MUSIC (to accompany Shaw ): SCOTT JOPLIN: HIS GREATEST HITS Richard Zimmerman, PIANO COMPOSED 1899-1912; RECORDED 2006 Lunch Tuesday 9/10 Cancelled (1L Meeting) Revised Lunch Sign-Up Circulating Today Class Today 8:55-10:45 Break @ 9:45

FRIday Pop Culture MOMENT RIPPED FROM THE HEADLINES

FRIday Pop Culture MOMENT Baseball Game Delayed After Fish Falls From Sky

FRIday Pop Culture MOMENT Baseball Game Delayed After Fish Falls From Sky A Month Left in the Season and the Marlins Still Are in Free Fall

FRIday Pop Culture MOMENT  Parents Outraged at Teacher's Decision to Read Book About Gay Bunnies

FRIday Pop Culture MOMENT  Parents Outraged at Teacher's Decision to Read Book About Gay Bunnies They Apparently Were Upset by the Gay Stereotypes in the Book; One of the Bunnies was a Hare Stylist

FRIday Pop Culture MOMENT Man Attacks Lawyer In Court After Getting Long Sentence

FRIday Pop Culture MOMENT Man Attacks Lawyer In Court After Getting Long Sentence Another Example of Why You Must Be Concise!!

ALL: EXERCISE FOR CLASS #12 Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX

ALL: READING FOR CLASS #12 Includes: More on Shaw Intro to Escape Cases Intro to Demsetz Excerpt

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 #12

STATE v. SHAW DQ1.27: Krypton Class #12: 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 Finding Dory  Tori STATE v. SHAW Brief featuring Oxygen Finding Dory  Tori? I See a Fish  Asiya (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 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.

STATE v. SHAW Context: 1902

STATE v. SHAW Context: 1902 International Cuba gains independence from Spain China's Last Empress (Tzu-Hsi) forbids binding of woman's feet Edward VII (60) becomes King of England Victoria reigned 63+ years before her death in 1901 (Elizabeth II surpassed about a year ago) Cf. Prince Charles will turn 68 in November Boer War Ends; Britain annexes Transvaal

STATE v. SHAW Context: 1902 United States: Teddy Roosevelt becomes 1st Am. President to ride in an automobile. US buys Virgin Islands from Denmark & right to build Panama Canal from French. Oliver Wendell Holmes, Jr. (Civil War veteran & Justice on Mass. Supr. Ct.) becomes Associate Justice on US Supr. Ct.

STATE v. SHAW Context: 1902 Deaths Births Thomas Nast (cartoonist); Cecil Rhodes (explorer); Elizabeth Cady Stanton (feminist); Emile Zola (novelist) Births Charles Lindbergh (Aviator) & Ansel Adams (Photographer) Meyer Lansky & Carlo Gambino (Both Organized Crime) Richard Daley (Chi. Mayor 1968) & Thomas Dewey (ran for pres. 1948) & Strom Thurmond (ran for pres. 1948, d. 2003) Richard Rodgers, Guy Lombardo, John Steinbeck & Langston Hughes John Houseman (Paper Chase) & Margaret Hamilton (Wicked Witch) Ray Kroc (McDonald’s) & Ayatollah Ruhollah Musavi Khomeini (Iran)

STATE v. SHAW Context: 1902 Introduced: American Automobile Assn. 1st Automat Restaurant (in Philadelphia) "Bill Bailey Won't You Please Come Home" "The Entertainer" JC Penney 1st Store (in Wyoming) London School of Economics Marlboro 1st Movie Theater Neon Lamps Phi Alpha Delta

STATE v. SHAW Context: 1902 Introduced: "Pomp and Circumstance" Radium isolated by Pierre & Marie Curie Rhodes Scholarships Rose Bowl (1st College Bowl Game; Michigan 49, Stanford 0 ) Smith & Wesson .38 Caliber Special Texaco The Thinker by Rodin Tinker, Evers, and Chance (Chicago Cubs Infielders) US Census Bureau Window Envelopes

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

Policies from Pierson: Rewarding Useful Labor Achieving Certainty DQ1.23 Apply Pierson Majority Policies to Perfect Net Rule & Shaw Facts Policies from Pierson: Rewarding Useful Labor Achieving Certainty

Why is this a useful exercise? STATE v. SHAW DQ1.28: All Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw? Why is this a useful exercise? Explain unreconciled cases In court or legal memo Ideally reconciles cases AND shows that your side wins. BUT hard to examine/critique your rules efficiently if I have to deal immediately with oral responses in class, so try it & I’ll go over some examples from prior classes