ELEMENTS D1 & D2 2017 POWER POINT SLIDES

ELEMENTS D1 & D2 2017POWER POINT SLIDES Class #7 Monday, August 28 & Tuesday August 29

MUSIC:Beethoven Symphony #9 (1824)(Last Day of Ludwig Oh da Joy)Recordings: Chamber Orchestra of EuropeNikolausHarmoncourt, Conductor (1991) D2 Lunch Tuesday Meet on Brix @ 12:05 Alvarez * Bartolini Cardelle * Hernandez Kuhl * O’Brien * White RADIUMS • Friday @ 3:00 pm: Shaw Brief Due (See Info Memo #2 for Instructions) • Tuesday @11:00 am: I will post sign-up sheet to schedule review meetings for next week

Pierson v. Post: DQs1.10-1.11 First-in-Time (FIT) v. Other Types of Rules (from last time) • Exploring assumption underlying both opinions in Pierson that FIT is good way to decide. • Looking at Animals & Parking • Preview of important Q we’ll do in depth in Unit II

Pierson v. Post: DQs1.10-1.11 (Types of Rules) What Kinds of People Are Likely Winners & Losers under F.I.T. PARKING FOR LAW SCHOOL? (Assume world with large lot next to Law School limited to law students) Note: Pierson Parallel (See Kathy Bates in Fried Green Tomatoes)

Pierson v. Post: DQs1.10-1.11 (Types of Rules) First-in-Time: What Kinds of People Likely Winners/Losers PARKING FOR LAW SCHOOL Winners Include: Students w Early Classes; Students w No Dependents; Morning People; Live Nearby; No Need to Exit & Return (for jobs, apptmts, etc.)

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: CAPTURING ANIMALS?

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternatives to FIT: CAPTURING ANIMALS? • Distribute Limited Property Rights to Hunt: • Divide by Area or by Time • Distribute by Auction, Lottery, Skill, Seniority • Transferable or Not • Regulatory Limits (Can Combine with Above) • Limit on Number Taken or Size • Limit on Time Allowed • Specific Regs (E.g. No Females During Breeding Season)

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: CAPTURING ANIMALS? DQ1.08: What rule(s) would you want if you were trying to preserve the fox population because foxes are commercially valuable? We’ll Return to This Q with Demsetz Reading

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: Parking for Law School? (Again, assume world with large lot next to Law School limited to law students)

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: Many Options for Parking Similar to Those for Hunting • Can Distribute Property Rts to Spaces in Advance: • Distribute by Auction, Lottery, Seniority (or Inverse), Academic Merit (or Inverse), Carpool Slots • Transferable or Not • Can add Regs re time limits etc.

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems • Relevant Considerations Include: • Likely Winners & Losers (Are “Right” People Rewarded) • Administrative Costs (FIT Generally Low) • Incentives = Effects on Participants’ Behavior (E.g., Training 1Ls)

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems Pros & Cons of First-in-Time Rules: • Likely Benefits of FIT • Often Reasonable Degree of Certainty • Ease of Administration (cf. designated parking spots) • Possible Problems with FIT • Can Seem Arbitrary • May Reward Undesirable Attributes or Punish “Hunters” for Things Outside Their Control

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems We’ll Return to This Type of Choice Among Possible Rules (at Length) in Unit Two

What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases • Some primarily to introduce you to system • Some will be tools used regularly in course • Anything you “need to know”, we’ll come back to repeatedly

What to Take Away From Pierson v. Post Intro to Info Found in/Relevant to Cases • Context: History of Dispute; Legal Precedent; Custom & Other Social Institutions; Historical Setting • Language: Difficulty Discerning Precise Holding (No New Testament Red Ink);Rationales • Social Policies: Certainty (BUT in tension with Flexibility); Reward Useful Labor; Achieve Economic Benefits • Majority’s Assumptions: Use Some Form of First in Time Rule; Bad Intent Irrelevant

Transition: Pierson  Liesner/Shaw • Property Law Generally: Often important for gov’t to know to whom something belongs at any particular moment. • All 3 Cases Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

Transition: Pierson  Liesner/Shaw • Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property • All 3 Cases: Fights Between 1st & 2d Hunter: • If Animal Unownedwhen 2d hunter takes it, no Q that 2d Hunter Wins • Claim by 1st hunter is: Animal was already my property when 2d hunter acted.

Transition: Pierson  Liesner/Shaw • Trying to Identify “Magic Moment” When Animal Changes from Unowned to Someone’s Property • Fights Between 1st & 2d Hunter • Legal Rules Here Temporal Not Comparative • Issue: Had 1st Hunter Done Enough to Get Property Rights Before 2d Hunter Intervened • Not asking if 2d Hunter did more or better labor than 1st Hunter

Transition: Pierson  Liesner/Shaw • Trying to Identify “Magic Moment” When Animal Changes from Unowned to Someone’s Property • Pierson Suggests Two Ways Besides Actual Physical Possession to get Property Rights in Wild Animals: • MORTAL WOUNDING (Liesner) • NETS & TRAPS (Shaw)

Transition: Pierson  Liesner Final Qs on Pierson? Then to Liesner Brief & Radiums

Liesner Brief: Radium STATEMENT OF THE CASE: [One Step at a Time Please] • Who Sued Whom? • Liesner and another, [description?,] sued …

Liesner Brief: Radium STATEMENT OF THE CASE: • Who Sued Whom? Liesnerand another, who shot and claim to have mortally wounded a wolf … • Wanie disputes on appeal whether the plaintiffs mortally wounded the wolf, so can’t treat it as given. • sued Wanie, [Description?] …

Liesner Brief: Radium STATEMENT OF THE CASE: • Liesner and another, who shot and claim to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf … • SEEKING WHAT REMEDY?

Liesner Brief: Radium STATEMENT OF THE CASE: Liesnerand another, who shot and claim to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf, to recover the body of the wolf … • Focus in Statement is on original lawsuit; Ps initially requested the body, so say that here. Issue of damages arose later, so could put in Procedural Posture if seems relevant. • ON WHAT LEGAL THEORY? (NOT EXPLICIT IN CASE)

Liesner Brief: Radium STATEMENT OF THE CASE: ON WHAT LEGAL THEORY? (UNSTATED) • Might be “Trespass on the Case” (following Pierson, though damages not requested at first)or “Trespass” (if Wisconsin views shot as direct interference w Property). • Might be “Replevin” = Common law action for return of goods improperly taken. • Your brief should note the uncertainty.

Liesner Brief: Radium PROCEDURAL POSTURE?:

Liesner Brief: Radium PROCEDURAL POSTURE: • Trial Court directed verdict for plaintiff and awarded damages. Defendant appealed. • Don’t need to mention plaintiffs’ motion for directed verdict; that step is implicit in court’s action • Don’t need to mention defendant’s motion for directed verdict; doesn’t affect reasoning or outcome • [General point re expectations in third week]

Liesner Brief: Facts • Trial Court found thatPs mortally wounded a wolf and pursued it to the point that escape was improbable, if not impossible. D then shot & killed the wolf and took the carcass. • As with Statement, need to recognize that mortal wounding still contested. Phrase in italics helps make clear that Wisc. S.Ct. doesn’t treat this as given.

Elements Skills Work:From Here to the Practice Midterm • 12 Classes; 6 Cases • Common Basic Exam Task: Applying Precedent to New Situation • Skill 1: Reading/Understanding Cases • Self-Quizzes • Careful Detailed Briefing • Feeddback on One Submitted Brief Each • Compare Others to Samples

Elements Skills Work:From Here to the Practice Midterm • 12 Classes; 6 Cases • Exam Task: Apply Precedent to New Situation • Skill 1: Reading/Understanding Cases • Skill 2: Applying Cases to Different Facts • Recurring Part of DQs (In Class & DF) • Group Written Assignment #1

Our Approach to New Cases • Introduce Basics of New Case with First Parts of Brief • Apply Prior Cases to Facts of New Case (E.g., DQs 1.15, 1.23-1.25) • Flesh Out Issue/Holding/Rationales of New Case • Apply New Case to Facts of Prior Cases (E.g., DQs 1.18(c), 1.26)

Application of One Case to Facts of Another • Cases are complex tools for lawyers. • Applying the language and reasoning of case to a new situation is a way to learn some of the things you can do with the tool.

Application of One Case to Facts of Another • Cases are complex toolsfor lawyers. Applying the language and reasoning of case to a new situation is a way to learn some of the things you can do with the tool. • Thus, when we apply Pierson to facts of Liesner, we primarily are trying to learn more about Pierson.

Application of One Case to Facts of Another • Can compare facts of two cases. • Can apply specific language from 1st case to facts of 2d. • Can apply policies from 1st case to facts of 2d. Note: These are the three tasks that make up most of your 1st Group Written Assignment

Application of One Case to Facts of Another • Specific language from a case can take the form of a “rule”(e.g., “prevailing rule” from Liesner). • Rules don’t always clearly indicate who will win a case, but do provide templates for how court or legislature wants you to discuss your case. • Here is an intro to some basic “moves” (types of arguments) you need to learn using a “rule” you already know:

Application of One Case to Facts of Another:Playing with Rules “Too Many Cooks Spoil the Soup”

Application of One Case to Facts of Another:Playing with Rules Too Many Cooks Spoil the Soup • Line-Drawing: How many is “too many”? • Vary with size of kitchen? • Vary with amount of soup you’re preparing?

Application of One Case to Facts of Another:Playing with Rules Too Many Cooks Spoil the Soup • Definitions: Who counts as a “Cook”? • Anyone helping with preparation? • Anyone with significant training/experience? • Anyone making decisions about ingredients or technique? • Anyone wearing a puffy Chef’s hat?

Application of One Case to Facts of Another:Playing with Rules Too Many Cooks Spoil the Soup • Scope of Rule: “Soup” and What Else? • Any dish? Any cooked dish? • Any dish requiring careful balancing of flavors? • Any dish requiring particular skill?

Application of One Case to Facts of Another:Playing with Rules (Frequently) WHICH RULE TO USE? “Too Many Cooks Spoil the Soup” OR …

Application of One Case to Facts of Another:Playing with Rules WHICH RULE TO USE? “Too Many Cooks Spoil the Soup” OR v.

Liesner DQ1.15: Radium Application of Pierson to Facts of Liesner For purposes of this exercise, let’s use FACTS as found by TRIAL COURT (1st para of opinion): • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal

Liesner DQ1.15: Radium:Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal Apply Language from Pierson Majority Relevant Passages?

Liesner DQ1.15: Radium:Application of Pierson to Facts of Liesner Relevant Passages (all from p.4) Include: • “bodily seizure not indispensable to capture” • “mortal wounding” + “not abandoning pursuit” • “unequivocal intention of appropriating” + “deprived of natural liberty (NL)” + “brought w/in certain control” • “deprived of NL”+ “escape impossible” + use of “industry & labor” • Not enough: “[S]eeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, … as to deprive them of their natural liberty, and subject them to the control of their pursuer….”

Liesner DQ1.15: Radium:Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal • “Deprived of Natural Liberty”? • “Certain Control” or “Escape Impossible”?

Liesner DQ1.15: Radium:Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal • Pierson uses language of absolute certainty (“certain control” & “escape impossible”) • Liesnerfudges in its description of facts.

ELEMENTS D1 & D2 2017 POWER POINT SLIDES