ELEMENTS B POWER POINT SLIDES Class #7 Wednesday, September 2, 2015

MUSIC: Gustav Holst, The Planets ( ) LoS ANGELES PhilharmoniC (2012) Conductor: ZUBEN MEHTA Lunch Tomorrow Meet on 12:25 Blaine * Brenner * Leavitt Nieto * O’Neil * Tate Watanabe Second Dean’s Fellow Session This Week: Friday 11:00-11:50 a.m. immediately after class Room F309 immediately upstairs

Pierson v. Post: DQs First-in-Time (FIT) v. Alternative Types of Rules Exploring underlying assumption in Pierson that FIT is good way to decide. Looking at Animals & Parking

Pierson v. Post: DQs (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 Pierson opinions agree on First-in-Time, but not on which version – Dissent: First in Hot Pursuit – Majority: First to [Something More]

Pierson v. Post: DQs (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 Multiple Examples Possible – First to Actually Possess – First to Wound or Capture (if no wound) – First to See (cf. five-year-olds)

Pierson v. Post: DQs (Types of Rules) First-in-Time: What Kinds of People Are Likely Winners & Losers PARKING FOR LAW SCHOOL LAST TIME: Students w Early Classes Students w No Dependents Morning People COULD ADD: Live Nearby No Need to Exit & Return (for jobs, apptmts, etc.)

Pierson v. Post: DQs (Types of Rules) First-in-Time: What Kinds of People Are Likely Winners & Losers CAPTURING ANIMALS?

Pierson v. Post: DQs (Types of Rules) First-in-Time: What Kinds of People Are Likely Winners & Losers CAPTURING ANIMALS? v.

Pierson v. Post: DQs (Types of Rules) Alternative Approaches to FIT: CAPTURING ANIMALS? Distribute Property Rights to Hunt: – Divide by Area or by Time – Distribute by Auction, Lottery, Skill, Seniority – Transferable or Not Regulatory Limits (Can Combine with Above) – Limit on Number Taken or Size – Limit on Time Allowed – Specific Regs (E.g. No Females During Breeding Season)

Pierson v. Post: DQs (Types of Rules) Alternative Approaches to First-in-Time: CAPTURING ANIMALS? DQ1.08: What rule(s) would you want if you were trying to preserve the fox population because foxes are commercially valuable?

Pierson v. Post: DQs (Types of Rules) Alternative Approaches to First-in-Time: CAPTURING ANIMALS? DQ1.08: What rule would you want if you were trying to preserve the fox population because foxes are commercially valuable? We’ll Return to This Q with Demsetz Reading

Pierson v. Post: DQs (Types of Rules) Alternative Approaches to First-in-Time: Parking for Law School Very Similar Distribute Property Rights to Spaces in Advance: – Distribute by Auction, Lottery, Seniority (or Inverse), Academic Merit (or Inverse), Carpool Slots – Transferable or Not

Pierson v. Post: DQs (Types of Rules) Choosing Among Property Allocation Systems Relevant Considerations Include: – Likely Winners & Losers – Administrative Costs (FIT Generally Low) – Effects on Participants’ Behavior

Pierson v. Post: DQs (Types of Rules) Choosing Among Property Allocation Systems Pros & Cons of First-in-Time Rules: Likely Benefits – Often Reasonable Degree of Certainty – Ease of Administration (cf. designated pkg spots) Possible Problems – Can Seem Arbitrary – May Reward Undesirable Attributes or Punish “Hunters” for Things Outside Their Control

Pierson v. Post: DQs (Types of Rules) Choosing Among Property Allocation Systems We’ll Return to This Type of Choice Among Possible Rules (at Length) in Unit Two

LOGISTICS: CLASS #7 Second Weekly Dean’s Fellow Session SHIFTED (permanently) to Fridays 11:00am-11:50pm in Room F309Second Weekly Dean’s Fellow Session SHIFTED (permanently) to Fridays 11:00am-11:50pm in Room F309 Posted on Course Page: – Next Set of Course Materials & Extensions of Syllabus & Assignment Sheet – Shack v. State Self-Assessment Exercise (Form Like 1 st Elements Group Written Assignment). – Sample Pierson Brief – Self-Quizzes for Next Few Readings Later Today: Full Schedule of Due Dates for Written Assignments

LOGISTICS: CLASS #7 Radium: Written Shaw Brief Due 4 pm – In Info Memo #1: … Instructions For All Written Submissions (IM21-22) Instructions For Case Briefs (IM22) Common Writing Concerns (IM24-26) – I’ll Take Qs Out of Class & by , Then on Fri in Class (everyone should take opportunity to look through and ask Qs)

LOGISTICS: CLASS #7 Radiums: Written Shaw Brief Due 4 pm – Graded but small % of whole (can help; not crucial) – You’ll all make mistakes; I’m weighing against your peers and sense of where you should be after Class #8 Later briefs judged a little more strictly What you can control: – Read instructions carefully – Reread before finalizing submission – Small penalties for formatting errors & other failure to follow instructions (a few people every year fall below a grade line b/c of these penalties)

LOGISTICS: CLASS #7 Radiums: Written Shaw Brief Due 4 pm – To help with briefing form & substance Suggested Brief Content (IM18-21) & Briefing Slides Sample Pierson Brief (posted): Shaw Self-Quiz (posted): Sample Liesner Brief (to be posted after class Friday) – No outside help from DF or prior students; just you and partner(s) if any. – Protect integrity of blind grading; if unsure, communicate with my assistant Tina Sutton – Rules for Special Dispensations re This Due Date: to Tina Sutton (DO NOT TALK TO ME!!)

Pierson v. Post: Closing Up Brief Sample Brief Posted (with some explanatory comments). if Qs. In addition to what’s already on slides, includes: – Concise version of “Facts” – “Result” – “Dissent”

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

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 Posted Sample for Details BUT No other separate opinions until Unit III

CASE BRIEF: Names of Judges Don’t have to include for your submitted briefs. You might want to indicate for your own reference, especially for US Supreme Court or other court you are using a lot for a particular class. Sensible to include author of majority at end of citation or beginning of holding. Sensible to include author of separate opinions (and others joining that author) at the beginning of your descriptions of those opinions.

What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Some primarily to introduce you to system Some will be tools used regularly in course Anything you “need to know”, we’ll come back to repeatedly

What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context – History of Dispute & Court Proceedings – Prior Legal Authority – Customs & Other Social Institutions – Historical Moment Language Social Policies Underlying Assumptions

What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context Language – Difficulty Discerning Precise Holding Red Ink No New Testament Red Ink – Rationales Social Policies Underlying Assumptions

What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context Language Social Policies – Reward Useful Labor – Get Certainty (In Tension w Flexibility) – Achieve Economic Benefits Underlying Assumptions

What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context Language Social Policies Underlying Assumptions – Irrelevance of Bad Intent – Use of Some Form of First-in-Time

Transition: Pierson  Liesner/Shaw Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

Transition: Pierson  Liesner/Shaw Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property All 3 Cases: Fights Between 1 st & 2d Hunter: – If Animal Unowned, no Q that 2d Hunter Wins – Claim by 1st hunter is: Animal was already mine when 2d hunter acted

Transition: Pierson  Liesner/Shaw Trying to Identify “Magic Moment” When Animal Changes from Unowned to Someone’s Property Fights Between 1 st & 2d Hunter: Legal Rules Here Temporal Not Comparative – Issue: Had 1 st Hunter Done Enough to Get Property Rights Before 2d Hunter Intervened – Not asking if 2d Hunter did more or better labor than 1 st Hunter

Transition: Pierson  Liesner/Shaw Trying to Identify “Magic Moment” When Animal Changes from Unowned to Someone’s Property Pierson Suggests Two Ways Besides Actual Physical Possession to get Property rights in Wild Animals: 1.MORTAL WOUNDING (Liesner) 2.NETS & TRAPS (Shaw)

Transition: Pierson  Liesner Final Qs on Pierson? Then to Liesner Brief & Radiums

Liesner Brief: Radium STATEMENT OF THE CASE: Who Sued Whom?

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 … – Wanie disputes on appeal whether the plaintiffs mortally wounded the wolf, so can’t treat it as given. – SEEKING WHAT RELIEF?

Liesner Brief: Radium STATEMENT OF THE CASE: Liesner and another, who claim to have shot and mortally wounded a wolf sued Wanie, who subsequently shot and took the wolf, to recover the body of the wolf … – This is what plaintiffs initially requested; issue of damages arose later – ON WHAT LEGAL THEORY?

Liesner Brief: Radium STATEMENT OF THE CASE: ON WHAT LEGAL THEORY? (UNSTATED) Might be “Trespass on the Case” (following Pierson) or “Trespass” (if Wisconsin views shot as direct interference w Property) Might be “Replevin” = Common law action for return of goods improperly taken

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

Our Approach to New Cases 1.Introduce Basics of New Case with First Parts of Brief 2.Apply Prior Cases to Facts of New Case (DQs 1.15, ) 3.Flesh Out Issue/Holding/Rationales of New Case 4.Apply New Case to Facts of Prior Cases (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 tools Cases are complex tools for lawyers. tool 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 of 1 st case to facts of 2d Can apply policies from 1 st case to facts of 2d Note: These are the three tasks required in the posted Shack exercise and eventually in your 1 st Written Assignment

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

Playing with Rules 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?

Playing with Rules 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 poofy Chef’s hat?

Playing with Rules 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 dish requiring careful balancing of flavors? – Any dish requiring particular skill?

Playing with Rules Application of One Case to Facts of Another: Playing with Rules WHICH RULE TO USE? Too Many Cooks Spoil the Soup v. Many Hands Make Light Work

Liesner DQ1.15: Uranium Application of Pierson to Facts of Liesner For purposes of this exercise, let’s use FACTS as found by TRIAL COURT (1 st para of opinion): 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal

Liesner DQ1.15: Uranium Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal APPLY LANGUAGE FROM PIERSON MAJORITY

Liesner DQ1.15: Uranium Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal Pierson uses language of absolute certainty – “certain control” – “escape impossible” Liesner fudges.