ELEMENTS D1 & D2 2017 POWER POINT SLIDES

1. ELEMENTS D1 & D2 2017POWER POINT SLIDES Class #9: Friday, September 1 National Lazy Mom’s Day

2. MUSIC: SERGEI PROKOFIEV, PETER & THE WOLF (1936) [3 WAYS]Narrators: David Bowie, STING, STERLING HOLLOWAY (Voice of Winnie-the-Pooh & Kaa) BOTH SECTIONS HERE TODAY: No Reserved Seats D2 Lunch Today Meet on Brix @ 12:30 Admire * Goldstein Hillsman * Levey * Quinlan Soriano * Youshak RADIUMS: Today • Shaw Brief Due @ 3pm (Review Instructions in Info Memo #2 before Finalizing) • Sign-Up for Time Next Week to Review Brief (if you haven’t already)

3. Liesner DQ1.18: Oxygen “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

4. Liesner DQ1.18(a): Oxygen Property Rights in Animal if: • (2) so in their power that escape was highly improbable, if not impossible • (3) under the control of a person so that actual possession is practically inevitable POSSIBLE DIFFERENCES IN MEANING OF LANGUAGE: WHEN SIGNIFICANT?

5. Liesner DQ1.18(a): Oxygen WHEN SMALL DIFFERENCES IN LANGUAGE SIGNIFICANT? • Deciding (as here) if different formulations used by same court mean different things. • Choosing between two tests used by other states or used in your state in different situations. • Interpreting change in statutory language: • Calif test for Condo Assn regulations : • OK “if reasonable”  OK “unless unreasonable”

6. Liesner DQ1.18(a): Oxygen Property Rights in Animal if: • (2) so in their power that escape was highly improbable, if not impossible • (3) under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE: Possible difference between underlined phrases?

7. Liesner DQ1.18(a): Oxygen Property Rights in Animal if: • (2) so in their powerthat escape was highly improbable, if not impossible • (3) under the control of a person so that actual possession is practically inevitable MEANING OF LANGUAGE: Possible difference between underlined phrases?

8. Liesner DQ1.18(c): Oxygen 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 I’ll leave for you. Arguments similar to those we made last class under 1st formulation. Might try to identify situations where result might be different.

9. Liesner DQ1.18(a): Oxygen Property Rights in Animal if: • (2) so in their power that escape was highly improbable, if not impossible • (3) under the control of a person so that actual possession is practically inevitable POSSIBLE DIFFERENCES IN MEANING? EVIDENCE FROM CASES • Liesnerassumes facts found by trial court meet both tests. • Pierson: • Describing Mortal Wound + Pursuit: Hunter has “certain control.” • Describing Nets/Traps: Trappers “render escape impossible.”

10. Skill #1: Applying Legal Rule/Test • Look for best arguments for each party • Be cognizant of structure of test • Use care with language • Utilize definitions • 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) DF Next Week: • DQ1.15: In Liesner, did Ps do useful labor worth rewarding? • “Serious Non-Mortal Wound + Pursuit” under both cases?

11. Skill #2: Choosing Among Rules • Set Up Comparison Between Possible Rules • In Pierson: Hot Pursuit v. Pursuit Insufficient • Last Class: • Actual Possession Likely • Actual Possession Practically Inevitable • Actual Possession Inevitable • Identify Relevant Policies & Discuss Which Rule Best Serves Them

12. Skill #2: Choosing Among Rules • Comparison Between Possible Rules (Last Class): • Actual Possession Likely • Actual Possession Practically Inevitable • Actual Possession Inevitable • Identify Relevant Policies & Discuss Which Rule Best Serves Them • Last Class: • Certainty (likely that middle option Best) • Kills Most Animals (Quinlan D2: Check if Property Rights are only/most significant incentive) • DF Next Week: Which Best Rewards Useful Labor?

13. LOGISTICS: WEEK OF SEPT 4-10 • Monday: NoD1 Class Meeting; No DF Session • Tuesday: Normal D2 Class (#10) • Wednesday: Normal D1 Class (#10) & Normal DF Session • Thursday: Both Sections Meet Here @ 7:55 (Class #11); • Friday: Normal Separate Class Meetings (Class #12) • Sunday: Oxygens (D1 & D2): Written Manning Brief Due @ 3pm

14. Liesner v. Wanie: Context 1914

15. Liesner v. Wanie: Context 1914: Deaths • Joshua Lawrence Chamberlain (Civil War Hero) • John Muir (Naturalist) • Jacob Riis (Journalist/Author) • 19th Century Industrialists • CW Post (Grape Nuts & Other Cereals) • George Westinghouse (Railroad Brake and Electronics) • FrederikWeyerhauser (Timber & Paper)

16. Liesner v. Wanie: Context 1914: Births • Alec Guiness • Joe Louis • Joe DiMaggio • Ralph Ellison • Danny Thomas • Dylan Thomas

17. Liesner v. Wanie: Context 1914: Introduced in U.S. • term “Birth Control” (coined by Margaret Sanger) • First Blood Transfusion • Doublemint chewing gum • Elastic Brassiere • Federal Trade Commission • Company that will become Greyhound Bus • Mother’s Day (by Congr. Resolution)

18. Liesner v. Wanie: Context 1914: Introduced in U.S. • New Republic Magazine • Panama Canal • Pygmalion by GB Shaw • Rookie Pitcher: Babe Ruth • Tarzan of the Apes • Teletype Machine • Traffic Lights using red-green signals

19. Liesner v. Wanie: Context 1914: World War I 103 Years Ago Tuesday: Sept. 5: 1st Battle of the Marne Begins • NE of Paris, French 6th Army Attacks Germans  Allied Victory (Keeps German Army out of Paris)

20. Liesner v. Wanie: Context 1914: World War I 102 Years Ago Yesterday: Sept. 5: 1st Battle of the Marne Begins • NE of Paris, French 6th Army Attacks Germans  Allied “Victory” • Two Million Soldiers Participate

21. Liesner v. Wanie: Context 1914: World War I 102 Years Ago Yesterday: Sept. 5: 1st Battle of the Marne Begins • NE of Paris, French 6th Army Attacks Germans  Allied “Victory” • Two Million Soldiers Participate • 500,000 Killed or Wounded

22. Liesner v. Wanie: Context 1914: World War I Sept. 5: 1st Battle of the Marne Begins • NE of Paris, French Attacks Germans  Allied “Victory” • Two Million Soldiers Participate • 500,000 Killed or Wounded Dec. 24-25: Christmas Truce

23. Liesner v. Wanie: Context 1914: World War I June 28: Archduke Francis-Ferdinand (Heir to the Austro-Hungarian Throne) Assassinated in Sarajevo: “The Shot Heard Round the World”

24. Liesner v. Wanie Cf. “Some Shots Into a Brush Pile” (LiesnerTrial Transcript) featuring KRYPTON & URANIUM

25. Liesner Trial Transcript Note Anderson testimony (p.17): “REPLEVIED” Suggests replevin was cause of action. (= Common law action for return of personal property)

26. LiesnerTrial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: • L-Boys did mortally wound wolf • L-Boys did continue pursuit (Uranium) Wanie’sAttys must have argued: • Uncertainthat L-Boys mortally wounded wolf • L-Boys did not continue pursuit

27. LiesnerTrial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: • L-Boys did mortally wound wolf. Ev? • L-Boys did continue pursuit (Uranium) Wanie’sAttys must have argued: • Uncertainthat L-Boys mortally wounded wolf • L-Boys did not continue pursuit

28. LiesnerTrial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: • L-Boys did mortally wound wolf • Comparing wounds and possible sources (ammo/direction) • Abdominal Wound likely Fatal • Behavior of Wolf • L-Boys did continue pursuit (Uranium) Wanie’sAttys must have argued: • Uncertainthat L-Boys mortally wounded wolf. Ev? • L-Boys did not continue pursuit

29. LiesnerTrial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: • L-Boys did mortally wound wolf • L-Boys did continue pursuit. Ev? (Uranium) Wanie’sAttys must have argued: • Uncertainthat L-Boys mortally wounded wolf • Lots of Shots/Wounds + Dog Bites • Wolves Hard to Kill • No Manure Inside Wolf • L-Boys did not continue pursuit

30. LiesnerTrial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: • L-Boys did mortally wound wolf • L-Boys did continue pursuit. • Boys run after wolf; F shoots into brush pile • Boys testify F told Wanie (Uranium) Wanie’sAttys must have argued: • Uncertain that L-Boys mortally wounded wolf • L-Boys did not continue pursuit. Ev?

31. LiesnerTrial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: • L-Boys did mortally wound wolf • L-Boys did continue pursuit. (Uranium) Wanie’sAttys must have argued: • Uncertain that L-Boys mortally wounded wolf • L-Boys did not continue pursuit. • Not very active attempts to enter brush pile • Ps didn’t claim from W (tho Trial Court says this is OK)

32. Liesner Trial Transcript: DQ1.20Trial Judge’s Perspective • To make this decision, Judge must believe: • Abdomen shot was mortal wound (“gut shot”; wolf’s behavior) • Only shot that could have made that wound was Ed Liesner shot (bullet/angle) Questions/Concerns?

33. Liesner Trial DQ1.20: Trial Judge’s Perspective • Trial Judge must have believed: • Abdomen shot was mortal wound (“gut shot”; wolf’s behavior) • Only evidence of shot that could have made that wound was Liesner shot (bullet/angle) • Keep in Mind • Judge might have experience with guns/hunting • Judge could see pelt & holes • Not every factual dispute is material to outcome. • Whether there was “manure” in abdominal cavity • Whether Wanie tried to hide bullet hole

34. Liesner Trial Transcript: DQ1.21 Uranium Why Bother? Why do you think the Liesner family chose to bring this lawsuit?

35. Liesner Trial: DQ1.21 Uranium LiesnerFamily Motivations? Ideas include: • Father Acting as Good Parent; Maybe Related to Either: • Shooting = important coming-of-age moment for boys (1st wolf seen/killed) • Father protecting boys against perceived bully/cheater • Maybe reflective of larger social/economic split in community

36. Liesner Trial Transcript: DQ1.21 Uranium Why Bother? Why do you think Wanie expended the resources needed to take the case to the state Supreme Court?

37. Liesner Trial: DQ1.21 Uranium Wanie Motivations? Ideas include: • Defending Liesner father’s challenge to his integrity (manure/patch) • Again, maybe reflective of larger split in community • Interest as regular hunter in clarifying rules/fixing bad result (although less convincing explanation b/c concedes prevailing rule)