ELEMENTS B1 & B POWER POINT SLIDES

ELEMENTS B1 & B2 2016 POWER POINT SLIDES
Class #6 Monday, August 29 & Tuesday August 30

MUSIC: Beethoven Symphonies #4 (1807) & #7 (1813) Recordings: Chamber Orchestra of Europe Nikolaus Harmoncourt, Conductor (1991) B1 Lunch Tuesday Meet on 12:30 Akkaya * Conde * Gordon Pita * Sharp-Dmitri Webb * Wilson No Office Hours Wednesday New On Course Page: Policy for Going to Classes of Other Section & Attendance

Liesner v. Wanie: DQs to Help You Understand Case (URANIUM)

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

Next Friend Legal representative for party who cannot adequately represent own interests. Such as…?

Next Friend Legal representative for party who cannot adequately represent own interests. Minors Mentally Incompetent Married Women (at Common Law)

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

Liesner v. Wanie: DQ1.12(b) (URANIUM)
Prevailing Rule (2d Paragraph): “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?

Liesner v. Wanie: DQ1.12(b) (URANIUM)
Prevailing Rule (2d Paragraph): “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?

Liesner v. Wanie: DQ1.12(b) ALL: Example of Kind of Property Right We’ve Already Discussed That is Contingent (As Opposed to Vested)?

RATIONE SOLI Liesner v. Wanie DQ1.12(b)
Example of Kind of Property Right We’ve Discussed That is Contingent (As Opposed to Vested)? RATIONE SOLI

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

“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….” Liesner v. Wanie: DQ1.13 (URANIUM)

“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….” Liesner v. Wanie: DQ1.13 (URANIUM)

Common Form of Legal Rule
IF [particular facts occur], THEN [legal outcome follows].

Second paragraph of opinion begins: “It is conceded that …” Who conceded it?

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.

Liesner is Unusual Case b/c Directed Verdict for Plaintiff (who has burden of proof in civil case).
Language of opinion suggests that (as you will see) 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 evidence supporting P. 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? Liesner v. Wanie: DQ1.14 (URANIUM)

Wanie conceded the relevant legal rule, so must be challenging assessment of evidence. What exactly is still contested?

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.” Liesner v. Wanie: DQ1.14 (URANIUM)

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

Back to Pierson v. Post: Setting Up DQs1.10-1.11
Acquiring Property Rights in Unowned Resources: First-in-Time v. Other Types of Rules

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 type of rule from, e.g., Merit (Most “Deserving” Gets) Lottery (Winner Randomly Selected) Auction (Highest Bidder Gets)

Pierson allocates property rights on a First-in-Time Basis (first to occupy unowned animal gets property rights) Both Pierson opinions agree on First-in-Time type of rule, but not on which specific version: Dissent: First in Hot Pursuit Majority: First to [Something More] Compare: “I had it first!” v. “But I saw it first!”

Multiple Specific Possible Examples of First-in-TimeType of Rule First to Actually Possess/Capture First to Wound First to Pursue First to See

Multiple Specific Possible Examples of First-in-TimeType of Rule  Possible Options After Majority Opinion (if no trap): First Physical Possession First Wound First Mortal Wound

DQ : 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)

DQ : 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

Pierson v. Post: Recap & Back to DQs1.06-1.09

Pierson v. Post: From Last Time
After case comes down, often left with uncertainty as to exact scope of result. For Guidance, Look to Rationales DQs Address Possible Policy Rationales Think about rationales in context of choice betw Dissent’s “Hot Pursuit” Rule Majority’s “Pursuit is Not Enough” Rule

Pierson v. Post: From Last Time (DQ1.06)
Majority says its rule is more certain than Dissent’s General 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)
Concerns with Certainty: Law school admits all with minimum LSAT… In alphabetical order of surnames until class filled OR In ascending order of height OR In descending order of parents’ 2014 income. Why Problematic?

Concerns with Certainty: Any student who fails to show up on time for the practice midterm fails the class. Why Problematic?

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?

Benefits of Certainty Sometimes Come at Cost of: Fairness/Relevance OR Sensitivity to Particular Circumstances OR Awareness of/Addressing Changing Times

BRIGHT-LINE RULES v. FLEXIBLE STANDARDS

Recurring Problem in Law Clear easy-to-apply 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 writers: 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.

“[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.” (p.4)

Commonly Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard.

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?

Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. BUT might not want to reward: Ineffective or Inefficient Labor Criminal Activity Other Harmful/Dangerous Labor

Generally Understood: Good idea for society to provide rewards for industry & labor as an incentive to encourage people to work hard. BUT might not want to reward: Ineffective or Inefficient Labor Criminal Activity Other Harmful/Dangerous Labor Note Problem Related toEfficiency : 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. * Don’t overstate majority’s commitment here: Doesn’t say labor is only relevant factor. Doesn’t say whoever does most labor necessarily wins. (Here Post almost certainly expended in more effort).

[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 successfully completed the hunt/controlled the animal, as by trapping or mortally wounding.

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

Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? Probably Post. Why? Contracts/Capitalism!! Property/Profits/Risk go to Investor Pre-Set Wage to Laborer

Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? Probably Post (Contracts/Capitalism) BUT for some jobs, laborer may [by custom or contract] gets some benefits beyond wages. E.g., Exterminators normally retain pest bodies. Yard services keep branches/leaves etc. to mulch. Maybe look if laborer hired to acquire item or to get rid of it. Cf. contracts primarily for goods v. contracts for services

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: DQ1.08 (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)

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

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. Explicitly assumes the hot pursuit rule would result in more foxes being killed. Elaborate why Judge Livingston might believe this to be true.

Dissent thinks its rule will result in more foxes being killed b/c 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?” * See

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?

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 After all, they are as stubborn as a … E.g., Whaling

Common Problem: If you are not going to get expected reward for labor, how do you respond?

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.

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.

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)

[Premise:] The dissent says it’s good to kill foxes because they are harmful to society, and assumes a hot pursuit rule is preferable because it would result in more foxes being killed.

[Premise:] The dissent says it’s good to kill foxes because they are harmful to society, and assumes a hot pursuit rule is preferable because it would result in more foxes being killed. [Connection to Result]: Although the majority didn’t respond directly, it may have believed that it’s holding would result in more foxes being killed because hunters would exert more effort to assure they got property rights in hunted animals.

ELEMENTS B1 & B POWER POINT SLIDES

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