ELEMENTS B1 & B2 2016 POWER POINT SLIDES

1. ELEMENTS B1 & B2 2016POWER POINT SLIDES Class #7 Wednesday, August 31 & Thursday September 1

2. MUSIC:Beethoven Symphony #9 (1824)(Last Day of Ludwig Oh da Joy)Recordings: Chamber Orchestra of EuropeNikolausHarmoncourt, Conductor (1991) On Course Page Today (Thursday) After Class • Next Set of Course Materials • Self-Quizzes for LiesnerTrial Transcript & State v. Shaw • Due Dates for Group Assignments (on Assignment Sheet)

3. 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

4. Pierson v. Post: (Intangible Interests; DQ1.09(a)) Is the “right” to hunt without interference a right society should protect (where hunting is legal)? E.g., Post v. Beethoven B1 From Monday: • Sainte: YES. Safety Concerns. • Pringle: NO. Eco-concerns (maybe best addressed to legislature asking to stop hunting altogether). • Other Ideas?

5. 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.

6. 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?”

7. 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)?

8. 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)?

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

10. 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”

11. 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….”

12. 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?

13. Pierson v. Post: DQs1.10-1.11 First-in-Time (FIT) v. Other Types of Rules Exploring assumption underlying both opinions in Pierson that FIT is good way to decide. Looking at Animals & Parking

14. Pierson v. Post: DQs1.10-1.11 (Types of Rules) First-in-Time: What Kinds of People Are Likely Winners & Losers CAPTURING ANIMALS?

15. Pierson v. Post: DQs1.10-1.11 (Types of Rules) What Kinds of People Are Likely Winners & Losers under F.I.T. CAPTURING ANIMALS? v. v.

16. Pierson v. Post: DQs1.10-1.11 (Types of Rules) What Kinds of People Are Likely Winners & Losers under F.I.T. PARKING FOR LAW SCHOOL? Note: Pierson Parallel (See Kathy Bates in Fried Green Tomatoes)

17. Pierson v. Post: DQs1.10-1.11 (Types of Rules) First-in-Time: What Kinds of People Likely Winners/Losers PARKING FOR LAW SCHOOL Winners Include: Students w Early Classes; Students w No Dependents; Morning People; Live Nearby; No Need to Exit & Return (for jobs, apptmts, etc.)

18. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: CAPTURING ANIMALS?

19. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternatives to FIT: CAPTURING ANIMALS? • Distribute Limited Property Rights to Hunt: • Divide by Area or by Time • Distribute by Auction, Lottery, Skill, Seniority • Transferable or Not • Regulatory Limits (Can Combine with Above) • Limit on Number Taken or Size • Limit on Time Allowed • Specific Regs (E.g. No Females During Breeding Season)

20. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: CAPTURING ANIMALS? DQ1.08: What rule(s) would you want if you were trying to preserve the fox population because foxes are commercially valuable?

21. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT CAPTURING ANIMALS? DQ1.08: What rule would you want if you were trying to preserve the fox population because foxes are commercially valuable? We’ll Return to This Q with Demsetz Reading

22. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: Parking for Law School?

23. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Alternative Approaches to FIT: Many Options for Parking Similar to Those for Hunting • Can Distribute Property Rts to Spaces in Advance: • Distribute by Auction, Lottery, Seniority (or Inverse), Academic Merit (or Inverse), Carpool Slots • Transferable or Not • Can add Regs re time limits etc.

24. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems • Relevant Considerations Include: • Likely Winners & Losers (Are “Right” People Rewarded) • Administrative Costs (FIT Generally Low) • Effects on Participants’ Behavior (E.g., Training 1Ls)

25. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems Pros & Cons of First-in-Time Rules: • Likely Benefits of FIT • Often Reasonable Degree of Certainty • Ease of Administration (cf. designated parking spots) • Possible Problems with FIT • Can Seem Arbitrary • May Reward Undesirable Attributes or Punish “Hunters” for Things Outside Their Control

26. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Choosing Among Property Allocation Systems We’ll Return to This Type of Choice Among Possible Rules (at Length) in Unit Two

27. CASE BRIEFING General Instructions: Closing Up

28. 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].

29. 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

30. 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 at end of citation or beginning of holding. • Sensible to include author of separate opinions (and others joining that author) at the beginning of your descriptions of those opinions.

31. Pierson v. Post: Sample Brief On Course Page Now includes Sections from Posted Slides plus Facts, Result, Dissent IF Qs, E-MAIL OR BRING TO OFFICE HOURS

32. What to Take Away From Pierson v. Post: Intro to Info Found in/Relevant to Cases • Some primarily to introduce you to system • Some will be tools used regularly in course • Anything you “need to know”, we’ll come back to repeatedly

33. What to Take Away From Pierson v. Post Intro to Info Found in/Relevant to Cases • Context: History of Dispute; Legal Precedent; Custom & Other Social Institutions; Historical Setting • Language: Difficulty Discerning Precise Holding (No New Testament Red Ink);Rationales • Social Policies: Certainty (BUT in tension with Flexibility); Reward Useful Labor; Achieve Economic Benefits • Majority’s Assumptions: Use Some Form of First in Time Rule; Bad Intent Irrelevant

34. Transition: Pierson  Liesner/Shaw • Property Law Generally: Often important for gov’t to know to whom something belongs at any particular moment. • All 3 Cases Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property

35. Transition: Pierson  Liesner/Shaw • Trying to Identify “Magic Moment” When Object (Wild Animal) Changes from Unowned to Someone’s Property • All 3 Cases: Fights Between 1st & 2d Hunter: • If Animal Unownedwhen 2d hunter takes it, no Q that 2d Hunter Wins • Claim by 1st hunter is: Animal was already my property when 2d hunter acted.

36. Transition: Pierson  Liesner/Shaw • Trying to Identify “Magic Moment” When Animal Changes from Unowned to Someone’s Property • Fights Between 1st & 2d Hunter • Legal Rules Here Temporal Not Comparative • Issue: Had 1st Hunter Done Enough to Get Property Rights Before 2d Hunter Intervened • Not asking if 2d Hunter did more or better labor than 1st Hunter

37. Transition: Pierson  Liesner/Shaw • Trying to Identify “Magic Moment” When Animal Changes from Unowned to Someone’s Property • Pierson Suggests Two Ways Besides Actual Physical Possession to get Property Rights in Wild Animals: • MORTAL WOUNDING (Liesner) • NETS & TRAPS (Shaw)

38. Transition: Pierson  Liesner Final Qs on Pierson? Then to Liesner Brief & Radiums

39. Liesner Brief: Radium STATEMENT OF THE CASE: [One Step at a Time Please] • Who Sued Whom? • Liesner and another, [description?,] sued …

40. Liesner Brief: Radium STATEMENT OF THE CASE: • Who Sued Whom? Liesnerand another, who shot and claim to have mortally wounded a wolf … • Wanie disputes on appeal whether the plaintiffs mortally wounded the wolf, so can’t treat it as given. • sued Wanie, [Description?] …

41. Liesner Brief: Radium STATEMENT OF THE CASE: • Liesner and another, who shot and claim to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf … • SEEKING WHAT REMEDY?

42. Liesner Brief: Radium STATEMENT OF THE CASE: Liesnerand another, who shot and claim to have mortally wounded a wolf, sued Wanie, who subsequently shot and took the wolf, to recover the body of the wolf … • Focus in Statement is on original lawsuit; Ps initially requested the body, so say that here. Issue of damages arose later, so could put in Procedural Posture if seems relevant. • ON WHAT LEGAL THEORY? (NOT EXPLICIT IN CASE)

43. Liesner Brief: Radium STATEMENT OF THE CASE: ON WHAT LEGAL THEORY? (UNSTATED) • Might be “Trespass on the Case” (following Pierson, though damages not requested at first)or “Trespass” (if Wisconsin views shot as direct interference w Property). • Might be “Replevin” = Common law action for return of goods improperly taken. • Your brief should note the uncertainty.