Is Because “Just”? WHY? BECAUSE ELEMENTS B 2019 POWER POINT SLIDES Class #7: Tuesday August 27 National Just Because Day WHY? Because!!! Why? BECAUSE Why Not???? Is Because “Just”?

Burt * Craft * Landman Myrtidis * J. Taylor Wolloch MUSIC: Beethoven Symphony #9 (1824) (Last Day of Ludwig Oh da Joy) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991) Lunch Today Meet on Brix @ 12:25 Burt * Craft * Landman Myrtidis * J. Taylor Wolloch DF THIS WEEK Wed 2:00-2:50 pm Room F309 (Brendan)  Thu 9:40-10:30 am (Here) (Lauren) 3d Session Still TBA Covering Briefing Pierson Facts & Rationale Liesner From the Top

LOGISTICS: DATES Class Cancelled Tues 10/1 for Rosh Hashanah We’ll Make Up the Time by Extending Two Friday Classes to 8:40-10:40 am Friday September 6 Friday November 8

LOGISTICS: DUE DATES RADIUM Shaw Brief: M 9/2 @ 4 OXYGEN Manning Brief : W 9/11 @ 8 URANIUM Mullett Brief: Sun 9/15 @ 2 KRYPTON Albers Brief: W 9/18 @ 8 ALL: Weasel Assignment Sun 9/22 @ 2

LOGISTICS: BRIEFING ASSIGNMENTS Follow Briefing Format Provided Follow Format for Written Submissions Co-Ordinator (You’ll Each Do Once) Responsible for Setting Meetings & Deadlines Responsible for Assembling & Formatting Group’s Work-Product Responsible for Timely Submission Using Proper Procedure

LOGISTICS: BRIEFING ASSIGNMENTS Briefs Submitted Under Codename Chosen by Coordinator so I Can Read/Comment Blind I’ll Post Times for Review & Let You Know When You Can Sign Up I’ll Then Meet With Each Group & Go Over Strengths & Weaknesses Thursday I’ll Take Qs on Details of Formatting & Submission Instructions

Pierson v. Post: Policies & Rationales cont’d DQs 1.07-1.09

Pierson v. Post: DQ1.07 (Labor) Law commonly rewards investment of $$$ (to pay someone else to do actual labor for you) as a form of useful labor. For purposes of this class, should treat investment of physical labor and investment of money as roughly equivalent.

Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. E.g., Dissent says foxes harmful to society, so good to kill them: “[O]ur decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career.” (p.5)

Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. E.g., Dissent says foxes harmful to society, so good to kill them. NOTE: Can strengthen this type of argument with, e.g., description or evidence re Importance of poultry farming Extent of harm caused by foxes

Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. E.g., Dissent… Says foxes harmful to society, so good to kill them. Explicitly assumes the hot pursuit rule would result in more foxes being killed. Elaborate why Judge Livingston might believe his Hot Pursuit rule would kill more foxes.*

Pierson v. Post: DQ1.08 (Economic Benefits) Dissent thinks its rule will result in more foxes being killed b/c unhappy Posts choose alternative activity. Dissent: “[W]ho would keep a pack of hounds; or … would mount his steed, and for hours together ... pursue the windings of this wily* quadruped, if just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder … were permitted to come in at the death, and bear away in triumph the object of pursuit?” * See

Pierson v. Post: DQ1.08 (Economic Benefits) Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity Argument that Majority’s Rule will result in more foxes being killed?*

Pierson v. Post: DQ1.08 (Economic Benefits) Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity Argument that Majority’s Rule will result in more foxes being killed? Determined Posts Work Harder at Killing After all, they are as stubborn as a … E.g., Whaling

Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get reward you expected for your labor, how do you respond?

Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? Substitution Effect: Might choose differ-ent activity (in part or completely) that pays more or costs less.

Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? Substitution Effect: Might choose different activity that pays more or costs less. -OR- Income Effect: Could increase labor--do more of activity; more effort; more investment--until you earn desired reward (e.g., enough money to buy a car).

Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? Substitution Effect: Could choose different activity -OR- Income Effect: Could increase labor Often hard to predict which effect will predominate in any particular situation. (Empirical Q; see 50s Businessmen)

Pierson v. Post: Sample Policy Rationale #3 [Premise:] The dissent says it’s good to kill foxes because they are harmful to society, and assumes a hot pursuit rule is preferable because it would result in more foxes being killed.

Pierson v. Post: Sample Policy Rationale #3 [Premise:] The dissent says it’s good to kill foxes because they are harmful to society, and assumes a hot pursuit rule is preferable because it would result in more foxes being killed. [Connection to Result]: Although the majority didn’t respond directly, it may have believed that its holding would result in more foxes being killed because hunters would exert more effort to ensure they got property rights in hunted animals before anyone else could intervene.

Pierson v. Post: (DQ1.09: Intangible Interests) Post unlikely to have cared much about monetary value of fox pelt; more likely angered by deliberate interference with activity of hunting. Is the “right” to hunt without interference a right society should protect (where hunting is legal)?* E.g., Post v. Beethoven

Pierson v. Post: (Intangible Interests) DQ1.09(b): Post might believe Pierson killed fox spitefully for no reason except to bother Post (ongoing family feud). Majority says we shouldn’t care.

Pierson v. Post: (Intangible Interests) Majority (last para.): “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.” Elegant Version of “So What?”

Pierson v. Post: (Intangible Interests) Majority: “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.” DQ109(b): Is majority correct? Should a court take into account whether Pierson had “bad intent” (as opposed to genuine attempt to hunt fox for sport or pelt)?*

Pierson v. Post: (Intangible Interests) If a court wants to take “bad intent” into account, what evidence might you use to prove Pierson’s intent here (not having access to Vulcan Mind Meld)?*

Pierson v. Post: (Intangible Interests) PROOF OF INTENT Required in Intentional Tort & Criminal Cases Often Not Legally Relevant in Property Ownership Cases

Pierson v. Post: DQ1.09 (Intangible Interests) PROOF OF INTENT Required in Intentional Tort & Criminal Cases Often Not Relevant to Property Ownership Proof of Intent Often Expensive/Complex Ignoring Intent = Cheaper, More Certain Results Determining Intent = More Fact-Specific “Justice”

Pierson v. Post: DQ1.09 (Intangible Interests) Post might have argued explicitly that court should not reward Pierson if acting simply to spite Post; if so, court disagreed. Later, You Can Use Arguments Court Rejected: To support similar rejection in future cases: “The Pierson Majority treated bad intent as irrelevant, therefore….”

Pierson v. Post: DQ1.09 (Intangible Interests) Post might have argued that court should not reward Pierson if acting simply to spite Post; if so, court disagreed. Later, You Can Use Arguments Court Rejected: To support similar rejection in future cases. Or to distinguish: “The Pierson majority did not see bad intent as important in those circumstances, but clearly it is more important here because ….” Qs on This Type of Argument or DQ1.09?

CASE BRIEFING General Instructions: Closing Up

CASE BRIEF: Result How the opinion disposed of the case. E.g., “Affirmed” “Reversed” (Where no further proceedings necessary, as in Pierson) “Reversed and remanded (sent back to lower court) for… [e.g., new trial or further proceedings consistent with the opinion.]” “Affirmed in part [on Issue #1] and reversed in part and remanded for a new trial [on Issue #2]. CASE BRIEF: Result

CASE BRIEF: Concurrence/Dissent Describe Key Points of Separate Opinions: Indicate where the opinion would diverge from the majority in terms of Result AND/OR Identification or application of the relevant legal standard. List the major supporting arguments See Sample Brief for Pierson Dissent BUT No other separate opinions until Unit III CASE BRIEF: Concurrence/Dissent

CASE BRIEF: Names of Judges Judge’s names not significant in this class until Whaling Cases (Unit IIA) and then Unit III (US S,Ct.) You might want to indicate names in briefs for your own reference, especially for US Supreme Court or other courts you are using a lot for a particular class. Sensible to include author of majority either at end of citation or beginning of holding. “(per Elmore, J.)” Sensible to include author of separate opinions (and others joining that author) at the beginning of your descriptions of those opinions. CASE BRIEF: Names of Judges

Pierson v. Post: Sample Brief On Course Page Later Today includes Sections from Posted Slides plus Facts, Result, Dissent DFs will go through Facts & Rationales IF Qs after that, E-MAIL OR BRING TO OFFICE HOURS

Pierson v. Post: DQs1.10-1.11 Acquiring Property Rights in Unowned Resources: First-in-Time v. Other Types of Rules

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Pierson allocates property rights on a First-in- Time Basis (first to occupy unowned animal gets property rights) First-in-Time is a type of rule. First-in-Time different type of rule from, e.g., Merit (Most “Deserving” Gets) Lottery (Winner Randomly Selected) Auction (Highest Bidder Gets)

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights) Both Pierson opinions agree on First-in-Time type of rule, but not on which specific version: Dissent: First in Hot Pursuit Majority: First to [Something More] Compare: “I had it first!” v. “But I saw it first!”

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Multiple Specific Possible Examples of First-in-TimeType of Rule First to Actually Possess/Capture First to Wound First to Pursue First to See

Pierson v. Post: DQs1.10-1.11 (Types of Rules) Multiple Specific Possible Examples of First-in-TimeType of Rule  Possible Options After Majority Opinion (if no trap): First Physical Possession First Wound First Mortal Wound

Pierson v. Post: DQs1.10-1.11 (Types of Rules) DQ1.10-1.11: Opportunity to Compare First-in-Time (FIT) Rules to Alternative Types of Rules in Two Contexts: Hunting Wild Animals (in Places You Are Allowed to Hunt) Allocating Parking Spaces (in Places You Are Allowed to Park) We’ll Do at Beginning on Thursday Likely Winners & Losers Under FIT Alternatives to FIT (& Pros & Cons)

Liesner v. Wanie: Setting Up DQ1. 15 & 1 Liesner v. Wanie: Setting Up DQ1.15 & 1.18(c) (OXYGEN Thurs) Liesner Brief (RADIUM Today  Thurs)

Liesner v. Wanie: Setting Up DQ1.15 & 1.18(c) (OXYGEN Thurs) 1.15. Suppose you had to argue about whether the plaintiffs had acquired property in the wolf where the only available precedent was Pierson. What arguments could you make from the language in the majority opinion? From the policies that underlie Pierson? 1.18 (c) Suppose you had to use the “prevailing rule” [from Liesner] to decide the outcome in Pierson? What arguments could you make for each side?

Elements Skills Work: From Here to October 14 Classes; 6 Cases Common Basic Exam Task: Applying Precedent to New Situation Skill 1: Reading/Understanding Cases Self-Quizzes Careful Detailed Briefing Feedback on One Submitted Brief Each DF Work Compare Others to Samples

Elements Skills Work: From Here to October 14 Classes; 6 Cases Exam Task: Apply Precedent to New Situation Skill 1: Reading/Understanding Cases Skill 2: Applying Cases to Different Facts Recurring Part of DQs (In Class & DF) Weasel Assignment

Our Approach to New Cases Introduce Basics of New Case with First Parts of Brief Apply Prior Cases to Facts of New Case (E.g., DQs 1.15, 1.23-1.25) Flesh Out Issue/Holding/Rationales of New Case Apply New Case to Facts of Prior Cases (E.g., DQs 1.18(c), 1.26)

Application of One Case to Facts of Another Cases are complex tools for lawyers. Applying the language and reasoning of case to a new situation is a way to learn some of the things you can do with the tool.

Application of One Case to Facts of Another Cases are complex tools for lawyers. Applying the language and reasoning of case to a new situation is a way to learn some of the things you can do with the tool. Thus, when we apply Pierson to facts of Liesner, we primarily are trying to learn more about Pierson.

Application of One Case to Facts of Another Can compare facts of two cases. Can apply specific language from 1st case to facts of 2d. Can apply policies from 1st case to facts of 2d. Note: These are the three tasks that make up most of your Weasel Assignment

Application of One Case to Facts of Another Specific language from a case can take the form of a “rule”(e.g., “prevailing rule” from Liesner). Rules don’t always clearly indicate who will win a case, but do provide templates for how court or legislature wants you to discuss your case. Here is an intro to some basic “moves” (types of arguments) you need to learn using a “rule” you already know:

Application of One Case to Facts of Another: Playing with Rules “Too Many Cooks Spoil the Soup”

Application of One Case to Facts of Another: Playing with Rules Too Many Cooks Spoil the Soup Line-Drawing: How many is “too many”? Vary with size of kitchen? Vary with amount of soup you’re preparing?

Application of One Case to Facts of Another: Playing with Rules Too Many Cooks Spoil the Soup Definitions: Who counts as a “Cook”? Anyone helping with preparation? Anyone with significant training/experience? Anyone making decisions about ingredients or technique? Anyone wearing a puffy Chef’s hat?

Application of One Case to Facts of Another: Playing with Rules Too Many Cooks Spoil the Soup Scope of Rule: “Soup” and What Else? Any dish? Any cooked dish? Any dish requiring careful balancing of flavors? Any dish requiring particular skill?

Application of One Case to Facts of Another: Playing with Rules (Frequently) WHICH RULE TO USE? “Too Many Cooks Spoil the Soup” OR …

Application of One Case to Facts of Another: Playing with Rules WHICH RULE TO USE? “Too Many Cooks Spoil the Soup” OR Now on to Liesner Brief with RADIUMS

[One Step at a Time Please] Liesner Brief: Radium STATEMENT OF THE CASE: [One Step at a Time Please] Who Sued Whom? Liesner and another, [description?,] sued …

Liesner Brief: Radium STATEMENT OF THE CASE: Who Sued Whom? Liesner and another, who shot and claim to have mortally wounded a wolf … Wanie disputes on appeal whether the plaintiffs mortally wounded the wolf, so can’t treat it as given. sued Wanie, [Description?] …

Liesner Brief: Radium STATEMENT OF THE CASE: SEEKING WHAT REMEDY? Liesner and another, who shot and claim to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf … SEEKING WHAT REMEDY?

Liesner Brief: Radium STATEMENT OF THE CASE: Liesner and another, who shot and claim to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf, to recover the body of the wolf … Focus in Statement is on original lawsuit; Ps initially requested the body, so say that here. Issue of damages arose later, so could put in Procedural Posture if seems relevant. ON WHAT LEGAL THEORY? (NOT EXPLICIT IN CASE)

ON WHAT LEGAL THEORY? (UNSTATED) Liesner Brief: Radium STATEMENT OF THE CASE: ON WHAT LEGAL THEORY? (UNSTATED) Might be “Trespass on the Case” (following Pierson, though damages not requested at first) or “Trespass” (if Wisconsin views shot as direct interference w Property). Might be “Replevin” = Common law action for return of goods improperly taken. Your brief should note the uncertainty.

Liesner Brief: Radium PROCEDURAL POSTURE?:

Liesner Brief: Radium PROCEDURAL POSTURE: Trial Court directed verdict for plaintiff and awarded damages. Defendant appealed. Don’t need to mention plaintiffs’ motion for directed verdict; that step is implicit in court’s action Don’t need to mention defendant’s motion for directed verdict; doesn’t affect reasoning or outcome [General point re expectations in third week]

Liesner Brief: Facts Trial Court found that Ps mortally wounded a wolf and pursued it to the point that escape was improbable, if not impossible. D then shot & killed the wolf and took the carcass. As with Statement, need to recognize that mortal wounding still contested. Phrase in italics helps make clear that Wisc. S.Ct. doesn’t treat this as given.