1. ELEMENTS B1 & B2 POWER POINT SLIDES Class #11 Friday, September 9, 2016 National Teddy Bear Day

2. MUSIC: Mahler, Symphony #5 (1901-02) Vienna Philharmonic (1988) Leonard Bernstein: Conductor Which of These Things Is Not Like the Others (and Why)? Starting With: Which of These Things Is Not Like the Others (and Why)? LION FISH BULLFOX B2 Lunch Today Meet on Bricks @ 12:10 pm Fernandez * Levine * Simon Valenti * Wisnoski

3. EXERCISE TO SET UP DEMSETZ READING How to Decide Which Differences Matter? LION (e.g., Circus Animal; Not Found Wild in U.S.) FISH (e.g., Non-Mammal; Aquatic; Collective Noun] BULL[e.g., Male; Herbivore; Horned] FOX [e.g., Three Letters; One Mate for Life] THEORY!! THEORY!!

4. DEMSETZ ARTICLE

5. DEMSETZ ARTICLE & DQ1.30 “In the world of Robinson Crusoe property rights play no role.” (p.30) Means?

6. “In the world of Robinson Crusoe property rights play no role.” One definition of Property: “Legal relations between people with regard to things.” Helpful to think of Property not as a noun but as an adjective (like sacred or beautiful). Some animals are Sacred; some are not. Some animals are Property, some are not. In different cultures, different animals defined as Sacred or as Property. E.g., insects (other than bees) rarely seen as Property.

7. In different cultures, different animals get defined as Property. Why? Bombyx Moth treated as Property in China for several thousand years. Why?

8. DEMSETZ ARTICLE IN ELEMENTS B Unit One-A has been about how people acquire Property rights in unowned animals. This is part of a broader issue: How and why do things or intangible interests change from being NOT-Property to Property. Demsetz provides one way to look at this issue that largely revolves around the concept of “internalizing externalities,” to which we’ll return at the end of our discussion of Shaw.

9. GROUP WRITTEN ASSIGNMENT #1

10. Group Written Assignments Generally – Three Group Assignments During the Semester Each Student Is Coordinator for One Assignment Different Partners for Each Size of Groups (If Nobody Drops Out): 3-3-3 or 4-2-4 – Instructions/Formatting as Professional Responsibility Qs on General Instructions (IM22-24)

11. GROUP WRITTEN ASSIGNMENT #1 Standard Exam Task: Apply Authorities Studied to New Hypothetical or “Fact Pattern” GWA#1 : Structured Sequence of Arguments GWA#1 : Structured Sequence of Arguments – Three sets of specific arguments for each party – Not everything you could say about the hypo – But together, good basis for an exam answer

12. Two Important Skills to Practice GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice 1.Isolation: Focusing on One Narrow Topic at a Time 2.Dialogue: Finding Best Arguments for Each Party

13. ISOLATION: Focusing on One Narrow Topic at a Time Common Idea in Many Contexts Exercise or Massage Muscle Groups Football Film/Replays Individual Players Cooking Specific Ingredients

14. Two Important Skills to Practice GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice 1.ISOLATION: Focus on One Narrow Topic at a Time – Read Instructions Carefully & Confine Each Argument to its Stated Topic: OR- (1/2) Specific Language from Shaw -OR- OR (3/4) Facts of Shaw - OR - (5/6) Labor Policy

15. Two Important Skills to Practice GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice 1.ISOLATION: Focus on One Narrow Topic at a Time – Confine Each Argument to its Stated Topic: – Doing more than you’re asked earns penalties not extra credit (lot of this in prior years) Cf. Responding to Judges in Oral Argument Cf. Coverage in Associate Assignments at Law Firm Cf. Limited Scope Short Exam Q

16. Two Important Skills to Practice GROUP WRITTEN ASSIGNMENT #1 Two Important Skills to Practice 2.DIALOGUE: Finding Best Arguments for Each Party – Built into Structure of GWA#1 – Until Highest Court in J-diction Decides Open Q No “Right” Answer No “Right” Answer Just Best Available Arguments Just Best Available Arguments – Good Exam Answers Reflect This & Often Sound Like Schizophrenic Monologues

17. DIALOGUE: Finding Best Arguments for Each Party Legal Smeagols Legal Smeagols

18. Some Final Points GROUP WRITTEN ASSIGNMENT #1 Some Final Points a.Suggested Structures b.Tie-Breaker Qs: Challenge is to Simultaneously: – Address Strengths & Weaknesses of Prior Arguments – Make New Points (Don’t Just Repeat & Announce Winner) c.Working Together (v. Collage of Individual Work) – Take Advantage of Multiple Perspectives – Be Cooperative/Keep Each Other on Track (Time & Substance) QUESTIONS?

19. “E-Participation” DQ1.28 (Krypton): “E-Participation” B2: Bernstein, Gonzalez, Iglesia B1: Ardijanto, Cottingham, Dhermy E-mail to me by 4 p.m. Tomorrow (Saturday): A clear statement of the Rule you derived for DQ1.28 (Not your defense of the Rule) Use name, not pseudonym No need for any particular formatting We’ll go over next class. Qs at break, after class, or by e-mail.

20. STATE v. SHAW DQ1.28: Krypton 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

21. Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts Radium Back to DQ1.23-1.25 Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts Radium

22. DQ1.23 Apply Pierson to Shaw (Radium) Pierson 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.

23. DQ1.23 Apply Pierson to Shaw (Radium 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

24. DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Policies from Pierson: Rewarding Labor?

25. DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Policies from Pierson: Rewarding Labor Point of net is to catch fish which have value to society. Net serves this purpose & is valuable even if not perfect Net that retains most of the fish it catches should thus be rewarded If net needs to be perfect to be protected against theft, industry might well shut down. (LABOR  INDUSTRY)

26. DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Radium) Policies from Pierson: Certainty Perfect Net Rule (like too-absolute versions of rules in Liesner) creates uncertainty b/c too difficult for net- owners to meet test: net has holes in it!) Virtually impossible to create escape-proof net (by definition, net has %*#*@^&% holes in it!) Even if net initially is escape-proof for fish of certain size, wear- and-tear would change this in time Difficult to show test met, and becomes harder as time goes on

27. DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule (Radium) Arguments from Pierson Dissent?

28. DQ1.24 Pierson Dissent/Shaw (Radium) Facts would seem to meet language (p.6): i) Pursuer w/in reach or reasonable prospect of taking + ii) Intent to convert to own use Even imperfect net is more control/certainty than most forms of “hot pursuit” so dissent would likely say it is enough to create property rights. “Perfect Net Rule” could discourage use of nets If you look to customs of fisherman, likely to find that fish in nets are considered property of net-owners.

29. DQ1.24: Using Arguments from Dissents If Case in Different Jurisdiction: Majority not Binding on Court in Question Dissent can be Persuasive Authority (“We find the dissent’s position more persuasive because …”) Note that Pierson Dissent position seems inconsistent with rules stated in Liesner and Shaw as well, which weakens its overall persuasiveness.

30. DQ1.24: Using Arguments from Dissents (Where Majority Opinion is Binding): “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”) Can Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”) “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).” Can Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”

31. DQ1.24: Using Arguments from Dissents QUESTIONS?

32. STATE v. SHAW DQ1.25: Radium Applying Liesner Tests to Shaw Facts Primarily Leave to You & DF Sessions Next Three Slides (Not Shown in Class) are Partial Examples

33. STATE v. SHAW DQ1.25 Applying Liesner Tests to Shaw Facts Substantially permanently deprived of liberty? Can’t say for sure that any particular fish is permanently deprived of liberty Maybe “substantially permanently”, because very high likelihood for particular fish Maybe meet test b/c substantial # of fish permanently deprived

34. STATE v. SHAW DQ1.25 Applying Liesner Tests to Shaw Facts Escape Highly Improbable? Court seems to say so. May depend on frequency of storms or other events outside “ordinary circumstances.” Leave further arguments to you.

35. STATE v. SHAW DQ1.25 Applying Liesner Tests to Shaw Facts Under control so possession is practically inevitable? Fair to describe fish as “under control”? Is possession “practically inevitable”?