Publisher’s Note: Today we have a relative rarity, a guest story by an acclaimed genre poet who also happens to be one of the MUniverse’s brightest young legal minds, and my good friend. Unaccustomed as she is to prose writing, she hasn’t really got the hang of things like ellipses placement (protip: they go everywhere) but I hope you enjoy it all the same, and stop back in tomorrow for your regularly scheduled MU chapter.
Next Friday’s OT will involve Callahan on a date.
A Question of Ownership
In Which No Members of the Law School Faculty or Staff Get Up to Shenanigans
by Elizabeth R. McClellan
“Who owns the manticore?”
The only sound was the professor’s own dictation pen, which was scratching out the question on the first of three notebooks laid out across his lectern. A few hands went up around the room, but Professor Proward didn’t choose to acknowledge them yet.
“For a moment, don’t worry about what the case says. Who should own the manticore?”
This time there were more hands. The professor smiled to himself as he scanned his seventy-five first year students. Some looked bored already and some just looked anywhere but at him. No one wants to be sure that they’ve interpreted a seven-century-old case correctly, especially when half of it refers to concepts they’ve never seen before, but everyone has an opinion about how the world should be. Enough hands went up, matched with alert faces, to ensure that the discussion would be varied.
Some days he loved this job. He would remember this feeling around Calendula, when it was always too cold outside and unpleasantly warm with tinges of dampness in his lecture hall and the students were starting to skip class to get their Research and Writing practical papers done in time and the temptation to mentally curse them all as the laziest, least promising class he’d ever taught grew overwhelming. Dan Proward was not going to burn out. He fully expected to still be teaching first year classes when he was twice the age he was now.
Some Laws of Property teachers started the year with a more modern example about a thing of small value – like a lost piece of Walled Market costume jewelry – found in the quad. He avoided this.
Law students were too frequently the kind of people who read all the rules in the student handbook, if only to find exploitable loopholes, and since many of his students were undergraduate MU alumni, had had several years of Campus Guard lectures about the University’s lost property policy, to boot.
An argument about what a given set of ordinances actually meant and the loopholes therein did not accomplish the objective of this lesson. Plenty of time for them to hone those skills in Oral Advocacy and in their future careers. Before they were unleashed on upper division courses or unsuspecting clients, Professor Proward and his colleagues had to teach them to think.
So he, like many of his contemporaries around the Imperium, began with the “manticore case.” No one called it Peltham v. Posten anymore, just “the manticore case.” It was useless as a precedent in the modern era for a number of reasons, not least that hunting manticorae was an Imperial offense punished second only to black-market traffic in manticore parts, and that people who were driven by the thrill of the desire to kill rare, powerful, beautiful things or by the baser economic impulse to do it anyway had a tendency to disappear, albeit with somewhat of a mess left behind, within a year of their return from the hunt. The laws of property in general had also developed beyond its rationale.
In short, it was a relic. But – in the same way that everyone knew you shouldn’t kill manticores unless you wanted the combined might of Imperium and… whatever came in the night for you after… down on your neck, everyone knew that a full manticore corpse was a windfall roughly akin to winning the Scrivener’s Clearinghouse three years in a row in modern terms.
Back when visibly displaying such a windfall wouldn’t have had you both thrown in prison—as well as jumping at every brushing, clicking, hissing, dragging sound you heard until you died of fright or disappeared leaving only a scrap of intestine or gnawed bone for the insurance adjusters to puzzle over—you could buy a fiefdom and at least three generations of a noble pedigree in exchange for handing your prize over.
That was assuming you didn’t have a plan more imaginative than buying yourself a little upward class mobility when you sought to hunt the manticore in the first place. He used this case precisely because it stuck in his class’ greedy little imaginations when the stakes were so high as to be practically unattainable.
Scanning over the hands, the professor also noted the faces that looked disgusted at the facts, and his dictation pen jumped to the right of the lectern to mark a Ø next to a few seating chart positions. His associate on the Journal of Demihumans and Monstrous Intelligences would appreciate the heads-up. Some of those students were possibly just disgusted by unrelated factors. The bench at the time was given to confusing its role as the trier of fact with its role as the narrator of a quest saga, and the individual reporters – back before court opinions and MagisLaw and Nexus – were worse.
While probably relevant under the modern rules, he knew there was no useful reason from a legal standpoint to describe the capture and evisceration in quite that florid or graphic detail, especially when modern research indicated that at least half of the stuff the parties had claimed happened during the “battle” was physiologically impossible. The greater part of it was probably a fish story. But those students who looked green, or angry – it wasn’t quite routine, but a significant number of them every year ended up on the Journal, because they saw the underlying problem in the case, the one not germane to this discussion.
Professor Proward would never admit to himself that part of the reason he kept assigning this case was to do this surreptitious pre-screening in a way that also lent itself to advancing the course objectives for all his students.
“Excellent. You’ve all thought about the problem.” This was disgustingly untrue, and he knew it, but flattery will get you a long way. They’d learn quickly enough that while the manticore case was a gimme, not being prepared for the remainder of the term would be much more embarrassing. “I’ll start at the back. Ms.-” – he consulted his seating chart – “Ms. Dawon. Who should own the manticore?”
The student was within the average age range of his class – late twenties, maybe early thirties, dark skin and hair. What he had not noticed during his own assessment of the class, was that Ms. Dawon, while keeping her face relatively impassive, had not removed her gaze from him, had noticed the dictation pen and even the tiny smile.
“Given our modern attitudes towards beings which can think, speak, form family units and so forth, I think neither of them should own the manticore,” – here the dictation pen marked another Ø and Dan frowned slightly, thinking it was going to be one of those lectures, “but I believe that’s outside the scope of the exercise given the age of the case. Given that, the answerer of the riddle should have owned the manticore.”
Ms. Dawon had noted the frown, and the incorrect assumption she made about the connection between it and the dictation pen’s activities would color her opinion of Proward (until she looked up his vitae on the school weave and revised her assumptions pending further data.)
Impressive. “Thank you, Ms. Dawon. Can you justify your answer?”
“Yes, Professor. On page seven-fifty-three of the text, third paragraph down, the reporter notes the bench’s discussion of the then-only-known method of hunting manticore, which was to successfully answer the riddle and then, when the manticore was extending you the courtesy of being treated as a thinking being rather than food by not killing and eating you, betray that courtesy by engaging in the spectacular acts of unprovoked violence the reporter goes on to describe for the next ten paragraphs.
“The case comments following the opinion note that this is the only reported case of its type because the respondent was motivated to follow petitioner on his hunt due to a long-standing rivalry between his family and the other’s. Respondent acted as he did for the precise purpose of robbing petitioner of his kill. The riddle-answerer should obtain the kill because, at least according to the art of the time, obtaining the manticore’s trust” – she spat the word – “was the only way to defeat it using known weapons, meaning the respondent could not have obtained it without the petitioner’s labor and risk. Further, the respondent was motivated by intent to deprive petitioner of his property by deception or trick, which is pretty close to fraud. Policy should not reward with an emperor’s ransom those who attempt to perpetrate a fraud by shifting the risk to another.”
Other students were looking at Ms. Dawon by the time she finished, some hostile, some interested. She was apparently not fazed by this, as she had kept her eyes fixed, almost hypnotically, upon her professor as she delivered her answer. Some part of his brain not already engaged with dictation and teaching noted Her eyes are the color of old coins and blood, but this was dismissed as fanciful by a lower-level filter that kept most metaphorical thinking out of the general stream, and unfortunately for Professor Proward’s opinion of himself as a highly observant lawyer was recorded in neither short- nor long-term memory.
“Very good, Ms. Dawon. You’ve touched on a couple of things we’ll assign categories to in a moment. Mr. Shelsten?” Note to self, scribbled the dictation pen. Don’t call on Ms. Dawon first unless you want to advance the class instead of propose discussion. The necessity of notes like these, and the ease with which they could be – misinterpreted – was why the dictation pen used Good Privacy Glyph englyphment. Several other students had doubtless come to the same conclusion as Ms. Dawon – although the fraud one indicated some kind of background knowledge and was a surprisingly sophisticated policy argument for a first-week first-year.
Check to see if Ms. Dawon was pre-law or paralegal. These students were often a delight, intellectually, but their advanced abilities tended to stifle responses from others who had arrived at the same result and couldn’t articulate their reasoning as well. It is always easier to say “I agree with so-and-so” than walk through it yourself. Calling on the students who obviously grasped the material without need for the discussion to develop their analysis second or third tended to draw out the finer points, without letting the slackers slide because others were better prepared.
Mr. Shelsten had about a snowball’s chance in a demon’s summer home to give an answer anywhere near as well-thought-out as Ms. Dawon’s, but he sided with the respondent. He had not, apparently, read the notes following the case, which explained the inconsistencies in the events as recounted, and reasoned that if the respondent had truly put up such a heroic fight against a dangerous beast who was trying its level best to kill him, then surely his labor should be rewarded over that of the riddler. “Sure, it looks unfair because this guy was trying to mess up the petitioner and all, like, intentionally, but that won’t be true in every case, it just makes us less sympathetic to him.”
After trying and failing to draw out of Mr. Shelsten any further analysis, the professor continued around the classroom and, when he had called on most of the hands that had gone up initially, he turned to the board. “Okay. So we’ve heard a number of different theories. Ms. Dawon says that the riddle-answerer should get it on the basis of his answer being required first before the respondent could kill the manticore. We’ll call this ‘first in time.’ Another theory that Mr. Ranger and Ms. La Belle expounded upon we will call ‘pursuit.’ Petitioner spent two and a half months on this expedition at considerable cost. Mr. Ranger notes that the value of the expedition in modern terms would be well over a million gold.”
As he spoke, he started a numbered list on the board and heard the corresponding scratching of pens. “Agreeing with the respondent, Mr. Shelsten mentioned labor. Although it may not have been as much labor as respondent claimed” – there was scattered laughter at this, which told him again who had done the reading – “certainly labor should be rewarded.” Labor was added to the list.
“Another theory several of you alluded to but did not state, because the answer is so simple people seem afraid to say it in this class however many times they said it in kindergarten, is ‘finders keepers.’ This isn’t a possession-by-find case, which we will pick up next week, but another common and commonly wrong aphorism, apt here, is ‘Possession is 9/10ths of the law.'” Possession went on the board. He noted with satisfaction that heads appeared to be nodding, and not in that way that presaged dropping off for a nap.
“Since respondent was first to lay hands and weaponry on the manticore, some theories of possession by capture would award it to him. Ms. La Belle, as well as Ms. Dawon, touched on a theory of possession which is a hybrid of the last two. While answering a riddle while faced with three rows of very sharp teeth and the knowledge that no one has yet returned to tell the tale of answering wrong is not, perhaps, as much labor as respondent claims, it is still labor within the meaning we attach to that word. Ms. La Belle, would you feel differently about the case if petitioner had just happened upon the manticore, instead of putting together an expensive expedition that took several months to complete?”
Ms. La Belle had obviously, from the fleeting look of panic at hearing her name and prompt return from woolgathering on some other dimensional plane than Law of Property, ascribed to the oft-repeated and oft-wrong rumor of law school that, if you volunteered an answer to a question early enough in the session, you could rest easy for the rest of the class. “I’m – not sure, Professor. I think so.”
The terror in her eyes at having admitted uncertainty this early in the term further indicated a run-in with an upper-level student full of Helpful Advice. We ought to print it in the academic regulations: Entering students are strongly advised to avoid Helpful Advice from upper level students unless said students are willing to produce an official copy of their transcripts and two affidavits from first-year professors that the shortcut(s) the student is providing are not paths to flunking out.
“Why are they different? It’s okay to not be sure. What about the two situations feels different?”
Ms. Dawon’s hand was up, but the professor wasn’t done trying to get her classmate to think out loud. “Well… the expedition was very expensive, because the reward was supposed to be… big? Valuable. If there wasn’t an expedition like that, if it was a chance encounter, the petitioner had risked less? So it feels less wrong in the chance encounter case for the person who killed it to get it instead of the riddle-answerer, I guess because… the person who killed it seems to have done more labor then? I think.”
Through his association with Professor Doyle and reading her work on members of marginalized communities, including but not limited to women, entering the formerly white-male-heterosexual-cisgendered-human club of the profession, Professor Proward knew exactly why so many of his students seemed trained to state their own thoughts only when peppered with qualifiers and delivered with a questioning inflection, but the knowing didn’t stop the annoyance, only shift its focus.
The dictation pen scribbled a shorthand note that would remind the professor, should he get a chance to mention it to Ms. La Belle in a way that would not make her feel singled out or threatened, that it might not be a bad idea for her to spend some time with Lysis Wallston in the skills lab before time for moot court or graded oral argument next term. Most of the guest tribunes they brought in wouldn’t know hegemony if it bit them in their privilege, and tended to grade students with the habit more harshly without providing useful feedback. Lysis was spending her third-year advocacy practicum in the lab because her rhetorical skills were exceptional. She could be counted on to address the problem without either making the student feel like it was a personal failing or getting too far off into political theories that made some students uncomfortable. If the school – any school – could be honest about things like this, we could help them more. Dan did what he could, knew it wasn’t enough, knew that he couldn’t really even grasp it all.
“Good point. The theory you describe is labor plus pursuit, at least in part – petitioner chased and petitioner did significant labor if you factor in both the riddle and the expedition, so his labor plus the fact that he was in pursuit at the time seems to give him a valid claim.” Labor plus pursuit went on the board. “This answer also touches on equity, which as you know already from your brief time in Professor Banks’ class, evolved out of our gut instincts against allowing the law to produce results which are lawful on their face, but clearly unfair. Do the actions of the respondent play into this? I believe Ms. Dawon has a further comment.”
Again, those eyes. The thought tried to find a rationalist mode of self-expression, failed and sank again, warning the reptile brain on its way down that there was no way the professor was going to take note of the hair on the back of his neck slightly rising as his student gave him her full attention, and not to bother initiating the kind of panic responses that would force him to notice, as there was no apparent, immediate danger.
“Yes, Professor. In considering the equities -” and here, another hint of the venom with which she had expelled the word trust earlier – “or at least the viable ones in a courtroom in that century, we see not only the vast amount of money which petitioner spent to achieve his goal, but the respondent’s trickery and bad motives, and we respond to them both when we decide.
“It goes to my earlier point. We shouldn’t reward this conduct, even if what is pursued is less valuable than here. Otherwise it encourages people to allow others to shoulder the risk, whether economic or physical, duck in at the last moment, and take advantage of people like petitioner who have been operating in good faith and on their own merit to take large risks for large rewards. If we want people to take these kinds of risks, we need a policy that encourages it by assuring them that they can’t be deprived of their reward after doing most of the work by someone seeking, not to take a risk, but to engineer a free ride.”
Dan was a little stunned. He’d never have a student manage to answer that question without some variant on “it just isn’t fair” creeping into the analysis. While “it just isn’t fair” wasn’t a wrong answer, it was a blunt and un-nuanced one that ought to be the start of the equity argument but was too often the finish. The dictation pen scratched out a part of an earlier note and revised: Find out where Ms. Dawon attended pre-law. (The dictation pen cannot be faulted, as it was subject to Dan’s thoughts and assumptions in making its corrections.)
“So doing the labor should guarantee you the result, Ms. Dawon?” He hated himself for asking it even as the words left his mouth. She hadn’t fallen prey to that oversimplistic generalization, and coming back at her like that made him look like he was using – no, actually, made him that teacher who uses that technique against students who have surprised him, instead of those who have actually made a sloppy point or poorly elaborated on a good answer. Dan did not want to end up that teacher, and noted that he owed Ms. Dawon an apology, in his thoughts if no personal opportunity presented itself.
“No, sir, Professor. You will not find me arguing that the manticore did not have a right to eat petitioner if he, having labored, failed, only that the respondent had no right whatsoever to take the described course of action and be rewarded for it.”
This novel point drew some good-natured laughter from the class, and a part of the professor that had been tense and growing tenser without his realizing it suddenly relaxed, leaving him a little surprised at the feeling of relief that swept through him. He had faced off with intelligent students before, intelligent students who barely spoke to him with the respect one affords a peer, much less a professor, mistaking combative and aggressive tactics for skill, modeling themselves after the attorneys they saw on TV and read about in the papers who backtalked tribs like they’d never heard the phrase “contempt of court.”
Nothing about Ms. Dawon’s manner was combative. She had addressed him with unfailing courtesy, and while she had spoken at slightly more length than was usual, she had not tried to dominate the discussion in any of the hundred little ways that you didn’t hit tenure track without learning to identify and suppress. She hadn’t even engaged in the mostly innocent but obnoxious habit of keeping her hand propped up throughout the entire discussion.
“Another good point,” said the professor, who had nothing else to say. “Are there any other factors regarding equity that play into the analysis?”
Mr. Shelsten’s hand went up. “I still stick with my first point. If you look at those two and a half pages the respondent could have died fighting that monster. He says petitioner just stood there, petitioner claims he was fighting respondent and the monster and received brutal injuries. They’d both been healed up by then so the court didn’t know who was lying about that part, but it didn’t matter. Nobody questioned that respondent slew the beast. We need a rule that rewards delivering the killing blow like that. We have no proof petitioner could have followed through and killed the damn thing. What’s fair – what’s equitable – is to give it to respondent. So what if he was tricky in getting into that position? Ms. Dawon says intellectual labor is still labor, so why isn’t tracking a guy without getting discovered for two months and then hiding yourself while he makes the creature vulnerable for you not intellectual labor, too?”
The dictation pen whirred over to the seating chart, put a reverse slash through a circle next to Mr. Shelsten’s name, and made a note that, later, would make the professor wince a little at the things going on under the surface of his thoughts. Five to one bet: skirmish. Ten to one: captain. All that passed through the surface of his mind was an intense distaste for the way Mr. Shelsten sat back and folded his arms after making that point, and the smug little smile on his face.
The professor’s eyes went automatically to Ms. Dawon, but her hand wasn’t up. Her arms were crossed on the desk in front of her, and she was regarding Mr. Shelsten with interest. Having seen the other thought bubble up and fall twice, the thought she’s looking at him like my cat looks at squirrels through the window and here there’s no window didn’t even bother getting up. But Mr. Ranger, the slow-talking man who was one of the older students in the class, the one who had pointed out the cash value of the expedition earlier in the hour, and who had been diligently taking notes the rest of the time, had his hand up now. The professor nodded at him to continue.
“I’m older than a lot of y’all in this class and I’m not from a city family. I spent a good piece of my childhood, when I wasn’t working, out hunting – deer in particular. Even if it wasn’t no manticore, and there was no riddle, what Mister Shelsten says ain’t right.”
There was a tiny murmur, almost imperceptible, and a few giggles.
“If I had gone down to the store in my hometown, after spending all day since four A.M. out in the woods with my bow in my deer stand, and told the people sitting around down there how I wounded a deer, and tracked it down through the woods, like you’re supposed to if you’re any kind of decent person, and that some… idiot… had decided that cause he was mad at me for…I don’t know, dating his sister or something… he was going to follow me through the woods and kill that deer right before I could and take the meat – that story would have made it through town before the sun got up the next morning, and it’d be a long time before anyone ever let that fool hunt on their land, or use their deer stand, or let him go hunting with them.
“He’d be damn lucky if the law didn’t take note of it – not officially, but talk spreads, and if there ever came up a question about whether he was taking more game than was allowed or killing pregnant animals or any of the things the law does take notice of, and there was a bit of proof he’d done it, he’d be up the creek, because he’s already proved he can’t be trusted to follow the rules.”
Professor Proward nodded. “That gets into the area of ‘custom’ or ‘usage’ – rules a trade or a particular group develop and use among themselves that may provide guidance when the law has to get involved and doesn’t have guidance on the specifics of a problem. We’ll get into usages in the next case.” He started to go on, but Ranger had started talking again.
“I said it don’t matter if there’s a riddle or that a manticore was worth more than a deer is, and I meant that. The notes say answering the riddle makes the manticore vulnerable where it wasn’t before, and Miz Dawon, she says that’s because they have rules, too. What I know for myself is that hunters don’t do that way, taking what someone else has wounded first, and don’t want other people to do that way, because if they do the system doesn’t work and I think that was what Miz Dawon was saying, put another way. And if Mister Shelsten thinks that it’s the same kind of skill and work to track an animal, and run the risk sometimes that it’s gonna kill you before you kill it, and to track a person to steal their kill from them because a technicality in the law says if you get in the last shot it’s not really theft – well, I don’t know about what the law has done about it since eight hundred years ago, but at home, that kinda policy would lead to fistfights.”
There was some more laughter, and a few of the students rolled their eyes, although more of them were nodding.
“Mr. Ranger makes an excellent point that usually comes up before now,” said the professor, smoothly cutting his student off in order to get out the theory under the anecdote. “Our law, now, and even then, tends to adopt policies which would, in our terminology, avoid dueling. Fistfights are still dueling, and the law prefers that we solve our cases in the courts. For those of you who think this point is a charming anachronism, think about how easy it would have been for either one of the parties to this case to have killed the other, out there in the wilderness, and claimed ‘The manticore did it’ later. We do examine whether or not adopting a rule will encourage people to solve their disputes by violence rather than reason.”
The lights dipped, once, briefly, to signal that the professor had two minutes to wrap up. “Our hour is almost up. For tomorrow, read the next two cases in your syllabus. Apply what we’ve talked about in this case to the next two possession by capture cases, with particular attention to the policies of equity and other things we’ve discussed in this class. I know that you have another lecture immediately after this one and encourage you to make use of my office hours if you have questions, as well as to discuss among yourselves on our CourseWeave site.”
The rustle of texts and notebooks and devices being stowed for the walk to the next lecture hall was not loud enough yet that he had to raise his voice to be heard. “I thank all of you for your participation today and would like to remind you that, while we take positions and defend ideas strongly in this class, utmost courtesy to your colleagues even in the middle of passionate disagreement is among the skills you are here to learn. Those rules apply in lecture as well as on the weave. See you on Wednesday.”
He watched them pack up and head out, answered a few brief questions about accessing the class weavesite for discussions, all the while keeping one eye on the very back row of the classroom, where Ms. Dawon was putting her things away, letting the rush clear out before she tried to exit the classroom. As she neared the front, Dan called out to her.
“Yes, Professor?” She didn’t approach, despite being twenty feet away from his lectern.
“I wanted to say – your participation today was excellent, and I was… unfair, to try to score a rhetorical point off you, about labor and entitlement to result.”
She gave him the oddest look, which earned the superlative by containing not much of anything at all: not puzzlement, not gratitude, not anything he could identify. From the previous distance he had not noted that she was beautiful. Her expression could have been modeled in stone and entitled The Goddess Surveying The Infinitesmal and Insignificant.
The look of nothing much continued for long enough for certain of the professor’s thoughts, the ones that were supposed to keep him away from danger, to start shifting around in their seats and getting ready to make another possibly fruitless trip up towards consciousness, but finally she spoke.
“I appreciate your courtesy in sharing that with me,” she said gravely, and before he could think of a reply, she was out the door in a swish of skirts.
Author’s Note: The case Professor Proward teaches his students is remarkably similar to an American case with a similarly lively fact pattern and backstory, often used as an introductory case in first-year Property Law courses. Wikipedia has more information on this famed real-world dispute.
Elizabeth R. McClellan, otherwise known as Pope Lizbet, is a law student, poet and writer from Tennessee. Her poetry currently appears in Goblin Fruit and Stone Telling, with complementary audio by S.J. Tucker. McClellan is a 2011 Naked Girls Reading Literary Honors Award finalist. She can be found elsewhere on Livejournal, Facebook, Twitter, and Goodreads. A long-time fan of MU, McClellan holds an honorary J.D. from Magisterius University, which sadly does not permit her to practice law in any jurisdiction she can access.