Balter; Granda; Hansen; Layug; Miller-Ciempela; Price; Wolfson MUSIC: Beethoven Symphonies #2 (1803) & #5 (1808) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991) Section D Lunch Today Meet on Bricks @ 11:55 Balter; Granda; Hansen; Layug; Miller-Ciempela; Price; Wolfson

LOGISTICS: CLASS #5 Panel Assignments Posted; Kudos to Both Sections for Following Directions List of E-Mails Circulating Today & Friday: Either Put a Checkmark if OK or Correct Neatly if Needed Once Finalized, You’ll Get a Copy with Panels Listed Lunches Start Today: Procedure & Etiquette

LOGISTICS: CLASS #5 On Friday 8/29: We’ll start w DQs 1.12-1.14 & 1.18(a) on Liesner v. Wanie to set you up to prepare brief for next week. Reading includes appellate opinion & some background info 1st Comparison Box Note on Dispositive Motions No Self-Quiz b/c Very Short Case (Assigned DQs Stand In For) After Liesner Qs, we’ll return to Pierson (wherever we leave off today).

Pierson v. Post: DQ1.05 Holding v. Dicta: From Last Time After case comes down, often left with uncertainty as to exact scope of result. Despite uncertainty, need to counsel clients & need to craft arguments in litigation. Learn to Embrace Uncertainty as Source of Your Value (v. Clerks!) For Guidance, Look To Rationales; If New Situation Fits Rationales, Can Argue Result Should Be Same

CASE BRIEF: Rationales Generally: Reasons supporting the court’s decision to resolve the issue as it did. Can be express or implied (or even speculative). Different cases state different numbers of rationales; your want to identify as many as you can that are articulated or are plausibly part of the court’s thinking.

CASE BRIEF: Rationales Generally: Reasons supporting the court’s decision to resolve the issue as it did. Doctrinal Rationales: Result required or strongly suggested by prior authorities.

CASE BRIEF: Rationales Generally: Reasons supporting the court’s decision to resolve the issue as it did. Doctrinal Rationales: Result required or strongly suggested by prior authorities Policy Rationales: Result is good for society [because …]

CASE BRIEF: Rationales Generally: Reasons supporting the court’s decision to resolve the issue as it did. Presentation: Start by identifying the relevant premise (doctrinal authority or policy concern). Then briefly explain how the premise supports the court’s resolution of the case.

Pierson v. Post: Rationales Typically, a doctrinal rationale rests on principles derived from cases, statutes or a constitution. “Ancient writers” are not typically understood as doctrine. However, in the sample brief, I’ll provide you with a version of a “doctrinal rationale” based on how the court uses these sources.

Pierson v. Post: Rationales Pierson: Kind of Case Where Policy Discussion Likely/Useful General agreement that property in animals ferae naturae created by “first occupancy.” No binding precedent on what that means. No consensus among treatise authors.

Pierson v. Post: Rationales DQs 1.06-1.09 Discuss Relevant Policy Rationales Helpful to examine in context of choice between two proposed rules for when hunter gets property rights in wild animal: Dissent: sufficient if pursuit “inevitably and speedily [would] have terminated in corporal possession” [Hot Pursuit Sufficient] Majority: more than “mere pursuit” needed [Hot Pursuit Insufficient]

Pierson v. Post: Rationales Helpful to examine rationales in context of choice between two proposed rules for when hunter gets property rights in wild animal: Dissent: sufficient if pursuit “inevitably and speedily [would] have terminated in corporal possession” [Hot Pursuit Sufficient] Majority: more than “mere pursuit” needed [Hot Pursuit Insufficient]

Pierson v. Post: DQ1.06 (Certainty) Majority says its rule promotes “certainty”: “We are the more readily inclined to confine possession or occupancy of beasts ferae naturae, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society.” Why does Majority think its rule is more certain than Dissent’s “Hot Pursuit” rule?

Pierson v. Post: DQ1.06 (Certainty) Majority says its rule promotes “certainty”: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All. Policy Rationale

Pierson v. Post: Sample Policy Rationale #1 (Lots of acceptable ways to state this.) The majority stated that its decision would provide “certainty” and “preserv[e] peace and order,” presumably because it is difficult for a hunter that sees an animal to tell if another hunter is pursuing it, and, if pursuit was enough to create ownership, the resulting confusion would create “quarrels and litigation.” QUESTIONS?

Pierson v. Post: DQ1.06 (Certainty) Majority says its rule promotes “certainty”: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All. Can you think of situations where the majority’s approach would not promote certainty?

Pierson v. Post: DQ1.06 (Certainty) Majority says its rule promotes “certainty”: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All. BUT: If “mortal wounding” creates property rights, how do you tell if a wound is “mortal”? PLUS: Majority doesn’t indicate what happens w non-mortal wound or non-certain trap

Pierson v. Post: DQ1.06 (Certainty) Why is certainty desirable for society more generally? (not just in this context)

Pierson v. Post: DQ1.06 (Certainty) Benefits of Certainty Include: Reduces Anxiety Related to Uncertainty Allows Planning Creates Stability Majority’s “Peace & Order”: May Reduce Quarrels/Violence May Reduce Litigation (per Miller-Taylor §D)

Pierson v. Post: DQ1.06 (Certainty) Benefits of Certainty Include: Reduces Anxiety Related to Uncertainty Allows Planning Creates Stability May Reduce Quarrels/Violence/Litigation BUT these benefits may require that people be aware of the rule (not always true).

Pierson v. Post: DQ1.06 (Certainty) Legal System Concerned with (at least) Three Kinds of Certainty: Easy for parties to apply at the relevant time Easy to apply in court Everyone aware of rule

Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: Law school admits all students with minimum LSAT in alphabetical order until class filled. Or in reverse order of height. Or in order of parents’ 2013 income. Why Problematic?

Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: Any student who fails to show up on time for the practice midterm fails the class. Why Problematic?

Pierson v. Post: DQ1.06 (Certainty) Concerns with Certainty: When property is owned jointly by a male-female married couple, all management decisions will be made by the man. Why Problematic?

Pierson v. Post: DQ1.06 (Certainty) Benefits of Certainty Include: Reduces Anxiety Related to Uncertainty Allows Planning Creates Stability May Reduce Quarrels/Violence BUT Sometimes at Cost of: Fairness/Relevance OR Sensitivity to Particular Circumstances OR Awareness of Changing Times

BRIGHT-LINE RULES v. FLEXIBLE STANDARDS ▼ ▼

Pierson v. Post: DQ1.06 (Certainty) Recurring Problem Clear precedent provides certainty & predictability allows planning Necessarily in tension with desire for flexibility & justice Need to address changing circumstances E.g., dissent response to ancient wrtiters: times change Questions on Certainty?

Pierson v. Post: DQ1.07 (Labor) The majority suggests that it will confer property rights on those who, using their “industry and labor,” have captured animals.

Pierson v. Post: DQ1.07 (Labor) TEXTUAL SUPPORT (p.4): “[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”

Pierson v. Post: DQ1.07 (Labor) Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard.

Pierson v. Post: DQ1.07 (Labor) Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. Are there some categories of labor you would not want to reward?

Pierson v. Post: DQ1.07 (Labor) Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. Might not want to reward: Ineffective or Inefficient Labor Criminal Activity Other Harmful/Dangerous Labor Note Related Problem: Hard to Determine Optimal Reward to Encourage Labor You Want

Pierson v. Post: Sample Policy Rationale #2 [Premise:] The majority suggests that it would be “just” to give property rights to hunters who catch wild animals in nets or traps to reward their labor.

Pierson v. Post: Sample Policy Rationale #2 [Premise:] The majority suggests that it would be “just” to give property rights to hunters who catch wild animals in nets or traps to reward their labor. [Connection to result:] The court may have rejected the hot pursuit rule because it believed that it should not reward labor expended hunting until the hunter has more clearly demonstrated that he has control of the animal, as by trapping or mortally wounding.

Pierson v. Post: DQ1.07 (Labor) Suppose Post pays somebody (“Sharpshooter”) to kill foxes for him. Who should get property in the foxes, Post or Sharpshooter? Why?

Pierson v. Post: DQ1.07 (Labor) Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? Probably Post. Why? Contracts/Capitalism!! BUT may be somes types of jobs where the laborer typically gets some benefits beyond wages. E.g., exterminators normally don’t turn over pest bodies to homeowners (per Townsend §B & Street §D).

Pierson v. Post: DQ1.07 (Labor) NOTE: Law commonly rewards investment of $$$ (to pay someone else to do actual labor for you) as a form of useful labor.

Pierson v. Post: DQ1.07 (Labor) NOTE: Law commonly rewards investment of $$$ (to pay someone else to do actual labor for you) as a form of useful labor. Leads to some interesting problems where there are not contractual provisions that clearly allocate rewards: Property in Spouse’s Professional Degree Property in New Ideas of Tech Employees Not Directly Related to Assigned Tasks