1. MUSIC: Beethoven Symphonies #1 (1800) & #3 (1805) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991) LUNCH SCHEDULES FOR BOTH SECTIONS POSTED ON COURSE PAGE

2. ELEMENTS B/D Three Common 1L Issues Class #1: Confusion Class #2: Control Class #3: Competition v. Cooperation

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

4. COMPETITION v. COOPERATION

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

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

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

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

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

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

12. ELEMENTS B/D: Dean’s Fellow Sessions 1 st Semester Dean’s Fellows All Do Identical “Skills” Curriculum in Context of Substantive Material of Particular Course Never Intended that 1Ls Attend Four Sessions/Week Choose Thoughtfully Based on Effectiveness for You – Given How You Learn – Given How Particular DFs Teach

13. ELEMENTS B/D: Dean’s Fellow Sessions Choose Thoughtfully Based on Effectiveness for You – Given How You Learn – Given How Particular DFs Teach To Encourage You to Think Actively About How You Learn, Our DFs Will Each Do One Session Each Week Targeting §B and One Session Targeting §D – Identical Exercises – Try & See Which You Prefer

14. ELEMENTS B/D: Dean’s Fellow Sessions Mon. 9:30-10:20am Room F209 (Dahl) (Target = §B) Tue. 9:30-10:20am Room F200 (Kaye) (Target = §B) Wed. 11-11:50am Room E265 (Kaye) (Target = §D) Thu. 11-11:50am Room E265 (Dahl) (Target = §D) Also Listed on Course Page Can Attend Sessions Targeting Other Section if You Are Free

15. Pierson v. Post: DQ1.03 CUSTOM & LAW Examples of Situations Where Custom Differs from Law?

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

17. Pierson v. Post: DQ1.03 CUSTOM & LAW Situations where custom differs from law Problems caused by this difference include: Uncertainty Discretionary Police Power Disrespect for or Distrust of Law

18. Pierson v. Post: DQ1.03 CUSTOM & LAW To avoid these problems, gov’t can change law to conform to custom. Sometimes, improves situation May be exercise of common sense Soia & paths through the grass

19. Pierson v. Post: DQ1.03 CUSTOM & LAW When might conforming to custom be a bad idea?

20. Pierson v. Post: DQ1.03 CUSTOM & LAW When might conforming to custom be a bad idea? (Includes…) Bad customs (costly, inefficient, or inconsistent with other societal values) Moving a bright line law encourages even more violation (speed limit; drinking age) Uncertain customs (disputed or hard to apply) Surprise to parties affected but unaware of customs

21. Pierson v. Post: DQ1.03 CUSTOM & LAW Is Pierson v. Post a good situation to allow law to conform to hunters’ customs? Lawyering Note: We often focus on “Who is the appropriate decision-maker?”, rather than “Is this particular decision the best one possible?” E.g., Courts v. Legislatures Federal Gov’t v. States Legal System v. Customs of Relevant Group/Culture

22. Pierson v. Post: DQ1.03 CUSTOM & LAW Is Pierson v. Post a good situation to have law conform to hunters’ customs? Maybe if few outsiders affected. Maybe if issues are relatively unimportant.

23. Pierson v. Post: DQ1.03 CUSTOM & LAW When should law conform to custom? Recurring question in many areas of law – Contract Law v. Normal Business Practices – Tort Law: Use Industry Practices as Standard of Care? We’ll return to this question with regard to whaling customs in Unit Two

24. Pierson v. Post: DQ1.03 Qs on Custom?

25. CASE BRIEF: Generally LIKE A RESUME Standardized Information Range of Successful Ways to Present Alter for Different Audiences Rarely the Whole Story

26. Pierson v. Post: Citation Pierson v. Post, 3 Caines 175 (N.Y. [App.] 1805) See Bluebook for citation forms generally. In-Class Qs on Case Briefs: – Avoid “Is it OK that I put ….” – Make Qs More General or Wait Until After Class Note that I format slides to enhance in-class visibility, so they will not necessarily follow formatting instructions for your written submissions.

27. CASE BRIEF: Statement of the Case Succinct Statement of Nature of Original Lawsuit (complete Statement unlikely to be stated explicitly in case itself)

28. CASE BRIEF: Statement of the Case Succinct Statement of Nature of Original Lawsuit In Case Brief: Reminds You Quickly What Case Is About

29. CASE BRIEF: Statement of the Case Succinct Statement of Nature of Original Lawsuit In Case Brief: Reminds You Quickly What Case Is About In Legal Memos: & Court Submissions: Quickly Explains Nature of Case You Are Discussing

30. CASE BRIEF: Statement of the Case 1.Who Sued Whom? – In initial lawsuit – NOT “Who appealed?”

31. Pierson v. Post: Who Sued Whom? Not Helpful “Plaintiff Sued Defendant” (always true; provides no info)

32. Pierson v. Post: Who Sued Whom? Not Helpful “Plaintiff Sued Defendant” “Post Sued Pierson” (provides no info about lawsuit)

33. Statement of the Case: WHO SUED WHOM? Describe Parties in Way that Gives Sense of Subject of Lawsuit Apartment Landlord Sued Former Tenant Who Abandoned Unit… Purchasers of Leaky New House Sued Developer... Consumer Injured By Exploding Blender Sued Manufacturer and Seller of Blender...

34. Statement of the Case: WHO SUED WHOM? Helps Clarity of Case Brief to Include Parties’ Names Matheson, Apartment Landlord Sued Jacobson, Former Tenant Who Abandoned Unit… Aldens, Purchasers of Leaky New House Sued Landco, Developer, Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, and Walmart, Seller of Blender... Then can reference by name in rest of brief.

35. Pierson v. Post: Who Sued Whom? Post, … (?) sued Pierson, … (?) Descriptions of parties should help you understand what lawsuit was about without including unnecessary detail …

36. Pierson v. Post: Who Sued Whom? Post, a blond 27-year old Dutch- American asthmatic unemployed son of a Revolutionary War hero... (None of this seems relevant.) *Better descriptions of Post? (several plausible versions)

37. Pierson v. Post: Who Sued Whom? Post, a hunter who had been pursuing a fox, sued Pierson, … *Descriptions of Pierson? (again several plausible versions)

38. Pierson v. Post: Who Sued Whom? Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit... (One plausible version)

39. CASE BRIEF: Statement of the Case 1.Who Sued Whom? 2.Under What Theory (Legal Cause of Action)? Aldens, Purchasers of Leaky New House Sued Landco, Developer, for Breach of Warranty … Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, for Negligent Design...

40. Pierson v. Post: Under What Theory? Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, *for …

41. Pierson v. Post: Under What Theory? Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for “Trespass on the Case” (see 1 st Sentence of Case) … *Means?

42. Pierson v. Post: Under What Theory? “Trespass on the Case” “Trespass on the Case” – Indirect – Indirect Injury to П’s Property – E.g., left fire burning on own land & ruined П’s house “Trespass” Compare “Trespass” Direct Direct Injury to П’s Property E.g., entered П’s land and stomped on garden *Why Might Injury Be Indirect Here?

43. Pierson v. Post: Under What Theory? “Trespass on the Case” (Indirect Injury) v. “Trespass” (Direct Injury) Could be indirect here because Pierson did not harm property in Q (fox) with his bare hands, but used some kind of weapon (maybe a projectile). Distinction not important for our class— – Opinions in Pierson do not discuss this distinction. – Distinction won’t be referenced in our later cases. BUT good to get used to noting things like this. Compare “Trespass” = Direct Injury to П’s Property Why Indirect Here?

44. CASE BRIEF: Statement of the Case 1.Who Sued Whom? 2.Under What Theory (Legal Cause of Action)? 3.Seeking What Remedy? Aldens, Purchasers of Leaky New House Sued Landco, Developer, for Breach of Warranty, seeking Rescission [= Undoing] of the Sales Contract. Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, for Negligent Design, seeking Damages [for medical bills, lost wages and pain and suffering].

45. 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.] *Possibilities?

46. 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.)

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

48. 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 seeking damages. Again, Number of Possible Versions Qs

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

50. 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.

51. 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.

52. Pierson v. Post: Procedural Posture After Trial Resulted in Verdict for Post [Π], N.Y. Supreme Court Granted Pierson’s [Δ’s] Petition for [Certiorari] Review. – Note that you don’t have to give name of appellate court where already clear from the citation. – Questions?

53. CASE BRIEF: Facts Only include facts arguably relevant to court’s analysis. – Can’t determine relevance on 1 st 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

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

55. 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?

56. 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?

57. Pierson v. Post: Issue End of 1 st 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?

58. 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.

59. Pierson v. Post: Issue *WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

60. 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 we noted for DQ1.01, might have been raised at the beginning of the case; we don’t know.