1. ELEMENTS B1 & B2 2016 POWER POINT SLIDES
Class #7 Wednesday, August 31 & Thursday September 1

2. On Course Page Today (Thursday) After Class
MUSIC: Beethoven Symphony #9 (1824) (Last Day of Ludwig Oh da Joy) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991)
On Course Page Today (Thursday) After Class
Next Set of Course Materials
Self-Quizzes for Liesner Trial Transcript & State v. Shaw
Due Dates for Group Assignments (on Assignment Sheet)

3. Pierson v. Post: (DQ1.09: Intangible Interests)
Post unlikely to have cared much about monetary value of fox pelt; more likely angered by deliberate interference with activity of hunting. Is the “right” to hunt without interference a right society should protect (where hunting is legal)? E.g., Post v. Beethoven

4. Pierson v. Post: (Intangible Interests; DQ1.09(a))
Is the “right” to hunt without interference a right society should protect (where hunting is legal)?
E.g., Post v. Beethoven
B1 From Monday:
Sainte: YES. Safety Concerns.
Pringle: NO. Eco-concerns (maybe best addressed to legislature asking to stop hunting altogether).
Other Ideas?

5. Pierson v. Post: (Intangible Interests)
DQ1.09(b): Post might believe Pierson killed fox spitefully for no reason except to bother Post (ongoing family feud). Majority says we shouldn’t care.

6. Pierson v. Post: (Intangible Interests)
Majority (last para.): “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.”
Elegant Version of “So What?”

7. Pierson v. Post: (Intangible Interests)
Majority: “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.”
DQ109(b): Is majority correct? Should a court take into account whether Pierson had “bad intent” (as opposed to genuine attempt to hunt fox for sport or pelt)?

8. Pierson v. Post: (Intangible Interests)
If a court wants to take “bad intent” into account, what evidence might you use to prove Pierson’s intent here (not having access to Vulcan Mind Meld)?

9. Pierson v. Post: (Intangible Interests)
PROOF OF INTENT
Required in Intentional Tort & Criminal Cases
Often Not Legally Relevant in Property Ownership Cases

10. Pierson v. Post: DQ1.09 (Intangible Interests)
PROOF OF INTENT
Required in Intentional Tort & Criminal Cases
Often Not Relevant to Property Ownership
Proof of Intent Often Expensive/Complex
Ignoring Intent = Cheaper, More Certain Results
Determining Intent = More Fact-Specific “Justice”

11. Pierson v. Post: DQ1.09 (Intangible Interests)
Post might have argued explicitly that court should not reward Pierson if acting simply to spite Post; if so, court disagreed.
Later, You Can Use Arguments Court Rejected …
To support similar rejection in future cases: “The Pierson Majority treated bad intent as irrelevant, therefore….”

12. Pierson v. Post: DQ1.09 (Intangible Interests)
Post might have argued that court should not reward Pierson if acting simply to spite Post; if so, court disagreed.
Later, You Can Use Arguments Court Rejected …
To support similar rejection in future cases.
“The Pierson majority did not see bad intent as important in those circumstances, but clearly it is more important here because ….”
Qs on This Type of Argument or DQ1.09?

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

14. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
First-in-Time:
What Kinds of People Are Likely Winners & Losers
CAPTURING ANIMALS?

15. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
What Kinds of People Are Likely Winners & Losers under F.I.T.
CAPTURING ANIMALS?
v v.

16. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
What Kinds of People Are Likely Winners & Losers under F.I.T.
PARKING FOR LAW SCHOOL?
Note: Pierson Parallel
(See Kathy Bates in Fried Green Tomatoes)

17. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
First-in-Time:
What Kinds of People Likely Winners/Losers PARKING FOR LAW SCHOOL
Winners Include: Students w Early Classes; Students w No Dependents; Morning People; Live Nearby; No Need to Exit & Return (for jobs, apptmts, etc.)

18. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to FIT:
CAPTURING ANIMALS?

19. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternatives to FIT: CAPTURING ANIMALS?
Distribute Limited 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)

20. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to FIT:
CAPTURING ANIMALS?
DQ1.08: What rule(s) would you want if you were trying to preserve the fox population because foxes are commercially valuable?

21. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to FIT
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

22. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to FIT:
Parking for Law School?

23. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to FIT:
Many Options for Parking Similar to Those for Hunting
Can Distribute Property Rts to Spaces in Advance:
Distribute by Auction, Lottery, Seniority (or Inverse), Academic Merit (or Inverse), Carpool Slots
Transferable or Not
Can add Regs re time limits etc.

24. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Choosing Among Property Allocation Systems
Relevant Considerations Include:
Likely Winners & Losers (Are “Right” People Rewarded)
Administrative Costs (FIT Generally Low)
Effects on Participants’ Behavior (E.g., Training 1Ls)

25. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Choosing Among Property Allocation Systems
Pros & Cons of First-in-Time Rules:
Likely Benefits of FIT
Often Reasonable Degree of Certainty
Ease of Administration (cf. designated parking spots)
Possible Problems with FIT
Can Seem Arbitrary
May Reward Undesirable Attributes or Punish “Hunters” for Things Outside Their Control
Pierson v. Post: DQs (Types of Rules)

26. Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Choosing Among Property Allocation Systems
We’ll Return to This Type of Choice Among Possible Rules (at Length) in Unit Two

27. CASE BRIEFING General Instructions: Closing Up

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

29. 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 Sample Brief for Pierson Dissent
BUT No other separate opinions until Unit III
CASE BRIEF: Concurrence/Dissent

30. CASE BRIEF: Names of Judges
Judge’s names not significant here until Whaling Cases (Unit IIA) and then Unit III (US S,Ct.)
You might want to indicate names in briefs 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.
CASE BRIEF: Names of Judges

31. Pierson v. Post: Sample Brief
On Course Page Now includes Sections from Posted Slides plus Facts, Result, Dissent IF Qs, OR BRING TO OFFICE HOURS

32. 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

33. What to Take Away From Pierson v. Post
Intro to Info Found in/Relevant to Cases
Context: History of Dispute; Legal Precedent; Custom & Other Social Institutions; Historical Setting
Language: Difficulty Discerning Precise Holding (No New Testament Red Ink); Rationales
Social Policies: Certainty (BUT in tension with Flexibility); Reward Useful Labor; Achieve Economic Benefits
Majority’s Assumptions: Use Some Form of First in Time Rule; Bad Intent Irrelevant
What to Take Away From Pierson v. Post

34. Transition: Pierson  Liesner/Shaw
Property Law Generally: Often important for gov’t to know to whom something belongs at any particular moment.
All 3 Cases Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

35. 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 1st & 2d Hunter:
If Animal Unowned when 2d hunter takes it, no Q that 2d Hunter Wins
Claim by 1st hunter is: Animal was already my property when 2d hunter acted.

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

37. 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:
MORTAL WOUNDING (Liesner)
NETS & TRAPS (Shaw)

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

39. [One Step at a Time Please]
Liesner Brief: Radium
STATEMENT OF THE CASE:
[One Step at a Time Please]
Who Sued Whom?
Liesner and another, [description?,] sued …

40. Liesner Brief: Radium STATEMENT OF THE CASE:
Who Sued Whom? Liesner and another, who shot and claim to have mortally wounded a wolf …
Wanie disputes on appeal whether the plaintiffs mortally wounded the wolf, so can’t treat it as given.
sued Wanie, [Description?] …

41. Liesner Brief: Radium STATEMENT OF THE CASE: SEEKING WHAT REMEDY?
Liesner and another, who shot and claim to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf …
SEEKING WHAT REMEDY?

42. 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, to recover the body of the wolf …
Focus in Statement is on original lawsuit; Ps initially requested the body, so say that here. Issue of damages arose later, so could put in Procedural Posture if seems relevant.
ON WHAT LEGAL THEORY? (NOT EXPLICIT IN CASE)

43. ON WHAT LEGAL THEORY? (UNSTATED)
Liesner Brief: Radium
STATEMENT OF THE CASE:
ON WHAT LEGAL THEORY? (UNSTATED)
Might be “Trespass on the Case” (following Pierson, though damages not requested at first) or “Trespass” (if Wisconsin views shot as direct interference w Property).
Might be “Replevin” = Common law action for return of goods improperly taken.
Your brief should note the uncertainty.