ELEMENTS D1 & D2 2017 POWER POINT SLIDES

1. ELEMENTS D1 & D2 2017POWER POINT SLIDES Class #5 Wednesday, August 23 & Thursday August 24

2. MUSIC:Beethoven Symphonies #2 (1803) & #5 (1808)Recordings: Chamber Orchestra of EuropeNikolaus Harmoncourt, Conductor (1991) Now Posted on Course Page: Panel Assignments Next Set of Course Materials Updated Syllabus Assignment Sheet (thru 9/17) Updated Lunch Schedule

3. LOGISTICS Friday: We’ll Begin with Liesner & DQs 1.12-1.14 (Uranium Panel). Sets up Liesner Brief for next week. Don’t read Liesner Trial Transcript until you do Brief & DQs1.15-1.16 On Course Page by Friday: Next Several Self-Quizzes & Answers Info Memo #2 with Rules for Going to Class w Other Section Instructions re Pass-Fail Briefing

4. Pierson v. Post: Case Brief& DQs 1.05(Continued)

5. Pierson v. Post: DQ1.05Holding v. Dicta (In Pierson Itself) • Pursuit alone is insufficient to create property rights in a wild animal.-OR- • To create property rights in a wild animal, you need to physically possess it, mortally wound it, or catch it in a trap or net. How/when will you know for sure whether language in case is dicta or part of holding? Often (as here) can’t tell for certain from language of case.

6. Pierson v. Post: DQ1.05Holding v. Dicta How/when will you know for sure whether language in case is dicta or part of holding? Often can’t know for sure until same court explains in subsequent opinion!! Note that a court deliberately might choose to be a little vague about the precise scope of its holding to retain flexibility when addressing future cases.

7. Pierson v. Post: DQ1.05Holding v. Dicta • After case comes down, often left with uncertainty as to exact scope of result. BUT: • Need to counsel clients. • Need to craft arguments in litigation.

8. Pierson v. Post: DQ1.05Holding v. Dicta • After case comes down, often left with uncertainty as to exact scope of result. BUT: • Need to counsel clients. • Need to craft arguments in litigation. FOR GUIDANCE, LOOK TO RATIONALES

9. Pierson v. Post: DQ1.05 • After case comes down, often left with uncertainty as to exact scope of result. • Despite uncertainty, need to counsel clients & need to craft arguments in litigation. • Learn to Embrace Uncertainty as Source of Your Market Value (Lawyers v. Clerks!) • For Guidance, Look To Rationales; If New Situation Fits Rationales, Can Argue Result Should Be Same

10. CASE BRIEF: Rationales • Generally: Reasons supporting the court’s decision to resolve the issue as it did. • Can be express or implied (or even speculative). • Different cases state different numbers of rationales; your want to identify as many as you can that are articulated or are plausibly part of the court’s thinking.

11. CASE BRIEF: Rationales • Generally: Reasons supporting the court’s decision to resolve the issue as it did. • Doctrinal Rationales: Result required or strongly suggested by prior authorities.

12. CASE BRIEF: Rationales • Generally: Reasons supporting the court’s decision to resolve the issue as it did. • Doctrinal Rationales: Result required or strongly suggested by prior authorities • Policy Rationales: Result is good for society [because …]

13. CASE BRIEF: Rationales • Generally: Reasons supporting the court’s decision to resolve the issue as it did. • Presentation: • Start by identifying the relevant premise (doctrinal authority or policy concern). • Then briefly explain how the premise supports the court’s resolution of the case.

14. Pierson v. Post: Rationales • Typically, a doctrinal rationale rests on principles derived from cases, statutes or a constitution. • “Ancient writers” are not typically understood as doctrine. However, here and in the sample brief, I’m providing a version of a “doctrinal rationale” based on how the court uses these sources.

15. Pierson v. Post: Sample Doctrinal Rationale • [Premise:] All agree that property in unowned wild animals is only acquired by “occupancy.” Some of the ancient writers cited by the court say that physical possession is needed to create occupancy. See Justinian; Fleta; Bracton. …

16. Pierson v. Post: Sample Doctrinal Rationale • [Premise:] … Although the court agrees with the writers who say that actual physical possession is not always necessary, see Puffendorf (mortal wounding or great maiming enough) and Barbeyrac (allowing more leeway than Puffendorf), even those writers do not consider mere pursuit sufficient. …

17. Pierson v. Post: Sample Doctrinal Rationale • [Connection to Result:] The court thus follows the uniform view of the ancient writers in rejecting Post’s claim to ownership by pursuit alone. QUESTIONS?

18. Pierson v. Post: Rationales Pierson: Kind of Case Where Policy Discussion Likely/Useful • General agreement that property in animals feraenaturaecreated by “first occupancy.” • No binding precedent on what that means. • No consensus among treatise authors.

19. Pierson v. Post: Rationales DQs 1.06-1.09 Address Possible Policy Rationales • Helpful to examine in context of choice between two proposed rules for when hunter gets property rights in wild animal. • Remember that at time of decision, particular rule chosen wasn’t inevitable.

20. Pierson v. Post: Rationales DQs 1.06-1.09 Address Possible Policy Rationales • Examine in context of choicebetw two proposed rules: • Dissent: sufficient if pursuit “inevitably and speedily [would] have terminated in corporal possession” [Hot Pursuit Sufficient] • Majority: more than “mere pursuit” needed [Hot Pursuit Insufficient]

21. Pierson v. Post: DQ1.06 (Certainty) Majority says its rule promotes “certainty”: “We are the more readily inclined to confine possession or occupancy of beasts feraenaturae, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society.” Why does Majority think its rule is more certain than Dissent’s “Hot Pursuit” rule?

22. 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. Policy Rationale

23. Pierson v. Post: Sample Policy Rationale #1(Many acceptable/useful ways to state this.) [Premise:] The majority stated that its decision would provide “certainty” and “preserv[e] peace and order,” presumably because it is difficult for a hunter that sees an animal to tell if another hunter is pursuing it. If pursuit were enough to create ownership, the resulting confusion would create “quarrels and litigation.” [Connection to Result] Thus, to avoid this outcome, the majority holds that pursuit is not enough. QUESTIONS?

24. 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?

25. 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

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

27. 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

28. 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).

29. 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

30. Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: • Law school admits all with 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?

31. 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?

32. 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?

33. 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

34. BRIGHT-LINE RULES v.FLEXIBLESTANDARDS

35. 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) Questions on Certainty?

36. 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.

37. 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)

38. 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.

39. 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?

40. 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

41. 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

42. 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

43. 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.

44. 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?

45. 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

46. Pierson v. Post: DQ1.07 (Labor) Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? ProbablyPost(Contracts/Capitalism) BUT for some jobs, laborer may [by custom or contract] gets some benefits beyond wages. E.g., • Exterminators normally retain pest bodies. • Yard services keep branches/leaves etc. to mulch. Maybe look if laborer hired to acquire item for boss or to get rid of it. Cf. contracts primarily for goods v. contracts for services

47. Pierson v. Post: DQ1.07 (Labor) • Law commonly rewards investment of $$$(to pay someone else to do actual labor for you) as a form of useful labor. • For purposes of this class, should treat investment of physical labor and investment of money as roughly equivalent.