ELEMENTS B1 & B2 POWER POINT SLIDES Class #10 Thursday, September 8, 2016 National Ampersand Day (no ifs or buts) & & & & & & & & &

Both Sections Today No Reserved Seats MUSIC: CLAUDE DEBUSSY Afternoon of a Faun (1894); Nocturnes (1900); The Sea (1905); Images D’Orchestre (1905-12) Boston Symphony Orchestra Conductor: CHARLES MUNCH (1956-62) Both Sections Today No Reserved Seats Tomorrow: I’ll Take Qs on Gen’l Instructions for Written Assignments & Specific Instructions for Assignment #1

ALL: EXERCISE FOR FRIDAY Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): (1) substantially permanently deprive [animal] of liberty (SPDL) (2) [have the animal] so in their power that escape improbable, if not impossible (3) [bring the animal] under control so that actual possession practically inevitable

(1) substantially permanently deprive [animal] of liberty (SPDL) Liesner DQ1.18(a): Oxygen (1) substantially permanently deprive [animal] of liberty (SPDL) Last Time: Facial Ambiguity re “Substantially” Might modify “deprived” creating two separate requirements (“Substantially [&] Permanently”) Might modify “permanently” making that requirement less strict

(1) substantially permanently deprive [animal] of liberty (SPDL) Liesner DQ1.18(a): Oxygen (1) substantially permanently deprive [animal] of liberty (SPDL) Last Time: Facial Ambiguity re “Substantially” Might modify “deprived” creating two separate requirements (“Substantially [&] Permanently”) Might modify “permanently” making that requirement less strict Latter reading more consistent with “escape improbable” and “practically inevitable”

(1) substantially permanently deprived [animal] of [its] liberty Liesner DQ1.18(c): Oxygen (1) substantially permanently deprived [animal] of [its] liberty Does Post get Property Rights if this is test? What might Post argue? Counters?

Liesner DQ1.18(a): Oxygen Property Rights in Animal if: (2) so in their power that escape was highly improbable, if not impossible (3) under the control of a person so that actual possession is practically inevitable POSSIBLE DIFFERENCES IN MEANING OF LANGUAGE: WHEN SIGNIFICANT?

WHEN DIFFERENCES IN LANGUAGE SIGNIFICANT? Liesner DQ1.18(a): Oxygen WHEN DIFFERENCES IN LANGUAGE SIGNIFICANT? Deciding (as here) if different formulations used by same court mean different things. Choosing between two tests used by other states or used in your state in different situations. Interpreting change in statutory language: Calif test for Condo Assn regulations : OK “if reasonable”  OK “unless unreasonable”

Liesner DQ1.18(a): Oxygen Property Rights in Animal if: (2) so in their power that escape was highly improbable, if not impossible (3) under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE: Possible difference between underlined phrases?

Liesner DQ1.18(a): Oxygen Property Rights in Animal if: (2) so in their power that escape was highly improbable, if not impossible (3) under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE: Possible difference between underlined phrases?

Liesner DQ1.18(c): Oxygen Apply to Pierson Facts: Property Rights if … under the control of a person so that actual possession is practically inevitable so in their power that escape was highly improbable, if not impossible We’ll leave for you & DF Sessions

Applying Legal Rule/Test Look for best arguments for each party Be cognizant of structure of test Use care with language Utilize definitions If significant doctrinal arguments for both parties, try to resolve with: Comparisons to facts of cases Other language from cases Policy arguments (incl. purpose of rule)

Musical Interlude Shaw-1902  1908 1914-Liesner The Most Performed Waltz in American Popular Music

STATE v. SHAW featuring Wallpaper with Fish. Setting Up KRYPTON DQ1 STATE v. SHAW featuring Wallpaper with Fish! Setting Up KRYPTON DQ1.27 for Tomorrow

STATE v. SHAW DQ1.27: Krypton Tomorrow: Should the result in Shaw be the same if the fishermen used a sunken boat instead of a net to trap the fish? Assume the boat retains the same percentage of fish that enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat)

STATE v. SHAW DQ1.27: Krypton NOTE: If Q = “Should the result be the same if we change one fact?” Really asking: “Why might result be different if we change the fact?” SO: Why might result in Shaw be different if people use a sunken boat rather than a net to catch fish (if both are equally effective)?

STATE v. SHAW Brief featuring Oxygen …

STATE v. SHAW Brief featuring Oxygen Beginning of course with Mr. Fish

STATE v. SHAW Brief: Oxygen STATEMENT OF THE CASE SPECIAL INFO RE CRIMINAL CASE Government always brings the suit, so can say: “State (or U.S.) charged X with [name of crime].” (OR) “Criminal action against X for [name of crime].” Relief Requested always is incarceration or fines; can leave unstated.

STATE v. SHAW Brief: Oxygen STATEMENT OF THE CASE “State charged [names?], [relevant description?], with [name of crime?].”

STATE v. SHAW Brief: Oxygen STATEMENT OF THE CASE “State charged Shaw, Thomas and another (or) Three defendants including Shaw and Thomas Shaw to tie to name of case Thomas because his trial is the one that is appealed Note existence of three Ds for accuracy. [relevant description?], with [name of crime?].

STATE v. SHAW Brief: Oxygen STATEMENT OF THE CASE “State charged Shaw, Thomas and another, who removed fish from nets belonging to others … Can’t say “stole” or that fish “belonged to others” b/c that’s what’s at issue with [name of crime?].

STATE v. SHAW Brief: Oxygen STATEMENT OF THE CASE “State charged Shaw, Thomas and another, who removed fish from nets belonging to others with grand larceny.

STATE v. SHAW Brief: Oxygen PROCEDURAL POSTURE Note that indictment is method by which State charged Ds, so don’t need here (already implicit in Statement of Case). Your Formulation?

STATE v. SHAW Brief: Oxygen PROCEDURAL POSTURE Thomas was tried separately. At the close of the state’s evidence, the trial court directed a verdict for Thomas. The state excepted [appealed].

STATE v. SHAW Brief: Oxygen ISSUE We’ll Return to FACTS After ISSUE PROCEDURAL COMPONENT OF ISSUE?

STATE v. SHAW Brief: Oxygen ISSUE PROCEDURAL COMPONENT: Did the trial court err in directing a verdict for the defendant …

STATE v. SHAW Brief: Oxygen ISSUE: Substantive Component To prove “grand larceny” state must show that Ds [intentionally] took property belonging to other people. Directed Verdict means trial court thought the state’s evidence was insufficient to show the crime. Why did the Trial Court think the state’s evidence was insufficient here?

STATE v. SHAW Brief: Oxygen ISSUE: Substantive Component To prove “grand larceny” state must show that Ds [intentionally] took property belonging to other people. Trial Court held fish at issue were not property of net-owners because nets do not create property rights when some fish can escape from nets. (“Perfect Net Rule”) What does the state say is wrong with the Trial Court’s position?

STATE v. SHAW Brief: Oxygen ISSUE: Substantive Component Trial Court held fish at issue were not property of net-owners because nets do not create property rights when some fish can escape from nets. (“Perfect Net Rule”) State says net need not be perfect to create property rights in net-owners.

STATE v. SHAW Brief: ISSUE Did the trial court err in directing a verdict for the defendant [on the grounds that defendant did not commit grand larceny] because net-owners do not have property rights in fish found in their nets where some fish can escape from the nets?

STATE v. SHAW FIRST: BACK TO THE FACTS Discussions of Shaw: Focus On “Perfect Net Rule” Used by Trial Court Do our other cases support that rule? Policy arguments for and against that rule. When Ohio Supreme Court rejects that rule, what does it leave in its place? FIRST: BACK TO THE FACTS

Significance of Indictment STATE v. SHAW: FACTS Significance of Indictment Issued by Grand Jury after viewing evidence presented by Prosecution (no evidence presented by defense). Particular charges included if Grand Jury believes it saw evidence sufficient to support going forward with them.

Significance of Indictment STATE v. SHAW: FACTS Significance of Indictment Phrase “with force and arms” in indictment: Boilerplate language traditionally used in conjunction with any criminal charge Does not mean that evidence showed guns were actually used in this case.

Significance of Indictment STATE v. SHAW: FACTS Significance of Indictment Once trial begins, trial court only looks at evidence actually presented by parties. Claims in indictment then effectively become irrelevant for most purposes. Same thing happens to complaint in a civil case unless (as in Pierson) claim on appeal is that complaint should have been dismissed before trial.

Ohio S.Ct. Treats State’s Evidence as “Facts” for Purposes of Appeal STATE v. SHAW: FACTS Ohio S.Ct. Treats State’s Evidence as “Facts” for Purposes of Appeal Directed Verdict in favor of defendant means that Trial Court believed that, even looking at all the evidence “in the light most favorable” to the State, State cannot win.

Ohio S.Ct. Treats State’s Evidence as “Facts” STATE v. SHAW: FACTS Ohio S.Ct. Treats State’s Evidence as “Facts” Directed Verdict = even looking at all the evidence “in the light most favorable” to the State, State cannot win. To review Directed Verdict, appellate court must: Treat all of state’s evidence as true. Make all reasonable inferences from the evidence in favor of the State.

Ohio S.Ct. Treats State’s Evidence as “Facts” STATE v. SHAW: FACTS Ohio S.Ct. Treats State’s Evidence as “Facts” Common to treat information from a particular source as true for purposes of appeal. E.g., allegations in declaration in Pierson.

NOW TO WHITE BOARD FOR “FACTS” FOR PURPOSES OF BRIEF STATE v. SHAW: FACTS NOW TO WHITE BOARD FOR “FACTS” FOR PURPOSES OF BRIEF

STATE v. SHAW SIGNIFICANT FACTS Briefing Notes: Include Info Relevant to Appellate Court’s Discussion (Not Necessarily Same as info Relevant to Trial) Might Include Info Buried in Analysis Section of Opinion Helpful to Lay Out in Chronological Order THUS…

STATE v. SHAW SIGNIFICANT FACTS (in chronological order) Third parties put nets in public waters to catch fish. Some fish that got into the nets could escape, but “under ordinary circumstances, few, if any, fish escape.” (p.29) Thomas and others (Ds) removed fish from the nets.

Common Sense When Reading Shaw: “[T]he defendant, John Thomas, said that ‘they lifted two pound nets west of the pier and got the fish.’” Did they take the nets?

Common Sense When Reading Shaw: Did Ds take the nets? Logistically Unlikely Net is 28’ x 28’ x 35’ They’re in a Sailboat

Common Sense When Reading Shaw: Did Ds take the nets? Logistically Unlikely Inconsistent w Opinion No Discussion of Value of Net Whole Opinion About Fish Easy Larceny Case if they Took Nets

DQ1.23-1.25 Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts Radium (starting with Ms. Re)

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Language from Pierson State would begin by arguing that Pierson says that “nets and toils [= traps]” create property in animals for those that use “such means” to catch animals. In reply, Ds would point to the specific language of the relevant passage in the majority opinion (see next slide).

Pierson Language re Traps: DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Pierson Language re Traps: “[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Language from Pierson Passage about traps seems to require that they “render escape impossible,” supporting Trial Court’s adoption of the Perfect Net Rule. Ways Around?

Ways around “render escape impossible”? DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Ways around “render escape impossible”? Distinguish traps for individual animals from traps for groups of animals (like fish nets).

Ways around “render escape impossible”? DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Ways around “render escape impossible”? Dicta (traps not part of original case) and inconsistent with explicit concerns with certainty and labor (see below). Phrase might refer just to “otherwise intercepting” and not to “nets and toils” (although commas suggest otherwise)

Pierson Language re Traps (Note Commas): DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Pierson Language re Traps (Note Commas): “[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”