PROPERTY (Section 1)
Spring Semester 2013
Discussion Questions for pages 71-83
, 83-89

1.  The common law traditionally allocated "ownership" or "property" rights (and prioritized competing claims) based upon the principle of "first possession" (or "first-in-time").  In Pierson v. Post, we see the court allocating ownership of a previously unowned object (the fox) to the party that established "first possession."  Why does the law focus upon "possession" so heavily?  Why is the concept of "possession" a suitable basis upon which to allocate and prioritize property claims?  Why not instead have the government issue title certificates for all objects (like we have for cars) that establishes the owner of an object?

2.  In Pierson, both parties are asking the court to apply the "first possession" rule, but each party is asking the court to interpret "first possession" very differently.  What is the "rule" or "principle" that each party is asking the court to use as a basis for resolving the dispute?  What justifications did/could each party advance in support of their "rule" or "principle"?  Which seems more persuasive to you?

3.  The dissenting judge in Pierson suggests that the court should establish the "rule" by reference to the prevailing custom of hunters.  Why might a court be inclined to use custom as a decision rule (i.e., as a rule of law for resolving the dispute)?  From your experience, can you identify any legal rules that are established by custom?  If hunting customs in the area at the time dictated that "hot pursuit" gave a hunter the right "to take an unimpeded first possession," as Professor Richard Epstein has suggested (note 4, page 82), why shouldn't the court in Pierson have used that custom as the rule for deciding the case?

4.  The dissenting judge in Pierson suggests that the dispute should have been submitted to the "arbitration of sportsmen."  One possible meaning of this statement is that the case should have been resolved by private adjudication (arbitration) rather than public adjudication (litigation in public courts).  Why do you think that the parties ended up in the public courts rather than before a private hunting tribunal?

5.  Suppose that the actions in the Pierson dispute had occurred on Post's land, and that Pierson had been hunting there without Post's permission.  Would this have changed the court's analysis of the dispute?  If so, how and why?

6. Is the court's opinion in Popov v. Hayashi consistent with the "first possession" rule articulated in Pierson v. Post? Do you believe that the court's judgment in Popov is a good result? A legally defensible result? Is there a difference?