ELEMENTS D1 & D2 2017 POWER POINT SLIDES Class #8 Wednnesday, August 30 & Thursday August 31

Sign Up for Review Meetings Next Week on Door to My Office MUSIC: Gustav Holst, The Planets (1914-16) Recording: Los Angeles Philharmonic (2012) Conductor: ZUBEN MEHTA D1 Lunch Thursday Meet on Brix @ 12:05 Bente * Cass * Hahn Halpern * Lincoff Newman * Phillips **** Due Dates in Info Memo #2 for Oxygen, Uranium, Krypton Briefs Now Confirmed FRIDAY: 8:15-10:15 BOTH CLASSES HERE No Reserved Seating **** RADIUMS: Shaw Brief Due Friday @ 3 Sign Up for Review Meetings Next Week on Door to My Office

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner Language of Pierson seems to require 100% assurance of eventual capture: mortal wounding …, by one not abandoning his pursuit, may … be deemed possession …; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty [NL], and brought him within his certain control.” “securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their NL, 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.”

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal Pierson uses language of 100% assurance (“certain control” & “escape impossible”) Liesner trial court fudges in its description of facts, therefore, if you applied this language from Pierson, Ps would lose in Liesner.

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal APPLY POLICIES FROM PIERSON Achieve Certainty?

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner Language of Pierson seems to require 100% assurance of eventual capture: mortal wounding …, by one not abandoning his pursuit, may … be deemed possession …; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty [NL], and brought him within his certain control.”  [inevitable control]

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal Apply Pierson Policies: Achieve Certainty? Argument that applying language of 100% assurance (“[inevitable] control” & “escape impossible”) reduces certainty for hunters and courts?

Liesner DQ1.15: Radium: Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) Ps mortally wounded animal, pursued Escape Improbable, if not impossible D then shot, killed & took animal APPLY POLICIES FROM PIERSON Reward Useful Labor? (DF Next Week) (Would it properly reward useful labor to give Ps property rights on these facts?)

Pierson: Holding v. Dicta Revisited Language of Pierson seems to require 100% assurance of eventual capture: mortal wounding …, by one not abandoning his pursuit, may … be deemed possession …; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty [NL], and brought him within his [inevitable] control.” “securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their NL, 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.”

Liesner Issue/Holding Hard case at this stage of Law School because reviewing decision on sufficiency of evidence, not ruling on relevant law.

Liesner Brief: Radium ISSUE Did the Trial Court err (Procedural?)

Help Provide Info re Relevant Standards Liesner Brief: Radium ISSUE Did the Trial Court err (Procedural) by directing a verdict for the Ps (Substantive) [Something about the D having offering sufficient evidence to raise jury Qs] OXYGEN DQs1.16-1.17 Help Provide Info re Relevant Standards

BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Liesner DQ1.16: Oxygen BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Generally: Trial Court Rules That One Party Presented Insufficient Evidence to the Jury to Meet Relevant Legal Standard

BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Liesner DQ1.16: Oxygen BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS Directed Verdict for Plaintiffs Here Unusual Trial Court must have believed that undisputed evidence proved Ps’ case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting Ps) Wanie Conceded Relevant Legal Standards, So Must Be Claiming on Appeal That He Presented Evidence Sufficient to Raise Jury Q

Liesner DQ1.16: Oxygen DIRECTED VERDICT What test does the Wisconsin Supreme Court appear to apply as to when a trial court should grant a motion for directed verdict? Important Case Reading Skill: Reverse Engineering Legal Test from Language Court Uses Applying It

Last Paragraph: “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 ….”

DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) Liesner DQ1.16: Oxygen DIRECTED 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 proved.

DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) Liesner DQ1.16: Oxygen DIRECTED 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 Fri)

“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 DQ1.16: Oxygen I presented sufficient evidence Wanie’s claim must be: I presented sufficient evidence either that other people’s shots might have mortally wounded the wolf or that the Liesners’ shots didn’t hit it or didn’t mortally wound it so as to create reasonable doubts that the shot that mortally wounded the wolf was fired by Ps

Liesner Brief: Issue Did the Trial Court err (Procedural) by directing a verdict for the plaintiff (Substantive) because all reasonable doubts were not removed as to who fired the shot that mortally wounded the wolf.

Liesner DQ1.16: Oxygen Is the Wisconsin Supreme Court certain that the test for directed verdict was met in this case? What language in thed case answers this Q?

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: Holding 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”? Liesner DQ1.17: Oxygen What are “the superior advantages which the trial court had”?

What are “the superior advantages which the trial court had”? Liesner DQ1.17: Oxygen What are “the superior advantages which the trial court had”? Visual Observation of Witnesses and of Physical Evidence Hearing Testimony

She asked me to take her to the dance.

Liesner DQ1.17: Oxygen What do these advantages suggest about the appropriate role of appellate courts in reviewing factual determinations made by “finders of fact” (juries or trial judges )?

See, e.g., tests for taking a case away from the jury: Liesner DQ1.17: Oxygen What do these advantages suggest about the appropriate role of appellate courts in reviewing factual determinations made by finders of fact? DEFERENCE!! See, e.g., tests for taking a case away from the jury: Wisc 1914: “No reasonable doubts remain.” Fed’l 2017: “No reasonable jury could find …”

Liesner Brief: Rationales Not especially significant in a narrow case reviewing sufficiency of the evidence. Might give “prevailing rule” as a doctrinal rationale. Might give “superior advantages” as a policy rationale Examples of each in Sample Brief posted after D2 class on 8/31

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people have “substantially permanently deprived [animal] of his liberty—had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty— had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty—[2] had him so in their power that escape was highly improbable, if not impossible….” “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“Prevailing rule” (Three Formulations): Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty—[2] had him so in their power that escape was highly improbable, if not impossible….” “The instant [3] a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

“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

Liesner DQ1.18: Prevailing Rule (Oxygen) (1) substantially permanently deprive [animal] of liberty (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 1.18(a): Meaning of Key Language? 1.18(c): Application to Pierson Facts?

Liesner DQ1.18 (a): Oxygen MEANING OF LANGUAGE? Court refers to “the prevailing rule” (singular, not plural) so might believe all 3 formulations mean the same thing.

Liesner DQ1.18 (a): Oxygen MEANING OF LANGUAGE? Court might believe all three mean the same thing. BUT lawyers/judges usually assume that courts and legislatures (or contracting parties) choose specific language for a reason, so if they use different phrases in the same document, they must mean/intend different things. Yields three Qs that are implicitly part of 1.18(a).

MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases ? Liesner DQ1.18 (a): Oxygen Property Rights in Animal IF: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases ?

MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases? Liesner DQ1.18 (a): Oxygen Property Rights in Animal IF: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE for Class #9 Difference betw. underlined phrases?

Property Rights in Animal IF: Significance of Two Separate Adverbs? Liesner DQ1.18 (a): Oxygen Property Rights in Animal IF: substantially permanently deprived [animal] of his liberty MEANING OF LANGUAGE Significance of Two Separate Adverbs?

(1) substantially permanently deprive [animal] of liberty (SPDL) Liesner DQ1.18(a): Oxygen (1) substantially permanently deprive [animal] of liberty (SPDL) 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: Oxygen (1) substantially permanently deprive [animal] of liberty (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 All three formulations contain an imprecise word meaning something like “almost completely.”

Liesner DQ1.18 (b): Oxygen What policies support the rule? What policies suggest that it has problems?  As compared to what?

COMPARE POSSIBLE RULES Policies Supporting Choice… Liesner DQ1.18 (b): Oxygen COMPARE POSSIBLE RULES Actual Possession Likely Actual Possession Practically Inevitable Actual Possession Inevitable Policies Supporting Choice… Of #2 v. #3? Of #2 v. #1? Certainty Killing Most Animals Rewarding Useful Labor (for DF Next Week)

Liesner DQ1.18 (b): Oxygen Actual Possession Practically Inevitable Actual Possession Inevitable Policies Supporting Choice of #2 v. #3 Include Too difficult to meet standard for #3 Discourages hunters  fewer kills Impossible-to-meet standard reduces certainty of hunters may yield disrespect for law, May yield self-help; violence (: breakdown of peace and order as people like Liesners try to enforce perceived “rights.”)

Policies Supporting Choice of #2 v. #1 Include Liesner DQ1.18 (b): Oxygen Actual Possession Likely Actual Possession Practically Inevitable Policies Supporting Choice of #2 v. #1 Include #1 = Too uncertain in application Yields too many disputes/lawsuits (v. higher claim threshold for #2) May reduce kills b/c 2d hunters can’t compete & 1st hunters may not have enough incentive to improve

COMPARE POSSIBLE RULES Liesner DQ1.18 (b): Oxygen COMPARE POSSIBLE RULES Actual Possession Likely Actual Possession Practically Inevitable Actual Possession Inevitable