Justinian Goes Fox Hunting

May 26, 2021 Yves Casertano

Perhaps without realizing it, most United States-educated lawyers are familiar with Book II.1.13 of Justinian’s Institutes. Here is the relevant excerpt:

Does an animal become yours when it is wounded and ready to be caught? Some jurists thought it became yours at once and stayed yours till you gave up the chase, only then becoming available again to the next taker. Others thought that it became yours only when you caught it. We confirm that view. After all, many things can happen to stop you catching the animal.

This passage is referenced in Pierson v. Post, a New York case from 1805 that most American law students read in their first-year property law course. Pierson v. Post involved a dispute between two hunters over who was the rightful owner of a fox killed on a beach on Long Island: The hunter who first spotted and pursued the fox? Or the hunter who intercepted, captured, and killed the fox? Apart from its usefulness in introducing law students to the complexities of property rights, Pierson v. Post undoubtedly owes its place in the first-year law curriculum to its amusingly old-timey facts (a fox hunt in Long Island!) and the playfully flowery prose employed in the opinions, particularly the dissent (“[W]ho 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, ‘sub jove frigido,’ 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 saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?”)

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The risks of angelology for lawyers

May 14, 2021 Pat Smith

Anna Lukina proposes an interesting thought experiment for considering the law that exists in wicked states, like Nazi Germany, the Soviet Union, or the so-called Islamic State. She proposes looking at the fallen angels, at demons. She argues that demons have a need among themselves for hierarchy and indeed for rules. The world of demons, she notes, is not a world of chaos; there is still order among the demons. By analogy, a human community ordered toward evil ends has the same need. While she acknowledges that, by Aquinas’s definition of law, the law of an evil regime will be defective, she suggests that its law may well be effective as a coordination mechanism.

However, Lukina’s angelology has some problems. These problems, I think, lead ultimately to problems for Lukina’s argument. The crux of the matter is this: Lukina assumes—or seems to assume—that the bad angels establish some order among themselves in response to a need for order. She suggests that they band together and coordinate through rules, even if the ends they pursue are vicious. (An understatement.) However, Lukina does not account sufficiently for the created nature of angels versus men. “Quia parvus error in principio magnus est in fine”—“A small mistake in the beginning is a big one in the end” (QD de Ente et Essentia, Prooemium).

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Trademarks and Free Speech

May 4, 2021 Jacob Neu

Every now and then, a court case on a mundane topic grabs the public’s attention simply because of its colorful facts. Most people do not care about the nuances of federal registration of trademarks, for example, but everyone perks up when they hear the Supreme Court is considering the registrability of the trademark FUCT, as happened in 2019 in Iancu v. Brunetti.

I want to revisit Brunetti and its predecessor Matal v. Tam here for two reasons. First, they provide an entryway for discussing the relationship between trademarks and consumer protection, in particular how courts view the consumer protection function of trademarks as secondary to commercial interests. Second, despite its colorful nature Brunetti was a mundane case, which can be more illuminating on the thinking of justices than “blockbuster” cases, particularly when it comes to matters of statutory and constitutional interpretation.

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