1. ELEMENTS B1 & B2 2016 POWER POINT SLIDES
Class #2: Wednesday, August 16 & Thursday August 17

2. MUSIC: Beethoven Violin Sonatas #5 (1801) & #9 (1803) Recordings: Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano ( )
Miami-Dade Public Schools Open Monday; Commutes of Any Distance Next Week Will Be Significantly Worse Than They Were This Week
Lunch Schedule For Both Sections Posted on Course Page Underneath Dean’s Fellow Info

3. ELEMENTS B1 & B2 Three Common 1L Issues
Class #2: Confusion
Class #3: Control
Class #4: Competition v. Cooperation

4. ELEMENTS B1 & B2 : COFNUSION

5. ELEMENTS B1 & B2 : COFNUSION
SOME REASONS FOR CONFUSION:
Reality TV Analogy: Missing the Key

6. ELEMENTS B1 & B2 : COFNUSION
SOME REASONS FOR CONFUSION:
Reality TV Analogy: Missing the Key
Metal Shop Analogy: Identifying the “Machines”

7. ELEMENTS B1 & B2 : COFNUSION
SOME REASONS FOR CONFUSION:
Reality TV Analogy: Missing the Key
Metal Shop Analogy: Identifying the “Machines”
Different Backgrounds
Hard Qs & Easy Qs
Old Techniques May Not Work

8. ELEMENTS B1 & B2 : COFNUSION
Helpful to Think of as
Immersion in New Language/Culture
Don’t expect to get everything quickly
Read slowly & carefully & then reread
Thinking about Fall Break

9. ELEMENTS B1 & B2 : COFNUSION
BE PATIENT WITH OTHER STUDENTS

10. ELEMENTS B1 & B2 : COFNUSION
& ESPECIALLY
BE PATIENT
WITH YOURSELF!!

11. ELEMENTS B1 & B2 : COFNUSION96

12. Disability Services Info
If you have a disability, or suspect that you may have a disability, the Law School encourages you to contact the Office of Disability Services for information about available opportunities, resources, and services. The phone number is , and the address is . You may also visit the Office of Disability Services website at

13. Pierson v. Post CASES IN CONTEXT
History of the Underlying Dispute (DQ1.01) (last time; posted slides include aggregate lists from both classes)
How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d)
Overall Social/Historical Context (1805)
How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

14. Majority Opinion relies on Treatises
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

15. Pierson v. Post: DQ1.02 PRECEDENT
N.Y. would use pre-1776 English Common Law but majority says English cases not relevant here because they fall into one of two categories:
Cases arising under “positive statute regulations”
Cases involving doctrine of “ratione soli”

16. Pierson v. Post: DQ1.02
PRECEDENT Some English cases not relevant b/c they were “discussed and decided upon the principles of their positive statute regulations….” MEANS? Why does that make them irrelevant?

17. JURISDICTION Pierson v. Post: DQ1.02 PRECEDENT
Some English cases not relevant b/c they were “discussed and decided upon the principles of their positive statute regulations….”
Statutes &
JURISDICTION

18. Ratione Soli: By Reason of the Soil
An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.

19. Ratione Soli: By Reason of the Soil
An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.
Why might such a rule have developed?

20. Some English cases not relevant b/c decided under “ratione soli”
Pierson v. Post: DQ1.02 & 1.04(a)
PRECEDENT
Some English cases not relevant b/c decided under “ratione soli”
Ratione Soli cases = Landowner v. Hunter
PvP = Hunter v. Hunter.
DQ1.04(a): Why might it matter that the fox is caught on a deserted beach? Because there is no landowner making a ratione soli claim.

21. Pierson v. Post: DQ1.02 TYPES OF PRECEDENT Cases
Statutes (passed by legislatures)
Regulations (issued by executive branch/agencies)
Constitution
Treatises, Law Review Articles, etc.

22. Precedence of Precedents:
Pierson v. Post: DQ1.02
Precedence of Precedents:
Within a State
Binding Authority
Constitution
Statutes
Regulations
Cases (common law)
Persuasive Authority (Non-Binding)

23. Precedence of Precedents:
Pierson v. Post: DQ1.02
Precedence of Precedents:
Within a State
Binding Authority
Constitution (& Cases Interpreting)
Statutes (& Cases Interpreting)
Regulations (& Cases Interpreting)
Cases (common law)
Persuasive Authority (Non-Binding)

24. Precedence of Precedents:
Pierson v. Post: DQ1.02
Precedence of Precedents:
Within a State
Binding Authority
Persuasive Authority (Non-Binding)
Cases (etc.) from Other Jurisdictions
Treatises, Law Review Articles, etc.

25. Precedence of Precedents: Within a State
Pierson v. Post: DQ1.02
Precedence of Precedents: Within a State
Binding Authority
Persuasive Authority (Non-Binding)
PERSUASIVENESS VARIES w SOURCE: Cases
Prestige
Through WW2: Often NY & Mass
Later 20th Century: Often Calif. & NJ (& then Alaska!!)
Similar Circumstances
Alabama v. California
Albers (late Sept.): Ontario, Canada (for Colorado)

26. Precedence of Precedents: Within a State
Pierson v. Post: DQ1.02
Precedence of Precedents: Within a State
Binding Authority
Persuasive Authority (Non-Binding)
PERSUASIVENESS VARIES w SOURCE: Scholarly Work
Prosser on Torts v. Brittany Spears on Torts
1954 scholarship v scholarship

27. Pierson v. Post: DQ1.02 Precedence of Precedents:
Among Levels of Government
Federal Law
Only if applicable: (where Federal Govt has power to regulate and has chosen to do so)
See Supremacy Clause of US Constitution
State Law
Local Ordinances and Regulations

28. Precedence of Precedents
Pierson v. Post: DQ1.02
Precedence of Precedents
IF QUESTIONS:
Review Slides &
Ask by or
Outside of Class

29. Pierson v. Post: DQ1.02 Why use precedents at all?
Why shouldn’t the court simply announce who wins?
(Multiple Overlapping Reasons)

30. Consistency/Fairness Legitimacy
Pierson v. Post: DQ1.02
PRECEDENT
Why use precedents at all? Why shouldn’t the court simply announce who wins?
(at least) Predictability
Consistency/Fairness Legitimacy

31. Pierson v. Post CASES IN CONTEXT
History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard)
How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d)
Overall Social/Historical Context (1805)
How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

32. Significance of History for Us
Background; Not Leading to Multiple Choice Test
Info I’ll give you often about beginnings and endings: often useful to be think about changes in society that occur around particular dates. E.g., 1492

33. EUROPE BEFORE 1492 Ireland without potatoes Italy without tomatoes
France w/o chocolate or tobacco

34. Sugar Cane Cultivation
AFTER 1492
New World  Europe
Europe  New World
Sugar Cane Cultivation
SILVER

35. Significance of History in Law
Judges & Lawyers (& Some Law Profs) = Human
Necessarily influenced by ideas & events of own time
Can make arguments about meaning of case or other authority from historical context
E.g., Dissent’s suggestion that rules suggested in treatises should not be followed because times have changed
E.g., nobody in 1805 is going to worry about effect of case on ecology; might act differently today

36. 1805 Pierson v. Post Qing Dynasty in China Tokugawa Shogunate in Japan
George III still British Monarch
Napoleon in France
War in Europe

37. Pierson v. Post: 1805 War in Europe:
Napoleon crowned Emperor in France & King of Italy
Destroys Russian & Austrian armies at Austerlitz, gaining effective control of most of Central Europe
BUT French Navy beaten badly at Battle of Trafalgar in October leaving Great Britain in control of seas

38. Pierson v. Post: 1805 Milestones:
Births: Hans Christian Andersen, Alexis de Tocqueville, Joseph Smith Jr (founds Church of Latter Day Saints)
Deaths: Lord Cornwallis; Adm. Horatio Nelson
Beethoven’s Symphony #3 (Eroica) & Opera Leonore premiere in Vienna

39. An Ancient Species of Mandarin Orange Reaches Europe for 1st Time; Imported into France from Tangier (Morocco)

40. Ancient Breed of Mandarin Oranges Reaches Europe from Tangier TANGERINES

41. 2d Term of Jefferson Presidency:
Pierson v. Post: 1805
2d Term of Jefferson Presidency:
17 States: Original 13 plus VT KY TN OH
Michigan & Louisiana Territories Created
Huntsville, AL + Fairfax, VA + Canton OH Founded
Treaties of Mt. Dexter & Ft. Industry & Grouseland Acquire Parts of Mississippi & Ohio & Indiana from Native Tribes
Lewis & Clark Expedition Reaches Pacific in Nov

42. Population of Suffolk County NY 1805 = about 20,000; 2012 = about 1,500,000

43. Pierson v. Post CASES IN CONTEXT
History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard)
How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d)
Overall Social/Historical Context (1805)
How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Custom)

44. Pierson v. Post: DQ1.03 CUSTOM & LAW
The dissent suggests that the court should defer to hunters’ customs.
Can view custom as kind of precedent: what people generally do in situation.
Certainly useful info for court: what would likely happen if no legal intervention

45. Pierson v. Post: DQ1.03 CUSTOM & LAW
The dissent suggests that the court should defer to hunters’ customs. Would that be a good thing?
Subquestions in DQ1.03 designed to help you think about this.

46. Pierson v. Post: DQ1.03 CUSTOM & LAW
Do you know what relevant customs are among hunters today?
If not, how would you find out?

47. Pierson v. Post: DQ1.03 CUSTOM & LAW
Do you know relevant customs are among hunters today? How would you find out?
Find Live Experts –OR— Internet
Some Good Ideas for Sources
Hunting Clubs (2015 Section B & Goldberg (B1))
Local Leaders/Teachers/Officials (2015 Section B & Levine(B2))
Relevant Organizations (American Fox Hunters) (2015 Section B & Levine(B2))

48. Pierson v. Post: DQ1.03
CUSTOM & LAW
Examples of Situations Where Custom Differs from Law?
Not just custom and no law, but custom inconsistent w existing law.

49. Situations where custom differs from law Problems Caused by these
Pierson v. Post: DQ1.03
CUSTOM & LAW
Situations where custom differs from law
Problems Caused by these
Differences?