MUSIC: Gustav Holst, The Planets (1914-16) London Philharmonia Orchestra (1996) conductOR: Leonard Slatkin

MUSIC: Gustav Holst, The Planets (1914-16)

London Philharmonia Orchestra (1996)conductOR: Leonard Slatkin

Pierson v. Post: DQs10-11 (Types of Rules)

First-in-Time: Likely Winners & Losers

CAPTURING ANIMALS?


First-in-Time: Likely Winners & Losers

PARKING FOR LAW SCHOOL (among holders of same type of permit)


Alternative Approaches to First-in-Time:

CAPTURING ANIMALS?



CAPTURING ANIMALS?

DQ8: What rule would you want if you were trying to preserve the fox

population because foxes are commercially valuable?



CAPTURING ANIMALS?DQ8: 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 (among holders of same type of permit)


Choosing Among Property Allocation Systems

•Relevant Considerations Include:–Administrative Costs (Simowitz point)– Likely Winners & Losers– Effects on Participants’ Behavior



Pros & Cons of First-in-Time Rules:•Likely Benefits– Often Reasonable Degree of Certainty– Ease of Administration

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



We’ll Return to This Type of Choice 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


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–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

LOGISTICS: TUESDAY SEPTEMBER 4• After class today, I’ll post Info Memo #2 & Update

Syllabus & Assignment Sheet to Reflect• Radiums: Shaw Brief Due Thursday @9pm– Look in IM#2 for:• Formatting Instructions & Common Writing Problems• Model for Liesner Brief

– I’ll take Qs tomorrow in class

• I’ll Post Instructions for Group Written Assignment #1 Next Week & Take Qs in Class

Transition: Pierson Liesner

• Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

Transition: Pierson Liesner

• Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

• Fights Between 1st & 2d Hunter:– If Animal Unowned, no Q that 2d Hunter Wins– Issue: Had 1st Hunter Done Enough to Get Property

Rights Before 2d Hunter Intervened

Transition: Pierson Liesner• 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

Transition: Pierson Liesner• 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)

Liesner v. Wanie: Context

1914


1914: Deaths•Joshua Lawrence Chamberlain (Civil War Hero)•John Muir (Naturalist)•Jacob Riis (Journalist/Author)•19th Century Industrialists– CW Post (Grape Nuts & Other Cereals)– George Westinghouse (Railroad Brake and Electronics)– Frederik Weyerhauser (Timber & Paper)


1914: Births•Alec Guiness•Bert Parks•Joe Louis•Joe DiMaggio•Ralph Ellison•Howard K. Smith


1914: Introduced in U.S.•term “Birth Control” (coined by Margaret Sanger)•First Blood Transfusion•Doublemint chewing gum•Elastic Brassiere •Federal Trade Commission •Co. that will become Greyhound Bus •Mother’s Day (by Congr. Resolution)


1914: Introduced in U.S.•New Republic Magazine•Panama Canal •Pygmalion by GB Shaw•Rookie Pitcher: Babe Ruth•Tarzan of the Apes•Teletype Machine

•Traffic Lights using red-green signals


1914: World War IJune 28: Archduke Francis-Ferdinand

Assassinated in Sarajevo:

“The Shot Heard Round the World”


1914: World War ISept. 5: 1st Battle of the Marne Begins•NE of Paris, French 6th Army Attacks Germans Allied Victory


1914: World War ISept. 5: 1st Battle of the Marne Begins•NE of Paris, French 6th Army Attacks Germans Allied Victory•Two Million Soldiers Participate


1914: World War ISept. 5: 1st Battle of the Marne Begins•NE of Paris, French 6th Army Attacks Germans Allied Victory•Two Million Soldiers Participate •500,000 Killed or Wounded


1914: World War ISept. 5: 1st Battle of the Marne Begins

•NE of Paris, French 6th Army Attacks Germans Allied Victory•Two Million Soldiers Participate •500,000 Killed or Wounded

Dec. 24-25: Christmas Truce

Liesner DQ17-18: RadiumPLAYING WITH RULES

Setting up DQ17-18 for Next Class

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?



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

flavors?– Any dish requiring particular skill?

Liesner DQ17-18: RadiumPLAYING WITH RULES: WHICH RULE TO USE?


v. Many Hands Make Light Work

Liesner Brief: Uranium

STATEMENT OF THE CASE:• Who is Suing Whom?

Liesner Brief: Uranium

STATEMENT 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 …– Wanie disputes on appeal whether the plaintiffs

mortally wounded the wolf, so can’t treat it as given.– SEEKING WHAT RELIEF?

Liesner Brief: UraniumSTATEMENT 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 raised later– ON WHAT LEGAL THEORY?

Liesner Brief: UraniumSTATEMENT OF THE CASE:

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

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

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

Liesner Brief: UraniumPROCEDURAL 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

Liesner DQ14: Radium

Application of Pierson to Facts of Liesner • 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.

Liesner DQ14: RadiumApplication of Pierson to Facts of Liesner

• Standard Law School practice to apply cases to hypothetical situations

• Applying one case to the facts of another is like using a hypothetical where the class already is familiar with the relevant facts

• Useful to remember that this exercise primarily is designed to help you understand Pierson (rather than Liesner)


For purposes of this exercise, let’s use FACTS as found by TRIAL COURT:

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



APPLY POLICIES FROM PIERSONReward Effective Labor?



APPLY POLICIES FROM PIERSONAchieve Certainty?

Liesner DQ15: UraniumDIRECTED VERDICT

•Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury


•Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury•Two Possible Grounds for Appeal– Trial Court Applied Wrong Legal Standard– Evidence Was Sufficient to Meet Legal Standard


•Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury•Last Time: D Conceded Relevant Legal Standards, So Must Be Claiming That He Presented Evidence Sufficient to Raise Jury Q


•Liesner is Unusual Case:– Directed Verdict for Plaintiff – Trial Record appears to contain factual disputes– Trial Court must have believed that undisputed

evidence proved P’s case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting plaintiff)


What test does the Wisconsin Supreme Court appear to apply as to when a trial court should grant a

motion for directed verdict?

“The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

“The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

Liesner DQ15: UraniumDIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914)

The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven.

Liesner DQ15: UraniumDIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914)

The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven.

What facts does Wanie claim were not proved beyond a reasonable doubt? (from last class)

“That … the plaintiffs were in vigorous pursuit of the game, the evidence is clear, and that in a few moments, at most, they would have had actual possession, is quite as clear. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

Liesner DQ15: UraniumWhat facts does Wanie claim were not proved

beyond a reasonable doubt? Claim must be:

• Wanie presented sufficient evidence that – either other people’s shots might have hit the wolf– or that the Liesners’ shots didn’t hit it

to create reasonable doubts that the shot that mortally wounded the wolf was fired by one of the Liesners.

Liesner Brief: UraniumISSUE

Did the Trial Court err • (Procedural) by directing a verdict for the plaintiffs• (Substantive) because the defendant offered

sufficient evidence to create a reasonable doubt about who fired the shot that mortally wounded the wolf, thus gaining ownership of it?

Liesner Brief: UraniumFACTS

• Plaintiffs 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.

• The Trial Court found that Plaintiffs 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.

Liesner DQ15: Uranium

Is the Wisconsin Supreme Court certain that the test for directed

verdict was met in this case?

The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….

Liesner Brief: UraniumHOLDING

No, the Trial Court did not err • (Procedural) by directing a verdict for the plaintiff • (Substantive) because all reasonable doubts may

well have been removed as to who fired the shot that mortally wounded the wolf, thus gaining ownership of it.

“The evidence in this case very strongly tends to

establish all the facts requisite to ownership of

the wolf by plaintiffs,—so strongly that all

reasonable doubts in respect to the matter, if any

would otherwise have remained, might well have

been removed by the superior advantages which

the trial court had.”


What are “the superior advantages which the trial court had”?


What are “the superior advantages which the trial court had”?

• Visual Observation of Witnesses• Hearing Testimony

She asked me to take her

to the dance.

Documents

MUSIC: Gustav Holst, The Planets (1914-16) London Philharmonia Orchestra (1996) conductOR: Leonard Slatkin