muSIC: Holst, The Planets ( ) & Williams, CLOSE ENCOUNTERS/STAR WARS (1977) Los ANGELES PhilharmoniC Orchestra Conductor: ZUBEN MEHTA (1998) §B Seating §D If you normally sit on the side where your section is sitting today, take your usual seat. If you normally sit on the side where the other section is sitting today, sit on the other side in the back four rows (i.e., behind the usual seating).

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” – “Doctrinal Rationale” based in ancient writers. – “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 BUT No other separate opinions until Unit III

Pierson v. Post: Sample Dissent [Different Result Preferred]: The dissenting judge would affirm. [Different Legal Standard Preferred]: He would allow a hunter to gain property rights in a wild animal without physical touch or possession if “the pursuer be within reach or have a reasonable prospect … of taking” the animal.

Pierson v. Post: Sample Dissent Supporting points include: The dissenting judge would affirm. He would allow a hunter to gain property rights in a wild animal without physical touch or possession if “the pursuer be within reach or have a reasonable prospect … of taking” the animal. Supporting points include: Hunter’s customs would support his position. Foxes cause great harm to farmers, so the rule here should aim to kill as many foxes as possible. The majority’s rule will discourage fox hunters by allowing people like Pierson to take the rewards after the hunters have done a lot of work. … AND…

Pierson v. Post: Sample Dissent Supporting points include: The dissenting judge would affirm. He would allow a hunter to gain property rights in a wild animal without physical touch or possession if “the pursuer be within reach or have a reasonable prospect … of taking” the animal. Supporting points include: The ancient writers do not agree on the proper rule. To the extent that some support the majority, they should not be followed because times change. In particular, there’s no evidence that fox hunters like Post existed at the time of Justinian. Lots of reasonable ways to format and articulate these ideas.

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.

LOGISTICS: CLASS #7 Radiums: Written Shaw Brief Due – 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 – 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 today)

LOGISTICS: CLASS #7 Radiums: Written Shaw Brief Due No outside help from DFs or prior students; just you and partner(s) if any. Protect integrity of blind grading; if unsure, communicate with my assistant Qs on Instructions or Common Writing Concerns (IM22-26)?

LOGISTICS: CLASS #7 I left DQ1.18(d) off Assignment Sheet; we’ll do next class & I’ll take volunteers.I left DQ1.18(d) off Assignment Sheet; we’ll do next class & I’ll take volunteers. Kaye Dean’s Fellow Session 11 MOVED (one time only) from Room E265 to G363 in Law LibraryKaye Dean’s Fellow Session 11 MOVED (one time only) from Room E265 to G363 in Law Library Dahl Dean’s Fellow Sessions Thursdays SHIFTED by 30 MINUTES (permanently) to 11:30am-12:20pm.Dahl Dean’s Fellow Sessions Thursdays SHIFTED by 30 MINUTES (permanently) to 11:30am-12:20pm. Section B Lunch Today:Section B Lunch Today: Meet in at Far End of Food Court after Torts:Meet in at Far End of Food Court after Torts: Catrakilis; Howard; Isicoff; Miller; Owen; SavoiaCatrakilis; Howard; Isicoff; Miller; Owen; Savoia

Pierson v. Post: DQs First-in-Time v. Other Types of Rules re ANIMALS (Uranium) & PARKING (Oxygen)

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

Pierson v. Post: DQs (Types of Rules) First-in-Time: What Kinds of People Are Likely Winners & Losers PARKING FOR LAW SCHOOL (among holders of same type of permit) (Oxygen)

Pierson v. Post: DQs (Types of Rules) Alternative Approaches to First-in-Time: CAPTURING ANIMALS? (Uranium)

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? (Uranium)

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 (among holders of same type of permit) (Oxygen)

Pierson v. Post: DQs (Types of Rules) Choosing Among Property Allocation Systems Relevant Considerations Include: – Administrative Costs – Likely Winners & Losers – 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 in Unit Two

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 – 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 1st

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 & Uraniums

Liesner Brief: Uranium STATEMENT OF THE CASE: Who is Suing Whom?

Liesner Brief: Uranium 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: Uranium 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: Uranium 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: Uranium 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(d), 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 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

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?

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: Oxygen 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: Oxygen 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: Oxygen 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.

Liesner DQ1.15: Oxygen 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 POLICIES FROM PIERSON Reward Effective Labor?

Liesner DQ1.15: Oxygen 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 POLICIES FROM PIERSON Achieve Certainty?

Liesner To URANIUMS for DQ & Facts/Issue/Holding Hard case at this stage of Law School because reviewing decision on sufficiency of evidence, not ruling on relevant law.

Liesner DQ1.16: Uranium DIRECTED VERDICT Generally: Trial Court Rules That One Party Presented Insufficient Evidence to the Jury to Meet Relevant Legal Standard

Liesner DQ1.16: Uranium DIRECTED VERDICT Last Time: This Was (Unusual) Directed Verdict for Plaintiffs Trial Court must have believed that undisputed evidence proved Ps’ case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting Ps) Wanie Conceded Relevant Legal Standards, So Must Be Claiming on Appeal That He Presented Evidence Sufficient to Raise Jury Q

Liesner DQ1.16: Uranium DIRECTED VERDICT What test does the Wisconsin Supreme Court appear to apply as to when a trial court should grant a motion for directed verdict?

Last Paragraph: “The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

“The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

Liesner DQ1.16: Uranium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proved.

Liesner DQ1.16: Uranium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven. What facts does Wanie claim were not proved beyond a reasonable doubt? (from last class)

“That … the plaintiffs were in vigorous pursuit of the game, the evidence is clear, and that in a few moments, at most, they would have had actual possession, is quite as clear. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

Liesner DQ1.16: Uranium What facts does Wanie claim were not proved beyond a reasonable doubt? Wanie’s claim must be: I presented sufficient evidence – either that other people’s shots might have mortally wounded the wolf – or that the Liesners’ shots didn’t hit it or didn’t mortally wound it so as to create reasonable doubts that the shot that mortally wounded the wolf was fired by one of the Liesners.

Liesner Brief: Uranium ISSUE Did the Trial Court err (Procedural) by directing a verdict for the plaintiffs (Substantive) because the defendant offered sufficient evidence to create a reasonable doubt about who fired the shot that mortally wounded the wolf, thus gaining ownership of it?

Liesner Brief: Uranium FACTS (must reflect that D still contests that Ps mortally wounded wolf) Plaintiffs 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.  The Trial Court found that Plaintiffs 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.

Liesner DQ1.16: Uranium Is the Wisconsin Supreme Court certain that the test for directed verdict was met in this case?

The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….

Liesner Brief: Uranium HOLDING No, the Trial Court did not err (Procedural) by directing a verdict for the plaintiff (Substantive) because all reasonable doubts may well have been removed as to who fired the shot that mortally wounded the wolf, thus gaining ownership of it.

“The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had.”