muSIC: Holst, The Planets (1914-16) &
Williams, CLOSE ENCOUNTERS/STAR
WARS (1977)
Los ANGELES PhilharmoniC Orchestra
Conductor: ZUBEN MEHTA (1998)
§B Seating §D
• If you normally sit on the side where your section is
sitting today, take your usual seat.
• If you normally sit on the side where the other
section is sitting today, sit on the other side in the
back four rows (i.e., behind the usual seating).
Pierson v. Post: Closing Up Brief
• Sample Brief Posted (with some
explanatory comments). E-Mail if Qs.
• In addition to what’s already on slides,
includes:
–
–
–
–
Concise version of “Facts”
“Doctrinal Rationale” based in ancient writers.
“Result”
“Dissent”
CASE BRIEF: Result
• How the opinion disposed of the case. E.g.,
– “Affirmed”
– “Reversed and remanded [sent back to lower court]
for… [e.g.,]
• … new trial.”
• … further proceedings consistent with the opinion.”
• … the trial court to issue the requested injunction.”
– “Affirmed in part [on Issue #1] and reversed in part and
remanded for a new trial [on Issue #2].
• In Pierson, simply “Reversed” (no further
proceedings necessary)
CASE BRIEF: Concurrence/Dissent
• Describe Key Points of Separate Opinions:
– Indicate where the opinion would diverge from
the majority in terms of
–Result AND/OR
–Identification or application of the relevant legal
standard.
– List the major supporting arguments
• BUT No other separate opinions until Unit III
Pierson v. Post: Sample Dissent
[Different Result Preferred]: The dissenting judge
would affirm.
[Different Legal Standard Preferred]: He would
allow a hunter to gain property rights in a wild
animal without physical touch or possession if
“the pursuer be within reach or have a
reasonable prospect … of taking” the animal.
Pierson v. Post: Sample Dissent
The dissenting judge would affirm. He would allow a hunter to
gain property rights in a wild animal without physical touch or
possession if “the pursuer be within reach or have a reasonable
prospect … of taking” the animal. Supporting points include:
• Hunter’s customs would support his position.
• Foxes cause great harm to farmers, so the rule here
should aim to kill as many foxes as possible. The
majority’s rule will discourage fox hunters by allowing
people like Pierson to take the rewards after the
hunters have done a lot of work. … AND…
Pierson v. Post: Sample Dissent
The dissenting judge would affirm. He would allow a hunter to
gain property rights in a wild animal without physical touch or
possession if “the pursuer be within reach or have a reasonable
prospect … of taking” the animal. Supporting points include:
• The ancient writers do not agree on the proper rule.
To the extent that some support the majority, they
should not be followed because times change. In
particular, there’s no evidence that fox hunters like
Post existed at the time of Justinian.
Lots of reasonable ways to format and
articulate these ideas.
CASE BRIEF: Names of Judges
• Don’t have to include for your submitted briefs.
• You might want to indicate for your own reference,
especially for US Supreme Court or other court you
are using a lot for a particular class.
• Sensible to include author of majority at end of
citation or beginning of holding.
• Sensible to include author of separate opinions
(and others joining that author) at the beginning of
your descriptions of those opinions.
LOGISTICS: CLASS #7
• Radiums: Written Shaw Brief Due Thurs @9pm
– Graded but small % of whole (can help; not crucial)
– You’ll all make mistakes; I’m weighing against your
peers and sense of where you should be after Class #8
• Later briefs judged a little more strictly
• What you can control: Read instructions carefully & reread
before finalizing submission
– To help with briefing form & substance
•
•
•
•
Suggested Brief Content (IM18-21) & Briefing Slides
Sample Pierson Brief (posted):
Shaw Self-Quiz (posted):
Sample Liesner Brief (to be posted today)
LOGISTICS: CLASS #7
Radiums: Written Shaw Brief Due Thurs @9pm
• No outside help from DFs or prior students;
just you and partner(s) if any.
• Protect integrity of blind grading; if unsure,
communicate with my assistant
Qs on Instructions or Common Writing
Concerns (IM22-26)?
LOGISTICS: CLASS #7
• I left DQ1.18(d) off Assignment Sheet; we’ll do next class &
I’ll take volunteers.
• Kaye Dean’s Fellow Session Tomorrow @ 11 MOVED (one
time only) from Room E265 to G363 in Law Library
• Dahl Dean’s Fellow Sessions Thursdays SHIFTED by 30
MINUTES (permanently) to 11:30am-12:20pm.
• Section B Lunch Today:
• Meet in at Far End of Food Court after Torts:
• Catrakilis; Howard; Isicoff; Miller; Owen; Savoia
Pierson v. Post:
DQs1.10-1.11
First-in-Time v.
Other Types of Rules re
ANIMALS (Uranium) &
PARKING (Oxygen)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
First-in-Time:
What Kinds of People Are
Likely Winners & Losers
CAPTURING ANIMALS?
(Uranium)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
First-in-Time:
What Kinds of People Are
Likely Winners & Losers
PARKING FOR LAW SCHOOL
(among holders of same type of permit)
(Oxygen)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to
First-in-Time:
CAPTURING ANIMALS?
(Uranium)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to
First-in-Time:
CAPTURING ANIMALS?
DQ1.08: What rule would you want if
you were trying to preserve the fox
population because foxes are
commercially valuable?
(Uranium)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to
First-in-Time:
CAPTURING ANIMALS?
DQ1.08: What rule would you want if you were trying to
preserve the fox population because foxes are
commercially valuable?
We’ll Return to This Q with
Demsetz Reading
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Alternative Approaches to
First-in-Time:
PARKING FOR LAW SCHOOL
(among holders of same type of permit)
(Oxygen)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Choosing Among Property
Allocation Systems
• Relevant Considerations Include:
– Administrative Costs
– Likely Winners & Losers
– Effects on Participants’ Behavior
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Choosing Among Property Allocation Systems
Pros & Cons of First-in-Time Rules:
• Likely Benefits
– Often Reasonable Degree of Certainty
– Ease of Administration (cf. designated pkg spots)
• Possible Problems
– Can Seem Arbitrary
– May Reward Undesirable Attributes or Punish
“Hunters” for Things Outside Their Control
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
Choosing Among Property
Allocation Systems
We’ll Return to This Type of
Choice Among Possible
Rules in Unit Two
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Some primarily to introduce you to system
• Some will be tools used regularly in course
• Anything you “need to know”, we’ll come
back to repeatedly
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
– History of Dispute & Court Proceedings
– Prior Legal Authority
– Customs & Other Social Institutions
– Historical Moment
• Language
• Social Policies
• Underlying Assumptions
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
• Language
– Difficulty Discerning Precise Holding
– Rationales
• Social Policies
• Underlying Assumptions
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
• Language
• Social Policies
– Reward Useful Labor
– Get Certainty (In Tension w Flexibility)
– Achieve Economic Benefits
• Underlying Assumptions
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
• Language
• Social Policies
• Underlying Assumptions
– Irrelevance of Bad Intent
– Use of Some Form of First-in-Time
Transition: Pierson  Liesner/Shaw
• Trying to Identify “Magic Moment”
When Object (Wild Animal) Changes
from Unowned to Someone’s Property
Transition: Pierson  Liesner/Shaw
• Trying to Identify “Magic Moment” When Object
(Wild Animal) Changes from Unowned to
Someone’s Property
• All 3 Cases: Fights Between 1st & 2d Hunter:
– If Animal Unowned, no Q that 2d Hunter Wins
– Claim by 1st hunter is: Animal was already mine when
2d hunter acted
Transition: Pierson  Liesner/Shaw
• Trying to Identify “Magic Moment” When Animal
Changes from Unowned to Someone’s Property
• Fights Between 1st & 2d Hunter:
• Legal Rules Here Temporal Not Comparative
– Issue: Had 1st Hunter Done Enough to Get Property
Rights Before 2d Hunter Intervened
– Not asking if 2d hunter did more or better labor than
1st
Transition: Pierson  Liesner/Shaw
• Trying to Identify “Magic Moment” When Animal
Changes from Unowned to Someone’s Property
• Pierson Suggests Two Ways Besides Actual
Physical Possession to get Property rights in
Wild Animals:
1. MORTAL WOUNDING (Liesner)
2. NETS & TRAPS (Shaw)
Transition: Pierson  Liesner
Final Qs on Pierson?
Then to Liesner Brief
& Uraniums
Liesner Brief: Uranium
STATEMENT OF THE CASE:
• Who is Suing Whom?
Liesner Brief: Uranium
STATEMENT OF THE CASE:
• Liesner and another, who shot and claim to have
mortally wounded a wolf sued Wanie, who
subsequently shot and took the wolf …
– Wanie disputes on appeal whether the plaintiffs
mortally wounded the wolf, so can’t treat it as given.
–SEEKING WHAT RELIEF?
Liesner Brief: Uranium
STATEMENT OF THE CASE:
• Liesner and another, who claim to have shot and
mortally wounded a wolf sued Wanie, who
subsequently shot and took the wolf, to recover
the body of the wolf …
– This is what plaintiffs initially requested; issue of
damages arose later
–ON WHAT LEGAL THEORY?
Liesner Brief: Uranium
STATEMENT OF THE CASE:
ON WHAT LEGAL THEORY? (UNSTATED)
• Might be “Trespass on the Case” (following
Pierson) or “Trespass” (if Wisconsin views shot as
direct interference w Property)
• Might be “Replevin” = Common law action for
return of goods improperly taken
Liesner Brief: Uranium
PROCEDURAL POSTURE:
• Trial court directed verdict for plaintiff and
awarded damages. Defendant appealed.
– Don’t need to mention plaintiffs’ motion for directed
verdict; that step is implicit in court’s action
– Don’t need to mention defendant’s motion for directed
verdict; doesn’t affect reasoning or outcome
Our Approach to New Cases
1. Introduce Basics of New Case with First
Parts of Brief
2. Apply Prior Cases to Facts of New Case
(DQs 1.15, 1.23-1.25)
3. Flesh Out Issue/Holding/Rationales of
New Case
4. Apply New Case to Facts of Prior Cases
(DQs 1.18(d), 1.26)
Application of One Case to
Facts of Another
• Cases are complex tools for lawyers.
• Applying the language and reasoning of case
to a new situation is a way to learn some of
the things you can do with the tool.
Application of One Case to Facts
of Another
• Can compare facts of two cases
• Can apply specific language of 1st case to
facts of 2d
• Can apply policies from 1st case to facts of 2d
Application of One Case to Facts
of Another: Playing with Rules
Too Many Cooks Spoil the Soup
Application of One Case to Facts
of Another: Playing with Rules
Too Many Cooks Spoil the Soup
• Line-Drawing: How many is “too many”?
– Vary with size of kitchen?
– Vary with amount of soup you’re preparing?
Application of One Case to Facts
of Another: Playing with Rules
Too Many Cooks Spoil the Soup
• Definitions: Who counts as a “Cook”?
– Anyone helping with preparation?
– Anyone with significant training/experience?
– Anyone making decisions about
ingredients or technique?
Application of One Case to Facts
of Another: Playing with Rules
Too Many Cooks Spoil the Soup
• Scope of Rule: “Soup” and What Else?
– Any dish?
– Any dish requiring careful balancing of flavors?
– Any dish requiring particular skill?
Application of One Case to Facts
of Another: Playing with Rules
WHICH RULE TO USE?
Too Many Cooks Spoil the Soup
v. Many Hands Make Light Work
Liesner DQ1.15: Oxygen
Application of Pierson to Facts of Liesner
For purposes of this exercise, let’s use FACTS as
found by TRIAL COURT (1st para of opinion):
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
Liesner DQ1.15: Oxygen
Application of Pierson to Facts of Liesner
FACTS (as found by TRIAL COURT)
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
APPLY LANGUAGE FROM PIERSON
MAJORITY
Liesner DQ1.15: Oxygen
Application of Pierson to Facts of Liesner
FACTS (as found by TRIAL COURT)
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
• Pierson uses language of absolute certainty
– “certain control”
– “escape impossible”
• Liesner fudges.
Liesner DQ1.15: Oxygen
Application of Pierson to Facts of Liesner
FACTS (as found by TRIAL COURT)
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
APPLY POLICIES FROM PIERSON
Reward Effective Labor?
Liesner DQ1.15: Oxygen
Application of Pierson to Facts of Liesner
FACTS (as found by TRIAL COURT)
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
APPLY POLICIES FROM PIERSON
Achieve Certainty?
Liesner
To URANIUMS for DQ1.16-1.17 &
Facts/Issue/Holding
Hard case at this stage of Law School
because reviewing decision on
sufficiency of evidence, not ruling on
relevant law.
Liesner DQ1.16: Uranium
DIRECTED VERDICT
• Generally: Trial Court Rules That One Party
Presented Insufficient Evidence to the Jury to Meet
Relevant Legal Standard
Liesner DQ1.16: Uranium
DIRECTED VERDICT
• Last Time: This Was (Unusual) Directed Verdict for
Plaintiffs
• Trial Court must have believed that undisputed
evidence proved Ps’ case (i.e., D presented insufficient
evidence to contradict undisputed evidence supporting
Ps)
• Wanie Conceded Relevant Legal Standards, So Must Be
Claiming on Appeal That He Presented Evidence
Sufficient to Raise Jury Q
Liesner DQ1.16: Uranium
DIRECTED VERDICT
What test does the Wisconsin Supreme Court
appear to apply as to when a trial court should
grant a motion for directed verdict?
Last Paragraph: “The evidence in this case very
strongly tends to establish all the facts requisite to
ownership of the wolf by plaintiffs,—so strongly
that all reasonable doubts in respect to the matter,
if any would otherwise have remained, might well
have been removed by the superior advantages
which the trial court had. 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 ….”
“The evidence in this case very strongly tends to
establish all the facts requisite to ownership of the
wolf by plaintiffs,—so strongly that all reasonable
doubts in respect to the matter, if any would
otherwise have remained, might well have been
removed by the superior advantages which the trial
court had. 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 ….”
Liesner DQ1.16: Uranium
DIRECTED VERDICT: IMPLICIT LEGAL TEST IN
WISCONSIN (1914)
The trial court can direct a verdict for a party if
uncontested evidence removes all reasonable
doubts that the party’s claim has been proved.
Liesner DQ1.16: Uranium
DIRECTED VERDICT: IMPLICIT LEGAL TEST IN
WISCONSIN (1914)
The trial court can direct a verdict for a party if uncontested
evidence removes all reasonable doubts that the party’s
claim has been proven.
What facts does Wanie claim were not proved
beyond a reasonable doubt? (from last class)
“That … the plaintiffs were in vigorous
pursuit of the game, the evidence is clear,
and that in a few moments, at most, they
would have had actual possession, is
quite as clear. 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 ….”
Liesner DQ1.16: Uranium
What facts does Wanie claim were not proved
beyond a reasonable doubt? Wanie’s claim must be:
• I presented sufficient evidence
– either that other people’s shots might have mortally
wounded the wolf
– or that the Liesners’ shots didn’t hit it or didn’t mortally
wound it
so as to create reasonable doubts that the shot that
mortally wounded the wolf was fired by one of the
Liesners.
Liesner Brief: Uranium
ISSUE
Did the Trial Court err
• (Procedural) by directing a verdict for the plaintiffs
• (Substantive) because the defendant offered
sufficient evidence to create a reasonable doubt
about who fired the shot that mortally wounded
the wolf, thus gaining ownership of it?
Liesner Brief: Uranium
•
•
FACTS (must reflect that D still contests that Ps
mortally wounded wolf)
Plaintiffs mortally wounded a wolf and pursued it
to the point that escape was improbable, if not
impossible. D then shot & killed the wolf and
took the carcass.
The Trial Court found that Plaintiffs mortally
wounded a wolf and pursued it to the point that
escape was improbable, if not impossible. D then
shot & killed the wolf and took the carcass.
Liesner DQ1.16: Uranium
Is the Wisconsin Supreme Court
certain that the test for directed
verdict was met in this case?
The evidence in this case very strongly tends to
establish all the facts requisite to ownership of
the wolf by plaintiffs,—so strongly that all
reasonable doubts in respect to the matter, if any
would otherwise have remained, might well have
been removed by the superior advantages which
the trial court had. 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 ….
Liesner Brief: Uranium
HOLDING
No, the Trial Court did not err
• (Procedural) by directing a verdict for the plaintiff
• (Substantive) because all reasonable doubts may
well have been removed as to who fired the shot
that mortally wounded the wolf, thus gaining
ownership of it.
“The evidence in this case very strongly tends to
establish all the facts requisite to ownership of
the wolf by plaintiffs,—so strongly that all
reasonable doubts in respect to the matter, if any
would otherwise have remained, might well have
been removed by the superior advantages which
the trial court had.”