ELEMENTS D1 & D2 2017 POWER POINT SLIDES

1. ELEMENTS D1 & D2 2017POWER POINT SLIDES Class #6: Friday, August 25 National No Rhyme (Nor Reason) Day Roses are red, Violets are blue. Some poems rhyme. This one doesn’t.

2. MUSIC:Beethoven Symphonies #4 (1807) & #7 (1813)Recordings: Chamber Orchestra of EuropeNikolaus Harmoncourt, Conductor (1991) D1 Lunch Today Meet on Brix @ 12:30 Elser * Fox * Hensch Johnson * Portillo Shraiteh * Vazquez Now On Course Page: • Sample Pierson Brief • Info Memo #2 with • Rules for Going to Class w Other Section • Instructions re Pass-Fail Briefing Assignments E-Mail Me if Qs

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(D1: Note on Wood Grain Slides) 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. Pierson v. Post: Recap & Back to … D2: DQs1.08-1.09D1: DQs1.09

25. 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 • Looking at each policy as it is referenced in Pierson, thinking about rationales in context of choice betw • Dissent’s “Hot Pursuit” Rule • Majority’s “Pursuit is Not Enough” Rule • Examining each policy more generally to see its possible significance and concerns/difficulties that might aruse when using it.

26. Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. • E.g., Dissent says foxes harmful to society, so good to kill them: “[O]ur decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career.” (p.5)

27. Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. • E.g., Dissent says foxes harmful to society, so good to kill them. • NOTE: Can strengthen this type of argument with, e.g., description or evidence re • Importance of poultry farming • Extent of harm caused by foxes

28. Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. • E.g., Dissent… • Says foxes harmful to society, so good to kill them. • Explicitly assumes the hot pursuit rule would result in more foxes being killed. Elaborate why Judge Livingston might believe his Hot Pursuit rule would kill more foxes.

29. Pierson v. Post: DQ1.08 (Economic Benefits) Dissent thinks its rule will result in more foxes being killed b/c unhappy Posts choose alternative activity. Dissent: “[W]ho would keep a pack of hounds; or … would mount his steed, and for hours together ... pursue the windings of this wily* quadruped, if just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder … were permitted to come in at the death, and bear away in triumph the object of pursuit?” * See

30. Pierson v. Post: DQ1.08 (Economic Benefits) Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity Argument that Majority’s Rule will result in more foxes being killed?

31. Pierson v. Post: DQ1.08 (Economic Benefits) • Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity • Argument that Majority’s Rule will result in more foxes being killed? Determined Posts Work Harder at Killing • After all, they are as stubborn as a … • E.g., Whaling

32. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get reward you expected for your labor, how do you respond?

33. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? • Substitution Effect: Might choose differ-ent activity (in part or completely) that pays more or costs less.

34. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? • Substitution Effect: Might choose different activity that pays more or costs less. -OR- • Income Effect: Could increase labor--do more of activity; more effort; more investment--until you earn desired reward (e.g., enough money to buy a car).

35. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? • Substitution Effect: Could choose different activity -OR- • Income Effect: Could increase labor Often hard to predict which effect will predominate in any particular situation. (Empirical Q)

36. Pierson v. Post: Sample Policy Rationale #3 • [Premise:] The dissent says it’s good to kill foxes because they are harmful to society, and assumes a hot pursuit rule is preferable because it would result in more foxes being killed.

37. Pierson v. Post: Sample Policy Rationale #3 • [Premise:] The dissent says it’s good to kill foxes because they are harmful to society, and assumes a hot pursuit rule is preferable because it would result in more foxes being killed. • [Connection to Result]: Although the majority didn’t respond directly, it may have believed that it’s holding would result in more foxes being killed because hunters would exert more effort to assure they got property rights in hunted animals.

38. Pierson v. Post: (DQ1.09: Intangible Interests) Post unlikely to have cared much about monetary value of fox pelt; more likely angered by deliberate interference with activity of hunting. Is the “right” to hunt without interference a right society should protect (where hunting is legal)? E.g., Post v. Beethoven

39. Pierson v. Post: (Intangible Interests) DQ1.09(b): Post might believe Pierson killed fox spitefully for no reason except to bother Post (ongoing family feud). Majority says we shouldn’t care.

40. Pierson v. Post: (Intangible Interests) Majority (last para.): “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.” Elegant Version of “So What?”

41. Pierson v. Post: (Intangible Interests) Majority: “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.” DQ109(b): Is majority correct? Should a court take into account whether Pierson had “bad intent” (as opposed to genuine attempt to hunt fox for sport or pelt)?

42. Pierson v. Post: (Intangible Interests) If a court wants to take “bad intent” into account, what evidence might you use to prove Pierson’s intent here (not having access to Vulcan Mind Meld)?

43. Pierson v. Post: (Intangible Interests) PROOF OF INTENT • Required in Intentional Tort & Criminal Cases • Often Not Legally Relevant in Property Ownership Cases

44. Pierson v. Post: DQ1.09 (Intangible Interests) PROOF OF INTENT • Required in Intentional Tort & Criminal Cases • Often Not Relevant to Property Ownership • Proof of Intent Often Expensive/Complex • Ignoring Intent = Cheaper, More Certain Results • Determining Intent = More Fact-Specific “Justice”

45. Pierson v. Post: DQ1.09 (Intangible Interests) • Post might have argued explicitly that court should not reward Pierson if acting simply to spite Post; if so, court disagreed. • Later, You Can Use Arguments Court Rejected … • To support similar rejection in future cases: “The Pierson Majority treated bad intent as irrelevant, therefore….”

46. Pierson v. Post: DQ1.09 (Intangible Interests) • Post might have argued that court should not reward Pierson if acting simply to spite Post; if so, court disagreed. • Later, You Can Use Arguments Court Rejected … • To support similar rejection in future cases. • “The Pierson majority did not see bad intent as important in those circumstances, but clearly it is more important here because….” Qs on This Type of Argument or DQ1.09?

47. CASE BRIEFING General Instructions: Closing Up

48. CASE BRIEF: Result • How the opinion disposed of the case. E.g., • “Affirmed” • “Reversed” (Where no further proceedings necessary, as in Pierson) • “Reversed and remanded (sent back to lower court) for… [e.g., new trial orfurther proceedings consistent with the opinion.]” • “Affirmed in part [on Issue #1] and reversed in part and remanded for a new trial [on Issue #2].

49. CASE BRIEF: Concurrence/Dissent • Describe Key Points of Separate Opinions: • Indicate where the opinion would diverge from the majority in terms of • Result AND/OR • Identification or application of the relevant legal standard. • List the major supporting arguments • See Sample Brief for Pierson Dissent • BUT No other separate opinions until Unit III

50. CASE BRIEF: Names of Judges • Judge’s names not significant here until Whaling Cases (Unit IIA) and then Unit III (US S,Ct.) • You might want to indicate names in briefs for your own reference, especially for US Supreme Court or other court you are using a lot for a particular class. • Sensible to include author of majority either at end of citation or beginning of holding. “(per Halpert, J.)” • Sensible to include author of separate opinions (and others joining that author) at the beginning of your descriptions of those opinions.