ELEMENTS D1 & D POWER POINT SLIDES

ELEMENTS D1 & D2 2017 POWER POINT SLIDES
Class #4 Monday, August 21 & Tuesday August 22

PANEL SELECTION INSTRUCTIONS
MUSIC: Beethoven Symphonies #6 (1808) & #8 (1814) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991) D2 LUNCH TUESDAY Meet on 12:05: McCroskey * Shields PANEL SELECTION INSTRUCTIONS Can give me piece of paper at break today w list of names of students who wish to be on same panel. I will assemble your chosen groups into 4 panels. Ok if your name not on any list; I will assign you where space. Can have groups of 2  10 students Submit one list per group Check with everyone on list before including

ELEMENTS D2 & D1 Three Common 1L Issues
Class #2: Confusion Class #3: Control Class #4: Competition v. Cooperation

COMPETITION v. COOPERATION
Background Qs: How Many of You … ? (Show of Hands; Look Around)

I don’t have to outrun the bear, I have to outrun you!!

I have to outrun you Bad Model for Law School

I have to outrun you Bad Model for Law School 1L Grading LComm Rest of your classes

I have to outrun you v. Cooperation Benefits You Diversity (Broadly Understood) Different experiences Different points of view Multiple Ears/Eyes

Cooperation Benefits You Diversity (Broadly Understood)  You Know Lots More Collectively than Individually Downside from “Confusion”: Can Feel Stupid

Cooperation Benefits You Diversity (Broadly Understood)  You Know Lots More Collectively than Individually Upside: Good Group Work Tends to Lift Whole Group

Cooperation Benefits You Patience & Consideration E.g., in event of illness or accident, family emergency, laptop disaster Remember, could have been you

Pierson v. Post: Case Brief (Continued)

CASE BRIEF: Procedural Posture
Procedural Steps After Lawsuit Filed (filing of lawsuit already described in Statement) …

Procedural Steps After Lawsuit Filed … Up to Step That Gets Case to the Appellate Court that Issued the Opinion You are Briefing. [Decision in that court referenced in “Holding and “Result” sections].

Procedural Steps After Lawsuit Filed … Up to Step That Gets Case to the Appellate Court. Try to Limit to Steps Necessary to Understand Case Usually have to edit what’s given in opinion. Lots of opportunities to edit in future case briefs.

Pierson v. Post: Procedural Posture
After Trial Resulted in Verdict for Post [Π], the [N.Y. Supreme] Court Granted Pierson’s [Δ’s] Petition for [Certiorari] Review. Note don’t need separate sentences to say (i) Pierson petitioned & (ii) Court granted petition Note you don’t have to give name of appellate court where already clear from the citation. Questions?

CASE BRIEF: Facts Only include facts arguably relevant to court’s analysis. Can’t determine relevance on 1st read Initial description of “facts” usually includes more detail than you need Important facts may only appear later in opinion Select/edit facts after reading whole case. We’ll do for Pierson after discussing DQs 1.04(c) & 1.05 & issue/holding

CASE BRIEF: Issue Party Appealing Always Claims the Lower Court Made a Mistake. To Identify the Issue, Identify the Mistake.

CASE BRIEF: Issue Party Appealing Claims the Lower Court Made a Mistake. Identify the Mistake. Procedural Component of Mistake: What Should Lower Court Have Done Differently?

CASE BRIEF: Issue Party Appealing Claims the Lower Court Made a Mistake. Identify the Mistake. Procedural Component of Mistake: What Should Lower Court Have Done Differently? Substantive Component of Mistake: What Misunderstanding About the Relevant Legal Rule Caused the Lower Court to Make the Procedural Mistake?

CASE BRIEF: Issue Party Appealing Claims the Lower Court Made a Mistake. Identify the Mistake. Procedural Component of Mistake: What Should Lower Court Have Done Differently? Substantive Component of Mistake: What Misunderstanding About the Legal Rule Caused the Lower Court to Make the Procedural Mistake? For this class, we’ll create versions of issue and holdings that incorporate both the procedural and the substantive component.

Pierson v. Post: Issue End of 1st paragraph: Pierson claimed that “the declaration and the matters therein contained were not sufficient in law to maintain an action.” *What did he think was insufficient about the claims Post made in the declaration?

Pierson v. Post: Issue SUBSTANTIVE MISTAKE: Claim that Post pursued the fox is insufficient because pursuit alone doesn’t create property rights in the fox. Trespass on the Case = Indirect Interference with Property Rights. If Post did not have “Property Rights” in the fox, Pierson did not commit Trespass on the Case when he killed it. [NOTE: Court doesn’t need to worry about difference between trespass and trespass on the case, because either way, Post would need to show property rights in the fox to succeed.]

Pierson v. Post: Issue * IF PIERSON WAS CORRECT ABOUT WHAT WAS WRONG WITH THE DECLARATION, WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?
Pierson v. Post: Issue WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY? PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case [as a Matter of Law] for Failure to State a Claim on Which Relief Could Be Granted As I noted in slides for DQ1.01, might have been raised at the beginning of the case; we don’t know.

Pierson v. Post: Issue (Recap)
PROCEDURAL COMPONENT OF MISTAKE: The Lower Court Should Have Dismissed the Case [as a Matter of Law] for Failure to State a Claim [on Which Relief Could Be Granted]. In other words, even if everything stated in Declaration was true, Post was not entitled to any legal remedy (or “SO WHAT?”).

REPLYING TO DECLARATION/ COMPLAINT [Note re Wood Grain]:
Motion to Dismiss for Failure to State a Claim = (“So What?”) v. Answer [Filing by Dfdt in Response to Complaint/Declaration] = (“Did Not!!”) Defendants often try versions of both, either concurrently re different claims or consecutively re the same claim.

Pierson v. Post: Issue [One very awkward yes/no question.]
For Elements Briefs, Combine Both Alleged Mistakes PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted + SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the fox is insufficient because pursuit alone does not create property rights in the fox. [One very awkward yes/no question.]

Pierson v. Post: Issue For Elements Briefs, (i) Combine Both Alleged Mistakes (ii) into a Yes/No Q (E.g.,) Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

Pierson v. Post: Issue Examples of Simple Substantive Issue
(Usually Appropriate for Torts or Property) “Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox?” -OR- “What Acts are Sufficient to Create Property Rights in a Fox?”

Simple Substantive Issue (for Other Classes)
Pierson v. Post: Issue Simple Substantive Issue (for Other Classes) E.g., What Acts are Sufficient to Create Property Rights in the Fox? E.g., Pierson p.3: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]” Issue for Elements Briefs: Include procedural component & frame as a yes/no question.

CASE BRIEF: Issue  Holding
Simplest Version of Holding: Issue is a question. Answer question “yes” or “no.” Repeat issue in statement form (adjust for positive or negative).

Pierson v. Post: Issue Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

Pierson v. Post: Issue  Holding
YES. The Lower Court Erred by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox. Qs on Issue/Holding So Far?

CASE BRIEF: Issue/Holding
SIDE NOTE: CASES FREQUENTLY HAVE TWO OR MORE ISSUES/HOLDINGS If so, your brief should separately list each issue followed by: One or more versions of the holding deciding that issue All rationales supporting that holding Most cases in first two units (including Pierson) only have one issue, but keep your eyes open.

CASE BRIEF: Issue/Holding
Hard Q: How Much Detail to Include? Try to include factual detail that seems relevant to analysis/outcome. Can have different versions of issue and/or holding that incorporate more or less detail (narrower/broader). For Elements, start with a narrow version of the issue & holding, then try broader holdings DQ can help you start thinking about how to do this.

Pierson v. Post: Issue/Holding
Version of Substantive Holding: To get property rights in a fox, you must be the first to “occupy” it, which means you must do more than pursue it.

Version of Substantive Holding (adding detail): To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it.

Significance of Facts (Recap)
Pierson v. Post: DQ1.04(a) Significance of Facts (Recap) Why might it matter that the fox is found on a deserted beach? On land that is not private property, no superceding claim by landowner (ratione soli).

Versions of Substantive Holding (Generalizing): To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it.  To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it.

Versions of Substantive Holding (Generalizing): To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it. Note: Might also get fight between two hunters (as opposed to between hunter and landowner) IF: Landowner permitted both hunters to hunt; OR Landowner chooses not to claim the animal. 1 or 2 probably true in next case (Liesner)

Assume well is also unowned.
Pierson v. Post: DQ1.04(c) Significance of Facts Suppose fox was in a well at the time it was killed. Why might that affect the result in the case? Assume well is also unowned.

Suppose fox was inside a well when it was killed…
Pierson v. Post: DQ1.04(c) Suppose fox was inside a well when it was killed… If fox mortally wounded by fall into well, might belong to whoever drove it into well. Could treat as trap (“toil”), which case suggests equals possession if fox cannot escape (see p.4): Can get possession of animals when traps “deprive them of their natural liberty, and render escape impossible….” Significance of this may depend on whether fox driven into well by Pierson or by Post.

Suppose fox was inside a well when it was killed…
Pierson v. Post: DQ1.04(c) Suppose fox was inside a well when it was killed… If fox mortally wounded by fall into well, might belong to whoever drove it into well. Could treat as trap (“toil”), which case suggests equals possession for “trapper” if fox cannot escape BUT even if Post had driven fox into werll, could still say that Post still did not have actual physical possession of the fox.

Pierson v. Post: DQ1.04(c) Suppose fox was in a well when it was killed …. Contemporary accounts outside the legal record say this was what happened. Assuming this is correct, probably not discussed in case b/c not in declaration. Why might Post’s lawyer have failed to include this information?

Note Again Importance of Lawyer
Pierson v. Post: DQ1.04(c) Significance of Facts Suppose fox was inside a well when it was killed. Why wouldn’t lawyer include it in declaration? Maybe strategic decision (e.g., if Pierson drove it there). Maybe lawyer didn’t think it was important. Maybe lawyer didn’t know (asked wrong Qs)! Note Again Importance of Lawyer

Pierson v. Post: DQ1.04(c) Significance of Facts Jack & Jill
Given what you know about the case, anything wrong with this image of the well? Jack & Jill

Pierson v. Post: DQ1.04(c) Significance of Facts
This kind of well on a beach on Long Island would fill with salt water.

Pierson v. Post: DQ1.04(c) For years I assumed Pierson shot fox at bottom of stereotypical (Jack-and-Jill) well, BUT wouldn’t have this kind of well on beach. BUT Detail in contemporary account says: Fox went into a “shoal well” (shallow hole on beach that collects fresh water). Pierson hit fox on the head with a broken fence rail (“broke its crown”?). ONE MORAL OF THE STORY: KEEP REREADING & CHECK YOUR ASSUMPTIONS!!

Pierson v. Post: DQ1.04(c) Note that NY SCt is ruling on the sufficiency of Post’s Declaration. It appears that the Declaration doesn’t mention a well or how Pierson killed the fox, so those “facts” are not part of the court’s analysis/decision. FYI: Bethany R. Berger, It's Not About the Fox: The Untold History of Pierson v. Post, 55 Duke L.J (2006)

CASE BRIEF: Narrower v. Broader Versions of Holdings
Different ways to articulate what a court decided that contract or expand the scope/reach of the decision.

CASE BRIEF: Narrower v. Broader Versions of Holdings
Covers fewer situations Includes more facts More specific Covers more situations Includes fewer facts More general

To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in a fox [found on unowned land], you must be the first to “occupy” it, which means you must do more than pursue it. (Broader)

FAILED RELATIONSHIPS: Narrower v. Broader Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that contract or expand the scope/reach of the lesson.

FAILED RELATIONSHIPS: Narrower v. Broader Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that contract or expand the scope/reach of the lesson. “I’ll never date a musician again!!”

FAILED RELATIONSHIPS: Narrower Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that contract the scope/reach of the lesson. “I’ll never date a musician again!!” Musician who is an Only Child? Keyboardist? Person in a Rock Band?

FAILED RELATIONSHIPS: Broader Versions of “Holdings”
Different ways to articulate the lesson you should take away from the break-up that expand the scope/reach of the lesson. “I’ll never date a musician again!!” Woman? Human Being? Sentient Creature?

To get property rights in [a fox] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in [an animal] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Too Broad???)

Pierson v. Post: DQ1.04(b) RECAP: Might want different rules for:
Pets/Domestic Animals (Different Rules Exist) Fox w T-Shirt  Likely Domesticated or Pet Endangered Species Animals in School/Flock Very Valuable Animal/Food Animal Animal Directly Endangeriung Persons or Property

To get property rights in [a fox] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  To get property rights in [an animal ferae naturae] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Broader, but clearly still supported by text) Reference to “Endangered Species” not part of 1805 worldview. Noting in majority opinion suggests different rules for edible/valuable animals or for animals hunted in schools or flocks.

Pierson v. Post Significance of Facts
Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal?

Pierson v. Post Significance of Facts
Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal? None. Claim on appeal is that even if all facts are as alleged, Post cannot win because his pursuit did not create property rights in fox.

Pierson v. Post: Holding
Version of Substantive Holding: To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it.  To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means … [specifics ???]

What Constitutes Possession of Wild Animal? Actual Physical Possession This is established prior to the case and everyone treats it as given. Because it is uncontested here, it is not part of the issue/holding.

What Constitutes Possession of Wild Animal? Actual Physical Possession (Uncontested) Majority Refers to Two Other Possible Ways to Get Possession: Mortal Wounding Traps & Nets

What Constitutes Possession of Wild Animal? Actual Physical Possession (Uncontested) Majority Notes Two Other Ways to Get Possession: (i) Mortal Wounding & (ii) Traps & Nets Note: Court discusses these two options although they were not part of the facts of the dispute it is resolving.

Pierson v. Post: DQ1.05 Holding v. Dicta
Courts often comment about fact situations different from the cases before them. What are some of the pros and cons of judges discussing facts not before them?

Should judges discussing facts not before them?
Pierson v. Post: DQ1.05 Should judges discussing facts not before them? PRO: Provides instructions to lawyers in future cases PRO: Helps clarify reasoning & scope of opinion CON: Want limits on judicial power (killing fox  death penalty) CON: Judges’ decisions may be better-reasoned if made in the context of real facts with interested parties each presenting their strongest arguments.

Should judges discussing facts not before them?
Pierson v. Post: DQ1.05 Should judges discussing facts not before them? Pros/cons list arguably supports common distinction between language that is “holding” and language that is “dicta.”

Pierson v. Post: DQ1.05 Holding v. Dicta (Simple Version)
Decision court made that resolved a disputed issue Language necessary to reach result Binding on future courts Statements court made that did not resolve a disputed issue Language not necessary to reach result Not binding on future courts (BUT can be very persuasive: “Dicta, schmicta!”)

Pierson v. Post: DQ1.05 Holding v. Dicta (In Pierson Itself)
Substantive Holding? (What Rule is Court Trying to Establish?) Pursuit alone is insufficient to create property rights in a wild animal. -OR- To create property rights in a wild animal, you need to physically possess it, mortally wound it, or catch it in a trap or net.

Pierson v. Post: DQ1.05 Holding v. Dicta (In Pierson Itself)
Pursuit alone is insufficient to create property rights in a wild animal OR- To create property rights in a wild animal, you need to physically possess it, mortally wound it, or catch it in a trap or net. How/when will you know for sure whether language in case is dicta or part of holding?

ELEMENTS D1 & D POWER POINT SLIDES

Similar presentations

Presentation on theme: "ELEMENTS D1 & D POWER POINT SLIDES"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

ELEMENTS D1 & D POWER POINT SLIDES

Similar presentations

Presentation on theme: "ELEMENTS D1 & D POWER POINT SLIDES"— Presentation transcript:

Similar presentations

About project

Feedback