down-the-foxhole.html.pm

#lang pollen

◊define-meta[page-title]{Down the foxhole}
◊define-meta[original-date]{2018-10-26}
◊define-meta[snippet]{Pierson v Post: who owns a killed fox?}

◊fig[#:src "assets/desportes-fox.jpg" #:width "300px"]

◊declare-work[#:type "legal-case-US" #:title "Pierson v Post" #:year
"1805" #:citation "3 Cai R 175" #:jurisdiction "NY SC" #:url
"http://www.courts.state.ny.us/reporter/archives/pierson_post.htm"
#:id "Pierson"]

◊declare-work[#:type "article" #:author "Angela Fernandez" #:url
"https://www.jstor.org/stable/27641649" #:title "The Lost Record of
*Pierson v Post*, the Famous Fox Case" #:journal "Law and History
Review" #:volume "27" #:issue "1" #:year "2009" #:first-page "149"
#:id "Fernandez, Lost Record" #:short-form "Fernandez, \"The Lost
Record\""]

◊declare-work[#:type "article" #:title "The Ancient and Honorable
Court of Dover: Serious Mock, Solemn Foolery, and Sporting Wit in
Nineteenth-Century New York State" #:author "Angela Fernandez" #:year
"2012" #:journal "Australian & New Zealand Law and History E-Journal"
#:volume "7" #:pages "194" #:url
"http://www.austlii.edu.au/au/journals/ANZLawHisteJl/2012/7.pdf" #:id
"Fernandez, Serious Mock" #:short-form "Fernandez, \"Serious
Mock\""]

◊declare-work[#:type "legal-case-US" #:title "Popov v Hayashi"
#:citation "WL 31833731" #:year "2002" #:jurisdiction "Cal Super Ct"
#:id "Popov"]

◊declare-work[#:type "article" #:author-given "Dhammika"
#:author-family "Dharmapala" #:author2-given "Rohan" #:author2-family
"Pitchford" #:year "2002" #:volume "18" #:issue "1" #:pages "39--66"
#:title "An Economic Analysis of Riding to Hounds: *Pierson v Post*
Revisited" #:journal "Journal of Law, Economics, & Organization" #:url
"https://www.jstor.org/stable/pdf/3555069.pdf" #:id "Dharmapala"]

◊declare-work[#:type "article" #:title "Legal Fictions in *Pierson v
Post*" #:author "Andrea McDowell" #:year "2007" #:journal "Michigan
Law Review" #:volume "105" #:issue "4" #:pages "735--778" #:url
"https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1478&context=mlr"
#:id "McDowell" #:short-form "McDowell"]

◊declare-work[#:type "article" #:url
"https://www.law.uchicago.edu/files/file/coase-problem.pdf" #:author
"RH Coase" #:journal "Law and Economics" #:year "1960" #:volume "3"
#:pages "1--44" #:title "The Problem of Social Cost" #:id "Coase"
#:short-form "Coase"]

◊declare-work[#:type "article" #:author-given "Lara Larrimore"
#:author-family "Oullette" #:title "*Pierson*, Peer Review, and Patent
Law" #:journal "Vanderbilt Law Review" #:volume "69" #:pages "1825"
#:url "https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2803479"
#:year "2016" #:id "Oullette" #:short-form "Oullette"]

◊declare-work[#:type "article" #:title "The Relationship Between Basic
Patents and Improvement Patents" #:author "Arnold Silverman" #:journal
"JOM" #:volume "47" #:issue "1" #:year "1995" #:url
"https://www.tms.org/pubs/journals/JOM/matters/matters-9501.html"
#:pages "50" #:id "Silverman"]

◊declare-work[#:type "article" #:url
"https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1124&context=chtlj"
#:title "Patenting Improvements: The Costs of Making Patents Easily
Available" #:author "Douglas Applegate" #:volume "8" #:issue "2"
#:pages "429--446" #:journal "Santa Clara High Tech LJ" #:year
"1992" #:id "Applegate"]

In our Property Law course, we are now reading about possession. Our
case book mentioned ◊em{Pierson v Post}◊note{◊cite["Pierson"]
There's a good ◊a[#:href
"https://en.wikipedia.org/wiki/Pierson_v._Post"]{Wikipedia article}
too.} in a note, and that led me down a trail of reading this past
week.

◊sub-heading{The facts}

Lodowick Post was in pursuit of a fox. Another person, Jesse Pierson,
killed the fox and took it for himself. The issue is whether Post has
any property right in the fox that he was hunting.◊note{I've presented
only the scant facts as outlined in the case. Much more has been
learned about this case since then. ◊see["Fernandez, Lost Record"]}

◊sub-heading{The decision}

The court held that "mere pursuit gave Post no legal right to the fox,
but that he became the property of Pierson, who intercepted and killed
him." They seem to give two justifications for this approach. The
first is a ◊em{first-occupancy} or ◊em{first-possession}
justification:

◊q{the mortal wounding of such beasts, by one not abandoning his
pursuit, may, with the ◊u{utmost propriety}, be deemed possession of
him; since, thereby, the pursuer manifests an unequivocal intention of
appropriating the animal to his individual use, ◊u{has deprived him of
his natural liberty, and brought him within his certain control}
(emphasis mine)}

They also give a justification from enforcement efficiency: "for the
sake of certainty, and preserving peace and order in society." They
predict that if they were to rule that mere pursuit gives rise to a
property right, "it would prove a fertile source of quarrels and
litigation."

The dissent (Judge ◊a[#:href
"https://en.wikipedia.org/wiki/Henry_Brockholst_Livingston"]{Henry
Livingstone}) disagrees and gives an argument based on judicial
deference, labour, economic efficiency, and some interesting
assumptions about the role of the fox hunt in New York in
1805.◊note{While I treat this dissent at face value, there is another
dimension at play here that resists "straightforward
interpretation". Angela Fernandez sees this dissent as an example of a
genre she calls "solemn foolery". ◊see["Fernandez, Serious Mock"]}

First, Livingstone says the court should have just asked the
"sportsmen" (the fox hunters) what would rule would have made sense in
the context of their activity. (Today, this contextual approach has
been embraced in the common law.◊note{"These rules are contextual in
nature. They are crafted in response to the unique nature of the
conduct they seek to regulate. Moreover, they are influenced by the
custom and practice of each industry." ◊cite["Popov"]}

Regarding labour, economic incentives, and the role of the fox hunt,
he says (emphasis and translations mine):

◊q{ By the pleadings it is admitted that a fox is a "wild and noxious
beast." Both parties have regarded him, as the law of nations does a
pirate, “◊em{hostem humani generis},” [enemy of mankind] and although
“◊em{de mortuis nil nisi bonum},” [of the dead, say nothing but good]
be a maxim of our profession, the memory of the deceased has not been
spared. His depredations on farmers and on barn yards, have not been
forgotten; ◊u{and to put him to death wherever found, is allowed to be
meritorious, and of public benefit}. Hence it follows, that our
decision should have in view the greatest possible encouragement to
the destruction of an animal, so cunning and ruthless in his
career. But 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, “◊em{sub jove frigido},” [under cold Jupiter] or a
vertical sun, pursue the windings of this wily quadruped, if, just as
night came on, and his stratagems and strength were nearly exhausted,
a ◊u{saucy intruder}, who had not shared in the ◊u{honours or labours
of the chase}, were permitted to come in at the death, and bear away
in triumph the object of pursuit?}

◊sub-heading{Economic efficiency}

Livingstone is arguing that there is social good in killing foxes,
particularly because of their damage to farm animals. It's important
to encourage the fox hunt because it kills foxes. If a hunter who
spent a bunch of effort on pursuing a fox might lose it to a "saucy
intruder", there will be fewer hunters willing to put in that effort,
and there will be fewer foxes killed. So, let's not reward that
intruder with ownership of the fox.

These are not obvious moves. You might think---a lot of people
think---that judges merely try to discover what the law ◊em{is}. And
some people think that is a search for something called "natural law":
law that exists independently of our particular circumstances and
societies---objective moral truth. Or, slightly less extreme, that
judges are searching for a rule that is based on long-standing, even
though socially contingent, ideas about what is ◊em{right} in a moral
sense. This case makes it clear that judges sometimes ◊em{make} law,
and they sometimes make law based on pragmatic concerns and economic
concerns.◊note{Or maybe, they are ◊em{always} maximizing economic
efficiency. See ◊format-work[#:type "book" #:author-given "Richard A"
#:author-family "Posner" #:title "Economic Analysis of Law" #:year
"1973" #:publisher "Little, Brown"] And, ◊format-work[#:type
"article" #:author-given "Richard A" #:author-family "Posner" #:title
"The Economic Approach to Law" #:year "1975" #:journal "Texas Law
Review" #:volume "53" #:pages "757" #:url
"http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2881&context=journal_articles"]}
I don't know how often it was that judges considered these interests
in 1805 or how explicitly they typically presented those
justifications in their decisions.

Economic-efficiency arguments are tricky. You have to (at least
implicitly) choose a "welfare" function: an accounting of things that
you aim to have more or less of. A paper by Dharmapala and Pitchford
actually works through the effect that the majority's rule and
Livingstone's rule would have on the number of foxes
killed.◊note-cite["Dharmapala"] The results under their initial
assumptions roughly match Livingstone's intuition in his dissent. The
paper is fairly readable even if you ignore every equation.

Thinking about property allocation from this economic perspective is
only a tool for expressing reasons; it doesn't provide reasons on its
own. What you choose to capture in the welfare function can nearly
answer the question for you. In Dharmapala and Pitchford's article,
they included the price per pelt, enjoyment of the hunt, damage
averted to farm animals, investment by the hunter, and investment by
the saucy intruder. What about other externalities?
Enforcement/litigation costs might be significantly different under
each of the rules. In fact, the majority argues this, and Dharmapala
and Pitchford expand their welfare function to include enforcement
costs later in the paper. This just highlights how the definition of
the social welfare function is a political question. And, the
maximization of it is contingent on actual facts, some of which might
not actually be known or knowable. Why does the original hunter get
zero positive enjoyment when the intruder gets the fox?  Even assuming
that the positive experience during the hunt is diminished when the
intruder gets the fox, why does it cancel perfectly to zero?

It turns out that hunters found pleasure in the hunt even if they
didn't end up catching a fox. They also may have sought to maintain
the fox population. A "bagged" (live) fox was worth more than a dead
fox.◊note-cite["McDowell"] Again, this demonstrates that economic
arguments are only as convincing as the factors they consider.

How would the Coase theorem apply here?◊note-cite["Coase"] Perhaps the
hunters would pay people to stay clear of their hunt. The hunters
would have to pay the intruders as much money as they'd otherwise be
able to fetch by freeloading. But this seems untenable, because more
and more people could show up demanding payment to stay out of the way
of the hunt. Historically, though, it seems that rather than the
intruders being mere freeloaders, they were farmers just trying to
ensure the foxes got killed, to prevent injury to their own
animals.◊note-cite["McDowell"] If the only people that were intruding
were farmers at risk of losing animals to foxes, then a Coasian
solution could actually play out. The hunters would pay the farmers
for damage that happens to come to their farms due to foxes: a kind of
tax/insurance for having a pure hunt.◊note-cite["McDowell"] Another
option would be payments to the owner(s) of the land on which the hunt
takes place in exchange for the exclusive right to hunt. (Although,
the fox in ◊em{Pierson v Post} was killed on a public beach.)

◊sub-heading{Application: cybersquatting}

Where does this kind of situation occur today? The situation,
abstractly, is that there are two groups of people seeking benefit
from a limited resource. The resource is such that it takes some
effort to extract value from that resource and the person to initiate
that effort doesn't necessarily gain exclusive possession of that
value for quite some time, leaving room for a "saucy intruder" to cut
in and freeload or hold hostage the value desired by the person who
undertook the initial investment of effort.

Dharmapala and Pitchford argue that ◊a[#:href
"https://en.wikipedia.org/wiki/Cybersquatting"]{cybersquatting}
matches this scenario.◊note-cite["Dharmapala"] Should a domain name be
given to the first person to register it without regard to whether
another has already developed a brand around that name? Or should a
person who has put in the "honour and labour" of developing a company
and brand have rights to the associated domain name? It turns out that
in cases of pure cybersquatting (as opposed to dualing brands), the
common law, and now legislation, has applied a rule analogous to
Livingstone's rule: the company with the developed brand gets the
domain, rather than the cybersquatter.

◊sub-heading{Application: patent law}

This analysis has also been applied to criticize some outcomes of
patent law.◊note-cite["Oullette"]

Patent law can result in a division of rights between an initial
inventor and subsequent inventors that improve upon the original. An
inventor can only protect, exclude, and exploit that which they've
actually invented. Improvements are patentable separately by
subsequent inventors. But a subsequent inventor having improved upon a
previous patent could not sell the improved variant without a licence
from the holder of the original patent when that improvement builds
upon the original.◊note-cite["Silverman"]◊note-cite["Applegate"] And,
the original inventor would need to get a licence from the improver in
order to use their improvement.

The current law rewards early investment. We give patents to
inventions that might not be market-ready. Patent law does not require
commercial viability. However, patent law also rewards subsequent
investment by other inventors. It might take less investment to take
the invention from its earliest-patentable state to a
commercially-viable state. Improvers can ride on the early success of
the original patent-holder, but they can't free-ride. The improver
can't actually sell the commercially-viable product if it still uses
the original invention. However, the improver could exclude the
original inventor from using the particular improvement that is
patented by the improver. This could be used to extract a licensing
fee from the original inventor in order to make, use, or sell the
improver's commercially-viable variant. Here, we see a
mixed-allocation of rights in action.

But, what if we allocate rights too early? What if the original
inventor gets rights while they are still in "mere pursuit" of the
invention? As per Livingstone's analysis, this will discourage the
saucy intruder. Here, though, the saucy intruder is a would-be
inventor, a would-be improver. We don't want to discourage this
activity. That would work against the goals of the patent system.

Oullette argues that this happens when we give people patents that are
too speculative and that require undue experimentation on the part of
anyone wanting to use the patent. These patents don't do much to lower
the barrier to further improvement, but they reward the original
"inventor" with an unearned right to exclude. This discourages the
flurry of improvement patents that one might normally see after a
sufficiently disclosed invention is patented.◊note-cite["Oullette"]
She argues that this is a defect in the examination process.

◊sub-heading{How people use this case}

I found an article by Luke Meier on ◊a[#:href
"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2824501"]{using
◊em{Pierson v Post} as the first case in property law}. This is
almost a transcript of how he would teach his first few classes.

It seems that it's common to use this as the first case in a property
law course. We didn't look at this case first. We started by
thinking about what rights are part of the bundle of rights called
property, how those are contextual, and the different roles that
property rights fill in our society. Only now, seven weeks in, are we
starting to look at what is required, or what should be required, to
gain possession of a thing.