1. ELEMENTS B POWER POINT SLIDES Class #9 Wednesday, September 9, 2015 (#9 = 9/9)

2. MUSIC: CLAUDE DEBUSSY Afternoon of a Faun (1894); Nocturnes (1900); The Sea (1905); Images D’Orchestre (1905-12) Boston Symphony Orchestra conductOR: CHARLES MUNCH (1956-62) Lunch Today Meet on Bricks @ 11:55am Ajizian * Burch, Jul. * Henry Kloosterboer * Lederman Monteiro * Pimentel Lunch Tomorrow Meet on Bricks @ 12:25am Brams * Celerin * Fogleman Johnson * Phillips Shulman * Valencia

3. Liesner DQ1.18: Radium “Prevailing rule” (Three Formulations): substantially (1) substantially permanently deprive [animal] of liberty improbable (2) [have the animal] so in their power that escape improbable, if not impossible practically (3) [bring the animal] under control so that actual possession practically inevitable All three formulations contain an imprecise word meaning something like “almost completely.”

4. Liesner DQ1.18 (b): Radium What policies support the rule? What policies suggest that it has problems? As compared to what?

5. Liesner DQ1.18 (b): Radium COMPARE POSSIBLE RULES 1.Actual Possession Likely 2.Actual Possession Practically Inevitable 3.Actual Possession Inevitable Policies Supporting Choice … of #2 v. #3?

6. Liesner DQ1.18 (b): Radium COMPARE POSSIBLE RULES 1.Actual Possession Likely 2.Actual Possession Practically Inevitable 3.Actual Possession Inevitable Policies Supporting Choice of #2 v. #3? #3 = Too difficult to meet standard – Discourages hunters  fewer kills – Doesn’t reward most-of the-way labor – Impossible-to-meet standard may yield disrespect for law, self-help; violence (Pijls; Weissman)

7. Liesner DQ1.18 (b): Radium COMPARE POSSIBLE RULES 1.Actual Possession Likely 2.Actual Possession Practically Inevitable 3.Actual Possession Inevitable Policies Supporting Choice … of #2 v. #1?

8. Liesner DQ1.18 (b): Radium COMPARE POSSIBLE RULES 1.Actual Possession Likely 2.Actual Possession Practically Inevitable 3.Actual Possession Inevitable Policies Supporting Choice of #2 v. #1? #1 = Too uncertain in application – Yields too many disputes/lawsuits (v. higher claim threshold for #2) – May reward ineffective/insufficient labor

9. Liesner DQ1.18 (a): Radium “Prevailing rule” (Three Formulations): (1) substantially permanently deprive [animal] of liberty (SPDL) (2) [have the animal] so in their power that escape improbable, if not impossible (3) [bring the animal] under control so that actual possession practically inevitable MEANING OF LANGUAGE? (from last time)

10. Liesner DQ1.18 (a): Radium Property Rights in Animal IF: substantially permanently deprived [animal] of his liberty MEANING OF LANGUAGE Significance of Two Separate Adverbs?

11. Liesner DQ1.18(c): Radium Apply to Pierson Facts: Property Rights if … substantially permanently deprived [animal] of [its] liberty

12. Liesner DQ1.18(a): Radium Property Rights in Animal if: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE Difference betw. underlined phrases?

13. Liesner DQ1.18 (a): Radium Property Rights in Animal if: so in their power that escape was highly improbable, if not impossible under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE? Difference betw. underlined phrases?

14. Liesner DQ1.18(c): Radium Apply to Pierson Facts: Property Rights if … under the control of a person so that actual possession is practically inevitable so in their power that escape was highly improbable, if not impossible We’ll leave for you & DF Sessions

15. Applying Legal Rule/Test 1.Look for best arguments for each party – Be cognizant of structure of test – Use care with language – Utilize definitions 2.If significant doctrinal arguments for both parties, try to resolve with: – Comparisons to facts of cases – Other language from cases – Policy arguments (incl. purpose of rule)

16. Closing Up Liesner : Lawyering Points Standards of Review: Relevant Legal Standard Can Be Different for – Court Making Initial Decision v. – Appellate Court Reviewing that Decision Working with a Record: – What Record Says Explicitly v. – Reasonable/Plausible Inferences from the Record (“in the light most favorable to …”) Qs on Liesner ? (Appellate Case or Trial Record)

17. LOGISTICS: CLASS #9 Group Assignment #1 Specific Instructions Posted on Course Page – Instructions for all Group Assignments at IM23 – Groups of three or four students (3-3-3 or 4-2-4) – One person acts as coordinator I’ll explain more & take Qs during class Fri Can start on right away (especially logistics) Due Mon Sept 21 @ 10 pm Comments & Best Student Answers from Parallel Shack Exercise Posted on Course Page

18. LOGISTICS: CLASS #9 Materials for Last Part of Unit One on Course Page – Including Updates to Syllabus & Assignment Sheets – We’ll Introduce Issue of Escape Next Wednesday: – 1 st Two Cases (Manning & Mullett) Quizzes Posted We’ll Start Manning Next Friday Oxygen: Written Mullett Brief due Sat Sep 19. No Office Hours Tomorrow DF Sessions From Now Till Break: Friday & Following Monday Will Be Same Coverage

19. ALL: EXERCISE FOR FRIDAY Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX

20. STATE v. SHAW DQ1.27: Krypton Friday: sunken boat Should the result in Shaw be the same if the fishermen used a sunken boat instead of a net to trap the fish? Assume the boat retains the same percentage of fish that enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat)

21. STATE v. SHAW DQ1.27: Krypton NOTE: If Q = “Should the result be the same if we change one fact?” Really asking: “Why might result be different if we change the fact?” So: Why might it make a difference that people use a sunken boat rather than a net to catch fish (if both equally effective)?

22. Musical Interlude Shaw-1902  1908  1914-Liesner The Most Performed Waltz in American Popular Music

23. featuring + (Often Used for Goin’ Fission) STATE v. SHAW Brief featuring Wallpaper with Fish! + Uranium (Often Used for Goin’ Fission)

24. STATE v. SHAW Brief: Uranium STATEMENT OF THE CASE? CRIMINAL CASE Government Government always brings the suit, so can say: “State (or U.S.) charged X with [name of crime].” -OR- “Criminal action against X for [name of crime].” Relief Requested incarceration fines Relief Requested always is incarceration or fines; can leave unstated.

25. STATE v. SHAW Brief: Uranium STATEMENT OF THE CASE? “State charged [names?], [relevant description?], with [name of crime?].

26. STATE v. SHAW Brief: Uranium STATEMENT OF THE CASE? “State charged o Shaw, Thomas and another (or) o Three defendants including Shaw and Thomas o Shaw to tie to name of case o Thomas because his trial is the one that is appealed [relevant description?], with [name of crime?].

27. STATE v. SHAW Brief: Uranium STATEMENT OF THE CASE? “State charged Shaw, Thomas and another, who removed fish from nets belonging to others … Can’t say “stole” or that fish “belonged to others” b/c that’s what’s at issue with [name of crime?].

28. STATE v. SHAW Brief: Uranium STATEMENT OF THE CASE? “State charged Shaw, Thomas and another, who removed fish from nets belonging to others with grand larceny.

29. STATE v. SHAW Brief: Uranium PROCEDURAL POSTURE? Note that indictment is method by which State charged Ds, so don’t need here (already implicit in Statement of Case)

30. STATE v. SHAW Brief: Uranium PROCEDURAL POSTURE? Thomas was tried separately. At the close of the state’s evidence, the trial court directed a verdict for Thomas. The state excepted [appealed].

31. STATE v. SHAW Brief: Uranium We’ll Return to FACTS After ISSUE ISSUE: PROCEDURAL PART?

32. STATE v. SHAW Brief: Uranium ISSUE: PROCEDURAL PART? Did the trial court err in directing a verdict for the defendant …

33. STATE v. SHAW Brief: Uranium ISSUE: SUBSTANTIVE PART? To prove “grand larceny” state must show that defendants [intentionally] took property belonging to other people. Directed verdict means state’s evidence was insufficient to show the crime. Why did Trial Court think state’s evidence was insufficient here?

34. STATE v. SHAW Brief: Uranium ISSUE: SUBSTANTIVE PART? To prove “grand larceny” state must show that defendants took property belonging to other people. Trial Court held fish at issue were not property of net-owners because nets do not create property rights when some fish can escape from nets. (“Perfect Net Rule”) What does state say is wrong with Trial Court’s position?

35. STATE v. SHAW Brief: Uranium ISSUE: SUBSTANTIVE PART? Trial Court held fish at issue were not property of net-owners because nets do not create property rights when some fish can escape from nets (“Perfect Net Rule”) State says net need not be perfect to create property rights in net-owners.

36. STATE v. SHAW Brief: Uranium ISSUE: Did the trial court err in directing a verdict for the defendant … [on the grounds that defendant did not commit grand larceny] … because net-owners do not have property rights in fish found in their nets where some fish can escape from the nets?

37. STATE v. SHAW Discussions of Shaw: Focus On “Perfect Net Rule” Used by Trial Court Do our other cases support that rule? Policy arguments for and against that rule. When Ohio Supreme Court rejects that rule, what does it leave in its place? FIRST: BACK TO THE FACTS

38. STATE v. SHAW: FACTS Significance of Indictment Issued by Grand Jury after viewing evidence presented by Prosecution (no evidence presented by defense). Particular charges included if Grand Jury believes it saw evidence sufficient to support going forward with them.

39. STATE v. SHAW: FACTS Significance of Indictment Phrase “with force and arms” in indictment: any Boilerplate language traditionally used in conjunction with any criminal charge Does not mean that evidence showed guns were actually used in this case.

40. STATE v. SHAW: FACTS Significance of Indictment Once trial begins, trial court only looks at evidence actually presented by parties. Claims in indictment then effectively become irrelevant for most purposes Same thing happens to complaint in a civil case unless (as in Pierson) claim on appeal is that complaint should have been dismissed before trial.

41. STATE v. SHAW: FACTS Ohio S.Ct. Treats State’s Evidence as “Facts” for Purposes of Appeal Directed Verdict in favor of defendant means that Trial Court believed that, even looking at all the evidence “in the light most favorable” to the State, State cannot win.

42. STATE v. SHAW: FACTS Ohio S.Ct. Treats State’s Evidence as “Facts” Directed Verdict = even looking at all the evidence “in the light most favorable” to the State, State cannot win. To review Directed Verdict, appellate court must: Treat all of state’s evidence as true Make all reasonable inferences from the evidence in favor of the State

43. STATE v. SHAW: FACTS Ohio S.Ct. Treats State’s Evidence as “Facts” Common to treat information from a particular source as true for purposes of appeal E.g., allegations in declaration in Pierson

44. STATE v. SHAW: FACTS NOW TO WHITE BOARD FOR “FACTS” FOR PURPOSES OF BRIEF

45. STATE v. SHAW SIGNIFICANT FACTS (in chronological order) Third parties put nets in public waters to catch fish. Some fish that got into the nets could escape, but “under ordinary circumstances, few, if any, fish escape.” (p.29) Thomas and others (Ds) removed fish from the nets.