These pics are courtesy of Mike Sacks F1@1F
I am very proud to announce that Outfoxed: Pierson v. Post and the Natural Law will be published in the American Journal of Legal History. This is article #8, not that I’m keeping count 😉
If anyone has any feedback, please let me know. I have about 2 months before I need to submit my final manuscript. Here is the abstract:
Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt.
The holding in Pierson v. Post has been accepted as gospel for first year law students and property scholars alike — but how did the Court arrive at that conclusion? In 1805, New York did not have any statutory or common law to govern this dispute, so the majority and dissenting opinions turned to the natural law. The Judges relied on the writings of Punfendorf, Grotius, and Barbeyrac.
An analysis of the court’s reliance on the natural law writers has been neglected in property scholarship. This article aims to fill that gap. The natural law jurists wrote at great length about how to obtain a property right to a wild animal. This article provides the first thorough digest of these writings, highlights where the jurists agree and disagree with one another, and examines how faithfully the Pierson court construed their writings. Additionally this article shows how the holding exemplifies the common law court’s desire to promote certainty, and shows the congruence between the natural law and economic efficiency. By gaining a more complete understanding of the competing arguments of these jurists, Pierson v. Post is revealed to be a much more sophisticated opinion than we all thought as 1Ls.
Truer words have never been printed in a reported opinion.
AMERICAN AMUSEMENT MACHINE ASSOCIATION v. KENDRICK:
Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories. Take once again “The House of the Dead.” The player is armed with a gun-most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player’s duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty.
H/T Mike Sacks
Justice Alito, joined by Chief Justice Roberts and Justice Scalia, dissented from the denial of cert in Wong v. Smith. Alito contends that a “state trial judge . . . commenting and offering an opinion on evidence” is not “clearly established law” for purposes of AEDPA and 2254(d)(1), and does not constitute unlawful coercion of the jury.
In this case, the Ninth Circuit found that the California appellate court unreasonably applied clearly established Supreme Court law. Alito concedes that only one Supreme Court opinion is on point, Lowenfield v. Phelps, 484 U. S. 231 (1988). In this case the Court did not find an unconstitutional coercion. Alito also cites the case of Quercia v. United States, 289 U. S. 466 (1933), in which the trial judge gave his opinion about the validity of witness testimony. The Court held that that was unconstitutional:
In the instant case, the trial judge did not analyze the evidence; he added to it, and he based his instruction upon his own addition. Dealing with a mere mannerism of the accused in giving his testimony, the judge put his own experience, with all the weight that could be attached to it, in the scale against the accused. He told the jury that “wiping” one’s hands while testifying was “almost always an indication of lying.” Why it should be so, he was unable to say, but it was “the fact.” He did not review the evidence to assist the jury in reaching the truth, but in a sweeping denunciation repudiated as a lie all that the accused had said in his own behalf which conflicted with the statements of the Government’s witnesses. This was error and we cannot doubt that it was highly prejudicial.
However, both of these cases arose on direct appeal, and not under AEDPA. Accordingly, Alito found that “the clearly established law in this area provides very little specific guidance.”
Alito provides a historical narrative showing that at common law, judges preserved the right to opine on evidence and testimony.
For centuries, trial judges have enjoyed authority tocomment on the evidence. At common law, the judge was empowered to “weig[h] the evidence” and share an “opin-ion” with the jury, even “in matter of fact.” 2 M. Hale, History of the Common Law of England 147 (5th ed. 1794) (hereinafter Hale).* The practice is well established inthis Court’s cases as well. The Court has recognized thata trial judge has “discretion” to “comment upon the evi-dence,” to call the jury’s “attention to parts of it which hethinks important,” and to “express his opinion upon the facts.” Vicksburg & Meridian R. Co. v. Putnam, 118 U. S. 545, 553 (1886); Quercia, supra, at 469
Interestingly, Article VI, Section 10 of California’s Constitution specifically permits Judge’s to opine on evidence:
The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.
As Lyle Deniston points out, the dissenters could not garner a fourth vote necessary in order to grant cert on this case. Perhaps we may see a cert grant on this topic if the lower courts pick up on Alito’s dissent.
From an interview in Rolling Stone about the ancient Rolling Stone rocker:
”The whole business thing is predicated a lot on the tax laws,” said Keith Richards. “It’s why we rehearse in Canada and not in the U.S. A lot of our astute moves have been basically keeping up with tax laws, where to go, where not to put it. Whether to sit on it or not. We left England because we’d be paying 98 cents on the dollar. We left, and they lost out. No taxes at all..”
Who is Keith Richards? To quote Robin Williams, ““I believe that once we are all gone, Keith Richards will still be here…with 5 cockroaches saying ‘you know I smoked your uncle, did you know that?’”
H/T Freakanomics.