1. MUSIC: Beethoven Violin Sonatas #5 (1801) & #9 (1803) Recordings: Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano (1973-74) Note for Friday: DQ1.04(c) was revised on 8/15 Check in with me before class: §B: Fernandez, Forzisi, Perez, Sanseverino §D: Centofanti, Layug, Spain

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

3. ELEMENTS B/D: Control Sense of Control Important for Peace of Mind Can’t Control Everything!! Can Take Steps to Feel More in Control.

4. ELEMENTS B/D: Control (1)Control Over Time (v. Distractions) Fall 1982

5. ELEMENTS B/D: Control (1) Control Over Time (v. Distractions) NOW!!!

6. ELEMENTS B/D: Control (1) Control Over Time (v. Distractions) Suggestions to Feel More in Control A.Clearly Distinguish Work & Break Time B.Use Timers for Both Work & Breaks C.Log Your Use Of Devices Over Several Days D.Just a Little Less

7. ELEMENTS B/D: Control (2) Control Over the Material & Your Performance (Limiting Confusion)

8. ELEMENTS B/D: Control (2) Control Over Material/Performance Suggestions to Feel More in Control – Before Class: – Do DQs Carefully (Just a Little More) – Do Self-Quizzes & Check Work – Write Out Briefs

9. ELEMENTS B/D: Control (2) Control Over Material/Performance Suggestions to Feel More in Control – After Class: – Review & Repair – Check Briefs Against Posted Samples

10. ELEMENTS B/D: Control (2) Control Over Material/Performance Suggestions to Feel More in Control – Written Assignments Do all parts of (not just what you turn in) Compare to posted comments & models

11. ELEMENTS B/D: Control (2) Control Over Material/Performance Suggestions to Feel More in Control Throughout the Course Discuss Material Among Yourselves ASK QUESTIONS!!!

12. ELEMENTS B/D: Control (3) Control & Hurricane Season For those of you new to South Florida, sometimes our weather has names.

13. ELEMENTS B/D: Control (3) Control & Hurricane Season Getting Good Information National Hurricane Center Website (check every few days during Fall Semester): www.nhc.noaa.govwww.nhc.noaa.gov UM Hurricane Preparedness Site (look over): www.miami.edu/ref/index.php/ep/emergency_prepare dness-_before/getting_ready/hurricane_preparedness/ www.miami.edu/ref/index.php/ep/emergency_prepare dness-_before/getting_ready/hurricane_preparedness/

14. ELEMENTS B/D: Control (3) Control & Hurricane Season Preparation: You Might Not Have Power for Several Days (1992 & 2005) Long Term Prep Water; Canned Goods; Non-Electric Can Opener Flashlight; Battery-Op Radio; Batteries; Candles Non-Electric Landline Phone ($5 at Walgreens)

15. ELEMENTS B/D: Control (3) Control & Hurricane Season Preparation: You Might Not Have Power for Several Days (1992 & 2005) If Storm Might Be Coming Get Cash & Put Gas in Car Print Out Schoolwork You Might Need Check UM Websites/Emergency Phone #s for Closure & Reopening Info

16. ELEMENTS B/D: Control (3) Control & Hurricane Season After a Storm UM as Refuge/Safe Space (Power & Shower) Missed Elements Classes Shift Forward Until You Get New Schedule I’ll take Qs on this after class & by e-mail OR Talk to folks who’ve been through storms

17. Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) Overall Social/Historical Context (1805) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

18. Pierson v. Post: DQ1.02 TYPES OF PRECEDENT Cases Statutes (passed by legislatures) Regulations (issued by executive branch/agencies) Constitution Treatises, Law Review Articles, etc.

19. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority – Constitution – Statutes – Regulations – Cases (common law) Persuasive Authority (Non-Binding)

20. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority – Constitution (& Cases Interpreting) – Statutes (& Cases Interpreting) – Regulations (& Cases Interpreting) – Cases (common law) Persuasive Authority (Non-Binding)

21. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Persuasive Authority (Non-Binding) – Cases (etc.) from Other Jurisdictions – Treatises, Law Review Articles, etc.

22. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Persuasive Authority (Non-Binding) – Cases (etc.) from Other Jurisdictions – Treatises, Law Review Articles, etc. PERSUASIVENESS VARIES w SOURCE: Cases Prestige – Through WW2: Often NY & Mass – Later 20 th Century: Often Calif. & NJ (& then Alaska!!) Similar Circumstances – Alabama v. California – Ontario

23. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State Binding Authority Persuasive Authority (Non-Binding) – Cases (etc.) from Other Jurisdictions – Treatises, Law Review Articles, etc. PERSUASIVENESS VARIES w SOURCE: Scholarly Work Prosser on Torts v. Brittany Spears on Torts 1954 scholarship v. 2009 scholarship

24. Pierson v. Post: DQ1.02 Precedence of Precedents: Among Levels of Government Federal Law – Only if applicable: (where Federal Govt has power to regulate and has chosen to do so) – See Supremacy Clause of US Constitution State Law Local Ordinances and Regulations

25. Pierson v. Post: DQ1.02 Precedence of Precedents QUESTIONS?

26. Pierson v. Post: DQ1.02 PRECEDENT (from last time) Pierson Majority Opinion relies on Treatises – Books Written by Experts in Law – Useful Because Smart People Looking at Same Problem

27. Pierson v. Post: DQ1.02 PRECEDENT (from last time) Pierson Majority Opinion relies on Treatises – Books Written by Experts in Law – Useful Because Smart People Looking at Same Problem – BUT Usually Least Important Type of Precedent No NY or Other U.S. Cases Cited: Why? No NY or Other U.S. Cases Cited: Why?

28. Pierson v. Post: DQ1.02 PRECEDENT Majority Opinion relies on Treatises No New York or Other U.S. Cases Cited: Why? – Problem Likely Not Litigated Much Relatively Uncommon Not Much at Stake (neither $$$ nor significant social issue) – U.S. Not Very Old

29. Pierson v. Post: DQ1.02 PRECEDENT NY (and other states) adopted pre-1776 English Common Law. See Albers (late Sept.) Majority says English cases not relevant here because they fall into one of two categories: 1.Cases arising under “positive statute regulations” 2.Cases involving doctrine of “ratione soli”

30. Pierson v. Post: DQ1.02 PRECEDENT Some English cases not relevant b/c they were “discussed and decided upon the principles of their positive statute regulations….” MEANS? Why does that make them irrelevant?

31. Ratione Soli: By Reason of the Soil An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.

32. Ratione Soli: By Reason of the Soil An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel. Why might such a rule have developed?

33. Pierson v. Post: DQ1.02 & 1.04(a) PRECEDENT Some English cases not relevant b/c decided under “ratione soli” These cases would be disputes between landowner and hunter, rather than between two hunters. DQ1.04(a): Why might it matter that the fox is caught on a deserted beach? Because there is no landowner making a ratione soli claim.

34. Pierson v. Post: DQ1.02 PRECEDENT Why use precedents at all? Why shouldn’t the court simply announce who wins?

35. Pierson v. Post: DQ1.02 PRECEDENT Why use precedents at all? Why shouldn’t the court simply announce who wins? (at least) Predictability Consistency Legitimacy

36. Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) Overall Social/Historical Context (1805) Overall Social/Historical Context (1805) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

37. Significance of History for Us Background; Not Leading to Multiple Choice Test Info I’ll give you often about beginnings and endings: often useful to be think about changes in society that occur around particular dates. E.g., 1492

38. EUROPE BEFORE 1492 Ireland without potatoes Italy without tomatoes France without chocolate or tobacco

39. AFTER 1492 New World  Europe SILVER Europe  New World Sugar Cane Cultivation

40. Significance of History in Law Judges & Lawyers (& Some Law Profs) = Human – Necessarily influenced by ideas & events of own time Can make arguments about meaning of case or other authority from historical context – E.g., Dissent’s suggestion that rules suggested in treatises should not be followed because times have changed – E.g., nobody in 1805 is going to worry about effect of case on ecology; might act differently today

41. Pierson v. Post 1805 Qing Dynasty in China Tokugawa Shogunate in Japan George III still British Monarch Napoleon in France War in Europe

42. Pierson v. Post: 1805 War in Europe: Napoleon crowned Emperor in France & King of Italy Destroys Russian & Austrian armies at Austerlitz, gaining effective control of most of Central Europe BUT French Navy beaten badly at Battle of Trafalgar in October leaving Great Britain in control of seas

43. Pierson v. Post: 1805 Milestones: Births: Hans Christian Andersen, Alexis de Tocqueville, Joseph Smith Jr (founds Church of Latter Day Saints) Deaths: Lord Cornwallis; Adm. Horatio Nelson Beethoven’s Symphony #3 (Eroica) & Opera Leonore premiere in Vienna (Music Note)

44. An Ancient Species of Mandarin Orange Reaches Europe for 1 st Time; Imported into France from Tangier (Morocco)

45. Ancient Breed of Mandarin Oranges Reaches Europe from Tangier  TANGERINES

46. Pierson v. Post: 1805 2d Term of Jefferson Presidency: 17 States: Original 13 plus VT KY TN OH Michigan & Lousiana Territories Created Huntsville, AL + Fairfax, VA + Canton OH Founded Treaties of Mt. Dexter & Ft. Industry & Grouseland Acquire Parts of Mississippi & Ohio & Indiana from Native Tribes Lewis & Clark Expedition Reaches Pacific in Nov

47. Population of Suffolk County NY 1805 = about 20,000 2012 = about 1,500,000

48. Pierson v. Post CASES IN CONTEXT History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) Overall Social/Historical Context (1805) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Custom) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Custom)

49. Pierson v. Post: DQ1.03 CUSTOM & LAW The dissent suggests that the court should defer to hunters’ customs. Can view custom as kind of precedent: what people generally do in situation. Certainly useful info for court: what would likely happen if no legal intervention

50. Pierson v. Post: DQ1.03 CUSTOM & LAW The dissent suggests that the court should defer to hunters’ customs. Would that be a good thing? Subquestions in DQ1.03 designed to help you think about this.

51. Pierson v. Post: DQ1.03 CUSTOM & LAW Do you know what relevant customs are among hunters today? If not, how would you find out? – Find Experts – Online