MUSIC: Beethoven Symphonies #6 (1808) & #8 (1814) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991) See Whiteboard for Instructions for Selecting Partners for Panels

LOGISTICS: CLASS #4 1 st Dean’s Fellow Sessions This Week – For §B: 9:30 Here; 9:30 in F200 – For §D: Wed & 11:00 in E265 Posted on Course Page: – Shack v. State Self-Assessment Exercise (Form Like 1 st Elements Group Written Assignment). – Next Set of Course Materials & Extensions of Syllabus & Assignment Sheet

LOGISTICS: CLASS #4 Panels & Future Assignments – Select Groups Today (See Whiteboard) – Panels Posted by Noon Today – 1 st Written Submission = Shaw Brief (Radium) Due Next Thurs. Night (9/4) In Info Memo #1: Instructions … – For All Written Submissions (IM22) – For Case Briefs (IM23) I’ll Take Qs Out of Class & by , Then Next Tues in Class

CASE BRIEF: Issue (Recap) Party Appealing Claims the Lower Court Made a Mistake. You Must Identify the Mistake: – Procedural Component of Mistake: What Should Lower Court Have Done Differently? – Substantive Component of Mistake: What Misunderstanding About the Legal Rule Caused the Lower Court to Make the Procedural Mistake?

Pierson v. Post: Issue (Recap) SUBSTANTIVE COMPONENT OF MISTAKE: Claim that Post pursued the fox is insufficient because pursuit alone doesn’t create property rights in the fox. Trespass on the Case = Indirect Interference with Property Rights. If Post did not have Property rights in the fox, Pierson did not commit Trespass on the Case when he killed it.

Pierson v. Post: Issue (Recap) PROCEDURAL COMPONENT OF MISTAKE: The Lower Court Should Have Dismissed the Case [as a Matter of Law] for Failure to State a Claim on Which Relief Could Be Granted In other words, even if everything stated in Declaration was true, Post was not entitled to any legal remedy (or “SO WHAT?”).

REPLYING TO DECLARATION/COMPLAINT: Motion to Dismiss for Failure to State a Claim (“So What?”) v. Answer (“Did Not!!”) Defendants often try versions of both, either concurrently re different claims or consecutively re the same claim.

Pierson v. Post: Issue For Elements Briefs, Combine Both Alleged Mistakes PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted + SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the fox is insufficient because pursuit alone does not create property rights in the fox. [One gloriously awkward sentence.]

Pierson v. Post: Issue For Elements Briefs, Combine Both Alleged Mistakes Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

Pierson v. Post: Issue Examples of Simple Substantive Issue (Appropriate for Torts or Property) Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox? OR What Acts are Sufficient to Create Property Rights in the Fox?

Pierson v. Post: Issue Simple Substantive Issue E.g., What Acts are Sufficient to Create Property Rights in the Fox? Cf. p.3: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]” For Elements briefs, state issue as a yes/no question.

CASE BRIEF: Issue  Holding Simplest Version of Holding: Issue is a question. Answer question “yes” or “no.” Repeat issue in statement form (adjust for positive or negative).

Pierson v. Post: Issue Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

Pierson v. Post: Issue  Holding YES. The Lower Court Erred by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox. Qs on Issue/Holding So Far?

CASE BRIEF: Issue/Holding SIDE NOTE: CASES FREQUENTLY HAVE TWO OR MORE ISSUES/HOLDINGS If so, your brief should separately list each issue followed by: – One or more versions of the holding deciding that issue – All rationales supporting that holding Most of the cases in our first two units (including Pierson) only have one issue.

CASE BRIEF: Issue/Holding IMPORTANT Q: HOW MUCH DETAIL DO YOU INCLUDE? Try to include factual detail that seems relevant to analysis/outcome. Can have different versions that incorporate more or less detail (narrower/broader). For Elements, start with a narrow version of the issue & holding, then try broader holdings DQ intended to help you start thinking about how to do this.

Pierson v. Post: Issue/Holding Version of Substantive Holding: To get property rights in a fox, you must be the first to “occupy” it, which means you must do more than pursue it.

Pierson v. Post: Issue/Holding Version of Substantive Holding (adding detail): To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it.

Pierson v. Post: DQ1.04(a) Significance of Facts Why might it matter that the fox is found on a deserted beach? On land that is not private property, no superceding ratione soli claim by landowner.

Pierson v. Post: Issue/Holding Versions of Substantive Holding (Generalizing): To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it.  To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it.

Pierson v. Post: DQ1.04(c) Significance of Facts Suppose fox was inside a well at the time it was killed. Affect the result? Assume well is also unowned.

Pierson v. Post: DQ1.04(c) Suppose fox was inside a well when it was killed… Could treat as trap (“toil”), which case suggests equals possession if fox cannot escape (see p.4): Can get possession of animals when traps “deprive them of their natural liberty, and render escape impossible….” – Significance of this may depend on whether fox driven into well by Pierson or by Post. If fox mortally wounded by fall into well, might belong to whoever drove it into well. (per Spain, § D) BUT Could say that Post still did not have actual physical possession.

Pierson v. Post: DQ1.04(c) Significance of Facts Suppose fox was inside a well when it was killed …. Contemporary accounts outside the legal record say this was what happened. Assuming these accounts are correct, why isn’t this discussed in the case?

Pierson v. Post: DQ1.04(c) Significance of Facts Assuming fox was inside a well when it was killed, why isn’t this discussed in the case? Probably not in declaration. Why might Post’s lawyer have failed to include this information?

Pierson v. Post: DQ1.04(c) Significance of Facts Suppose fox was inside a well when it was killed. Why wouldn’t lawyer include it in declaration? Maybe strategic decision. Maybe lawyer didn’t think it was important. Maybe lawyer didn’t know (asked wrong Qs)! Note Importance of Lawyer

Pierson v. Post: DQ1.04(c) Significance of Facts Given what you know about the case, anything wrong with this image of the well?

Pierson v. Post: DQ1.04(c) Significance of Facts This kind of well on a beach on Long Island would fill with salt water.

Pierson v. Post: DQ1.04(c) Significance of Facts I always assumed Pierson shot fox at bottom of stereotypical well, BUT … This kind of well on a beach on Long Island would fill with salt water. Detail in contemporary account says: – Fox went into a “shoal well” (shallow hole on beach that collects fresh water). – Pierson hit fox on the head with a broken fence rail. ONE MORAL OF THE STORY: KEEP REREADING!!

Pierson v. Post: DQ1.04(c) Significance of Facts Note that NY SCt is ruling on the sufficiency of Post’s Declaration. It appears that the Declaration doesn’t mention a well or how Pierson killed the fox, so those “facts” are not part of the court’s analysis/decision. FYI: Bethany R. Berger, It's Not About the Fox: The Untold History of Pierson v. Post, 55 Duke L.J (2006)

CASE BRIEF: Narrower v. Broader Versions of Holdings Different ways to articulate what a court decided that contract or expand the scope/reach of the decision.

CASE BRIEF: Narrower v. Broader Versions of Holdings NARROWER Covers fewer situations Includes more facts More specific BROADER Covers more situations Includes fewer facts More general

Pierson v. Post: Issue/Holding To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it. (Broader)

FAILED RELATIONSHIPS FAILED RELATIONSHIPS: Narrower v. Broader Versions of “Holdings” Different ways to articulate the lesson you should take away from the break- up that contract or expand the scope/reach of the lesson.

FAILED RELATIONSHIPS FAILED RELATIONSHIPS: Narrower v. Broader Versions of “Holdings” Different ways to articulate the lesson you should take away from the break-up that contract or expand the scope/reach of the lesson. “I’ll never date a musician again!!”

FAILED RELATIONSHIPS: FAILED RELATIONSHIPS: Narrower Versions of “Holdings” contract Different ways to articulate the lesson you should take away from the break-up that contract the scope/reach of the lesson. “I’ll never date a musician again!!” Musician who is an Only Child? Keyboardist? Person in a Rock Band?

FAILED RELATIONSHIPS: FAILED RELATIONSHIPS: Broader Versions of “Holdings” expand Different ways to articulate the lesson you should take away from the break-up that expand the scope/reach of the lesson. “I’ll never date a musician again!!” Woman? Human Being? Sentient Creature?

Pierson v. Post: Issue/Holding To get property rights in [a fox] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in [an animal] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Too Broad???)

Pierson v. Post: DQ1.04(b) Significance of Facts Why might it matter that the hunted animal is some other animal as opposed to a fox?

Pierson v. Post: DQ1.04(b) Why might it matter that the hunted animal is some other animal as opposed to a fox? Might want different rule for: Pets/Domestic Animals Endangered Species Animals in School/Flock (per Keller §B) Very Valuable Animal Fox w Bleached Head & Miley Cyrus T-Shirt

Pierson v. Post: Issue/Holding To get property rights in [a fox] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in [an animal ferae naturae] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Broader, but clearly still supported by text)

Pierson v. Post Significance of Facts Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal?

Pierson v. Post Significance of Facts Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal? None. Claim on appeal is that even if all facts are as alleged, Post cannot win because his pursuit did not create property rights in fox.

Pierson v. Post: Holding Version of Substantive Holding: To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it.  To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means … [specifics ???]

Pierson v. Post: Holding What Constitutes Possession of Wild Animal? Actual Physical Possession – This is established prior to the case and everyone treats it as given. – Because it is uncontested here, it is not part of the issue/holding.

Pierson v. Post: Holding What Constitutes Possession of Wild Animal? Actual Physical Possession (Uncontested) Majority Refers to Two Other Possible Ways to Get Possession: – Mortal Wounding – Traps & Nets

Pierson v. Post: Holding What Constitutes Possession of Wild Animal? Actual Physical Possession (Uncontested) Majority Refers to Two Other Possible Ways to Get Possession: – Mortal Wounding – Traps & Nets Note: Court discusses these two options although they were not part of the facts of the dispute it is resolving.

Pierson v. Post: DQ1.05 Holding v. Dicta Courts often comment about fact situations different from the cases before them. What are some of the pros and cons of judges discussing facts not before them?

Pierson v. Post: DQ1.05 Some pros and cons of judges discussing facts not before them: PRO: Provides instructions to lawyers in future cases PRO: Helps clarify reasoning & scope of opinion CON: Want limits on judicial power (killing fox  death penalty) CON: Judges’ decisions may be better-reasoned if made in the context of real facts with interested parties each presenting their strongest arguments. This list arguably supports common distinction between “holding” and “dicta.”

Pierson v. Post: DQ1.05 Holding v. Dicta (Simple Version) HOLDING Decision court made that resolved a disputed issue Language necessary to reach result Binding on future courts DICTA Statements court made that did not resolve a disputed issue Language not necessary to reach result Not binding on future courts (BUT can be very persuasive: “Dicta, schmicta!”)

Pierson v. Post: DQ1.05 Holding v. Dicta Version of Substantive Holding: To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it.  To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means you must take physical possession, mortally wound it, or capture it in a net or trap. Hard Q: Holding or Dicta?

Pierson v. Post: DQ1.05 Holding v. Dicta Substantive Holding ? (What Rule is Court Trying to Establish?) Pursuit alone is insufficient to create property rights in a wild animal. -OR- To create property rights in a wild animal, you need to physically possess it, mortally wound it, or catch it in a trap or net.

Pierson v. Post: DQ1.05 Holding v. Dicta Substantive Holding ? Pursuit alone is insufficient to create property rights in a wild animal. -OR- To create property rights in a wild animal, you need to physically possess it, mortally wound it, or catch it in a trap or net. How/when will you know for sure whether language in case is dicta or part of holding?

Pierson v. Post: DQ1.05 Holding v. Dicta How/when will you know for sure whether language in case is dicta or part of holding? Often can’t know for sure until same court explains in subsequent opinion!!

Pierson v. Post: DQ1.05 Holding v. Dicta After case comes down, often left with uncertainty as to exact scope of result. BUT: Need to counsel clients. Need to craft arguments in litigation.

Pierson v. Post: DQ1.05 Holding v. Dicta After case comes down, often left with uncertainty as to exact scope of result. BUT: Need to counsel clients. Need to craft arguments in litigation. FOR GUIDANCE, LOOK TO RATIONALES