Youngstown is already in tenuous financial condition. Raising the taxes and fees necessary to amass the funds for such a purpose might be a tough sell to get through the City Council, and perhaps may even require a popular vote that the residents might well refuse to approve. It probably would be viewed as politically untenable.

The second problem is structural. The City of Youngstown may not have the legal authority, under the law of Ohio, to do this under Ohio law of local government. Some cities are "home rule" cities that have broad powers, and other cities are not and thus can only exercise powers that have been expressly granted by the state legislature. So even if the residents of Youngstown wanted to do it, Ohio law governing municipalities may not let them.

The third problem is also structural — it is likely that under existing case precedent, the city's attempt to take the plant could be challenged as unconstitutional in violation of the Dormant Commerce Clause. The Dormant Commerce Clause prevents municipalities from enacting legislation that would impermissibly burden interstate commerce. Many years ago, the City of Oakland, CA tried to condemn the Oakland Raiders franchise to keep them from moving to Los Angeles (as many of you know, they ultimately did move, but then later moved back to Oakland again). Ultimately, the courts concluded that the City's condemnation of the Raiders violated the Dormant Commerce Clause. I'm not going to try and explain the Dormant Commerce Clause; I'll let you save that fun for later Constitutional Law classes. If you just can't wait, I'm sure Prof. Hawley will be delighted to explain. :-)