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Elements B: Class 2 Thursday 8/15/19 Power Point Presentation National Lemon Meringue Pie Day

Elements B: Class 2 Thursday 8/15/19 Power Point Presentation National Lemon Meringue Pie Day. MUSIC : Beethoven Violin Sonatas #9 (1803) & #5 (1801) Recordings : Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano (1973-74). TOMORROW’S CLASS 9:30-10:40 am Case Brief (for your own use).

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Elements B: Class 2 Thursday 8/15/19 Power Point Presentation National Lemon Meringue Pie Day

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  1. Elements B: Class 2Thursday 8/15/19Power Point PresentationNational Lemon Meringue Pie Day

  2. MUSIC:Beethoven Violin Sonatas #9 (1803) & #5 (1801) Recordings: Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano (1973-74) TOMORROW’S CLASS 9:30-10:40 am Case Brief (for your own use)

  3. ELEMENTS B: Three Common 1L Issues Class #2: Confusion Class #4: Control Class #5: Competition v. Cooperation - Songland Episode 102 (Will.i.am)

  4. ELEMENTS B: COFNUSION

  5. ELEMENTS B: COFNUSION SOME REASONS FOR CONFUSION: • Reality TV Analogy: Missing the Key

  6. ELEMENTS B: COFNUSION SOME REASONS FOR CONFUSION: • Reality TV Analogy: Missing the Key • Metal Shop Analogy: Identifying the “Machines”

  7. ELEMENTS B: COFNUSION SOME REASONS FOR CONFUSION: • Reality TV Analogy: Missing the Key • Metal Shop Analogy: Identifying the “Machines” • Different Backgrounds • Hard Qs & Easy Qs • Old Techniques May Not Work

  8. ELEMENTS B: COFNUSION Helpful to Think of as Immersion in New Language/Culture • Don’t expect to get everything quickly • Read slowly & carefully & then reread • Thinking about Fall Break

  9. ELEMENTS B: COFNUSION BE PATIENT WITH OTHER STUDENTS

  10. ELEMENTS B: COFNUSION & ESPECIALLY BE PATIENT WITH YOURSELF!!

  11. ELEMENTS B: COFNUSION Two Dyslexics

  12. ELEMENTS B: COFNUSION Two Dyslexics 96

  13. Disability Services Info If you have a disability, or suspect that you may have a disability, the Law School encourages you to contact the Office of Disability Services for information about available opportunities, resources, and services. The phone number is 305-284-9907, and theemail address is duisabilityservices@law.miami.edu . You may also visit the Office of Disability Services website at www.law.miami.edu/disability-services.

  14. Pierson v. Post CASES IN CONTEXT • History of the Underlying Dispute (DQ1.01) (last time; posted slides will include lists) • How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) • Overall Social/Historical Context (1805) • How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

  15. Pierson v. Post: DQ1.02 PRECEDENT • Some English cases not relevant b/c • “decided upon the principles of their positive statute regulations….” • Decided on basisof “Ratione Soli” (by reason of the soil)

  16. Ratione Soli: By Reason of the Soil • An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.

  17. Ratione Soli: By Reason of the Soil • An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel. • Why might such a rule have developed?

  18. Pierson v. Post: DQ1.02 & 1.04(a) PRECEDENT Some English cases not relevant b/c decided under “ratione soli” • Ratione Soli cases = Landowner v. Hunter • PvP = Hunter v. Hunter. • DQ1.04(a): Why might it matter that the fox is caught on a deserted beach? Because there is no landowner making a ratione soli claim.

  19. Pierson v. Post: DQ1.02 TYPES OF PRECEDENT • Cases • Statutes (passed by legislatures) • Regulations (issued by executive branch/agencies) • Constitution • Treatises, Law Review Articles, etc.

  20. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State • Binding Authority • Constitution • Statutes • Regulations • Cases (common law) • Persuasive Authority (Non-Binding)

  21. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State • Binding Authority • Constitution (& Cases Interpreting) • Statutes (& Cases Interpreting) • Regulations (& Cases Interpreting) • Cases (common law) • Persuasive Authority (Non-Binding)

  22. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State • Binding Authority • Persuasive Authority (Non-Binding) • Cases (etc.) from Other Jurisdictions • Treatises, Law Review Articles, etc.

  23. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State • Binding Authority • Persuasive Authority (Non-Binding) PERSUASIVENESS VARIES w SOURCE: Cases • Prestige • Through WW2: Often NY & Mass • Later 20th Century: Often Calif. & NJ (& then Alaska) • Similar Circumstances • Alabama v. California • Albers (late Sept.): Ontario, Canada (for Colorado)

  24. Pierson v. Post: DQ1.02 Precedence of Precedents: Within a State • Binding Authority • Persuasive Authority (Non-Binding) PERSUASIVENESS VARIES w SOURCE: Scholarly Work • Prosser on Torts v. Brittany Spears on Torts • 1969 scholarship v. 2019 scholarship

  25. Pierson v. Post: DQ1.02 Precedence of Precedents: Among Levels of Government • Federal Law • Only if applicable: (where Federal Govt has power to regulate and has chosen to do so) • See Supremacy Clause of US Constitution • State Law • Local Ordinances and Regulations

  26. Pierson v. Post: DQ1.02 Precedence of Precedents IF QUESTIONS: Review Slides & Ask by E-Mail or Outside of Class

  27. Pierson v. Post: DQ1.02 PRECEDENT Why use precedents at all? Why shouldn’t the court simply announce who wins? (Multiple Overlapping Reasons)

  28. Pierson v. Post: DQ1.02 PRECEDENT Why use precedents at all? Why shouldn’t the court simply announce who wins? (at least)Predictability Consistency/FairnessLegitimacy

  29. Pierson v. Post CASES IN CONTEXT • History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) • How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) • Overall Social/Historical Context (1805) • How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03)

  30. Significance of History for Us • Background; Not Leading to Multiple Choice Test • Info I’ll give you especially about beginnings and endings: often useful to be think about changes in society that occur around particular dates (watersheds). E.g., 1492

  31. EUROPE BEFORE 1492 Ireland without potatoes Italy without tomatoes France w/o chocolate or tobacco

  32. AFTER 1492 New World  Europe Europe  New World Sugar Cane Cultivation SILVER

  33. Significance of History in Law • Judges & Lawyers (& Some Law Profs) = Human • Necessarily influenced by ideas & events of own time • Can make arguments about meaning of case or other authority from historical context • E.g., Dissent’s suggestion that rules suggested in treatises should not be followed because times have changed • E.g., nobody in 1805 is going to worry about effect of case on ecology; might act differently today

  34. Pierson v. Post 1805 Qing Dynasty in China Tokugawa Shogunate in Japan George III still British Monarch Napoleon in France  War in Europe

  35. Pierson v. Post: 1805 War in Europe: • Napoleon crowned Emperor in France & King of Italy • Destroys Russian & Austrian armies at Austerlitz, gaining effective control of most of Central Europe • BUT French Navy beaten badly at Battle of Trafalgar in October leaving Great Britain in control of seas

  36. Pierson v. Post: 1805 Milestones: • Births: Hans Christian Andersen, Alexis de Tocqueville, Joseph Smith Jr (founds Church of Latter Day Saints) • Deaths: Lord Cornwallis; Adm. Horatio Nelson • Beethoven’s Symphony #3 (Eroica) & Opera Leonore premiere in Vienna

  37. An Ancient Species of Mandarin Orange Reaches Europe from China for 1st Time; Imported into France from Tangier in Morocco

  38. Ancient Breed of Mandarin Oranges Reaches Europe from Tangier TANGERINES

  39. Pierson v. Post: 1805 2d Term of Jefferson Presidency: • 17 States: Original 13 plus VT KY TN OH • Michigan & Louisiana Territories Created • Huntsville, AL + Fairfax, VA + Canton OH founded • Treaties of Mt. Dexter & Ft. Industry & Grouseland Acquire Parts of Mississippi & Ohio & Indiana from Native Tribes • Lewis & Clark Expedition Reaches Pacific in Nov

  40. Population of Suffolk County NY1805 = about 20,000; 2012 = about 1,500,000

  41. Pierson v. Post CASES IN CONTEXT • History of the Underlying Dispute (DQ1.01) (last time; posted slides include list from whiteboard) • How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, cont’d) • Overall Social/Historical Context (1805) • How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Custom)

  42. Pierson v. Post: DQ1.03 CUSTOM & LAW • The dissent suggests that the court should defer to hunters’ customs. • Can view custom as kind of precedent: what people generally do in situation. • Certainly useful info for court: what would likely happen if no legal intervention

  43. Pierson v. Post: DQ1.03 CUSTOM & LAW • The dissent suggests that the court should defer to hunters’ customs.Would that be a good thing? • Subquestions in DQ1.03 designed to help you think about this.

  44. Pierson v. Post: DQ1.03 CUSTOM & LAW • Do you know what relevant customs are among hunters today? • If not, how would you find out?

  45. Pierson v. Post: DQ1.03 CUSTOM & LAW • Do you know relevant customs are among hunters today? How would you find out? • Find Live Experts –OR— Internet • Some Good Ideas for Sources • Hunting Clubs • Local Leaders/Teachers/Officials • Relevant Organizations (American Fox Hunters)

  46. Pierson v. Post: DQ1.03 CUSTOM & LAW Examples of Situations Where Custom Differs from Law? Not just custom and no law, but custom inconsistent w existing law.

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