#11066 - Acquisition - Property

Formalism vs. Instrumentalism

1. Formalism: follow what the rule says (in excess = too rigid)

2. Instrumentalism: rule based on purpose of accomplishing social goal, so revise and reinterpret same words over time to fulfill that social goal (in excess = unpredictable)

3. Institutional role – competence of courts compared to other institutions (legislature, group norms) in updating rules, choosing social goals, and choosing legal rule as instrument to achieve those goals.

General rule: first possession: the first person to capture or kill a wild animal acquires title to it.

Whales

1. Culture

   1. Whaling industry in New England – community-based industry. People in town knew each other well.

   2. Demand for lighting, heating, cooking (oil from the whale)

   3. Value of whale was very high: 1 whale = $3000 (compared to average household income of $700)

2. Social goals

   1. Kill & capture whales (efficient hunt, efficient harvest, safety)

   2. Minimize disputes among whalers (clear rules, effective enforcement). Conflict can divert resources away from getting whales

   3. Fairness in distribution

   4. Sustain the whaling industry itself (i.e., don’t wipe out the whales)

   5. Present times: Discovery of petroleum (new fuel source to replace whale oil) and environmentalist campaigns to save whales: new rules to prohibit whaling.

3. Institutions/ Rules

   1. First possession

      1. Could lead to race to capture, environmental destruction, conflict

      2. Difficult to determine what acts constitute first possession in this context.

   2. Fishing season

      1. Time limit – to limit over-capture induced by first possession rule

      2. Problems:

         1. Could be problem if bad weather during season (less fish, safety concerns because pressure to continue fishing anyway)

      3. Monitoring system could be costly

      4. Could still have overuse (induces race to capture even faster and overcapitalization of the fishing fleet – bigger, faster boats that can stay in water longer, process fish on board, etc.)

   3. Fishing method

      1. Limiting technologies that can be used: Prevent too much capture of target fish; or small fish

   4. Catch quota: Transferable quantity limit (e.g. ITQs)

4. Other than first possession rule

   1. (1) Share the wealth, (2) Reward useful labor, (3) Line holds the whale, (4) Possession of carcass, (5) Lowered boat, (6) Reasonable prospect, (7) Harpoon hold whale, (8) Brand holds whale, (9) Mortal wounding.

   2. Ghen v. Rich: D purchased whale at auction from man who found it washed up on beach. Whale had been killed at sea by P, and P’s identifying bomb-lance was left in the animal.

      1. Relies on social norms, industry custom to inform choice of official legal rule. Custom recognized because:

         1. Application limited to industry

         2. Custom recognized by entire industry

         3. Requires the only act of appropriation that is possible

         4. Necessary to the survival of the industry

         5. Works well in practice

      2. Possession of carcass (finder’s fee) – not practical for hunter to wait for whale to resurface. Hunter needs finder to be successful, so it is in interest of whaling industry to share rewards. Provides incentive for collaborative effort.

      3. Advances society’s goal of killing whales: killer ship could invest time/resources to searching for other whales without worrying about losing dead whale to another.

5. Melville - Sperm whales

   1. Possession of carcass (“fast fish” vs. “loose fish”)

   2. Not enough to have harpoon and line in the whale (if whale breaks away, it is free)

   3. Lower administrative cost than “reasonable prospect”, “lowered boat”, etc.

   4. Perhaps better rule would actually be “possession living or dead”

Fox

1. Pierson v. Post:

   1. Majority: Mortal wounding (deprives wild animal of liberty) with pursuit (manifestation of intention to take animal) – don’t need actual possession of carcass. Could also trap animal, rendering escape impossible.

      1. Formalism – judges should apply established rules and rely upon learned authorities

         1. Property rights are acquired by “occupancy only.”

         2. This case is one of “mere pursuit.”

      2. Instrumentalism – confining occupancy within the limits prescribed by learned authors promotes “certainty” and preserves “peace and order in society.”

   2. Dissent: Reasonable prospect (chasing with hounds, not beagles – maybe no reasonable prospect with beagles, maybe this indicates intentions of hunters, or maybe aristocratic bias)

      1. Formalism – rejected – laws should change with the times

      2. Instrumentalism – (1) society’s goal is to eradicate cunning, elusive foxes that prey on chickens, (2) select rule that creates strong incentives for hunters (reward useful labor of getting rid of foxes)

      3. Should defer to customs/ industry standard

   3. Utilitarianism – develop rule to extent that the property right motivates the activity (choose law to achieve social goals). Thus, law requires capture rather than pursuit.

      1. Competition – society’s goal is to capture foxes – so society rewards the captor

      2. Ease of administration – protecting pursuit would be more subjective (stakes not high, don’t want to waste judicial resources)

   4. tragedy of the commons (inefficient utilization), but at this time this was wanted (eradication of foxes)

      1. Today: culture changed, different social values

         1. Politics – safe the wildlife

         2. State ownership doctrine – state would have owned the land in this case (there is no unpossessed land), and they can regulate with hunting licenses, etc

      2. Politics to fix:

         1. Regulation

         2. Allocation

         3. Liability for excessive harm

      3. Allocation NOT by first possession

         1. Broadcast spectrum auctions – right to use certain frequency

         2. Auctioned greenhouse gas emissions allowances

Ducks

1. Keeble v. Hickeringill – P contended that D scared ducks away from his pond resulting in damages.

   1. Interference vs. Competition: If a person is in the process of entrapping animals, a competitor who also wants to capture the animals can interfere by competing to capture the animals. However, a person who does NOT want to capture the animal cannot interfere (rationale: society wants the animal caught)

   2. Market utilitarian: promoting economic activity that benefits consumers (i.e., consumers of ducks). If competing, ducks going to market. If interfering, fewer ducks going to market.

   3. Tree bidder: What about Eco-Bidder for USFS trees who wasn’t allowed to buy? As conservation becomes more valued, laws might change (especially if sole reason of selling was to earn revenues from harvesting trees)

Johnson v. M’Intosh – P claimed valid title to land granted him by the chiefs of certain Indian tribe. P sues for ejectment of D, who is in possession

1. Might Makes Right – conquest at root of title? At odds with goal of peace & order among Europeans and with utilitarian rationale for private property

2. Melville: “What was America in 1492 but a Loose-Fish?”

3. Locke: “in the beginning, all was America”

4. Marshall: The principle was that discovery gave title to the government whose subjects, or by whose authority, it was made. Marshall specifically recognizes that Europeans could acquire title “by purchase” – recognizes Indians’ right to transfer?

5. Lockean/Natural Rights

   1. Implies kind of labor Indians did not was not kind of labor that establishes property rights – to leave Indians in possession would leave country in a wilderness.

   2. “They may . . . find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”

6. Distributive Justice/Human Rights

   1. General rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest.

   2. Despite goal of compassionate assimilation, it was “impossible to mix,” hence conflict

7. Utilitarianism

   1. Avoid conflict among European powers

   2. Within America: To leave Indians in possession = to leave country in wilderness.

   3. But, why not just purchase from Indians?

8. Personhood/Utilitarianism

   1. Loss aversion/it’s too late – “however extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained . . . becomes the law of the land and cannot be questioned”

9. Institutional Role of Courts

   1. “Conquest gives a title which the Courts of the conqueror cannot deny”

   2. Not saying Indians had no title or that it was right to extinguish

   3. Just saying that not for courts to decide (doesn’t want to undermine court’s authority – can’t just give all land back to Indians)

What remedies for Indians?

1. Go to Legislature: Tee-Hit-Ton Indians v. United States (1955) suggests that Congress can create or recognize title

   1. Native American right to occupancy of their land

   2. Indian’s rights not property rights but amount to a right of occupancy that can be terminated without any legally enforceable obligation to compensate.

2. 1790 Nonintercourse Act – forbids conveyance of Indian land without consent of U.S.

3. Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1975)

   1. The United States has a trust or fiduciary obligation to protect the land occupied by Native Americans - to look out for best interests of Indians

   2. Protects Indians? Or debases them?

   3. Policy has been to grant Indians title to a portion of the lands which they occupied, extinguish the aboriginal title to the remained of the land by placing such land in the public domain, and to pay the fair value of the title extinguished

Oil

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