Forthcoming: Animal Law History in Jan 2013 UTLJ

Forthcoming in the January 2013 issue of the University of Toronto Law Journal:

Focus Feature: Foxes, Seals, Whales and the Rule of Capture: Animals in the Law and Legal History. 

The publishers' blurb:

The common-law rule on the capture of wild animals is often cited by law and economics scholars to demonstrate the superiority of clear rules over vague or "fuzzy" standards. In countless property law courses, the famous fox hunt case, Pierson v. Post (1805), is used to support the "catch it and kill it if you can" view of property: mere pursuit of a wild animal is insufficient to establish possession. Where "hot pursuit" might have been sufficient according to the sportsman's custom, escape was always possible, and the law preferred certainty. In this forthcoming focus feature edited by Angela Fernandez (Law, University of Toronto), four scholars spanning law and history challenge this rules v. standards approach to the rule of capture, demonstrating that, understood historically, the situation is much more complicated and interesting - which wild animal, which type of hunting, in what period all turn out to be important.

Bruce Ziff (Law, University of Alberta) explores the way that late nineteenth-century Newfoundland courts wrestled with the conflict between the rule of capture and a local practice of "deemed abandonment" for seal pelts. Discussing whale hunting, long understood as a place where the law defers to various customs, Robert Deal (History, Marshall University) argues that these customs have been distorted by many, from the great novelist Herman Melville to the law and economics scholar Robert Ellickson. Angela Fernandez traces how Pierson v. Post came into the American law school casebooks and explains the successive meanings given to the case by twentieth-century legal scholars, including its use in the rules v. standards debate. Christopher Tomlins (Law, University of California (Irvine)) provides a comment on the three articles.

Several articles from this special focus feature are now available on
University of Toronto Law Journal Advance Online

The Entitlements of Unallied Hunters After a Sequential Capture

Robert C Ellickson

DOI 10.3138/utlj.63.1.ellickson

Fuzzy Rules and Clear Enough Standards: The Uses & Abuses Of Pierson V Post

Angela Fernandez

DOI 10.3138/utlj.63.1.fernandez

The Judicial Invention of Property Norms: Ellickson's Whalemen Revisited

Robert Deal

DOI 10.3138/utlj.63.1.deal