1. (Last Day of Ludwig) MUSIC: Beethoven (Last Day of Ludwig) Symphonies #4 (1807) & #7 (1813) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991) Section B Lunch Today Meet on Bricks @ 11:55 Bradley & Calarco

2. Liesner v. Wanie: DQs to Help You Understand Case Featuring From Section D: Crosby Furmanski Kasdin Miller-Taylor From Section B: Randolph Vogel Ciani Forzisi

3. Liesner v. Wanie: DQ1.12 Liesner and another, by next friend, Respondents, v. Wanie, Appellant What does “next friend” mean?

4. Liesner v. Wanie: DQ1.12 Next Friend Legal representative for party who cannot adequately represent own interests. Such as…?

5. Liesner v. Wanie: DQ1.12 Next Friend Legal representative for party who cannot adequately represent own interests. Minors Mentally Incompetent Married Women (at Common Law)

6. Liesner v. Wanie: DQ1.12 Next Friend Legal representative for party who cannot adequately represent own interests To whom might ‘next friend’ refer in Liesner itself?

7. Liesner v. Wanie: DQ1.13 Second paragraph of opinion begins: “It is conceded that …” What was conceded here?

8. Liesner v. Wanie: DQ1.13 “It is conceded that if the plaintiffs had substantially permanently deprived the wolf of his liberty—had him so in their power that escape was highly improbable, if not impossible, before defendant appeared on the scene and with his gun pointed so as to reach within some three feet of the animal delivered a finishing shot, it had become the property of plaintiffs….”

9. Liesner v. Wanie: DQ1.13 “It is conceded that if the plaintiffs had substantially permanently deprived the wolf of his liberty—had him so in their power that escape was highly improbable, if not impossible, before defendant appeared on the scene and with his gun pointed so as to reach within some three feet of the animal delivered a finishing shot, [then] it had become the property of plaintiffs….”

10. Common Form of Legal Rule IF [particular facts occur], THEN [legal outcome follows]. NOTE: Use of wood grain in header = foundational idea relevant in many legal contexts.

11. Liesner v. Wanie: DQ1.13 Second paragraph of opinion begins: “It is conceded that …” Who conceded it?

12. Liesner v. Wanie DQ1.14 DIRECTED VERDICT Trial Court Rules That One Party Presented Insufficient Evidence to the Jury to Meet the Relevant Legal Standard.

13. Liesner v. Wanie DQ1.14: Liesner is Unusual Case:  Directed Verdict for Plaintiff (who has burden of proof in civil case).  Language of opinion suggests that Trial Record contains factual disputes.  Trial Court must have believed that undisputed evidence proved P’s case (i.e., D presented insufficient evidence to contradict undisputed evidence supporting P)

14. Liesner v. Wanie: DQ1.14 DIRECTED VERDICT Trial Court Rules That Insufficient Evidence to Meet Relevant Legal Standard Was Presented to the Jury Two Possible Grounds for Appeal – Trial Court Applied Wrong Legal Standard – Evidence Was Sufficient to Meet Legal Standard Which was Wanie’s claim here?

15. Liesner v. Wanie: DQ1.14 Wanie conceded the relevant legal rule, so must be challenging assessment of evidence. What exactly is still contested?

16. Liesner v. Wanie: DQ1.14 What exactly is still contested? “In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape, thus permitting appellant to substantially reach it with the muzzle of his gun at the instant of delivery of the finishing shot.”

17. Liesner v. Wanie: DQ1.14 What exactly is still contested? “In the light of other evidence, all reasonable doubts may well have been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape, thus permitting appellant to substantially reach it with the muzzle of his gun at the instant of delivery of the finishing shot.”

18. Liesner v. Wanie: DQ1.14 Questions re What Appellant Disputed on Appeal?

19. Liesner v. Wanie DQ1.18(a) Prevailing Rule: “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.” Meaning of Vested?

20. Liesner v. Wanie DQ1.18(a) Prevailing Rule: “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.” Meaning of Vested? Of Divested?

21. Liesner v. Wanie DQ1.18(a) Example of Kind of Property Right We’ve Discussed That is Contingent (As Opposed to Vested)?

22. Liesner v. Wanie DQ1.18(a) Example of Kind of Property Right We’ve Discussed That is Contingent (As Opposed to Vested)? RATIONE SOLI

23. LOGISTICS: CLASS #6 Next Week: Monday & Tuesday Monday: No Sec. B Class (Labor Day) Tuesday: Both Sections Meet Together – Finish Pierson & Continue Liesner – I’ll call on Uraniums & Oxygens from both sections for assigned material. – Special Seating: » §B §D Students w Assigned Seats on Your Side: Stay Put Students w Assigned Seats on Other Side, Move to Back 4 Rows on Your Side Try to Come a Little Early to Sort Out Properly

24. LOGISTICS: CLASS #6 Next Week: Wed/Thu/Fri Wed/Thurs: Start Liesner Trial Transcript – I’ll post Self-Quiz this weekend – Wait to read until after you brief appellate opinion & do DQs assigned for Tuesday Radium: Written Shaw Brief Due Thu 9 pm – I’ll take Qs in class on Tuesday Friday: Start State v. Shaw I’ll post Self-Quiz this weekend

25. Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. E.g., Dissent says foxes harmful to society, so good to kill them: “[O]ur decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career.” (p.5)

26. Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. E.g., Dissent says foxes harmful to society, so good to kill them. NOTE: Can strengthen this type of argument with, e.g., description or evidence re – Importance of poultry farming – Extent of harm caused by foxes

27. Pierson v. Post: DQ1.08 (Economic Benefits) Helpful to argue to court that particular rule would tangibly/materially improve society. E.g., Dissent… – Says foxes harmful to society, so good to kill them. – Assumes its hot pursuit rule would result in more foxes being killed. Elaborate why Judge Livingston might believe this to be true.

28. Pierson v. Post: DQ1.08 (Economic Benefits) Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts choose alternative activity. Dissent: “[W]ho would keep a pack of hounds; or … would mount his steed, and for hours together... pursue the windings of this wily quadruped, if just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder … were permitted to come in at the death, and bear away in triumph the object of pursuit?”

29. Pierson v. Post: DQ1.08 (Economic Benefits) Dissent: “[W]ho would keep a pack of hounds; or … would mount his steed, and for hours together... pursue the windings of this wily quadruped, if just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, … were permitted to come in at the death, and bear away in triumph the object of pursuit?” READING NOTE Self-Quiz asked, “W ho is saucy intruder?” Answers said “Pierson,” BUT this passage is really describing a hypothetical situation, so more precise answer would be “A person like Pierson.” (per Pinkert §D)

30. Pierson v. Post: DQ1.08 (Economic Benefits) Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity Argument that Majority’s Rule will result in more foxes being killed?

31. Pierson v. Post: DQ1.08 (Economic Benefits) Why does the dissent think its rule will result in more foxes being killed? Unhappy Posts Choose Alternative Activity Argument that Majority’s Rule will result in more foxes being killed? Determined Posts Work Harder at Killing (e.g., Whaling)

32. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond?

33. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? Substitution Effect: Might choose differ- ent activity (in part or completely) that pays more or costs less.

34. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? Substitution Effect: Might choose different activity that pays more or costs less. -OR- Income Effect: Could increase labor--do more of activity; more effort; more investment--until you earn desired reward.

35. Pierson v. Post: DQ1.08 (Economic Benefits) Common Problem: If you are not going to get expected reward for labor, how do you respond? Substitution Effect: Could choose different activity -OR- Income Effect: Could increase labor Often hard to predict which effect will predominate in any particular situation. (Empirical Q)

36. Pierson v. Post: DQ1.08 (Economic Benefits) The dissent assumes that we want to kill foxes as quickly as possible. What Rule Would Be Appropriate if You Were Trying to Preserve Foxes Because They Were Commercially Valuable? We’ll come back to in contexts of DQ1.10 & then Demsetz article in two weeks.

37. Pierson v. Post: (Intangible Interests) Post unlikely to have cared much about monetary value of fox pelt; more likely angered by deliberate interference with activity of hunting. DQ1.09(a): Is the “right” to hunt without interference a right society should protect (where hunting is legal)?

38. Pierson v. Post: (Intangible Interests) DQ1.09(b): Post might believe Pierson killed fox spitefully for no reason except to bother Post (ongoing family feud). Majority says we shouldn’t care.

39. Pierson v. Post: (Intangible Interests) Majority (last para.): “ However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.” Nice Version of “So What?”

40. Pierson v. Post: (Intangible Interests) Majority: “However uncourteous or unkind the conduct of Pierson towards Post … may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.” DQ109(b): Is majority correct? Should a court take into account whether Pierson had “bad intent” (as opposed to genuine attempt to hunt fox for sport or pelt)?

41. Pierson v. Post: (Intangible Interests) If a court wants to take “bad intent” into account, what evidence could you use to prove Pierson’s intent here (not having access to Vulcan Mind Meld)?

42. Pierson v. Post: (Intangible Interests) PROOF OF INTENT Required in Intentional Tort & Criminal Cases Often Not Legally Relevant in Property Ownership Cases

43. Pierson v. Post: DQ1.09 (Intangible Interests) PROOF OF INTENT Required in Intentional Tort & Criminal Cases Often Not Relevant to Property Ownership Proof of Intent Often Expensive/Complex – Ignoring Intent = Cheaper, More Certain Results – Determining Intent = More Fact-Specific “Justice”

44. Pierson v. Post: DQ1.09 (Intangible Interests) Can Use Unmade/Rejected Policy Arguments : To support similar rejection in future cases: “The Pierson Majority treated bad intent as irrelevant, therefore….”

45. Pierson v. Post: DQ1.09 (Intangible Interests) Can Use Unmade/Rejected Policy Arguments : To support similar rejection in future cases: “The Pierson Majority treated bad intent as irrelevant, therefore….” To distinguish future cases: “The Pierson majority did not see bad intent as important in those circumstances, but clearly it is more important here because ….”

46. Pierson v. Post: DQs1.10-1.11 First-in-Time v. Alternative Types of Rules

47. Pierson v. Post: DQs1.10-1.11 (Types of Rules) DQ1.10-1.11: Opportunity to Compare First- in-Time Rules to Alternative Types of Rules in Two Contexts: – Hunting Wild Animals (in Places You Are Allowed to Hunt) – Allocating Parking Spaces (in Places You Are Allowed to Park)

48. Pierson v. Post: DQs1.10-1.11 (Types of Rules) DQ1.10-1.11: Opportunity to Compare First-in- Time Rules to Alternative Types of Rules Allocating Parking Spaces (in Places You Are Allowed to Park). Note that parking spaces usually allocated on First-in-Time Basis, e.g., – among permit-holders in Pavia Garage – among public in mall parking lots

49. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights) First-in-Time is a type of rule First-in-Time different from, e.g., – Most Deserving Gets – Lottery (Winner Randomly Selected) – Auction (Highest Bidder Gets)

50. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights) First-in-Time is a type of rule Pierson opinions agree on First-in-Time, but not on which version – Dissent: First in Hot Pursuit – Majority: First to [Something More]

51. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Pierson allocates property rights on a First-in- Time Basis (first to occupy unowned animal gets property rights) First-in-Time is a type of rule Multiple Examples Possible – First to Actually Possess – First to Wound or Capture (if no wound) – First to See (cf. five-year-olds)

52. Pierson v. Post: DQs1.10-1.11 (Types of Rules) Pierson opinions agree on First-in-Time, but not on which version – Dissent: First in Hot Pursuit – Majority: First to [Something More] – Possible Options After Majority Opinion (if no trap): First Physical Possession First Wound First Mortal Wound