Lunch Today Meet on Brix @ 12:25 Fried * Goldman Heller * Liu * Najmy Pino * Ruiz

1. RADIUM SHAW BRIEFDUE TONIGHT @8PLEASE SIGN UP BY END OF DAY TOMORROW FOR MEETING TIMES NEXT WEEK Lunch Today Meet on Brix @ 12:25 Fried * Goldman Heller * Liu * Najmy Pino * Ruiz Tomorrow: Extended Class 8:55-10:45 a.m.

2. Liesner Trial Transcript: DQ1.21 Uranium Why Bother? Why do you think the Liesner family chose to bring this lawsuit?

3. Liesner Trial: DQ1.21 Uranium Liesner Family Motivations? Ideas include: • Father Acting as Good Parent; Maybe Related to Either: • Shooting = important coming-of-age moment for boys (1st wolf seen/killed) • Father protecting boys against perceived bully/cheater • Maybe reflective of larger social/economic split in community

4. Liesner Trial Transcript: DQ1.21 Uranium Why Bother? Why do you think Wanie expended the resources needed to take the case to the state Supreme Court?

5. Liesner Trial: DQ1.21 Uranium Wanie Motivations? Ideas include: • Defending Liesner father’s challenge to his integrity (manure/patch) • Again, maybe reflective of larger split in community • Interest as regular hunter in clarifying rules/fixing bad result (although less convincing explanation b/c concedes prevailing rule)

6. Liesner Trial: DQ1.22 Krypton Relevance of additional facts found in trial record to how you should read/use the appellate opinion?

7. Krypton: 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

8. BACK TO: Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): • Property in a wild animal created if people have “substantially permanently deprived [animal] of his liberty—had him so in their power that escape was highly improbable, if not impossible….” • “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

9. Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): • Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty— had him so in their power that escape was highly improbable, if not impossible….” • “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

10. Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): • Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty—[2] had him so in their power that escape was highly improbable, if not impossible….” • “The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

11. Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): • Property in a wild animal created if people [1] have “substantially permanently deprived [animal] of his liberty—[2] had him so in their power that escape was highly improbable, if not impossible….” • “The instant [3] a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it.”

12. Liesner DQ1.18: Oxygen “Prevailing rule” (Three Formulations): • (1) substantially permanently deprive [animal] of liberty (SPDL) • (2) [have the animal] so in their power that escape improbable, if not impossible • (3) [bring the animal] under control so that actual possession practically inevitable

13. Liesner DQ1.18: Prevailing Rule (Oxygen) • (1) substantiallypermanently deprive [animal] of liberty • (2) [have the animal] so in their power that escape improbable, if not impossible • (3) [bring the animal] under control so that actual possession practicallyinevitable 1.18(a): Meaning of Key Language? 1.18(c): Application to Pierson Facts?

14. Liesner DQ1.18 (a): Oxygen MEANING OF LANGUAGE? • Court refers to “the prevailing rule” (singular, not plural) so might believe all 3 formulations mean the same thing.

15. Liesner DQ1.18 (a): Oxygen MEANING OF LANGUAGE? • Court might believe all three mean the same thing. • BUT lawyers/judgesusually assume that courts and legislatures (or contracting parties) choose specific language for a reason, so if they use different phrases in the same document, they must mean/intend different things. • Yields three Qs that are implicitly part of 1.18(a).

16. Liesner DQ1.18 (a): Oxygen Property Rights in Animal IF: • substantiallypermanently deprived [animal] of his liberty MEANING OF LANGUAGE Significance of Two Separate Adverbs?

17. Liesner DQ1.18(a): Oxygen (1) substantially permanently deprive [animal] of liberty (SPDL) • Facial Ambiguity re “Substantially” • Might modify “deprived” creating two separate requirements (“Substantially [&] Permanently”) • Might modify “permanently” making that requirement less strict • Latter reading more consistent with “escape improbable” and “practically inevitable”

18. Liesner DQ1.18(c): Oxygen (1) substantially permanently deprived [animal] of [its] liberty Does Post get Property Rights if this is test? What might Post argue? Counters?

19. Liesner DQ1.18: Oxygen • (1) substantiallypermanently deprive [animal] of liberty • (2) [have the animal] so in their power that escape improbable, if not impossible • (3) [bring the animal] under control so that actual possession practicallyinevitable All three formulations contain an imprecise word meaning something like “almost completely.”

20. Liesner DQ1.18 (b): Oxygen What policies support the rule? What policies suggest that it has problems? As compared to what?

21. Liesner DQ1.18 (b): Oxygen COMPARE POSSIBLE RULES • Actual Possession Likely • Actual Possession Practically Inevitable • Actual Possession Inevitable Policies Supporting Choice… Of #2 v. #3? Of #2 v. #1? • Certainty • Killing Most Animals • Rewarding Useful Labor (for DF Next Week)

22. Liesner DQ1.18 (b): Oxygen • Actual Possession Practically Inevitable • Actual Possession Inevitable Policies Supporting Choice of #2 v. #3 Include • Too difficult to meet standard for #3 • Discourages hunters  fewer kills • Impossible-to-meet standard reduces certainty of hunters • may yield disrespect for law, • May yield self-help; violence (: breakdown of peace and order as people like Liesners try to enforce perceived “rights.”)

23. Liesner DQ1.18 (b): Oxygen • Actual Possession Likely • Actual Possession Practically Inevitable Policies Supporting Choice of #2 v. #1 Include • #1 = Too uncertain in application • Yields too many disputes/lawsuits (v. higher claim threshold for #2) • May reduce kills b/c 2d hunters can’t compete & 1st hunters may not have enough incentive to improve

24. Liesner DQ1.18 (b): Oxygen COMPARE POSSIBLE RULES • Actual Possession Likely • Actual Possession Practically Inevitable • Actual Possession Inevitable

25. Liesner DQ1.18(c): Oxygen Apply to Pierson Facts: Property Rights if … • under the control of a person so that actual possession is practically inevitable • so in their power that escape was highly improbable, if not impossible I’ll leave for you & DF. Arguments similar to those we made 1st formulation. Might try to identify situations where result might be different.