ELEMENTS B POWER POINT SLIDES Class #7 Wednesday, September 2, 2015

ELEMENTS B POWER POINT SLIDES

Class #7Wednesday, September 2, 2015

MUSIC: Gustav Holst, The Planets (1914-16) LoS ANGELES PhilharmoniC (2012)

Conductor: ZUBEN MEHTA

Lunch Tomorrow Meet on Brix @ 12:25Blaine * Brenner * Leavitt

Nieto * O’Neil * TateWatanabe

Second Dean’s Fellow Second Dean’s Fellow Session This Week:Session This Week:

Friday 11:00-11:50 a.m.immediately after class

Room F309immediately upstairs

Pierson v. Post: DQs1.10-1.11

First-in-Time (FIT) v. Alternative Types of Rules

Exploring underlying assumption in Pierson that FIT is good way to decide.

Looking at Animals & Parking

Pierson v. Post: DQs1.10-1.11 (Types of Rules)

• Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights)

• First-in-Time is a type of rule• Pierson opinions agree on First-in-Time, but not on

which version– Dissent: First in Hot Pursuit– Majority: First to [Something More]


• Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights)

• First-in-Time is a type of rule

• Multiple Examples Possible– First to Actually Possess– First to Wound or Capture (if no wound)– First to See (cf. five-year-olds)


First-in-Time: What Kinds of People Are Likely Winners & Losers

PARKING FOR LAW SCHOOL LAST TIME:•Students w Early Classes•Students w No Dependents•Morning PeopleCOULD ADD: •Live Nearby•No Need to Exit & Return (for jobs, apptmts, etc.)

Pierson v. Post: DQs1.10-1.11 (Types of Rules)First-in-Time:

What Kinds of People Are Likely Winners & Losers

CAPTURING ANIMALS?

Pierson v. Post: DQs1.10-1.11 (Types of Rules)First-in-Time:

What Kinds of People Are Likely Winners & Losers

CAPTURING ANIMALS?

v. v.


Alternative Approaches to FIT:

CAPTURING ANIMALS?•Distribute 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)


Alternative Approaches to First-in-Time:

CAPTURING ANIMALS?

DQ1.08: What rule(s) would you want if you were trying to preserve the fox

population because foxes are commercially valuable?



CAPTURING ANIMALS?DQ1.08: What rule 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



Parking for Law School Very Similar•Distribute Property Rights to Spaces in Advance:– Distribute by Auction, Lottery, Seniority (or Inverse),

Academic Merit (or Inverse), Carpool Slots– Transferable or Not


Choosing Among Property Allocation Systems

•Relevant Considerations Include:– Likely Winners & Losers–Administrative Costs (FIT Generally Low)– Effects on Participants’ Behavior



Pros & Cons of First-in-Time Rules:•Likely Benefits– Often Reasonable Degree of Certainty– Ease of Administration (cf. designated pkg spots)

•Possible Problems– Can Seem Arbitrary– May Reward Undesirable Attributes or Punish

“Hunters” for Things Outside Their Control



We’ll Return to This Type of Choice Among Possible

Rules (at Length) in Unit Two

LOGISTICS: CLASS #7• Second Weekly Dean’s Fellow Second Weekly Dean’s Fellow

Session Session SHIFTED (permanently) to SHIFTED (permanently) to Fridays 11:00am-11:50pm in Room Fridays 11:00am-11:50pm in Room F309F309

• Posted on Course Page:– Next Set of Course Materials & Extensions of Syllabus &

Assignment Sheet– Shack v. State Self-Assessment Exercise (Form Like 1st Elements

Group Written Assignment).– Sample Pierson Brief – Self-Quizzes for Next Few Readings

• Later Today: Full Schedule of Due Dates for Written Assignments

LOGISTICS: CLASS #7Radium: Written Radium: Written ShawShaw Brief Due Mon @ 4 pm Brief Due Mon @ 4 pm– In Info Memo #1: …• Instructions For All Written Submissions (IM21-22)• Instructions For Case Briefs (IM22)• Common Writing Concerns (IM24-26)

– I’ll Take Qs Out of Class & by E-Mail, Then on Fri in Class (everyone should take opportunity to look through and ask Qs)

LOGISTICS: CLASS #7Radiums: Written Shaw Brief Due Mon @ 4 pm– Graded but small % of whole (can help; not crucial)– You’ll all make mistakes; I’m weighing against your

peers and sense of where you should be after Class #8• Later briefs judged a little more strictly• What you can control: – Read instructions carefully – Reread before finalizing submission – Small penalties for formatting errors & other failure to

follow instructions (a few people every year fall below a grade line b/c of these penalties)

LOGISTICS: CLASS #7Radiums: Written Shaw Brief Due Mon @ 4 pm– To help with briefing form & substance• Suggested Brief Content (IM18-21) & Briefing Slides• Sample Pierson Brief (posted):• Shaw Self-Quiz (posted): • Sample Liesner Brief (to be posted after class Friday)

– No outside help from DF or prior students; just you and partner(s) if any.

– Protect integrity of blind grading; if unsure, communicate with my assistant Tina Sutton

– Rules for Special Dispensations re This Due Date: E-Mail to Tina Sutton (DO NOT TALK TO ME!!)

Pierson v. Post: Closing Up Brief

• Sample Brief Posted (with some explanatory comments). E-Mail if Qs.

• In addition to what’s already on slides, includes:– Concise version of “Facts”– “Result”– “Dissent”

CASE BRIEF: Result• How the opinion disposed of the case. E.g., – “Affirmed”– “Reversed and remanded [sent back to lower court] for…

[e.g.,] • … new trial.”• … further proceedings consistent with the opinion.”• … the trial court to issue the requested injunction.”

– “Affirmed in part [on Issue #1] and reversed in part and remanded for a new trial [on Issue #2].

• In Pierson, simply “Reversed” (no further proceedings necessary)

CASE BRIEF: Concurrence/Dissent• Describe Key Points of Separate Opinions:– Indicate where the opinion would diverge from

the majority in terms of –Result AND/OR– Identification or application of the relevant legal

standard.

– List the major supporting arguments

• See Posted Sample for Details• BUT No other separate opinions until Unit III

CASE BRIEF: Names of Judges• Don’t have to include for your submitted briefs.• You might want to indicate for your own reference,

especially for US Supreme Court or other court you are using a lot for a particular class.

• Sensible to include author of majority at end of citation or beginning of holding.

• Sensible to include author of separate opinions (and others joining that author) at the beginning of your descriptions of those opinions.

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


Intro to Info Found in/Relevant to Cases• Context–History of Dispute & Court Proceedings–Prior Legal Authority–Customs & Other Social Institutions–Historical Moment

• Language• Social Policies• Underlying Assumptions


Intro to Info Found in/Relevant to Cases• Context

• Language–Difficulty Discerning Precise Holding • No New Testament Red InkRed Ink

–Rationales• Social Policies• Underlying Assumptions


Intro to Info Found in/Relevant to Cases• Context• Language

• Social Policies–Reward Useful Labor–Get Certainty (In Tension w Flexibility)–Achieve Economic Benefits

• Underlying Assumptions


Intro to Info Found in/Relevant to Cases• Context• Language• Social Policies

• Underlying Assumptions– Irrelevance of Bad Intent–Use of Some Form of First-in-Time

Transition: Pierson Liesner/Shaw

• 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 Unowned, no Q that 2d Hunter Wins– Claim by 1st hunter is: Animal was already mine 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:1. MORTAL WOUNDING (Liesner)2. NETS & TRAPS (Shaw)

Transition: Pierson Liesner

Final Qs on Pierson?

Then to Liesner Brief& Radiums

Liesner Brief: Radium

STATEMENT OF THE CASE:• Who Sued Whom?

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 …– Wanie disputes on appeal whether the plaintiffs

mortally wounded the wolf, so can’t treat it as given.

–SEEKING WHAT RELIEF?

Liesner Brief: RadiumSTATEMENT OF THE CASE:

• Liesner and another, who claim to have shot and mortally wounded a wolf sued Wanie, who subsequently shot and took the wolf, to recover the body of the wolf …– This is what plaintiffs initially requested; issue of

damages arose later

–ON WHAT LEGAL THEORY?

Liesner Brief: RadiumSTATEMENT OF THE CASE:

ON WHAT LEGAL THEORY? (UNSTATED)• Might be “Trespass on the Case” (following

Pierson) or “Trespass” (if Wisconsin views shot as direct interference w Property)

• Might be “Replevin” = Common law action for return of goods improperly taken

Liesner Brief: RadiumPROCEDURAL 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

Our Approach to New Cases1. Introduce Basics of New Case with First

Parts of Brief2. Apply Prior Cases to Facts of New Case

(DQs 1.15, 1.23-1.25)3. Flesh Out Issue/Holding/Rationales of

New Case4. Apply New Case to Facts of Prior Cases

(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 toolstools 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 tooltool.

• 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 of 1st case to

facts of 2d• Can apply policies from 1st case to facts of 2d

Note: These are the three tasks required in the posted Shack

exercise and eventually in your 1st Written Assignment

Application of One Case to Facts of Another: Playing with RulesPlaying 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?



•Definitions: Who counts as a “Cook”?– Anyone helping with preparation?– Anyone with significant training/experience?– Anyone making decisions about ingredients or technique?– Anyone wearing poofy Chef’s hat?



•Scope of Rule: “Soup” and What Else?– Any dish?– Any dish requiring careful balancing of

flavors?– Any dish requiring particular skill?


WHICH RULE TO USE?


v. Many Hands Make Light Work

Liesner DQ1.15: UraniumApplication of Pierson to Facts of Liesner

For purposes of this exercise, let’s use FACTS as found by TRIAL COURT (1st para of opinion):

1.Ps mortally wounded animal, pursued2.Escape Improbable, if not impossible3.D then shot, killed & took animal


FACTS (as found by TRIAL COURT)1. Ps mortally wounded animal, pursued2. Escape Improbable, if not impossible3. D then shot, killed & took animal

APPLY LANGUAGE FROM PIERSON MAJORITY


FACTS (as found by TRIAL COURT)1. Ps mortally wounded animal, pursued

2.2.Escape Improbable, if not impossibleEscape Improbable, if not impossible3. D then shot, killed & took animal

• Pierson uses language of absolute certainty– “certain control”– “escape impossible”

• Liesner fudges.

Documents

ELEMENTS B POWER POINT SLIDES Class #7 Wednesday, September 2, 2015