ELEMENTS B1 & B2 2016 POWER POINT SLIDES

1. ELEMENTS B1 & B2 2016POWER POINT SLIDES Class #6 Monday, August 29 & Tuesday August 30

2. MUSIC:Beethoven Symphonies #4 (1807) & #7 (1813)Recordings: Chamber Orchestra of EuropeNikolaus Harmoncourt, Conductor (1991) B1 Lunch Tuesday Meet on Brix @ 12:30 Akkaya * Conde * Gordon Pita * Sharp-Dmitri Webb * Wilson No Office Hours Wednesday New On Course Page: Policy for Going to Classes of Other Section & Attendance

3. Liesner v. Wanie:DQs to Help You Understand Case (URANIUM)

4. Liesner v. Wanie: DQ1.12(a) (URANIUM) Liesnerand another, by next friend, Respondents, v.Wanie, Appellant What does “next friend” mean?

5. Liesner v. Wanie: DQ1.12(a) (URANIUM) Next Friend Legal representative for party who cannot adequately represent own interests. Such as…?

6. Liesner v. Wanie: DQ1.12(a) (URANIUM) Next Friend Legal representative for party who cannot adequately represent own interests. • Minors • Mentally Incompetent • Married Women (at Common Law)

7. Liesner v. Wanie: DQ1.12(a) (URANIUM) Next Friend : Legal representative for party who cannot adequately represent own interests To whom might ‘next friend’ refer in Liesner itself?

8. Liesner v. Wanie: DQ1.12(b) (URANIUM) Prevailing Rule (2d Paragraph): “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vestedproperty interest in it accrues which cannot be divestedby another’s intervening and killing it.” Meaning of Vested?

9. Liesner v. Wanie: DQ1.12(b) (URANIUM) Prevailing Rule (2d Paragraph): “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vestedproperty interest in it accrues which cannot be divestedby another’s intervening and killing it.” Meaning of Vested? Of Divested?

10. Liesner v. Wanie: DQ1.12(b) ALL: Example of Kind of Property Right We’ve Already Discussed That is Contingent (As Opposed to Vested)?

11. Liesner v. Wanie DQ1.12(b) Example of Kind of Property Right We’ve Discussed That is Contingent (As Opposed to Vested)? RATIONE SOLI

12. Liesner v. Wanie: DQ1.13 (URANIUM) Second paragraph of opinion begins: “It is conceded that …” What was conceded here?

13. Liesner v. Wanie: DQ1.13 (URANIUM) “It is conceded that if the plaintiffs had substantially permanently deprived the wolf of his liberty—had him so in their power that escape was highly improbable, if not impossible, before defendant appeared on the scene and with his gun pointed so as to reach within some three feet of the animal delivered a finishing shot, it had become the property of plaintiffs….”

14. Liesner v. Wanie: DQ1.13 (URANIUM) “It is conceded that IF the plaintiffs had substantially permanently deprived the wolf of his liberty—had him so in their power that escape was highly improbable, if not impossible, before defendant appeared on the scene and with his gun pointed so as to reach within some three feet of the animal delivered a finishing shot, [THEN] it had become the property of plaintiffs….”

15. Common Form of Legal Rule IF [particular facts occur], THEN [legal outcome follows].

16. Liesner v. Wanie: DQ1.13 (URANIUM) Second paragraph of opinion begins: “It is conceded that …” Who conceded it?

17. Liesner v. Wanie DQ1.14 DIRECTED VERDICT Trial Court Rules That One Party Presented Insufficient Evidence to the Jury to Meet the Relevant Legal Standard.

18. Liesner v. Wanie DQ1.14 • Liesneris Unusual Case b/c Directed Verdict for Plaintiff(who has burden of proof in civil case). • Language of opinion suggests that (as you will see) Trial Record contains factual disputes. • Trial Court must have believed that • Undisputed evidence proved P’s case • i.e., D presented insufficient evidence to contradict evidence supporting P.

19. Liesner v. Wanie: DQ1.14 (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 Which was Wanie’s claim here?

20. Liesner v. Wanie: DQ1.14 (URANIUM) Wanieconceded the relevant legal rule, so must be challenging assessment of evidence. What exactly is still contested?

21. Liesner v. Wanie: DQ1.14 (URANIUM) What exactly is still contested? “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, thus permitting appellant to substantially reach it with the muzzle of his gun at the instant of delivery of the finishing shot.”

22. Liesner v. Wanie: DQ1.14 (URANIUM) What exactly is still contested? “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,thus permitting appellant to substantially reach it with the muzzle of his gun at the instant of delivery of the finishing shot.”

23. Liesner v. Wanie: DQ1.14 Questions re What Appellant Disputed on Appeal?

24. Back to Pierson v. Post: Setting Up DQs1.10-1.11 Acquiring Property Rights in Unowned Resources: First-in-Timev. Other Types of Rules

25. Pierson v. Post: DQs1.10-1.11 (Types of Rules) • Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights) • First-in-Time is a type of rule. • First-in-Time different type of rule from, e.g., • Merit (Most “Deserving” Gets) • Lottery (Winner Randomly Selected) • Auction (Highest Bidder Gets)

26. Pierson v. Post: DQs1.10-1.11 (Types of Rules) • Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights) • Both Pierson opinions agree on First-in-Time type of rule, but not on which specific version: • Dissent: First in Hot Pursuit • Majority: First to [Something More] • Compare: “I had it first!” v. “But I saw it first!”

27. Pierson v. Post: DQs1.10-1.11 (Types of Rules) • Multiple Specific Possible Examples of First-in-TimeType of Rule • First to Actually Possess/Capture • First to Wound • First to Pursue • First to See

28. Pierson v. Post: DQs1.10-1.11 (Types of Rules) • Multiple Specific Possible Examples of First-in-TimeType of Rule  Possible Options After Majority Opinion (if no trap): • First Physical Possession • First Wound • First Mortal Wound

29. 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 in Two Contexts: • Hunting Wild Animals (in Places You Are Allowed to Hunt) • Allocating Parking Spaces (in Places You Are Allowed to Park)

30. 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

31. Pierson v. Post: Recap &Back to DQs1.06-1.09

32. Pierson v. Post: From Last Time • After case comes down, often left with uncertainty as to exact scope of result. • For Guidance, Look to Rationales • DQs 1.06-1.09 Address Possible Policy Rationales • Think about rationales in context of choice betw • Dissent’s “Hot Pursuit” Rule • Majority’s “Pursuit is Not Enough” Rule

33. Pierson v. Post: From Last Time (DQ1.06) • Majority says its rule is more certain than Dissent’s • General Benefits of Certainty Include: • Reduces Anxiety Related to Uncertainty • Allows Planning • Creates Stability • May Reduce Quarrels/Violence/Litigation • BUT these benefits may require that people be aware of the rule (not always true).

34. Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: • Law school admits all with minimum LSAT… • In alphabetical order of surnames until class filled OR • In ascending order of height OR • In descending order of parents’ 2014 income. Why Problematic?

35. Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: • Any student who fails to show up on time for the practice midterm fails the class. Why Problematic?

36. Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: • When property is owned jointly by a male-female married couple, all management decisions will be made by the man. Why Problematic?

37. Pierson v. Post: DQ1.06 (Certainty) • Benefits of Certainty Sometimes Come at Cost of: • Fairness/Relevance OR • Sensitivity to Particular Circumstances OR • Awareness of/Addressing Changing Times

38. BRIGHT-LINE RULES v.FLEXIBLESTANDARDS

39. Pierson v. Post: DQ1.06 (Certainty) Recurring Problem in Law • Clear easy-to-apply precedent • provides certainty& predictability • allows planning • Necessarily in tension with • desire for flexibility & justice • need to address changing circumstances (e.g., dissent response to ancient writers: times change) Questions on Certainty?

40. Pierson v. Post: DQ1.07 (Labor) The majority suggests that it will confer property rights on those who, using their “industry and labor,” have captured animals.

41. Pierson v. Post: DQ1.07 (Labor) “[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemedto give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.” (p.4)

42. Pierson v. Post: DQ1.07 (Labor) Commonly Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard.

43. Pierson v. Post: DQ1.07 (Labor) Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. Are there some categories of labor you would not want to reward?

44. Pierson v. Post: DQ1.07 (Labor) Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. BUT might not want to reward: • Ineffective or Inefficient Labor • Criminal Activity • Other Harmful/Dangerous Labor

45. Pierson v. Post: DQ1.07 (Labor) Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. BUT might not want to reward: • Ineffective or Inefficient Labor • Criminal Activity • Other Harmful/Dangerous Labor Note Problem Related toEfficiency : Hard to Determine Optimal Reward to Encourage Labor You Want

46. Pierson v. Post: Sample Policy Rationale #2 [Premise:] The majority suggests*that it would be “just” to give property rights to hunters who catch wild animals in nets or traps to reward their labor. * Don’t overstate majority’s commitment here: • Doesn’t say labor is only relevant factor. • Doesn’t say whoever does most labor necessarily wins. (Here Post almost certainly expended in more effort).

47. Pierson v. Post: Sample Policy Rationale #2 [Premise:] The majority suggests that it would be “just” to give property rights to hunters who catch wild animals in nets or traps to reward their labor. [Connection to result:] The court may have rejected the hot pursuit rule because it believed that it should not reward labor expended hunting until the hunter has more clearly demonstrated that he has successfully completed the hunt/controlled the animal, as by trapping or mortally wounding.

48. Pierson v. Post: DQ1.07 (Labor) Suppose Post pays somebody (“Sharpshooter”) to kill foxes for him. Who should get property in the foxes, Post or Sharpshooter? Why?

49. Pierson v. Post: DQ1.07 (Labor) Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? ProbablyPost. Why?Contracts/Capitalism!! • Property/Profits/Risk go to Investor • Pre-Set Wage to Laborer

50. Pierson v. Post: DQ1.07 (Labor) Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? ProbablyPost(Contracts/Capitalism) BUT for some jobs, laborer may [by custom or contract] gets some benefits beyond wages. E.g., • Exterminators normally retain pest bodies. • Yard services keep branches/leaves etc. to mulch. Maybe look if laborer hired to acquire item or to get rid of it. Cf. contracts primarily for goods v. contracts for services