Ludwig van Beethoven Piano Sonata #23 (1805) “Appassionata” Emil Giles, Piano (1972)

CONTROL

1.Over Time 2.Over Performance

FALL 1982 (Long Ago in a galaxy far far away)

FALL 1982 No Cell Phones No Internet

FALL 1982 No Cell Phones No Internet ME: No TV ME: Undiagnosed A.D.D.

CONTROL Over Time Clearly Distinguish Work & Break Time (e.g. phone off)

CONTROL Over Time Clearly Distinguish Work & Break Time (e.g. phone off) Use timers for both work & breaks

CONTROL Over Time Clearly Distinguish Work & Break Time (e.g. phone off) Use timers for both work & breaks If you’re having trouble, keep a log for a week

CONTROL Over Performance Common Concern: Little Feedback Before Final Exam

CONTROL Over Performance DQs: Do Carefully; Check Against Class

CONTROL Over Performance DQs: Do Carefully; Check Against Class Case Briefs: Do Carefully; Check Against Class & Posted Models

CONTROL Over Performance DQs: Do Carefully; Check Against Class Case Briefs: Do Carefully; Check Against Class & Posted Models Post-Class: Review & Repair Pre-Class Preparation

CONTROL Over Performance DQs: Do Carefully; Check Against Class Case Briefs: Do Carefully; Check Against Class & Posted Models Post-Class: Review & Repair Pre-Class Preparation Review Exercises: Do Carefully; Check Against Posted Models

CONTROL Over Performance DQs: Do Carefully; Check Against Class Case Briefs: Do Carefully; Check Against Class & Posted Models Post-Class: Review & Repair Pre-Class Preparation Review Exercises: Do Carefully; Check Against Posted Models Ask Qs

LOGISTICS Panels Posted (Mathematical Oddity) Updated Assignment Sheet with Panel Assignments Starting Friday We will start with Liesner & Calcium DQs on Friday regardless of how far we get on Wednesday.

ISSUE FROM LAST TIME: 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?

Assume (as is likely) that the jury found that the facts were as Post said. Relevance to this appeal?*

Assume (as is likely) that the jury found that the facts were as Post said. Relevance to this appeal? None. Claim on appeal is that even if all facts are as Post said, Post cannot win because he had no property rights in fox.

ISSUE  HOLDING Simplest version: Issue is a question. Answer question “yes” or “no.” Repeat issue in statement form (adjust for positive or negative).

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?

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.

HOW MUCH DETAIL GOES IN ISSUE/HOLDING? Try to include factual detail that seems relevant to analysis/ outcome

HOW MUCH DETAIL GOES IN ISSUE/HOLDING? Try to include factual detail that seems relevant to analysis/outcome Can have different versions that incorporate more or less detail

HOW MUCH DETAIL GOES IN ISSUE/HOLDING? 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

DQ4: Significance of Facts 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.

DQ4: Significance of Facts Version of Substantive 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.

DQ4. Significance of Facts. Why might it matter that the fox is caught on a deserted beach?*

Version of Substantive 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.  To get property rights in a fox found on unowned property, you must be the first to “occupy” it, which means you must do more than pursue it.

DQ4. Significance of Facts. Suppose fox fell into a well before it was shot. Change the result?*

DQ4. Significance of Facts. Suppose fox fell into a well before it was shot. Change the result? Could treat as trap/net discussed in case as possibly creating possession Could say that 1 st hunter still does not have actual possession

DQ4. Significance of Facts. Suppose fox fell into a well before it was shot. Contemporary accounts suggest this really happened. Why isn’t this discussed in the case? …

DQ4. Significance of Facts. Suppose fox fell into a well before it was shot. Contemporary accounts suggest this really happened. Why isn’t this discussed in the case? Probably not in declaration. Why wouldn’t lawyer include it?*

DQ4. Significance of Facts. Suppose fox fell into a well before it was shot. Contemporary accounts suggest this really happened. Why isn’t this in the case? Probably not in declaration. Why wouldn’t lawyer include it? –Maybe lawyer didn’t think it was important. –Maybe lawyer didn’t know Note Importance of Lawyer

BROAD v. NARROW HOLDINGS NARROW Covers fewer cases Includes more facts More specific BROAD Covers more cases Includes fewer facts More general

Version of Substantive Holding: Narrower: 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.  Broader: To get property rights in a fox found on unowned property, you must be the first to “occupy” it, which means you must do more than pursue it.

Version of Substantive Holding: Narrower: To get property rights in a fox found on unowned property, you must be the first to “occupy” it, which means you must do more than pursue it.  Broader: To get property rights in an animal you must be the first to “occupy” it, which means you must do more than pursue it. [???]

DQ4. Significance of Facts. Why might it matter that the hunted animal is a fox as opposed to some other animal?*

DQ4. Significance of Facts. Why might it matter that animal is a fox as opposed to some other animal? Possibilities? Domestic v. Wild Animal Endangered v. Common Native v. Not

Version of Substantive Holding: To get property rights in a wild animal found on unowned property, you must be the first to “occupy” it, which means you must do more than pursue it.  To get property rights in a wild animal you must be the first to “occupy” it, which means ….

What Constitutes Possession of Wild Animal? Actual Physical Possession (Uncontested)

What Constitutes Possession of Wild Animal? Actual Physical Possession Case Refers to Two Other Possible Ways to Get Possession: –Mortal Wounding –Traps & Nets

What Constitutes Possession of Wild Animal? Actual Physical Possession Case Refers to Two Other Possible Ways to Get Possession: –Mortal Wounding –Traps & Nets Note: Court discusses these two options although not raised by case itself

DQ5. Holding and Dicta. Courts often make comments about fact situations different from the cases before them. What are the pros and cons of a court discussing facts not before them?*

Version of Substantive Holding: To get property rights in a wild animal found on unowned property, you must be the first to “occupy” it, which means you must do more than pursue it.  To get property rights in a wild animal you must be the first to “occupy” it, which means you must take physical possession, mortally wound it, or capture it in a net or trap. [???]

HOLDING v. DICTA (simple version) Holding: Decision court made that resolved a disputed issue Language necessary to reach result Binding on future courts Dicta: Statements court made that did not resolve a disputed issue Language not necessary to reach result Not binding on future courts (can be very persuasive)

Substantive Holding in Pierson? Pursuit alone is insufficient to create property rights in a wild animal OR To create property rights in a wild animal, you need to physically possess it, mortally wound it, or catch it in a trap or net.

DQ5. Holding and Dicta. How/when will you know for sure whether language in case is dicta or part of holding?*

5. Holding and Dicta After case comes down, often left with uncertainty as to exact scope of result.

5. Holding and Dicta After case comes down, often left with uncertainty as to exact scope of result. BUT: Need to counsel clients.

5. Holding and Dicta After case comes down, often left with uncertainty as to exact scope of result. BUT: Need to counsel clients. Need to craft arguments in litigation.

RATIONALES

Doctrinal Rationales: Result required or strongly suggested by prior authorities

RATIONALES Doctrinal Rationales: Result required or strongly suggested by prior authorities Policy Rationales: Result is good for society

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: Kind of Case Where Policy Discussion Likely/Useful DQs 6-9 Discuss Relevant Policy Rationales Particularly note in context of choice between two proposed rules

TWO COMPETING RULES Majority: more than “mere pursuit” needed [More than Pursuit] Dissent: sufficient if pursuit “inevitably and speedily [would] have terminated in corporal possession” [Hot Pursuit]

DQ6. Certainty in Pierson 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.

DQ6. Certainty in Pierson Majority: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All.

Sample Policy Rationale #1 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”

DQ6. Certainty in Pierson Majority: 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?*

DQ6. Certainty in Pierson Majority: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All. Problem: If “mortal wounding” creates property rights, how do you tell if a wound is “mortal”?