1. ELEMENTS B1 & B2 2016 POWER POINT SLIDES
Class #4 Wednesday, August 24 & Thursday August 25

2. MUSIC: Beethoven Symphonies #6 (1808) & #8 (1814) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991)
B1 LUNCH WEDNESDAY
Meet on 12:30:
Ardijanto * Cottingham Fleming * Goldschmidt
Halpern * Massagli * Walsh
B2 LUNCH THURSDAY
Meet on 12:30
Barth * Brody * D’Bazo
Evans * Galavis
Iglesia * Norris

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

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

5. COMPETITION v. COOPERATION

6. COMPETITION v. COOPERATION

7. COMPETITION v. COOPERATION
I don’t have to outrun the bear,
I have to outrun you!!

8. COMPETITION v. COOPERATION
I have to outrun you
Bad Model for Law School

9. COMPETITION v. COOPERATION
I have to outrun you
Bad Model for Law School
1L Grading
LComm
Rest of your classes

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

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

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

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

14. CASE BRIEF: Statement of the Case
Who Sued Whom?
Under What Theory (Legal Cause of Action)?
Seeking What Remedy?

15. Pierson v. Post: For What Remedy?
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for Trespass on the Case, seeking … [not stated in Majority Opinion. Could be: ]
Damages OR
Return of the fox or its pelt.
*Evidence of Either?

16. Pierson v. Post: For What Remedy?
Not Stated in Majority Opinion. Could be:
Damages OR
Return of the fox or its pelt.
Dissent (p.5): “In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of ...” (This suggests remedy requested is return of property.)

17. Pierson v. Post: For What Remedy?
Not Stated in Majority Opinion
Dissent suggests remedy requested is return of property
BUT Normal remedy for Trespass on the Case is “Damages” (= $$$) (Dissent point could be rhetoric.)
How might you handle this uncertainty?

18. Pierson v. Post: Sample Statement
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for trespass on the case, presumably [or “possibly”] seeking damages.
Number of Possible Versions, but Try to Be Accurate re What You Really Know from Case Qs

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

20. CASE BRIEF: Procedural Posture
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].

21. CASE BRIEF: Procedural Posture
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.

22. 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?

23. 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 & 1.05 & issue/holding

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

25. 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?

26. 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?

27. 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.

28. 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?

29. 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.

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

31. 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.

32. 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?”).

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

34. Pierson v. Post: Issue [One very awkward yes/no sentence.]
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 sentence.]

35. 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?

36. Pierson v. Post: Issue Examples of Simple Substantive Issue
(Appropriate for Torts or Contracts)
“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?”

37. 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.

38. 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).

39. 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?

40. 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?

41. 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.

42. 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 intended to help you start thinking about how to do this.

43. 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.

44. Pierson v. Post: Issue/Holding
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.

45. 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).

46. Pierson v. Post: Issue/Holding
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.

47. Pierson v. Post: Issue/Holding
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)

48. 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.

49. 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.
BUT Could still say that Post still did not have actual physical possession of the fox.

50. 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 Could still say that Post still did not have actual physical possession of the fox.

51. 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?

52. Note 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.
Maybe lawyer didn’t think it was important.
Maybe lawyer didn’t know (asked wrong Qs)!
Note Importance of Lawyer

53. 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

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

55. 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!!

56. 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)

57. 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.

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

59. Pierson v. Post: Issue/Holding
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)

60. 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.

61. 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!!”

62. 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?

63. 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?

64. Pierson v. Post: Issue/Holding
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???)

65. Pierson v. Post: DQ1.04(b) Significance of Facts
Why might it matter that the hunted animal is some other animal as opposed to a fox?

66. THIS FOX LOVES DONALD TRUMP
Pierson v. Post: DQ1.04(b)
Significance of Facts
Why might it matter that the hunted fox is wearing a steel wool hair piece & a t-shirt?
THIS FOX LOVES DONALD TRUMP

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