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1. Introduction I. Formalism vs. Instrumentalism a. Formalism: follow what the rule says (in excess = too rigid) b. 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) c. 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. II. General rule: first possession: the first person to capture or kill a wild animal acquires title to it.
2. Wild animals I. Whales a. Culture i. Whaling industry in New England - community-based industry. People in town knew each other well. ii. Demand for lighting, heating, cooking (oil from the whale) iii. Value of whale was very high: 1 whale = $3000 (compared to average household income of $700) b. Social goals i. Kill & capture whales (efficient hunt, efficient harvest, safety) ii. Minimize disputes among whalers (clear rules, effective enforcement). Conflict can divert resources away from getting whales iii. Fairness in distribution iv. Sustain the whaling industry itself (i.e., don't wipe out the whales) v. Present times: Discovery of petroleum (new fuel source to replace whale oil) and environmentalist campaigns to save whales: new rules to prohibit whaling. c. Institutions/ Rules i. First possession
1. Could lead to race to capture, environmental destruction, conflict
2. Difficult to determine what acts constitute first possession in this context. ii. Fishing season
1. Time limit - to limit over-capture induced by first possession rule
a. 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.) iii. Fishing method
1. Limiting technologies that can be used: Prevent too much capture of target fish; or small fish iv. Catch quota: Transferable quantity limit (e.g. ITQs) d. Other than first possession rule i. (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. ii. 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: a. Application limited to industry b. Custom recognized by entire industry c. Requires the only act of appropriation that is possible d. Necessary to the survival of the industry e. 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. e. Melville - Sperm whales i. Possession of carcass ("fast fish" vs. "loose fish") ii. Not enough to have harpoon and line in the whale (if whale breaks away, it is free) iii. Lower administrative cost than "reasonable prospect", "lowered boat", etc. iv. Perhaps better rule would actually be "possession living or dead" Fox
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