ELEMENTS D1 & D2 2017 POWER POINT SLIDES Class #1 Monday, August 14 & Tuesday August 15

ELEMENTS D1 & D2: Prof. Fajer Please Select Seats Only in the First Five Rows MUSIC: Emile Giles, Piano Beethoven, Piano Sonatas 21, 23, 26 Composed: 1803, 1805, 1810; Recorded: 1986 CLASS SCHEDULE FOR REST OF WEEK: D1 = WED 7:55-9:20 & FRI 9:30-10:50 D2 = THU 7:55-9:20 & FRI 7:55-9:15

ELEMENTS D1 & D2: CLASS #1 Why Elements? Why Animals/Pierson? Logistics Begin Pierson & DQs 1.01 & 1.02

ELEMENTS D1 & D2: CLASS #1 Why Animals/Pierson? Why Elements? Logistics Begin Pierson & DQs 1.01 & 1.02

William Shakespeare The Merchant of Venice Act V Scene 1 Launcelot Gobbo (enters): Sola, sola.

William Shakespeare The Merchant of Venice Act V Scene 1 Launcelot Gobbo (enters): Sola, sola!

ELEMENTS D1 & D2: CLASS #1 Logistics Why Elements? Why Animals/Pierson? Logistics Begin Pierson & DQs 1.01 & 1.02

ELEMENTS D1 & D2: CLASS #1 Logistics Forms to Circulate Seating Charts Acting as Attendance Sheets Today Preferred First Names Lunches Contact Info: E-Mail & Phone: Write LEGIBLY

ELEMENTS D1 & D2: CLASS #1 Logistics Dean’s Fellow: Bryan Walsh Sessions: Mon & Wed 4:30-5:20 Room A110

ELEMENTS D1 & D2: CLASS #1 Logistics Operation of the Class Class time as rehearsal/workshop

ELEMENTS D1 & D2: CLASS #1 Logistics Operation of the Class Class time as rehearsal/workshop Mechanics in Info Memo #1 Note Especially: Courtesy Panel System Discussion Questions (DQs) E-Mail me if Qs

ELEMENTS D1 & D2: Next 3 Classes Three Common 1L Issues Class #2: Confusion Class #3: Control Class #4: Competition v. Cooperation

ELEMENTS D1 & D2: CLASS #1 Why Elements? Why Animals/Pierson? Logistics Begin Pierson & DQs 1.01 & 1.02

Pierson v. Post ALL CASES HAVE CONTEXT History of the Underlying Dispute (DQ1.01) How Legal System Has Handled Similar Disputes (DQ1.02) Overall Social/Historical Context (1805) (Class #2) How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Class #2)

Pierson v. Post: Who is Who?

Pierson v. Post: Who is Who? 2d sentence of case (p.3): “The declaration stated that Post … did ‘find and start … a fox,’ and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, … kill and carry it off.’

Pierson v. Post: Who is Who? Post did find and start the fox, hunted and pursued it. Pierson, knowing the fox was hunted and pursued, did kill and carry it off. So Why Is Case Called Pierson v. Post?

Pierson v. Post: Who is Who? Why Is Case Called Pierson v. Post? First Sentence (p.3): “This was an action of trespass on the case commenced in a justice’s court by the present defendant against the now plaintiff.” Some appellate courts put the name of the party appealing first. (e.g., here; US Supreme Ct.)

Pierson v. Post: Who is Who? Why Is Case Called Pierson v. Post? Some appellate courts put the name of the party appealing first. Some appellate courts leave the name of the case as originally filed (e.g., U.S. Courts of Appeal)

Pierson v. Post: Who is Who? Why Is Case Called Pierson v. Post? Some appellate courts put the name of the party appealing first; some appellate courts leave the name of the case as originally filed . SO HAVE TO READ CAREFULLY!! First of many examples of variations in Rules or Procedure among the states and/or federal gov’t.

Fill in Sequence of Events Pierson v. Post: DQ1.01 Fill in Sequence of Events Post (п) has breakfast; begins hunt; starts fox. П’s Lawyer files lawsuit. N.Y. Supreme Court issues judgment for Pierson (∆).

Pierson v. Post: DQ1.01 SEQUENCE OF EVENTS (1) Post (п) begins hunt; starts fox & chases it on deserted beach Pierson(∆), aware of hunt, kills fox Probably confrontation where п claims fox but ∆ takes it. Maybe negotiation Maybe discussions/social consequences that push п to act (or that push ∆ not to turn over pelt) П goes to lawyer Fact investigation (П’s Lawyer interviews client & other witnesses) Legal research Possibly demand letter to ∆ and/or negotiation П’s Lawyer files “Declaration” starting lawsuit

SEQUENCE OF EVENTS (2) (After Lawsuit Filed) Pierson v. Post: DQ1.01 SEQUENCE OF EVENTS (2) (After Lawsuit Filed) ∆ gets lawyer (if not done before lawsuit filed) Fact investigation, legal research, possibly negotiation ∆’s lawyer files response [“Answer”] or motion to dismiss If motion filed, it was denied; answer then filed Further investigation/negotiation [Today: “Discovery”] [Maybe: Pre-Trial Motions] Jury trial (“verdict”) won by П NY Supreme Court grants ∆’s motion for writ of certiorari Briefs filed by parties & probably oral arguments [Maybe additional negotiation] Court deliberates, then issues opinion and Judgment for ∆

Pierson v. Post: DQ1.01 Verdicts & Judgments Decision of a jury is called a “verdict”; ultimate decision by a judge is called a “judgment” Very end of majority opinion on top of p.4: We are of opinion the judgment below was erroneous, and ought to be reversed. Judgment must be entered even after a verdict: Normally judge enters j-ment pursuant to verdict Occasionally, if judge has strong reason to disagree, enters judgment essentially overturning verdict (“Judgment notwithstanding the verdict.”)

Pierson v. Post: DQ1.01 Procedure: 1805 v. Today Today start civil lawsuit with “complaint” (not “declaration”) Today can do court-supervised fact investigation process after complaint filed (“Discovery”) In most jurisdictions, a losing ∆ would use “appeal” to take case to next level, though in some situations, writ of certiorari used (usually to get to highest level as with U.S. Supreme Ct.)

Pierson v. Post: DQ1.02 PRECEDENT What types of authorities does the court rely on as precedent? Why are these authorities considered helpful?

Pierson v. Post: DQ1.02 MEANS? PRECEDENT Majority Opinion relies on Treatises Books Written by Experts in Law Useful Because Smart People Looking at Same Problem Treatises here all by experts in European “Civil Law” MEANS?

Pierson v. Post: DQ1.02 PRECEDENT Majority Opinion relies on Treatises Treatises here all by experts in European “Civil Law” System based in Codes of Law & Statutes E.g., Roman Law (Justinian); Napoleonic Code Used Today in Continental Europe, Latin America, Louisiana, Quebec Contrast “Common Law”: Judge-made law based in cases Used in systems developed from English Law (Most of U.S. & Canada, Australia and New Zealand, British West Indies, etc.) In other contexts, “civil” contrasts with “criminal.”

Pierson Majority Opinion relies on Treatises Pierson v. Post: DQ1.02 PRECEDENT Pierson Majority Opinion relies on Treatises Books Written by Experts in Law Useful Because Smart People Looking at Same Problem BUT Usually Least Important Type of Precedent No NY or Other U.S. Cases Cited: Why?

Majority Opinion relies on Treatises Pierson v. Post: DQ1.02 PRECEDENT Majority Opinion relies on Treatises No New York or Other U.S. Cases Cited: Why? Problem Likely Not Litigated Much Relatively Uncommon Not Much at Stake (neither $$$ nor significant social issue) U.S. Not Very Old in 1805