Friday Class Music Quiz Presentations and Legal Case Analysis

1. ELEMENTS B 2019POWER POINT SLIDESClass #6: Friday August 23National Ride the Wind DayNational Sponge Cake Day

2. MUSIC:Beethoven Symphonies #4 (1807) & #7 (1813)Recordings: Chamber Orchestra of EuropeNikolaus Harmoncourt, Conductor (1991) FRIDAY POP CULTURE QUIZ Name the Musical Group: • 1st Billboard #1 Hit in 1958 • Won 5 Grammys; Nominated for 8 More • Featured in Major Studio Motion Picture in 2013

3. LOGISTICS Written Brief Submissions RADIUM: State v. Shaw Due Sun Sep 1 @ 2:00 p.m. Case at pages 27-29 of Materials Part II on Course Page Teams & Coordinators on Course Page I’ll Post InstructionsSunday a.m. & We’ll Review in Class Tuesday OTHER PANELS: Sunday a.m. I’ll Post Case Assignments & Due Dates

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

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

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

7. 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)

8. 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?

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?

10. 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?

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

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

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

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, it had become the property of plaintiffs….”

15. 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….”

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

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

18. 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.

19. Liesner v. Wanie DQ1.14 • Liesner is 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.

20. 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?

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

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 (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.”

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

25. FRIday Pop Culture QUIZ Name the Musical Group: • 1st Billboard #1 Hit in 1958 • Won 5 Grammys; Nominated for 8 More • Featured in Major Studio Motion Picture in 2013

26. FRIday Pop Culture QUIZ Name the Musical Group: • 1st Billboard #1 Hit in 1958 • Won 5 Grammys; Nominated for 8 More • Featured in Major Studio Motion Picture in 2013

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

28. 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.

29. Pierson v. Post: DQ1.06 (Certainty) Majority says its rule promotes “certainty”: • Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All. Can you think of situations where the majority’s approach would not achieve certainty? (We mentioned yesterday)

30. Pierson v. Post: DQ1.06 (Certainty) Majority says its rule promotes “certainty”: • Too Difficult to Determine How Much Pursuit is Enough or Even if There’s Pursuit at All. BUT • If “mortal wounding” creates property rights, how do you tell if a wound is “mortal”? (CSI Southampton Township?) • PLUS: Majority doesn’t indicate what happens w non-mortal wound or non-certain trap

31. Pierson v. Post: DQ1.06 (Certainty) Why is certainty desirable for society more generally? (not just in this context)

32. Pierson v. Post: DQ1.06 (Certainty) Benefits of Certainty Include: • Reduces Anxiety Related to Uncertainty • Allows Planning (Including Intended Deterrence) • Creates Stability • Majority’s “Peace & Order”: • May Reduce Quarrels/Violence • May Reduce Litigation

33. Pierson v. Post: DQ1.06 (Certainty) 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 (which is not always true).

34. Pierson v. Post: DQ1.06 (Certainty) Legal System Concerned with (at least) Three Kinds of Certainty: • Easy for parties to apply at the relevant time • Easy to apply in court (e.g., security cameras) • Everyone aware of rule

35. Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: • Law school admits all w minimum LSAT… • In alphabetical order of surnames until class filled OR • In ascending order of height OR • In descending order of parents’ 2016 income. Why Problematic?

36. 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?

37. 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?

38. 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

39. BRIGHT-LINE RULES v.FLEXIBLESTANDARDS

40. 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) • Going Forward, Think About Which Approach is better for What Types of Situations Questions on Certainty?

41. 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.

42. 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)

43. 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.

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. Are there some categories of labor you would not want to reward?

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

46. 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 to Efficiency: Hard to Determine Optimal Reward to Encourage Amount of Labor You Want/Need

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. * Don’t overstate majority’s commitment here: • Doesn’t say labor is only relevant factor. • Doesn’t say party w most labor necessarily wins. • Here Post almost certainly expended more effort. • -Important Idea: 1st Possession Cases Temporal, not Comparative

48. 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.

49. 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?

50. 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