ELEMENTS B 2019 POWER POINT SLIDES Class #8: Thursday August 29 National Chop Suey Day

1. ELEMENTS B 2019POWER POINT SLIDESClass #8: Thursday August 29 National Chop Suey Day

2. MUSIC: Gustav Holst, The Planets (1914-16) Recording: Los Angeles Philharmonic (2012) Conductor: ZUBEN MEHTA Lunch & Office Hours Cancelled Today (AC Repair) I’ll E-Mail re Rescheduling Lunch RADIUMS: Shaw Brief Due TBA Instructions Now on Course Page; I’ll Give You Time at Break to Review Them, Then Take Qs Tomorrow: LiesnerTrial Transcript (No Brief; Look Carefully for Relevant Evidence)

3. Pierson v. Post: DQs1.10-1.11 First-in-Time (FIT) v. Other Types of Rules (from last time) • Exploring assumption underlying both opinions in Pierson that FIT is good way to decide. • Looking at Animals & Parking • Preview of important Q we’ll do in depth in Unit II

4. Pierson v. Post: DQs1.10-1.11 (Types of Rules) First-in-Time: What Kinds of People Are Likely Winners & Losers CAPTURING ANIMALS?

5. Pierson v. Post: DQs1.10-1.11 (Types of Rules) What Kinds of People Are Likely Winners & Losers under F.I.T. CAPTURING ANIMALS? v. v. E.g., Experienced, Physically Fit/Skillful, Wealthy, Having Local Knowledge. Having Available Time; Competitive People

6. Pierson v. Post: DQs1.10-1.11 (Types of Rules) • DQ1.10-1.11: Opportunity to Compare First-in-Time Rules to Alternative Types of Rules • Allocating Parking Spaces (in Places You Are Allowed to Park). • Note that parking spaces usually allocated on First-in-Time Basis, e.g., • among permit-holders in Pavia Garage • among public in mall parking lots

7. Pierson v. Post: DQs1.10-1.11 (Types of Rules) What Kinds of People Are Likely Winners & Losers under F.I.T. PARKING FOR LAW SCHOOL? (Assume world with large lot next to Law School limited to law students) Recall Pierson Parallel (from Tues.) (See Kathy Bates in Fried Green Tomatoes)

8. Pierson v. Post: DQs1.10-1.11 (Types of Rules) First-in-Time: What Kinds of People Likely Winners/Losers PARKING FOR LAW SCHOOL Winners Include: Students w Early Classes; Students w No Dependents; Morning People; Live Nearby; No Need to Exit & Return (for jobs, apptmts, etc.)

9. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: CAPTURING ANIMALS?

10. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternatives to FIT: CAPTURING ANIMALS? • Distribute Limited Property Rights to Hunt: • Divide by Area or by Time • Distribute by Auction, Lottery, Skill, Seniority • Transferable or Not • Regulatory Limits (Can Combine with Above) • Limit on Number Taken or Size • Limit on Time Allowed • Specific Regs (E.g. No Females During Breeding Season)

11. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: CAPTURING ANIMALS? DQ1.08: What rule(s) 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

12. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: Parking for Law School? (Again, assume world with large lot next to Law School limited to law students)

13. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: Many Options for Parking Similar to Those for Hunting • Can Distribute Property Rts to Spaces in Advance: • Distribute by Auction, Lottery, Seniority (or Inverse), Academic Merit (or Inverse), Carpool Slots • Transferable or Not • Can add Regs re time limits etc.

14. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems • Relevant Considerations Include: • Likely Winners & Losers (Are “Right” People Rewarded) • Administrative Costs (FIT Generally Low) • Incentives = Effects on Participants’ Behavior (E.g., Training 1Ls)

15. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems Pros & Cons of First-in-Time Rules: • Likely Benefits of FIT • Often Reasonable Degree of Certainty • Ease of Administration (cf. designated parking spots) • Possible Problems with FIT • Can Seem Arbitrary • May Reward Undesirable Attributes or Punish “Hunters” for Things Outside Their Control

16. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems We’ll Return to This Type of Choice Among Possible Rules (at Length) in Unit Two

17. 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

18. Transition: Pierson  Liesner/Shaw • Property Law Generally: Often important for gov’t to know to whom something belongs at any particular moment. • All 3 Cases Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

19. Transition: Pierson  Liesner/Shaw • Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property • All 3 Cases: Fights Between 1st & 2d Hunter: • If Animal Unownedwhen 2d hunter takes it, no Q that 2d Hunter Wins • Claim by 1st hunter is: Animal was already my property when 2d hunter acted.

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

21. Transition: Pierson  Liesner/Shaw • 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: • MORTAL WOUNDING (Liesner) • NETS & TRAPS (Shaw)

22. Transition: Pierson  Liesner Final Qs on Pierson? Then Back to Liesner with & Oxygens & Radiums

23. Liesner DQ1.15: Oxygen Application of Pierson to Facts of Liesner For purposes of this exercise, let’s use FACTS as found by TRIAL COURT (1st para of opinion): • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal

24. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal Apply Language from Pierson Majority Relevant Passages?

25. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner Relevant Passages (all from p.4) Include: • “bodily seizure not indispensable to capture” • “mortal wounding” + “not abandoning pursuit” • “unequivocal intention of appropriating” + “deprived of natural liberty (NL)” + “brought w/in certain control” • “deprived of NL”+ “escape impossible” + use of “industry & labor” • Not enough: “[S]eeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, … as to deprive them of their natural liberty, and subject them to the control of their pursuer….”

26. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal • “Deprived of Natural Liberty”? • “Certain Control” or “Escape Impossible”?

27. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal • Pierson uses language of absolute certainty (“certain control” & “escape impossible”) • Liesnerfudges in its description of facts.

28. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal

29. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner Language of Pierson seems to require 100% assurance of eventual capture: • mortal wounding …, by one not abandoning his pursuit, may … be deemed possession …; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty [NL], and brought him within his certain control.” • “securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their NL, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”

30. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal • Pierson uses language of 100% assurance (“certain control” & “escape impossible”) • Liesnertrial court fudges in its description of facts, therefore, if you applied this language from Pierson, Ps would lose in Liesner.

31. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal APPLY POLICIES FROM PIERSON Achieve Certainty?

32. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner Language of Pierson seems to require 100% assurance of eventual capture: • mortal wounding …, by one not abandoning his pursuit, may … be deemed possession …; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty [NL], and brought him within his certain control.”  [inevitable control]

33. Liesner DQ1.15: Oxygen :Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal Apply Pierson Policies: Achieve Certainty? Argument that applying language of 100% assurance (“[inevitable] control” & “escape impossible”) reduces certainty for hunters and courts?

34. Liesner DQ1.15: Oxygen:Application of Pierson to Facts of Liesner FACTS (as found by TRIAL COURT) • Ps mortally wounded animal, pursued • Escape Improbable, if not impossible • D then shot, killed & took animal APPLY POLICIES FROM PIERSON Reward Useful Labor? (DF Next Week) (Would it properly reward useful labor to give Ps property rights on these facts?)

35. Pierson: Holding v. Dicta Revisited Language of Pierson seems to require 100% assurance of eventual capture: • mortal wounding …, by one not abandoning his pursuit, may … be deemed possession …; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty [NL], and brought him within his [inevitable] control.” • “securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their NL, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”

36. Liesner Issue/Holding Hard case at this stage of Law School because reviewing decision on sufficiency of evidence, not ruling on relevant law.

37. Liesner Brief: Radium ISSUE Did the Trial Court err • (Procedural?)

38. Liesner Brief: Radium ISSUE Did the Trial Court err • (Procedural) by directing a verdict for the Ps • (Substantive) [Something about the D having offered sufficient evidence to raise jury Qs] OXYGEN DQs1.16-1.17 Help Provide Info re Relevant Standards

39. Liesner DQ1.16: Oxygen BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS • Generally: Trial Court Rules That One Party Presented Insufficient Evidence to the Jury to Meet Relevant Legal Standard

40. Liesner DQ1.16: Oxygen BACKGROUND FROM PRIOR CLASSES re DIRECTED VERDICTS • Directed Verdict for Plaintiffs Here Unusual • Trial Court must have believed that undisputed evidence proved Ps’ case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting Ps) • Wanie Conceded Relevant Legal Standards, So Must Be Claiming on Appeal That He Presented Evidence Sufficient to Raise Jury Q

41. Liesner DQ1.16: Oxygen 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? Important Case Reading Skill: Reverse Engineering Legal Test from Language Court Uses Applying It

42. Last Paragraph: “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 ….”

43. “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 ….”

44. Liesner DQ1.16: Oxygen 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 proved.

45. Liesner DQ1.16: Oxygen 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 Fri)

46. “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 removedas to who delivered the shot which so crippled the animal as to cause him to cease trying to escape ….”

47. Liesner DQ1.16: Oxygen Wanie’s claim must be: • I presented sufficient evidence • either thatother people’s shots might have mortally wounded the wolf • or that the Liesners’ shots didn’t hit it or didn’t mortally wound it so as to create reasonable doubts that the shot that mortally wounded the wolf was fired by Ps

48. Liesner Brief: Issue Did the Trial Court err (Procedural) by directing a verdict for the plaintiff • (Substantive) because all reasonable doubts were not removed as to who fired the shot that mortally wounded the wolf.

49. Liesner DQ1.16: Oxygen Is the Wisconsin Supreme Court certain that the test for directed verdict was met in this case? What language in thed case answers this Q?

50. 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 ….