1. MUSIC: Gustav Holst, The Planets (1914-16) London Philharmonia Orchestra (1996) conductOR: Leonard Slatkin

2. Pierson v. Post: DQs10-11 (Types of Rules) First-in-Time: Likely Winners & Losers CAPTURING ANIMALS?

3. Pierson v. Post: DQs10-11 (Types of Rules) First-in-Time: Likely Winners & Losers PARKING FOR LAW SCHOOL (among holders of same type of permit)

4. Pierson v. Post: DQs10-11 (Types of Rules) Alternative Approaches to First-in-Time: CAPTURING ANIMALS?

5. Pierson v. Post: DQs10-11 (Types of Rules) Alternative Approaches to First-in-Time: CAPTURING ANIMALS? DQ8: What rule would you want if you were trying to preserve the fox population because foxes are commercially valuable?

6. Pierson v. Post: DQs10-11 (Types of Rules) Alternative Approaches to First-in-Time: CAPTURING ANIMALS? DQ8: 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

7. Pierson v. Post: DQs10-11 (Types of Rules) Alternative Approaches to First-in-Time: PARKING FOR LAW SCHOOL (among holders of same type of permit)

8. Pierson v. Post: DQs10-11 (Types of Rules) Choosing Among Property Allocation Systems Relevant Considerations Include: – Administrative Costs (Simowitz point) – Likely Winners & Losers – Effects on Participants’ Behavior

9. Pierson v. Post: DQs10-11 (Types of Rules) Choosing Among Property Allocation Systems Pros & Cons of First-in-Time Rules: Likely Benefits – Often Reasonable Degree of Certainty – Ease of Administration Possible Problems – Can Seem Arbitrary – May Reward Undesirable Attributes

10. Pierson v. Post: DQs10-11 (Types of Rules) Choosing Among Property Allocation Systems We’ll Return to This Type of Choice in Unit Two

11. 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

12. What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context – History of Dispute & Court Proceedings – Prior Legal Authority – Customs & Other Social Institutions – Historical Moment Language Social Policies Underlying Assumptions

13. What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context Language – Difficulty Discerning Precise Holding – Rationales Social Policies Underlying Assumptions

14. What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context Language Social Policies – Reward Useful Labor – Get Certainty (In Tension w Flexibility) – Achieve Economic Benefits Underlying Assumptions

15. What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases Context Language Social Policies Underlying Assumptions – Irrelevance of Bad Intent – Use of Some Form of First-in-Time

16. LOGISTICS: TUESDAY SEPTEMBER 4 After class today, I’ll post Info Memo #2 & Update Syllabus & Assignment Sheet to Reflect Radiums: Shaw Brief Due Thursday @9pm – Look in IM#2 for: Formatting Instructions & Common Writing Problems Model for Liesner Brief – I’ll take Qs tomorrow in class I’ll Post Instructions for Group Written Assignment #1 Next Week & Take Qs in Class

17. Transition: Pierson  Liesner Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

18. Transition: Pierson  Liesner Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property Fights Between 1 st & 2d Hunter: – If Animal Unowned, no Q that 2d Hunter Wins – Issue: Had 1 st Hunter Done Enough to Get Property Rights Before 2d Hunter Intervened

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

20. Transition: Pierson  Liesner 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: 1.MORTAL WOUNDING (Liesner) 2.NETS & TRAPS (Shaw)

21. Liesner v. Wanie: Context 1914

22. Liesner v. Wanie: Context 1914: Deaths Joshua Lawrence Chamberlain (Civil War Hero) John Muir (Naturalist) Jacob Riis (Journalist/Author) 19 th Century Industrialists – CW Post (Grape Nuts & Other Cereals) – George Westinghouse (Railroad Brake and Electronics) – Frederik Weyerhauser (Timber & Paper)

23. Liesner v. Wanie: Context 1914: Births Alec Guiness Bert Parks Joe Louis Joe DiMaggio Ralph Ellison Howard K. Smith

24. Liesner v. Wanie: Context 1914: Introduced in U.S. term “Birth Control” (coined by Margaret Sanger) First Blood Transfusion Doublemint chewing gum Elastic Brassiere Federal Trade Commission Co. that will become Greyhound Bus Mother’s Day (by Congr. Resolution)

25. Liesner v. Wanie: Context 1914: Introduced in U.S. New Republic Magazine Panama Canal Pygmalion by GB Shaw Rookie Pitcher: Babe Ruth Tarzan of the Apes Teletype Machine Traffic Lights using red-green signals

26. Liesner v. Wanie: Context 1914: World War I June 28: Archduke Francis-Ferdinand Assassinated in Sarajevo: “The Shot Heard Round the World”

27. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied Victory

28. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied Victory Two Million Soldiers Participate

29. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied Victory Two Million Soldiers Participate 500,000 Killed or Wounded

30. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1 st Battle of the Marne Begins NE of Paris, French 6 th Army Attacks Germans  Allied Victory Two Million Soldiers Participate 500,000 Killed or Wounded Dec. 24-25: Christmas Truce

31. Liesner DQ17-18: Radium PLAYING WITH RULES Setting up DQ17-18 for Next Class Too Many Cooks Spoil the Soup

32. Liesner DQ17-18: Radium PLAYING WITH RULES Too Many Cooks Spoil the Soup Line-Drawing: How many is “too many”? – Vary with size of kitchen? – Vary with amount of soup you’re preparing?

33. Liesner DQ17-18: Radium PLAYING WITH RULES Too Many Cooks Spoil the Soup Definitions: Who counts as a “Cook”? – Anyone helping with preparation? – Anyone with significant training/experience? – Anyone making decisions about ingredients or technique?

34. Liesner DQ17-18: Radium PLAYING WITH RULES Too Many Cooks Spoil the Soup Scope of Rule: “Soup” and What Else? – Any dish? – Any dish requiring careful balancing of flavors? – Any dish requiring particular skill?

35. Liesner DQ17-18: Radium PLAYING WITH RULES: WHICH RULE TO USE? Too Many Cooks Spoil the Soup v. Many Hands Make Light Work

36. Liesner Brief: Uranium STATEMENT OF THE CASE: Who is Suing Whom?

37. Liesner Brief: Uranium STATEMENT OF THE CASE: Liesner and another, who claim to have shot and mortally wounded a wolf sued Wanie, who subsequently shot and took the wolf … – Wanie disputes on appeal whether the plaintiffs mortally wounded the wolf, so can’t treat it as given. – SEEKING WHAT RELIEF?

38. Liesner Brief: Uranium STATEMENT OF THE CASE: Liesner and another, who claim to have shot and mortally wounded a wolf sued Wanie, who subsequently shot and took the wolf, to recover the body of the wolf … – This is what plaintiffs initially requested; issue of damages raised later – ON WHAT LEGAL THEORY?

39. Liesner Brief: Uranium STATEMENT OF THE CASE: ON WHAT LEGAL THEORY? (UNSTATED) Might be “Trespass on the Case” (following Pierson) or “Trespass” (if Wisconsin views shot as direct) Might be “Replevin” = Common law action for return of goods improperly taken

40. Liesner Brief: Uranium PROCEDURAL POSTURE: Trial court directed verdict for plaintiff and awarded damages. Defendant appealed. – Don’t need to mention plaintiffs’ motion for directed verdict; that step is implicit in court’s action – Don’t need to mention defendant’s motion for directed verdict; doesn’t affect reasoning or outcome

41. Liesner DQ14: Radium Application of Pierson to Facts of Liesner Cases are complex tools for lawyers. Applying the language and reasoning of case to a new situation is a way to learn some of the things you can do with the tool.

42. Liesner DQ14: Radium Application of Pierson to Facts of Liesner Standard Law School practice to apply cases to hypothetical situations Applying one case to the facts of another is like using a hypothetical where the class already is familiar with the relevant facts Useful to remember that this exercise primarily is designed to help you understand Pierson (rather than Liesner)

43. Liesner DQ14: Radium Application of Pierson to Facts of Liesner For purposes of this exercise, let’s use FACTS as found by TRIAL COURT: 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal

44. Liesner DQ14: Radium Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal APPLY LANGUAGE FROM PIERSON

45. Liesner DQ14: Radium Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal APPLY POLICIES FROM PIERSON Reward Effective Labor?

46. Liesner DQ14: Radium Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) 1.Ps mortally wounded animal, pursued 2.Escape Improbable, if not impossible 3.D then shot, killed & took animal APPLY POLICIES FROM PIERSON Achieve Certainty?

47. Liesner DQ15: Uranium DIRECTED VERDICT Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury

48. Liesner DQ15: Uranium DIRECTED VERDICT Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury Two Possible Grounds for Appeal – Trial Court Applied Wrong Legal Standard – Evidence Was Sufficient to Meet Legal Standard

49. Liesner DQ15: Uranium DIRECTED VERDICT Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury Last Time: D Conceded Relevant Legal Standards, So Must Be Claiming That He Presented Evidence Sufficient to Raise Jury Q

50. Liesner DQ15: Uranium DIRECTED VERDICT Liesner is Unusual Case: – Directed Verdict for Plaintiff – Trial Record appears to contain factual disputes – Trial Court must have believed that undisputed evidence proved P’s case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting plaintiff)

51. Liesner DQ15: Uranium DIRECTED VERDICT What test does the Wisconsin Supreme Court appear to apply as to when a trial court should grant a motion for directed verdict?

52. “The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

54. Liesner DQ15: Uranium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven.

55. Liesner DQ15: Uranium DIRECTED VERDICT: IMPLICIT LEGAL TEST IN WISCONSIN (1914) The trial court can direct a verdict for a party if uncontested evidence removes all reasonable doubts that the party’s claim has been proven. What facts does Wanie claim were not proved beyond a reasonable doubt? (from last class)

56. “That … the plaintiffs were in vigorous pursuit of the game, the evidence is clear, and that in a few moments, at most, they would have had actual possession, is quite as clear. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

57. Liesner DQ15: Uranium What facts does Wanie claim were not proved beyond a reasonable doubt? Claim must be: Wanie presented sufficient evidence that – either other people’s shots might have hit the wolf – or that the Liesners’ shots didn’t hit it to create reasonable doubts that the shot that mortally wounded the wolf was fired by one of the Liesners.

58. Liesner Brief: Uranium ISSUE Did the Trial Court err (Procedural) by directing a verdict for the plaintiffs (Substantive) because the defendant offered sufficient evidence to create a reasonable doubt about who fired the shot that mortally wounded the wolf, thus gaining ownership of it?

59. Liesner Brief: Uranium FACTS Plaintiffs mortally wounded a wolf and pursued it to the point that escape was improbable, if not impossible. D then shot & killed the wolf and took the carcass.  The Trial Court found that Plaintiffs mortally wounded a wolf and pursued it to the point that escape was improbable, if not impossible. D then shot & killed the wolf and took the carcass.

60. Liesner DQ15: Uranium Is the Wisconsin Supreme Court certain that the test for directed verdict was met in this case?

61. The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had. In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….

62. Liesner Brief: Uranium HOLDING No, the Trial Court did not err (Procedural) by directing a verdict for the plaintiff (Substantive) because all reasonable doubts may well have been removed as to who fired the shot that mortally wounded the wolf, thus gaining ownership of it.

63. “The evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs,—so strongly that all reasonable doubts in respect to the matter, if any would otherwise have remained, might well have been removed by the superior advantages which the trial court had.”

64. Liesner DQ16: Uranium What are “the superior advantages which the trial court had”?

65. Liesner DQ16: Uranium What are “the superior advantages which the trial court had”? Visual Observation of Witnesses Hearing Testimony

66. She asked me to take her to the dance.