1. ELEMENTS D1 & D2 2017 POWER POINT SLIDES
Class #9: Friday, September 1 National Lazy Mom’s Day

2. MUSIC: SERGEI PROKOFIEV, PETER & THE WOLF (1936) [3 WAYS] Narrators: David Bowie, STING, STERLING HOLLOWAY (Voice of Winnie-the-Pooh & Kaa)
BOTH SECTIONS HERE TODAY: No Reserved Seats
D2 Lunch Today
Meet on 12:30
Admire * Goldstein Hillsman * Levey * Quinlan Soriano * Youshak
RADIUMS: Today
Shaw Brief 3pm (Review Instructions in Info Memo #2 before Finalizing)
Sign-Up for Time Next Week to Review Brief (if you haven’t already)

3. “Prevailing rule” (Three Formulations):
Liesner DQ1.18: Oxygen
“Prevailing rule” (Three Formulations):
(1) substantially permanently deprive [animal] of liberty (SPDL)
(2) [have the animal] so in their power that escape improbable, if not impossible
(3) [bring the animal] under control so that actual possession practically inevitable

4. Liesner DQ1.18(a): Oxygen
Property Rights in Animal if:
(2) so in their power that escape was highly improbable, if not impossible
(3) under the control of a person so that actual possession is practically inevitable
POSSIBLE DIFFERENCES IN MEANING OF LANGUAGE: WHEN SIGNIFICANT?

5. WHEN SMALL DIFFERENCES IN LANGUAGE SIGNIFICANT?
Liesner DQ1.18(a): Oxygen
WHEN SMALL DIFFERENCES IN LANGUAGE SIGNIFICANT?
Deciding (as here) if different formulations used by same court mean different things.
Choosing between two tests used by other states or used in your state in different situations.
Interpreting change in statutory language:
Calif test for Condo Assn regulations :
OK “if reasonable”  OK “unless unreasonable”

6. Liesner DQ1.18(a): Oxygen
Property Rights in Animal if:
(2) so in their power that escape was highly improbable, if not impossible
(3) under the control of a person so that actual possession is practically inevitable
MEANING OF LANGUAGE: Possible difference between underlined phrases?

7. Liesner DQ1.18(a): Oxygen
Property Rights in Animal if:
(2) so in their power that escape was highly improbable, if not impossible
(3) under the control of a person so that actual possession is practically inevitable
MEANING OF LANGUAGE: Possible difference between underlined phrases?

8. Apply to Pierson Facts: Property Rights if …
Liesner DQ1.18(c): Oxygen
Apply to Pierson Facts: Property Rights if …
under the control of a person so that actual possession is practically inevitable
so in their power that escape was highly improbable, if not impossible
I’ll leave for you. Arguments similar to those we made last class under 1st formulation. Might try to identify situations where result might be different.

9. Property Rights in Animal if: POSSIBLE DIFFERENCES IN MEANING?
Liesner DQ1.18(a): Oxygen
Property Rights in Animal if:
(2) so in their power that escape was highly improbable, if not impossible
(3) under the control of a person so that actual possession is practically inevitable
POSSIBLE DIFFERENCES IN MEANING?
EVIDENCE FROM CASES
Liesner assumes facts found by trial court meet both tests.
Pierson:
Describing Mortal Wound + Pursuit: Hunter has “certain control.”
Describing Nets/Traps: Trappers “render escape impossible.”

10. Skill #1: Applying Legal Rule/Test
Look for best arguments for each party
Be cognizant of structure of test
Use care with language
Utilize definitions
If significant doctrinal arguments for both parties, try to resolve with:
Comparisons to facts of cases
Other language from cases
Policy arguments (incl. purpose of rule)
DF Next Week:
DQ1.15: In Liesner, did Ps do useful labor worth rewarding?
“Serious Non-Mortal Wound + Pursuit” under both cases?

11. Skill #2: Choosing Among Rules
Set Up Comparison Between Possible Rules
In Pierson: Hot Pursuit v. Pursuit Insufficient
Last Class:
Actual Possession Likely
Actual Possession Practically Inevitable
Actual Possession Inevitable
Identify Relevant Policies & Discuss Which Rule Best Serves Them

12. Skill #2: Choosing Among Rules
Comparison Between Possible Rules (Last Class):
Actual Possession Likely
Actual Possession Practically Inevitable
Actual Possession Inevitable
Identify Relevant Policies & Discuss Which Rule Best Serves Them
Last Class:
Certainty (likely that middle option Best)
Kills Most Animals (Quinlan D2: Check if Property Rights are only/most significant incentive)
DF Next Week: Which Best Rewards Useful Labor?

13. LOGISTICS: WEEK OF SEPT 4-10
Monday: No D1 Class Meeting; No DF Session
Tuesday: Normal D2 Class (#10)
Wednesday: Normal D1 Class (#10) & Normal DF Session
Thursday: Both Sections Meet 7:55 (Class #11);
Friday: Normal Separate Class Meetings (Class #12)
Sunday: Oxygens (D1 & D2): Written Manning Brief 3pm

14. Liesner v. Wanie: Context
1914

15. Liesner v. Wanie: Context
1914: Deaths
Joshua Lawrence Chamberlain (Civil War Hero)
John Muir (Naturalist)
Jacob Riis (Journalist/Author)
19th Century Industrialists
CW Post (Grape Nuts & Other Cereals)
George Westinghouse (Railroad Brake and Electronics)
Frederik Weyerhauser (Timber & Paper)

16. Liesner v. Wanie: Context
1914: Births
Alec Guiness
Joe Louis
Joe DiMaggio
Ralph Ellison
Danny Thomas
Dylan Thomas

17. Liesner v. Wanie: Context
1914: Introduced in U.S.
term “Birth Control” (coined by Margaret Sanger)
First Blood Transfusion
Doublemint chewing gum
Elastic Brassiere
Federal Trade Commission
Company that will become Greyhound Bus
Mother’s Day (by Congr. Resolution)

18. Liesner v. Wanie: Context
1914: Introduced in U.S.
New Republic Magazine
Panama Canal
Pygmalion by GB Shaw
Rookie Pitcher: Babe Ruth
Tarzan of the Apes
Teletype Machine
Traffic Lights using red-green signals

19. Liesner v. Wanie: Context
1914: World War I
103 Years Ago Tuesday:
Sept. 5: 1st Battle of the Marne Begins
NE of Paris, French 6th Army Attacks Germans  Allied Victory (Keeps German Army out of Paris)

20. Liesner v. Wanie: Context
1914: World War I
102 Years Ago Yesterday:
Sept. 5: 1st Battle of the Marne Begins
NE of Paris, French 6th Army Attacks Germans  Allied “Victory”
Two Million Soldiers Participate

21. Liesner v. Wanie: Context
1914: World War I
102 Years Ago Yesterday:
Sept. 5: 1st Battle of the Marne Begins
NE of Paris, French 6th Army Attacks Germans  Allied “Victory”
Two Million Soldiers Participate
500,000 Killed or Wounded

22. Liesner v. Wanie: Context
1914: World War I
Sept. 5: 1st Battle of the Marne Begins
NE of Paris, French Attacks Germans  Allied “Victory”
Two Million Soldiers Participate
500,000 Killed or Wounded
Dec : Christmas Truce

23. Liesner v. Wanie: Context
1914: World War I
June 28: Archduke Francis-Ferdinand (Heir to the Austro-Hungarian Throne) Assassinated in Sarajevo:
“The Shot Heard Round the World”

24. Cf. “Some Shots Into a Brush Pile” (Liesner Trial Transcript)
Liesner v. Wanie
Cf. “Some Shots Into a Brush Pile”
(Liesner Trial Transcript)
featuring
KRYPTON & URANIUM

25. Liesner Trial Transcript
Note Anderson testimony (p.17):
“REPLEVIED”
Suggests replevin was cause of action.
(= Common law action for return of personal property)

26. Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side
(Krypton) Liesners’ Attys must have argued:
L-Boys did mortally wound wolf
L-Boys did continue pursuit
(Uranium) Wanie’s Attys must have argued:
Uncertain that L-Boys mortally wounded wolf
L-Boys did not continue pursuit

27. Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side
(Krypton) Liesners’ Attys must have argued:
L-Boys did mortally wound wolf. Ev?
L-Boys did continue pursuit
(Uranium) Wanie’s Attys must have argued:
Uncertain that L-Boys mortally wounded wolf
L-Boys did not continue pursuit

28. Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side
(Krypton) Liesners’ Attys must have argued:
L-Boys did mortally wound wolf
Comparing wounds and possible sources (ammo/direction)
Abdominal Wound likely Fatal
Behavior of Wolf
L-Boys did continue pursuit
(Uranium) Wanie’s Attys must have argued:
Uncertain that L-Boys mortally wounded wolf. Ev?
L-Boys did not continue pursuit

29. Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side
(Krypton) Liesners’ Attys must have argued:
L-Boys did mortally wound wolf
L-Boys did continue pursuit. Ev?
(Uranium) Wanie’s Attys must have argued:
Uncertain that L-Boys mortally wounded wolf
Lots of Shots/Wounds + Dog Bites
Wolves Hard to Kill
No Manure Inside Wolf
L-Boys did not continue pursuit

30. Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side
(Krypton) Liesners’ Attys must have argued:
L-Boys did mortally wound wolf
L-Boys did continue pursuit.
Boys run after wolf; F shoots into brush pile
Boys testify F told Wanie
(Uranium) Wanie’s Attys must have argued:
Uncertain that L-Boys mortally wounded wolf
L-Boys did not continue pursuit. Ev?

31. Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side
(Krypton) Liesners’ Attys must have argued:
L-Boys did mortally wound wolf
L-Boys did continue pursuit.
(Uranium) Wanie’s Attys must have argued:
Uncertain that L-Boys mortally wounded wolf
L-Boys did not continue pursuit.
Not very active attempts to enter brush pile
Ps didn’t claim from W (tho Trial Court says this is OK)

32. Liesner Trial Transcript: DQ1.20 Trial Judge’s Perspective
To make this decision, Judge must believe:
Abdomen shot was mortal wound (“gut shot”; wolf’s behavior)
Only shot that could have made that wound was Ed Liesner shot (bullet/angle)
Questions/Concerns?

33. Liesner Trial DQ1.20: Trial Judge’s Perspective
Trial Judge must have believed:
Abdomen shot was mortal wound (“gut shot”; wolf’s behavior)
Only evidence of shot that could have made that wound was Liesner shot (bullet/angle)
Keep in Mind
Judge might have experience with guns/hunting
Judge could see pelt & holes
Not every factual dispute is material to outcome.
Whether there was “manure” in abdominal cavity
Whether Wanie tried to hide bullet hole
Liesner Trial DQ1.20: Trial Judge’s Perspective

34. Liesner Trial Transcript: DQ1.21 Uranium
Why Bother?
Why do you think the Liesner family chose to bring this lawsuit?

35. Liesner Trial: DQ1.21 Uranium
Liesner Family Motivations? Ideas include:
Father Acting as Good Parent; Maybe Related to Either:
Shooting = important coming-of-age moment for boys (1st wolf seen/killed)
Father protecting boys against perceived bully/cheater
Maybe reflective of larger social/economic split in community

36. Liesner Trial Transcript: DQ1.21 Uranium
Why Bother?
Why do you think Wanie expended the resources needed to take the case to the state Supreme Court?

37. Liesner Trial: DQ1.21 Uranium
Wanie Motivations? Ideas include:
Defending Liesner father’s challenge to his integrity (manure/patch)
Again, maybe reflective of larger split in community
Interest as regular hunter in clarifying rules/fixing bad result (although less convincing explanation b/c concedes prevailing rule)