1. When might conforming to custom be a bad idea? (Includes…)
Pierson v. Post: DQ3
CUSTOM & LAW
When might conforming to custom be a bad idea? (Includes…)
Bad customs
Uncertain customs
Disputed; or
Hard to apply
Surprise to Parties Affected

2. Pierson v. Post: DQ3 CUSTOM & LAW
Gov’t can change law to conform to custom.
Is Pierson v. Post a good situation to have law conform to custom?

3. Is Pierson v. Post a good situation to have law conform to custom?
Pierson v. Post: DQ3
CUSTOM & LAW
Is Pierson v. Post a good situation to have law conform to custom?
Lawyering Note: Often focus on “Who is appropriate decision-maker?”, rather than “Is particular decision best one possible?”

4. Pierson v. Post: DQ3 CUSTOM & LAW When should law conform to custom?
Recurring question in many areas of law
e.g., Contract Law v. Business Practices
We’ll return to this question with regard to whaling customs in Unit Two

5. Qs on Custom?

6. ELEMENTS B1/B2 Three Common 1L Issues
Class #1: Control
Class #2: Competition v. Cooperation
Class #3: Confusion

7. ELEMENTS B1/B2: CONFUSION

8. ELEMENTS B1/B2: CONFUSION
SOME REASONS FOR CONFUSION:
Real World Analogy: Missing the Key

9. ELEMENTS B1/B2: CONFUSION
SOME REASONS FOR CONFUSION:
Real World Analogy: Missing the Key
Immersion in New Language/Culture
Should Read No More Than 10 pages/hour
Fall Break Warning

10. ELEMENTS B1/B2: CONFUSION
SOME REASONS FOR CONFUSION:
Real World Analogy: Missing the Key
Immersion in New Language/Culture
Hard Qs & Easy Qs

11. ELEMENTS B1/B2: CONFUSION
SOME REASONS FOR CONFUSION:
Real World Analogy: Missing the Key
Immersion in New Language/Culture
Hard Qs & Easy Qs
Old Techniques May Not Work

12. ELEMENTS B1/B2: CONFUSION
BE PATIENT WITH OTHER STUDENTS

13. ELEMENTS B1/B2: CONFUSION
BE PATIENT
WITH OTHER STUDENTS
& ESPECIALLY
WITH YOURSELF!!

14. CASE BRIEF: Generally LIKE A RESUME Standardized Information
Range of Successful Ways to Present
Alter for Different Audiences
Rarely the Whole Story

15. CASE BRIEF: Statement of the Case
Succinct Statement of Nature of Original Lawsuit (complete Statement unlikely to be stated explicitly in case itself)

16. CASE BRIEF: Statement of the Case
Succinct Statement of Nature of Original Lawsuit
In Case Brief: Reminds You Quickly What Case Is About

17. CASE BRIEF: Statement of the Case
Succinct Statement of Nature of Original Lawsuit
In Case Brief: Reminds You Quickly What Case Is About
In Court Submissions: Quickly Explains Nature of Cases You Discuss In Your Arguments

18. CASE BRIEF: Statement of the Case
Who Sued Whom? (in initial lawsuit)

19. Pierson v. Post: Who Sued Whom?
“Plaintiff Sued Defendant” (always true; provides no info)

20. Pierson v. Post: Who Sued Whom?
“Plaintiff Sued Defendant”
“Post Sued Pierson” (provides no info about lawsuit)

21. Describe Parties in Way that Gives Sense of Subject of Lawsuit
WHO SUED WHOM?
Describe Parties in Way that Gives Sense of Subject of Lawsuit
Apartment Landlord Sued Former Tenant …
Purchasers of Leaky New House Sued Developer ...
Consumer Injured By Exploding Blender Sued Manufacturer and Seller of Blender ...

22. WHO SUED WHOM? Helps Clarity to Include Parties’ Names
Matheson, Apartment Landlord, Sued Jacobs, Former Tenant …
Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, and Walmart, Seller of Blender ...
Then can reference by name in rest of brief.

23. Pierson v. Post: Who Sued Whom?
sued Pierson, … (?)
Think about what info helps you understand what lawsuit is about.

24. Pierson v. Post: Who Sued Whom?
Post, a blond 27-year old Dutch-American asthmatic unemployed son of a hero of the Revolutionary War ...

25. Pierson v. Post: Who Sued Whom?
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit ...
One of several plausible versions.

26. CASE BRIEF: Statement of the Case
Who Sued Whom?
Under What Theory (Legal Cause of Action)?

27. Pierson v. Post: Under What Theory?
“Trespass on the Case”
(See 1st Sentence of Case)
= Indirect Injury to П’s Property

28. Pierson v. Post: Under What Theory?
“Trespass on the Case”
= Indirect Injury to П’s Property
Compare “Trespass”
= Direct Injury to П’s Property
Why Indirect Here?

29. Pierson v. Post: Under What Theory?
“Trespass on the Case”
= Indirect Injury to П’s Property
Maybe here because property in Q (fox) harmed by bullet & not directly by Pierson
Distinction not especially important for purposes of our class, but good to get used to noting things like this.
Compare “Trespass”
= Direct Injury to П’s Property
Why Indirect Here?

30. CASE BRIEF: Statement of the Case
Who Sued Whom?
Under What Theory (Legal Cause of Action)?
For What Remedy?

31. Pierson v. Post: For What Remedy?
Not Stated in Majority Opinion
Possibilities?

32. Pierson v. Post: For What Remedy?
Not Stated in Majority Opinion
Dissent: “In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of ...” (suggests remedy requested is return of property)

33. Pierson v. Post: For What Remedy?
Not Stated in Majority Opinion
Dissent: Suggests remedy requested is return of property
Normal remedy for Trespass on the Case is “Damages” (= $$$)

34. Pierson v. Post: Sample Statement
Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for trespass on the case, presumably seeking damages.
Again, Number of Possible Versions Qs

35. CASE BRIEF: Procedural Posture
Procedural Steps After Lawsuit Filed Up To Step That Gets Case to the Appellate Court that Issued the Opinion You are Briefing

36. CASE BRIEF: Procedural Posture
Procedural Steps After Lawsuit Filed Up To Step That Gets Case to the Appellate Court
Try to Limit to Steps Necessary to Understand Case (usually have to edit what’s given in opinion)

37. Pierson v. Post: Procedural Posture
After Trial Resulted in Verdict for Plaintiff, Appellate Court Granted Defendant’s Petition for [Certiorari] Review

38. CASE BRIEF: Facts
Try to limit to facts arguably relevant to court’s analysis.

39. CASE BRIEF: Facts Can’t determine relevance on 1st read
Limit to facts arguably relevant to court’s analysis.
Can’t determine relevance on 1st read
Initial description of “facts” usually includes more detail than you need
Important facts may only appear later in opinion
Select/edit facts after reading whole case.

40. CASE BRIEF: Facts We’ll come back to for Pierson after DQs 4-5
Limit to facts arguably relevant to court’s analysis.
Can’t determine relevance on 1st read
We’ll come back to for Pierson after DQs 4-5

41. CASE BRIEF: Issue
Party Appealing Always Claims the Lower Court Made a Mistake. To Identify the Issue, Identify the Mistake.

42. CASE BRIEF: Issue
Party Appealing Claims the Lower Court Made a Mistake. Identify the Mistake.
Procedural Component of Mistake: What Should Lower Court Have Done Differently?

43. CASE BRIEF: Issue
Party Appealing Claims the Lower Court Made a Mistake. Identify the Mistake.
Procedural Component of Mistake: What Should Lower Court Have Done Differently?
Substantive Component of Mistake: What Misunderstanding About the Legal Rule Caused the Lower Court to Err?

44. What does he think was insufficient about it?
Pierson v. Post: Issue
End of 1st paragraph: Pierson claims that “the declaration and the matters therein contained were not sufficient in law to maintain an action.”
What does he think was insufficient about it?

45. Pierson v. Post: Issue
SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the fox is insufficient because pursuit alone does not create property rights in the fox.

46. WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?
Pierson v. Post: Issue
WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

47. WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?
Pierson v. Post: Issue
WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?
PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted

48. Pierson v. Post: Issue
PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted In other words, even if everything stated in Declaration was true, Post was not entitled to any legal remedy (or “SO WHAT?”)

49. Combine Both Alleged Mistakes:
Pierson v. Post: Issue
Combine Both Alleged Mistakes:
PROCEDURAL MISTAKE: The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted +
SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the fox is insufficient because pursuit alone does not create property rights in the fox.

50. Combine Both Alleged Mistakes:
Pierson v. Post: Issue
Combine Both Alleged Mistakes:
Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

51. Pierson v. Post: Issue Simple Substantive Issue
(Appropriate for Torts or Property)
Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox?

52. Pierson v. Post: Issue Simple Substantive Issue
Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox?
Cf. p.3: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]”
For Elements, try to state issue as a yes/no question.

53. CASE BRIEF: Issue  Holding
Simplest Version of Holding:
Issue is a question.
Answer question “yes” or “no.”
Repeat issue in statement form (adjust for positive or negative).

54. Pierson v. Post: Issue
Did the Lower Court Err by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox?

55. Pierson v. Post: Issue  Holding
YES. The Lower Court Erred by Failing To Dismiss the Case for Failure to State a Claim on Which Relief Could Be Granted Because Pursuit of a Fox Is Insufficient to Create Property Rights in the Fox.

56. CASE BRIEF: Issue/Holding
HOW MUCH DETAIL DO YOU INCLUDE
Try to include factual detail that seems relevant to analysis/outcome.
Can have different versions that incorporate more or less detail (narrower/broader).
DQ4-5 intended to help you start thinking about how to do this.

57. CASE BRIEF: Issue/Holding
HOW MUCH DETAIL DO YOU INCLUDE
Try to include factual detail that seems relevant to analysis/outcome.
Can have different versions that incorporate more or less detail.
DQ4-5 intended to help you start thinking about how to do this.

58. Pierson v. Post: Issue/Holding
Version of Substantive Holding: To get property rights in a fox, you must be the first to “occupy” it, which means you must do more than pursue it.

59. Pierson v. Post: Issue/Holding
Version of Substantive Holding (adding detail):
To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it.

60. Pierson v. Post: DQ4 Significance of Facts
Why might it matter that the fox is found on a deserted beach?*

61. Pierson v. Post: Issue/Holding
Version of Substantive Holding (Generalizing):
To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it. 
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.

62. Assume well is also unowned.
Pierson v. Post: DQ4
Significance of Facts
Suppose fox fell into a well before it was shot. Change the result?*
Assume well is also unowned.

63. Pierson v. Post: DQ4 Significance of Facts
Suppose fox fell into a well before it was shot. Change the result?
Could treat as trap(“toil”) or net discussed in case as possibly creating possession
Could say equals possession if fox cannot escape: see language: “deprive them of their natural liberty, and render escape impossible.”
BUT Could say that 1st hunter still does not have actual possession.

64. Pierson v. Post: DQ4 Significance of Facts
Suppose fox fell into a well before it was shot. Change the result?
Contemporary accounts outside the legal record suggest this may really have happened. Assuming it did, why isn’t this discussed in the case?

65. Pierson v. Post: DQ4 Significance of Facts
Suppose fox fell into a well before it was shot. Change the result? Assuming it did, why isn’t this discussed in the case?
Probably not in declaration. Why wouldn’t lawyer include it?

66. Pierson v. Post: DQ4 Significance of Facts Note Importance of Lawyer
Suppose fox fell into a well before it was shot. Why wouldn’t lawyer include it in declaration?
Maybe strategic decision (seems unlikely).
Maybe lawyer didn’t think it was important.
Maybe lawyer didn’t know (asked wrong Qs)!
Note Importance of Lawyer

67. CASE BRIEF: Narrow v. Broad Holdings
Covers fewer situations
Includes more facts
More specific
Covers more situations
Includes fewer facts
More general

68. Pierson v. Post: Issue/Holding
To get property rights in a fox [found on a deserted beach], you must be the first to “occupy” it, which means you must do more than pursue it. (Narrower)  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. (Broader)

69. 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] found on unowned land, you must be the first to “occupy” it, which means you must do more than pursue it. (Too Broad???)

70. Pierson v. Post: DQ4 Significance of Facts
Why might it matter that the hunted animal is some other animal as opposed to a fox?

71. Pierson v. Post: DQ4
Why might it matter that the hunted animal is some other animal as opposed to a fox? Might want different rule for:
Pets/Domestic Animals
Endangered Species
Very Valuable Animal
Fox in Yankee Uniform