ELEMENTS B POWER POINT SLIDES Class #1 Wednesday, August 19, 2015 (Constructive Monday)

ELEMENTS B: Prof. Fajer Please Select Seats Only in the First Five Rows MUSIC: Emile Giles, Piano Beethoven, Piano Sonatas 21, 23, 26 Composed: 1803, 1805, 1810 Recorded: 1986

ELEMENTS B CLASS #1 1.Why Elements? 2.Why Animals/Pierson? 3.Logistics 4.Begin Pierson & DQs 1.01 & 1.02

ELEMENTS B CLASS #1 1.Why Elements? 2.Why Animals/Pierson? 3.Logistics 4.Begin Pierson & DQs 1.01 & 1.02

William Shakespeare The Merchant of Venice Act V Scene 1 Launcelot Gobbo (enters): Sola, sola.

William Shakespeare The Merchant of Venice Act V Scene 1 Launcelot Gobbo (enters): Sola, sola!

From Assignment Sheet: CLASS #1: Introduction; Pierson v. Post Constructive Wed Aug 19: 8:00-9:20 am (Constructive Monday) MEANS?

From Assignment Sheet: CLASS #1: Introduction; Pierson v. Post Constructive Wed Aug 19: 8:00-9:20 am (Constructive Monday) MEANS? Can mean “useful” or “helping to build up” as in constructive criticism. Here?

From Assignment Sheet: CLASS #1: Introduction; Pierson v. Post Constructive Wed Aug 19: 8:00-9:20 am (Constructive Monday) Can mean “useful” or “helping to build up” as in constructive criticism. Black’s Law Dictionary: “That which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law.” Black’s Law Dictionary: “That which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law.”

From Assignment Sheet: Constructive Constructive Monday Black’s Law Dictionary: “That which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law.” Black’s Law Dictionary: “That which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law.” – A Wednesday is not a Monday (in its own essential nature). – By rule, we are treating this Wednesday as a Monday. – In other words, we are “constructing it” as a Monday.

ELEMENTS B CLASS #1 1.Why Elements? 2.Why Animals/Pierson? 3.Logistics 4.Begin Pierson & DQs 1.01 & 1.02

ELEMENTS B CLASS #1 Logistics Forms to Circulate Seating Charts Acting as Attendance Sheets Today Preferred First Names Lunches Contact Info Pseudonyms

ELEMENTS B CLASS #1 Logistics Dean’s Fellow: Bryston “B.A.” Stafford

ELEMENTS B CLASS #1 Logistics Operation of the Class Class time as rehearsal/workshop

ELEMENTS B CLASS #1 Logistics Operation of the Class Class time as rehearsal/workshop Mechanics in Info Memo #1; Note Especially: – Courtesy – Discussion Questions (DQs) – Panel System

ELEMENTS B Next 3 Classes Three Common 1L Issues Class #2: Confusion Class #3: Control Class #4: Competition v. Cooperation

ELEMENTS B CLASS #1 1.Why Elements? 2.Why Animals/Pierson? 3.Logistics 4.Begin Pierson & DQs 1.01 & 1.02 – Start Movie Start Movie

Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) How Legal System Has Handled Similar Disputes (DQ1.02) Overall Social/Historical Context (1805) (Class #2) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Class #2)

Pierson v. Post: Who is Who?

2d sentence of case (p.3): “The declaration stated that Post … did ‘find and start … a fox,’ and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, … kill and carry it off.’

Pierson v. Post: Who is Who? Post did find and start the fox, hunted and pursued it. Pierson, knowing the fox was hunted and pursued, did kill and carry it off. So Why Is Case Called Pierson v. Post?

Pierson v. Post: Who is Who? Why Is Case Called Pierson v. Post? First Sentence (p.3): “This was an action of trespass on the case commenced in a justice’s court by the present defendant against the now plaintiff.” Some appellate courts put the name of the party appealing first. (e.g., here; US Supreme Ct.)

Pierson v. Post: Who is Who? Why Is Case Called Pierson v. Post? Some appellate courts put the name of the party appealing first. Some appellate courts leave the name of the case as originally filed (e.g., U.S. Courts of Appeal)

Pierson v. Post: Who is Who? Why Is Case Called Pierson v. Post? Some appellate courts put the name of the party appealing first; some appellate courts leave the name of the case as originally filed. SO HAVE TO READ CAREFULLY!!

Pierson v. Post: DQ1.01 Fill in Sequence of Events Post (п) has breakfast; begins hunt; starts fox. П’s Lawyer files lawsuit. N.Y. Supreme Court issues judgment for Pierson (∆).

Pierson v. Post: DQ1.01 SEQUENCE OF EVENTS (1) Post (п) begins hunt; starts & chases fox on deserted beach Pierson(∆), aware of hunt, shoots & kills fox Probably confrontation where п claims fox but ∆ takes it. Maybe negotiation Maybe discussions/social consequences that push п to act П goes to lawyer – Fact investigation – Legal research – Possibly negotiation П’s Lawyer files “Declaration” starting lawsuit

Pierson v. Post: DQ1.01 SEQUENCE OF EVENTS (2) ∆ gets lawyer (if not done before lawsuit filed) – Fact investigation, legal research, possibly negotiation ∆’s lawyer files response [“Answer”] or motion to dismiss – If motion filed, it was denied; answer then filed Further investigation/negotiation [Today: “Discovery”] [Maybe: Pre-Trial Motions] Jury trial won by П NY Supreme Court grants ∆’s motion for writ of certiorari Briefs filed by parties & probably oral arguments [Maybe additional negotiation] Court deliberates, then issues opinion and Judgment for ∆

Pierson v. Post: DQ1.01 Verdicts & Judgments Decision of a jury is called a “verdict”; ultimate decision by a judge is called a “judgment” Judgment must be entered even after a verdict: – Normally judge enters j-ment pursuant to verdict – Occasionally, if judge has strong reason to disagree, enters judgment essentially overturning verdict (“Judgment notwithstanding the verdict.”)

Pierson v. Post: DQ v. Today Today start civil lawsuit with “complaint” (not “declaration”) Today can do court-supervised fact investigation process after complaint filed (“Discovery”) In most jurisdictions, a losing ∆ would use “appeal” to take case to next level, though in some situations, writ of certiorari used.

Pierson v. Post: DQ1.02 PRECEDENT What types of authorities does the court rely on as precedent? Why are these authorities considered helpful?

Pierson v. Post: DQ1.02 PRECEDENT Majority Opinion relies on Treatises – Books Written by Experts in Law – Useful Because Smart People Looking at Same Problem – Treatises here all by experts in “Civil Law” System based in Codes of Law & Statutes – E.g., Roman Law (Justinian); Napoleonic Code – Used Today in Continental Europe, Latin America, Louisiana Contrast “Common Law”: – Judge-made law based in cases – Used in systems developed from English Law (Most of U.S. & Canada, British West Indies, etc.)

Pierson v. Post: DQ1.02 PRECEDENT Pierson Majority Opinion relies on Treatises – Books Written by Experts in Law – Useful Because Smart People Looking at Same Problem – BUT Usually Least Important Type of Precedent No NY or Other U.S. Cases Cited: Why? No NY or Other U.S. Cases Cited: Why?

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 Good Smilanich Point: Majority says English cases not relevant here because they fall into one of two categories: 1.Cases arising under “positive statute regulations” 2.Cases involving doctrine of “ratione soli” We’ll go through these two categories in more detail next class.