ELEMENTS B1 & B2 2016 POWER POINT SLIDES

1. ELEMENTS B1 & B2 2016POWER POINT SLIDES Class #5: Friday, August 26 National Cherry Popsicle Day & National Dog Day

2. MUSIC:Beethoven Symphonies #2 (1803) & #5 (1808)Recordings: Chamber Orchestra of EuropeNikolaus Harmoncourt, Conductor (1991) Now Posted on Course Page: Panel Assignments Updated Syllabus Updated Assignment Sheet, Including … Practice Midterm Time & Location Dates, Times & Locations for My November Exam Technique Workshops

3. LOGISTICS:NEXT WEEK Storm Likely Means Messy Commutes Mon/Tues; Check for Updates Mon/Tues: We’ll Begin with Liesner & DQs 1.12-1.14 (Uranium Panel) Mon & Thurs: DF Sessions Begin (Check Course Page for Content) Next Set of Course Materials Available Friday

4. Pierson v. Post: DQ1.04(b) Might want different rules for: • Pets/Domestic Animals (Different Rules Exist) • Fox w Steel Wool Hair & Trump T-Shirt  Likely Domesticated or Pet • Endangered Species • Animals in School/Flock • Very Valuable Animal/Food Animal • Animal Directly Endangeriung Persons or Property

5. Pierson v. Post: Issue/Holding To get property rights in [a fox] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it.(Narrower)  To get property rights in [an animal ferae naturae] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it.(Broader, but clearly still supported by text)

6. Pierson v. Post Significance of Facts Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal?

7. Pierson v. Post Significance of Facts Assume (as is likely) that the jury found that the facts were as Post alleged. Relevance to this appeal? None. Claim on appeal is that even if all facts are as alleged, Post cannot win because his pursuit did not create property rights in fox.

8. Pierson v. Post: Holding Version of Substantive Holding: To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. To get property rights in an animal ferae naturae found on unowned land, you must be the first to “occupy” it, which means … [specifics ???]

9. Pierson v. Post: Holding What Constitutes Possession of Wild Animal? • Actual Physical Possession • This is established prior to the case and everyone treats it as given. • Because it is uncontested here, it is not part of the issue/holding.

10. Pierson v. Post: Holding What Constitutes Possession of Wild Animal? • Actual Physical Possession (Uncontested) • Majority Refers to Two Other Possible Ways to Get Possession: • Mortal Wounding • Traps & Nets

11. Pierson v. Post: Holding What Constitutes Possession of Wild Animal? • Actual Physical Possession (Uncontested) • Majority Notes Two Other Ways to Get Possession: (i) Mortal Wounding & (ii) Traps & Nets Note: Court discusses these two options although they were not part of the facts of the dispute it is resolving.

12. Pierson v. Post: DQ1.05 Holding v. Dicta Courts often comment about fact situations different from the cases before them. What are some of the pros and cons of judges discussing facts not before them?

13. Pierson v. Post: DQ1.05 Should judges discussing facts not before them? • PRO: Provides instructions to lawyers in future cases • PRO: Helps clarify reasoning & scope of opinion • CON: Want limits on judicial power (killing fox  death penalty) • CON: Judges’ decisions may be better-reasoned if made in the context of real facts with interested parties each presenting their strongest arguments.

14. Pierson v. Post: DQ1.05 Should judges discussing facts not before them? Pros/cons list arguably supports common distinction between language that is “holding” and language that is “dicta.”

15. Pierson v. Post: DQ1.05Holding v. Dicta (Simple Version) HOLDING DICTA Statements court made that did not resolve a disputed issue Language not necessary to reach result Not binding on future courts (BUT can be very persuasive: “Dicta, schmicta!”) • Decision court made that resolveda disputed issue • Language necessary to reach result • Binding on future courts

16. Pierson v. Post: DQ1.05Holding v. Dicta (In Pierson Itself) Substantive Holding? (What Rule is Court Trying to Establish?) • 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.

17. 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?

18. 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!!

19. 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.

20. 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

21. 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 (v. Clerks!) • For Guidance, Look To Rationales; If New Situation Fits Rationales, Can Argue Result Should Be Same

22. 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.

23. 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.

24. 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 …]

25. 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.

26. 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.

27. 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. …

28. 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. …

29. 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?

30. 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.

31. 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.

32. 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]

33. 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?

34. 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

35. 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?

36. 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?

37. 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

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

39. 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

40. 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 (not always true).

41. 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