1. Music: Beethoven String Quartet opus 131 (1826) Vienna Philharmonic Leonard Bernstein, Conductor Recorded 1977

2. Context of a Case Historical Background –Generally (1805) –History of Dispute (DQ1) Prior Treatment of Problem –By Legal System (Precedent DQ2) –By Society (Custom DQ3)

3. DQ3: Custom & Law The dissent suggests that the court should defer to hunters’ customs. Would that be a good thing? Subquestions in DQ3 designed to help you think about this.

4. DQ3: Custom & Law Do you know what customs are among hunters today? If not, how would you find out?

5. DQ3: Custom & Law Situations where custom differs from law?

6. DQ3: Custom & Law Situations where custom differs from law? Problems caused by this difference? Disrespect for Law Uncertainty Discretionary Police Power

7. DQ3: 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

8. DQ3: Custom & Law When might conforming to custom be a bad idea?

9. DQ3: Custom & Law When might conforming to custom be a bad idea? Bad customs Uncertain customs –Disputed; or –Hard to apply Surprise

10. DQ3: Custom & Law Gov’t can change law to conform to custom. Is Pierson v. Post a good situation to have law conform to custom?

11. DQ3: Custom & Law Gov’t can change law to conform to custom. Is Pierson v. Post a good situation to have law conform to custom? Lawyering Note: Can focus on decision-maker, not decision

12. DQ3: Custom & Law When should law conform to custom? Recurring question in many areas of law e.g., Contract Law v. Business Practices We’ll return to this question with regard to whaling customs in Unit II

13. DQ3: Custom & Law Qs on custom?

14. LOGISTICS End of Class: Submit Teams for Panels I’ll post on course page over weekend: –Panels –Updated assignment sheet –List of lunches –Slides from Today (Always Posted) E-mail to add or change lunch date or if you have to miss lunch “Control” on Monday

15. TRAFFIC MONDAY!!!

16. COMPETITION v. COOPERATION

17. Two guys were camping in the woods, when the saw an angry bear rushing towards them…

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

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

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

21. COMPETITION v. COOPERATION I have to outrun you Cooperation Improves You – Different points of View – Multiple Ears/Eyes – Groups Tend to Lift Whole Group

22. COMPETITION v. COOPERATION I have to outrun you Cooperation Improves You Patience & Consideration

23. CASE BRIEF = RESUME Standardized Information Range of Successful Ways to Present Alter for Different Audiences Rarely the Whole Story

24. STATEMENT OF THE CASE

25. Succinct Statement of Nature of Original Lawsuit

26. STATEMENT OF THE CASE Succinct Statement of Nature of Original Lawsuit In Case Brief: Reminds You Quickly What Case Is About

27. STATEMENT OF THE CASE Succinct Statement of Nature of Original Lawsuit In Case Brief: Reminds You Quickly What Case Is About In Court Submissions: Quickly Explains Nature of Cases You Discuss In Your Arguments

28. STATEMENT OF THE CASE Who Sued Whom?

29. WHO SUED WHOM? Plaintiff Sued Defendant (X)

30. WHO SUED WHOM? Plaintiff Sued Defendant (X) Post Sued Pierson (X)

31. WHO SUED WHOM? Post, the shy blond 27-year old Dutch-American asthmatic unemployed son of a Revolutionary War hero...

32. WHO SUED WHOM?: Look for Relationship Relevant to Legal Issue Apartment Landlord Sued Former Tenant … Purchasers of Leaky New House Sued Developer... Consumer Injured By Exploding Blender Sued Manufacturer and Seller of Blender...

33. WHO SUED WHOM? Post, [relevant description], sued Pierson, [relevant description] Several Plausible Versions

34. WHO SUED WHOM? One Plausible Version: Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit...

35. STATEMENT OF THE CASE Who Sued Whom? Under What Theory? –Legal cause of action plaintiff alleged –NOT elaborate explanation of plaintiff’s lawyer’s arguments

36. UNDER WHAT THEORY? “Trespass on the Case” (See 1 st Sentence of Case) = Indirect Injury to π’s Property

37. Side Note: Common Practice π = Plaintiff Δ = Defendant

38. UNDER WHAT THEORY? Trespass on the Case = Indirect Injury to П’s Property Compare “Trespass” = Direct Injury to П’s Property Why Indirect Here?

39. STATEMENT OF THE CASE Who Sued Whom? Under What Theory? For What Remedy?

40. FOR WHAT REMEDY? Unclear From Majority Opinion Possibilities?

41. FOR WHAT REMEDY? Unclear From Majority Opinion Dissent: “In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of...” Suggests plaintiff sought return of the pelt.

42. FOR WHAT REMEDY? Unclear From Case Dissent: In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of … Could be Rhetoric: Normal remedy for Trespass on the Case is Damages

43. SAMPLE STATEMENT: ( Lots of Possible Versions) 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.

44. Qs on Statement of the Case

45. PROCEDURAL POSTURE

46. Statement of the case basically describes original complaint (declaration)

47. PROCEDURAL POSTURE Statement of the case basically describes original complaint (declaration) Procedural Posture = Procedural Steps After Complaint Filed Up To Step Getting Case to the Appellate Court

48. PROCEDURAL POSTURE Procedural Steps After Complaint Filed Up To Step Getting Case to the Appellate Court Limit to Steps Necessary to Understand Case

49. PROCEDURAL POSTURE Procedural Steps After Complaint Filed Up To Step Getting Case to the Appellate Court Limit to Steps Necessary to Understand Case Here: After Trial Resulted in Verdict for Plaintiff, Appellate Court Granted Defendant’s Petition for [Certiorari] Review

50. PROCEDURAL POSTURE Here: After Trial Resulted in Verdict for Plaintiff, Appellate Court Granted Defendant’s Petition for [Certiorari] Review Qs on Procedural Posture

51. FACTS

52. Limit to facts relevant to court’s analysis.

53. FACTS Limit to facts relevant to court’s analysis. Can’t determine relevance on 1 st read; select or edit after reading whole case.

54. FACTS Straightforward Here: Post was pursuing a fox he was hunting. Pierson, aware that Post was pursuing the fox, shot and killed it and took the carcass.

55. ISSUE & HOLDING

56. ISSUE Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake.

57. ISSUE Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake. There will be both a procedural component and a substantive component.

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

59. 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 Misunderstand- ing About the Legal Rule Caused the Lower Court to Err

60. “[T]he declaration and the matters therein contained were not sufficient in law to maintain an action.”

61. WHAT WAS INSUFFICIENT ABOUT IT?

62. Trespass on the case = indirect injury to plaintiff’s property rights. Allegation that π pursued the fox is insufficient because pursuit alone does not create property rights in the fox, so π had no property rights here.

63. WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

64. The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted

65. ALLEGED MISTAKE The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted Allegation That Plaintiff Pursued the Fox Is Insufficient Because Pursuit Alone Does Not Create Property Rights in the Fox.

66. Now Let’s Put it All Together …

67. Now Let’s Put it All Together into a Very Long Sentence …

68. Now Let’s Put it All Together into a Very Long Sentence with Questionable Grammar

69. Full Formal Version of 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?

70. Simple Substantive Issue: Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox?

71. Simple Substantive Issue: Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox? Cf. p.2: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]”

72. Simple Substantive Issue: Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox? Cf. p.2: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]” Note: Court doesn’t really answer this, so it can’t be the “issue” for our purposes