ELEMENTS D2 & D1 2017 POWER POINT SLIDES

1. ELEMENTS D2 & D1 2017POWER POINT SLIDES Classes #10 & #11: Tuesday, September 5 & Wednesday, September 20 Monday, September 25 & Tuesday September 26

2. CLASS #10 MUSIC: CLAUDE DEBUSSYAfternoon of a Faun (1894); Nocturnes (1900); The Sea (1905); Images D’Orchestre (1905-12)Boston Symphony Orchestra Conductor: CHARLES MUNCH (Recordings 1956-62)

3. CLASS #11 MUSIC: Mahler, Symphony #5 (1901-02)Vienna Philharmonic (1988) Leonard Bernstein: Conductor

4. After Break: Which of These Things Is Not Like the Others (and Why)? LIONFISH BULL FOX D2 LUNCH TODAY Meet on Brix @ 12:05 ALTONAGA * HODGES QUINLAN * RIBEIRO * WHITE If your original lunch was lost to the storm, check course page for rescheduled dates & e-mail me if they don’t work.

5. PREVIOUSLY IN ELEMENTS D . . .

7. We Used Pierson v. Post to Introduce…

8. We Used Pierson v. Post to Introduce… • Types of Background Common to All Cases • History of Particular Dispute • Legal Treatment of Similar Problems (Precedent) • Non-Legal Treatment of Similar Problems (Custom) • General Historical Conterxt • Process of Briefing Cases

9. We Used Pierson v. Post to Introduce… • Disputes re Unowned Wild Animals • Landowners’ Limited Rights: Ratione Soli • First ”Occupancy” Creating Property Rights • Actual Physical Possession Enough • Pursuit Alone Insufficient • Other Possibilities: Traps & Mortal Wounding/Continued Pursuit • Importance of Particular Facts • Difficulty Identifying Dicta v. Holding

10. We Used Pierson v. Post to Introduce… • Relevant Policy Concerns • Rewarding Useful Labor • Preferring Rules that are More “Certain” • For Affected Parties and/or for Legal System • NOTE: Counter-Policy Favoring Flexibility & Justice • Providing Economic Benefits (e.g., Protecting Farms) • First-in-Time as a Type of Rule • Identifying Alternative Types of Rules • Possible Pros & Cons of Different Types

11. We Used Liesner v. Wanie to Supplement Pierson by …

12. We Used Liesner v. Wanie to Supplement Pierson by … • Explaining Dispositive Motions. E.g., • Motion to Dismiss for Failure to State a Claim • Motion for Directed Verdict • Introducing Process of Applying One Case to the Facts of Another • Applying Key Language • Applying Relevant Policies • [We’ll Add: Comparing Facts]

13. We Used Liesner v. Wanie to Supplement Pierson by … • Adding to Law of Disputes re Unowned Wild Animals • Confirms Mortal Wounding + Continued Pursuit = Occupancy • Three Formulations of Relevant Rules • Discussing Role of Trial Courts v. Appellate Courts and Reasons for Deference to Fact-Finders

14. We Used Liesner v. Wanie to Supplement Pierson by …Frank & Ed? • Examining a Trial Transcript in Detail (9/1) • Noting Complexity of Unedited Disputes • Identifying and Compiling Individual Pieces of Evidence to Support Complex Factual Conclusions like “Mortal Wound” • Trying to Distinguish between Factual Disputes that are “Material” and Disputes that are Legally Irrelevant

15. New Matertial: Liesner Trial: DQ1.22 Relevance of additional facts found in trial record to how you should read/use the appellate opinion? • Helps you understand what happened BUTnormally unavailable to lawyers. • Meaning of written opinion: • Determined by what court issuing opinion chooses to include • What doesn’t go into opinion isn’t part of opinion (cf. Las Vegas) • True for both Liesner & Pierson. • Similarly: Brief is summary of a judicial opinion, so info not found in opinion shouldn’t be in brief

16. CLASS #11 (Mon-Tue 9/25-26)Intro Material to Set Up Next 3 Weeks • To Set Up Escaping Animals Cases & Rest of Pass-Fail Briefs • ALL: Escaped Animals Overview • RADIUM: DQs 1.41-1.42 • To Set Up Group Written Assignment #1: • I’ll Introduce & Take Qs on: • Instructions for Written Assignments (in Info Memo #1) & • Specific Instructions for Assignment #1 (on course page) • D1: Riff on Smart Phones, Lawyers & Written Instructions • To Set Up Demsetz Reading: • ALL: Introduction to Demsetz Excerpt & DQ1.30 • Sesame Street Exercise (Next Slide)

17. ALL: EXERCISE FOR CLASS #11 Which of These Things Is Not Like the Others (and Why)? LIONFISH BULL FOX

18. Musical InterludeShaw-1902 1908 1914-Liesner The Most Performed Waltz in American Popular Music

19. STATE v. SHAW featuring Wallpaper with Fish!Setting Up KRYPTON DQ1.27 for Class #11

20. STATE v. SHAW DQ1.27: Krypton Class #11: 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 result in Shaw be different if people use a sunken boat rather than a net to catch fish (if both are equally effective)?

22. STATE v. SHAW Brieffeaturing Oxygenbut no fish  maybe because of

23. STATE v. SHAW Brieffeaturing Oxygenbut no fish  maybe because ofLOTS OF SEALS

24. STATE v. SHAW Brief: OxygenSTATEMENT OF THE CASE SPECIAL INFO RE CRIMINAL CASE 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 always is incarcerationor fines; can leave unstated.

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

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

27. STATE v. SHAW Brief: OxygenSTATEMENT 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: OxygenSTATEMENT 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: OxygenPROCEDURAL POSTURE Note that indictmentis method by which State charged Ds, so don’t need here (already explicit or implicit in Statement of Case). Your Formulation?

30. STATE v. SHAW Brief: OxygenPROCEDURAL 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: OxygenISSUE We’ll Return to FACTS After ISSUE PROCEDURAL COMPONENT OF ISSUE?

32. STATE v. SHAW Brief: OxygenISSUE PROCEDURAL COMPONENT: Did the trial court err in directing a verdict for the defendant …

33. STATE v. SHAW Brief: OxygenISSUE: Substantive Component To prove “grand larceny” state must show that Ds [intentionally] took property belonging to other people. Directed Verdict means trial court thought the state’s evidence was insufficient to show the crime. Why did the Trial Court think the state’s evidence was insufficient here?

34. STATE v. SHAW Brief: OxygenISSUE: Substantive Component To prove “grand larceny” state must show that Ds [intentionally] 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 the state say is wrong with the Trial Court’s position?

35. STATE v. SHAW Brief: OxygenISSUE: Substantive Component 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. (Trial Court’s “Perfect Net Rule”) State says net need not be perfect to create property rights in net-owners.

36. STATE v. SHAW Brief: 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: Boilerplate language traditionally used in conjunction with anycriminal 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. Common Sense When Reading Shaw: “[T]he defendant, John Thomas, said that ‘they lifted two pound nets west of the pier and got the fish.’” Did they take the nets?

45. Common Sense When Reading Shaw: Did Ds take the nets? • Logistically Unlikely • Net is 28’ x 28’ x 35’ • Ds are in a Sailboat

46. Common Sense When Reading Shaw: Did Ds take the nets? • Logistically Unlikely • Inconsistent w Content of Opinion • No Discussion of Value of Net • Whole Opinion About Fish • Easy [Grand] Larceny Case if they Took Nets

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

48. STATE v. SHAW SIGNIFICANT FACTS Briefing Notes: Include Info Relevant to Appellate Court’s Discussion (Not Necessarily Same as info Relevant to Trial) Might Include Info Buried in Analysis Section of Opinion Helpful to Lay Out in Chronological Order THUS…

49. 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.

50. DQ1.23-1.25Apply Pierson & Liesner to Trial Court’s Perfect Net Rule & to Specific ShawFacts Radium