ELEMENTS D2 & D1 2017 POWER POINT SLIDES Classes #10 & #11: Tuesday, September 5 & Wednesday, September 20 Monday, September 25 & Tuesday September 26

CLASS #10 MUSIC: CLAUDE DEBUSSY Afternoon of a Faun (1894); Nocturnes (1900); The Sea (1905); Images D’Orchestre (1905-12) Boston Symphony Orchestra Conductor: CHARLES MUNCH (Recordings 1956-62)

CLASS #11 MUSIC: Mahler, Symphony #5 (1901-02) Vienna Philharmonic (1988) Leonard Bernstein: Conductor

After Break: Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX D2 LUNCH TODAY Meet on Brix @ 12:05 ALTONAGA * HODGES QUINLAN * RIBEIRO * WHITE If your original lunch was lost to the storm, check course page for rescheduled dates & e-mail me if they don’t work.

PREVIOUSLY IN ELEMENTS D . . .

We Used Pierson v. Post to Introduce…

We Used Pierson v. Post to Introduce… Types of Background Common to All Cases History of Particular Dispute Legal Treatment of Similar Problems (Precedent) Non-Legal Treatment of Similar Problems (Custom) General Historical Conterxt Process of Briefing Cases

We Used Pierson v. Post to Introduce… Disputes re Unowned Wild Animals Landowners’ Limited Rights: Ratione Soli First ”Occupancy” Creating Property Rights Actual Physical Possession Enough Pursuit Alone Insufficient Other Possibilities: Traps & Mortal Wounding/Continued Pursuit Importance of Particular Facts Difficulty Identifying Dicta v. Holding

We Used Pierson v. Post to Introduce… Relevant Policy Concerns Rewarding Useful Labor Preferring Rules that are More “Certain” For Affected Parties and/or for Legal System NOTE: Counter-Policy Favoring Flexibility & Justice Providing Economic Benefits (e.g., Protecting Farms) First-in-Time as a Type of Rule Identifying Alternative Types of Rules Possible Pros & Cons of Different Types

We Used Liesner v. Wanie to Supplement Pierson by …

We Used Liesner v. Wanie to Supplement Pierson by … Explaining Dispositive Motions. E.g., Motion to Dismiss for Failure to State a Claim Motion for Directed Verdict Introducing Process of Applying One Case to the Facts of Another Applying Key Language Applying Relevant Policies [We’ll Add: Comparing Facts]

We Used Liesner v. Wanie to Supplement Pierson by … Adding to Law of Disputes re Unowned Wild Animals Confirms Mortal Wounding + Continued Pursuit = Occupancy Three Formulations of Relevant Rules Discussing Role of Trial Courts v. Appellate Courts and Reasons for Deference to Fact-Finders

We Used Liesner v. Wanie to Supplement Pierson by … Frank & Ed? Examining a Trial Transcript in Detail (9/1) Noting Complexity of Unedited Disputes Identifying and Compiling Individual Pieces of Evidence to Support Complex Factual Conclusions like “Mortal Wound” Trying to Distinguish between Factual Disputes that are “Material” and Disputes that are Legally Irrelevant

New Matertial: Liesner Trial: DQ1.22 Relevance of additional facts found in trial record to how you should read/use the appellate opinion? Helps you understand what happened BUT normally unavailable to lawyers. Meaning of written opinion: Determined by what court issuing opinion chooses to include What doesn’t go into opinion isn’t part of opinion (cf. Las Vegas) True for both Liesner & Pierson. Similarly: Brief is summary of a judicial opinion, so info not found in opinion shouldn’t be in brief

CLASS #11 (Mon-Tue 9/25-26) Intro Material to Set Up Next 3 Weeks To Set Up Escaping Animals Cases & Rest of Pass-Fail Briefs ALL: Escaped Animals Overview RADIUM: DQs 1.41-1.42 To Set Up Group Written Assignment #1: I’ll Introduce & Take Qs on: Instructions for Written Assignments (in Info Memo #1) & Specific Instructions for Assignment #1 (on course page) D1: Riff on Smart Phones, Lawyers & Written Instructions To Set Up Demsetz Reading: ALL: Introduction to Demsetz Excerpt & DQ1.30 Sesame Street Exercise (Next Slide)

ALL: EXERCISE FOR CLASS #11 Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX

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 Class #11

STATE v. SHAW DQ1.27: Krypton Class #11: 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 but no fish  maybe because of

STATE v. SHAW Brief featuring Oxygen but no fish  maybe because of LOTS OF SEALS

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 explicit or 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. (Trial Court’s “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.

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’ Ds are in a Sailboat

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

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.

DQ1.23-1.25 Apply Pierson & Liesner to Trial Court’s Perfect Net Rule & to Specific Shaw Facts Radium

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

Recap: Possible ways around “render escape impossible”? DQ1.23 Apply Pierson Majority to Trial Court’s Perfect Net Rule (Radium) Recap: Possible ways around “render escape impossible”? [Prior Slide] Language applies to traps for individual animals; nets here trapping many animals, so OK. Dicta (traps not part of original case) and inconsistent with explicit concerns with certainty and labor (we’ll review shortly). Quoted 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 Trial Court’s 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.”

DQ1.23 (Radium) Apply Pierson Language to Shaw Facts Language re Mortal Wounding “[M]ortal wounding … by one not abandoning his pursuit, may … be deemed possession of [the animal]; since, thereby, the pursuer [i] manifests an unequivocal intention of appropriating the animal to his individual use, [ii] has deprived him of his natural liberty, and [iii] brought him within his certain control.

DQ1.23 (Radium) Apply Pierson Language to Shaw Facts Language from Pierson: Property where claimant… [i] manifests an unequivocal intention of appropriating the animal to his individual use, Big constructed nets at issue surely do this [ii] has deprived him of his natural liberty, and Can argue about this; probably true for most fish so long as they’re in the nets [iii] brought him within his certain control. Not true of any one fish; true of fish as a group

RING STORY (10/78-1/84)

Introduction to Escape Generally: Difficult for an Owner to Lose Property Rights Accidentally E.g., Return of the Ring We Don’t Presume Abandonment of Property from Carelessness Laptops in Library We’ll Address Technical Definition of “Abandonment” in Detail Later This Week

Introduction to Escape Key Qs for Unit IB: When Does Owner of Escaped Wild Animal Lose Property Rights? Why Different from Ring or Watch? What Facts are Relevant (& Why)?

Introduction to Escape: Terminology Original Owner (OO) (can’t just say “owner” b/c unclear who owns animal after escape) Finder (F) Does OO lose or retain property rights in the escaped animal? (v. Unit IA: Did pursuer acquire property rights to animal?)

Intro to Escape: DQ1.41: RADIUM Why should an OO ever lose property rights in an escaped wild animal? Why might we treat an escaped animal differently from a ring? Let’s Get Some Ideas on the Table

Intro to Escape: DQ1.41: RADIUM Can you think of a circumstance where it would be unfair to return an escaped animal to original owner? I’m asking here re layperson’s sense of right & wrong/fairness (not legal doctrine).

Intro to Escape: DQ1.42: RADIUM Arguments from Prior Authority (Pierson-Liesner-Shaw) re Ownership of Escaped Animals From Language in Cases? Although clearly nothing directly targeting this situation. If no authorities directly .on point, look where you can. Two slides following (not shown in class) with examples provide examples

Introduction to Escape: Sample Arguments from Language in Prior Case re Ownership of Escaped Animals Shaw: Once animals are confined, need to maintain reasonable precautions against escape. Might suggest that if you take reasonable precautions, might retain ownership even if animal escapes Requirement that you maintain control in a way that shows no intent to abandon might mean you can retain property in escaped animals if evidence of no intent to abandon BUT Thrust of case seems to assume that once fish escape from net, net-owner loses property rights.

Introduction to Escape: DQ1.42 Sample Arguments from Language in Prior Case re Ownership of Escaped Animals Pierson: Mortal wounding by one not abandoning pursuit  Property (suggests property rights can be lost at some point by not following up/pursuing) Pierson/Liesner: Depriving animal of natural liberty  Property (suggests property rights can be lost if animal returns to natural liberty).

Intro to Escape: DQ1.42: RADIUM Arguments from Prior Authority re Ownership of Escaped Animals From Policies We’ve Discussed? Rewarding Useful Labor/Investment? What Labor/Investment Might We Want to Reward/Protect … By Original Owner? By Finder?

Intro to Escape: DQ1.42: RADIUM Rewarding Useful Labor/Investment? Labor of OO? Labor of F? Acquisition: Investment in purchase or capture While Owned: In confining, maintaining, training After Escape: In pursuit Acquisition: In capturing While Owned: In confining, maintaining, training

Intro to Escape: DQ1.42: RADIUM Arguments from Prior Authority re Ownership of Escaped Animals From Policies We’ve Discussed? From Wanting to Provide Certainty?

Intro to Escape: DQ1.42: OXYGEN: Wanting to Provide Certainty? Certainty to OO? No “Perfect Cage Rule”: Don’t have to take ridiculous steps to keep from escaping? OO’s aware of what is necessary to retain O-Ship? Certainty to Decision-Maker: Rule is Easy to Apply? Very Easy: You win if you can prove you are OO Very Easy: F always wins (“Finders Keepers”) Certainty to Finder? (we’ll come back to) Includes certainty to F re existence of prior claim to found animal

Introduction to Escape Going Forward We’ll Look at What Our Four Escape Cases Really Seem to Care About (as Opposed to These Hypothetical Lists)

Intro to Escape: Mullett & Manning Our First Possession Cases (Pierson-Liesner-Shaw) All Ask Similar Legal Qs First 2 Escape Cases Very Different from Each Other: Mullett: Applies English Common Law Rule (with Three Factors) to Escaped Sea Lion Manning: Fact-Specific Result (Not Referencing English Common Law Rule) for Escaped Canary

Intro to Escape: Mullett & Manning The First Two Escape Cases Use Very Different Approaches BUT they are the only two cases in the entire course where the animals aren’t killed. 

Escape Cases: Pass-Fail Brief Submissions OXYGEN: Manning v. Mitcherson Sign-Up Sheet for Meetings Posted Today 9/26 @ 11am Submission Due Friday 9/29 @ 3pm (Note re Yom Kippur) URANIUM: Mullett v. Bradley Sign-Up Sheet for Meetings Posted Friday 9/29 @ 12:25 pm Submission Due Tuesday 10/3 @ 9pm KRYPTON: E.A. Stephens & Co. v. Albers Sign-Up Sheet for Meetings Posted Wednesday 10/4 @ 9:45 am Submission Due Saturday 10/7 @ 3pm

GROUP WRITTEN ASSIGNMENT #1 Due Tuesday October 10 @ 9pm

GROUP WRITTEN ASSIGNMENT #1 Group Written Assignments Generally Three Group Assignments During the Semester Each Student Is Coordinator for One Assignment Different Partners for Each Size of Groups (If Nobody Drops Out): 3-3-3 or 4-2-4 Recall View of Instructions/Formatting as Professional Responsibility Qs on General Instructions (IM22-24)

GROUP WRITTEN ASSIGNMENT #1 Standard Exam Task: Apply Authorities Studied to New Hypothetical or “Fact Pattern” GWA#1 : Structured Sequence of Arguments Three sets of specific arguments for each party Each Team Submits Two Sets + a Tie-Breaker Argument Helpful to Do Unassigned Set of Arguments Yourself Not everything you could say about the hypo But together, good basis for an exam answer

GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice Isolation: Focusing on One Narrow Topic at a Time Dialogue: Finding Best Arguments for Each Party

ISOLATION: Focusing on One Narrow Topic at a Time Common Idea in Many Contexts Exercise or Massage Muscle Groups Football Film/Replays Individual Players Cooking Specific Ingredients

GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice ISOLATION: Focus on One Narrow Topic at a Time Read Instructions Carefully & Confine Each Argument to its Stated Topic: (#1/#2) Specific Language from Shaw -OR- (#3/#4) Facts of Shaw - OR - (#5/#6) Labor Policy How Literal? Very!! (Cf. Reality TV Challenges)

GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice ISOLATION: Focus on One Narrow Topic at a Time Confine Each Argument to Stated Topic (Very Literal!) For Examples, See Property Problem Based on Shack Old Exam Q Used as Similar Assignment Qs/Comments/Model Answers Posted in Info Memo #2 Doing more than you’re asked earns penalties not extra credit (lot of this in prior years) Cf. Responding to Judges in Oral Argument Cf. Coverage in Associate Assignments at Law Firm   Cf. Limited Scope Short Exam Q

GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice DIALOGUE: Finding Best Arguments for Each Party Built into Structure of GWA#1 Until Highest Court in State Decides Open Q No “Right” Answer Just Best Available Arguments Good Exam Answers Reflect This & Often Sound Like Schizophrenic Monologues

DIALOGUE: Finding Best Arguments for Each Party Legal Smeagols

GROUP WRITTEN ASSIGNMENT #1 Some Final Points Suggested Structures: Use Unless Clear Reason to Change Tie-Breaker Qs: Challenge is to Simultaneously: Address Strengths & Weaknesses of Prior Arguments Make New Points (Don’t Just Repeat & Announce Winner) Show Split if Team Disagrees Appropriate Length: Depends on Substance of Each Argument No Particular Lengths Suggested or Anticipated Proofread; Edit; Be Concise BUT Include All Steps Necessary to Logic of the Argument

GROUP WRITTEN ASSIGNMENT #1 Some Final Points Working Together (v. Collage of Individual Work) Take Advantage of Multiple Perspectives Be Cooperative (Different LComm Schedules; Yom Kippur) Keep Each Other on Track Re Both Time & Substance (e.g., Isolation) Diplomacy as Lawyering Skill Look at Entire Submission to Avoid Repetition/Overlap

GROUP WRITTEN ASSIGNMENT #1 Questions I’ll Take Qs in Class Today & Friday 9/29 Tuesday/Wednesday 10/3-10/4 Monday 10/9 (Both Classes Meet Together) I’ll Take Qs By E-Mail until Sunday 10/8 @ 11:59 p.m. In Person until the End of Break on Mon 10/9 QUESTIONS?

EXERCISE To Introduce Demsetz Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX

EXERCISE: Which of These Things Is Not Like the Others (and Why) EXERCISE: Which of These Things Is Not Like the Others (and Why)? (Section D2) FISH BULL LION FOX Aquatic Scales/fins/gills Use Rod to Catch Separate Class Some Lay Eggs Cold0Blooded Everywhere All Herbivore Not Wild in US Horns/Hooves Can Ride Maybe All Male Not Farmed Circus Animal Apex Predator Endangered Three Letters Live in Dens Pests in US Mate for Life Hunt Alone No Zodiac Sign

EXERCISE: Which of These Things Is Not Like the Others (and Why) EXERCISE: Which of These Things Is Not Like the Others (and Why)? (Section D1) FISH BULL LION FOX Aquatic Non-Mammal (Some) Lay Eggs Gills/fFns/Scales Collective Noun 360° Motion Domesticated in US Herbivore Horns/Hooves Male Only On Savannah Felines Circus Animal Not Farmed Endangered Three Letters Canine Mate for lLfe Live in Dens Sly/Clever in Myth Not Zodiac Sign

EXERCISE TO SET UP DEMSETZ READING How to Decide Which Differences Matter? LION (e.g., Circus Animal; Not Found Wild in U.S.) FISH (e.g., Non-Mammal; Aquatic; Collective Noun] BULL [e.g., Male; Herbivore; Horned] FOX [e.g., Three Letters; One Mate for Life] THEORY!!