ELEMENTS B1 & B2 2016 POWER POINT SLIDES Class #2: Wednesday, August 16 & Thursday August 17

MUSIC: Beethoven Violin Sonatas #5 (1801) & #9 (1803) Recordings: Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano (1973-74) Miami-Dade Public Schools Open Monday; Commutes of Any Distance Next Week Will Be Significantly Worse Than They Were This Week Lunch Schedule For Both Sections Posted on Course Page Underneath Dean’s Fellow Info

ELEMENTS B1 & B2 Three Common 1L Issues Class #2: Confusion Class #3: Control Class #4: Competition v. Cooperation

ELEMENTS B1 & B2 : COFNUSION

ELEMENTS B1 & B2 : COFNUSION SOME REASONS FOR CONFUSION: Reality TV Analogy: Missing the Key

ELEMENTS B1 & B2 : COFNUSION SOME REASONS FOR CONFUSION: Reality TV Analogy: Missing the Key Metal Shop Analogy: Identifying the “Machines”

ELEMENTS B1 & B2 : COFNUSION SOME REASONS FOR CONFUSION: Reality TV Analogy: Missing the Key Metal Shop Analogy: Identifying the “Machines” Different Backgrounds Hard Qs & Easy Qs Old Techniques May Not Work

ELEMENTS B1 & B2 : COFNUSION Helpful to Think of as Immersion in New Language/Culture Don’t expect to get everything quickly Read slowly & carefully & then reread Thinking about Fall Break

ELEMENTS B1 & B2 : COFNUSION BE PATIENT WITH OTHER STUDENTS

ELEMENTS B1 & B2 : COFNUSION & ESPECIALLY BE PATIENT WITH YOURSELF!!

ELEMENTS B1 & B2 : COFNUSION 96

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Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) (last time; posted slides include aggregate lists from both classes) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) Overall Social/Historical Context (1805) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

Majority Opinion relies on Treatises Pierson v. Post: DQ1.02 PRECEDENT Majority Opinion relies on Treatises No New York or Other U.S. Cases Cited: Why? Problem Likely Not Litigated Much Relatively Uncommon Not Much at Stake (neither $$$ nor significant social issue) U.S. Not Very Old in 1805

Pierson v. Post: DQ1.02 PRECEDENT N.Y. would use pre-1776 English Common Law but majority says English cases not relevant here because they fall into one of two categories: Cases arising under “positive statute regulations” Cases involving doctrine of “ratione soli”

Pierson v. Post: DQ1.02 PRECEDENT Some English cases not relevant b/c they were “discussed and decided upon the principles of their positive statute regulations….” MEANS? Why does that make them irrelevant?

JURISDICTION Pierson v. Post: DQ1.02 PRECEDENT Some English cases not relevant b/c they were “discussed and decided upon the principles of their positive statute regulations….” Statutes & JURISDICTION

Ratione Soli: By Reason of the Soil An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.

Ratione Soli: By Reason of the Soil An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel. Why might such a rule have developed?

Some English cases not relevant b/c decided under “ratione soli” Pierson v. Post: DQ1.02 & 1.04(a) PRECEDENT Some English cases not relevant b/c decided under “ratione soli” Ratione Soli cases = Landowner v. Hunter PvP = Hunter v. Hunter. DQ1.04(a): Why might it matter that the fox is caught on a deserted beach? Because there is no landowner making a ratione soli claim.

Pierson v. Post: DQ1.02 TYPES OF PRECEDENT Cases Statutes (passed by legislatures) Regulations (issued by executive branch/agencies) Constitution Treatises, Law Review Articles, etc.

Precedence of Precedents: Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Constitution Statutes Regulations Cases (common law) Persuasive Authority (Non-Binding)

Precedence of Precedents: Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Constitution (& Cases Interpreting) Statutes (& Cases Interpreting) Regulations (& Cases Interpreting) Cases (common law) Persuasive Authority (Non-Binding)

Precedence of Precedents: Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Persuasive Authority (Non-Binding) Cases (etc.) from Other Jurisdictions Treatises, Law Review Articles, etc.

Precedence of Precedents: Within a State Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Persuasive Authority (Non-Binding) PERSUASIVENESS VARIES w SOURCE: Cases Prestige Through WW2: Often NY & Mass Later 20th Century: Often Calif. & NJ (& then Alaska!!) Similar Circumstances Alabama v. California Albers (late Sept.): Ontario, Canada (for Colorado)

Precedence of Precedents: Within a State Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Persuasive Authority (Non-Binding) PERSUASIVENESS VARIES w SOURCE: Scholarly Work Prosser on Torts v. Brittany Spears on Torts 1954 scholarship v. 2009 scholarship

Pierson v. Post: DQ1.02 Precedence of Precedents: Among Levels of Government Federal Law Only if applicable: (where Federal Govt has power to regulate and has chosen to do so) See Supremacy Clause of US Constitution State Law Local Ordinances and Regulations

Precedence of Precedents Pierson v. Post: DQ1.02 Precedence of Precedents IF QUESTIONS: Review Slides & Ask by E-Mail or Outside of Class

Pierson v. Post: DQ1.02 Why use precedents at all? Why shouldn’t the court simply announce who wins? (Multiple Overlapping Reasons)

Consistency/Fairness Legitimacy Pierson v. Post: DQ1.02 PRECEDENT Why use precedents at all? Why shouldn’t the court simply announce who wins? (at least) Predictability Consistency/Fairness Legitimacy

Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) Overall Social/Historical Context (1805) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

Significance of History for Us Background; Not Leading to Multiple Choice Test Info I’ll give you often about beginnings and endings: often useful to be think about changes in society that occur around particular dates. E.g., 1492

EUROPE BEFORE 1492 Ireland without potatoes Italy without tomatoes France w/o chocolate or tobacco

Sugar Cane Cultivation AFTER 1492 New World  Europe Europe  New World Sugar Cane Cultivation SILVER

Significance of History in Law Judges & Lawyers (& Some Law Profs) = Human Necessarily influenced by ideas & events of own time Can make arguments about meaning of case or other authority from historical context E.g., Dissent’s suggestion that rules suggested in treatises should not be followed because times have changed E.g., nobody in 1805 is going to worry about effect of case on ecology; might act differently today

1805 Pierson v. Post Qing Dynasty in China Tokugawa Shogunate in Japan George III still British Monarch Napoleon in France War in Europe

Pierson v. Post: 1805 War in Europe: Napoleon crowned Emperor in France & King of Italy Destroys Russian & Austrian armies at Austerlitz, gaining effective control of most of Central Europe BUT French Navy beaten badly at Battle of Trafalgar in October leaving Great Britain in control of seas

Pierson v. Post: 1805 Milestones: Births: Hans Christian Andersen, Alexis de Tocqueville, Joseph Smith Jr (founds Church of Latter Day Saints) Deaths: Lord Cornwallis; Adm. Horatio Nelson Beethoven’s Symphony #3 (Eroica) & Opera Leonore premiere in Vienna

An Ancient Species of Mandarin Orange Reaches Europe for 1st Time; Imported into France from Tangier (Morocco)

Ancient Breed of Mandarin Oranges Reaches Europe from Tangier TANGERINES

2d Term of Jefferson Presidency: Pierson v. Post: 1805 2d Term of Jefferson Presidency: 17 States: Original 13 plus VT KY TN OH Michigan & Louisiana Territories Created Huntsville, AL + Fairfax, VA + Canton OH Founded Treaties of Mt. Dexter & Ft. Industry & Grouseland Acquire Parts of Mississippi & Ohio & Indiana from Native Tribes Lewis & Clark Expedition Reaches Pacific in Nov

Population of Suffolk County NY 1805 = about 20,000; 2012 = about 1,500,000

Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) Overall Social/Historical Context (1805) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Custom)

Pierson v. Post: DQ1.03 CUSTOM & LAW The dissent suggests that the court should defer to hunters’ customs. Can view custom as kind of precedent: what people generally do in situation. Certainly useful info for court: what would likely happen if no legal intervention

Pierson v. Post: DQ1.03 CUSTOM & LAW The dissent suggests that the court should defer to hunters’ customs. Would that be a good thing? Subquestions in DQ1.03 designed to help you think about this.

Pierson v. Post: DQ1.03 CUSTOM & LAW Do you know what relevant customs are among hunters today? If not, how would you find out?

Pierson v. Post: DQ1.03 CUSTOM & LAW Do you know relevant customs are among hunters today? How would you find out? Find Live Experts –OR— Internet Some Good Ideas for Sources Hunting Clubs (2015 Section B & Goldberg (B1)) Local Leaders/Teachers/Officials (2015 Section B & Levine(B2)) Relevant Organizations (American Fox Hunters) (2015 Section B & Levine(B2))

Pierson v. Post: DQ1.03 CUSTOM & LAW Examples of Situations Where Custom Differs from Law? Not just custom and no law, but custom inconsistent w existing law.

Situations where custom differs from law Problems Caused by these Pierson v. Post: DQ1.03 CUSTOM & LAW Situations where custom differs from law Problems Caused by these Differences?