ELEMENTS B1 & B2 2016
POWER POINT SLIDES
Class #4
Wednesday, August 24 &
Thursday August 25
MUSIC: Beethoven
Symphonies #6 (1808) & #8 (1814)
Recordings: Chamber Orchestra of Europe
Nikolaus Harmoncourt, Conductor (1991)
B1 LUNCH
WEDNESDAY
Meet on Brix @ 12:30:
Ardijanto * Cottingham
Fleming * Goldschmidt
Halpern * Massagli * Walsh
B2 LUNCH THURSDAY
Meet on Brix @ 12:30
Barth * Brody * D’Bazo
Evans * Galavis
Iglesia * Norris
ELEMENTS B1 & B2
Three Common 1L Issues
Class #2: Confusion
Class #3: Control
Class #4: Competition v. Cooperation
COMPETITION
v. COOPERATION
Background Qs:
How Many of You … ?
(Show of Hands; Look Around)
COMPETITION
v. COOPERATION
COMPETITION
v. COOPERATION
COMPETITION
v. COOPERATION
I don’t have to outrun the bear,
I have to outrun you!!
COMPETITION
v. COOPERATION
•I have to outrun you
– Bad Model for Law School
COMPETITION v. COOPERATION
•I have to outrun you
– Bad Model for Law School
– 1L Grading
• LComm
• Rest of your classes
COMPETITION v. COOPERATION
• I have to outrun you v.
•
Cooperation Benefits You
– Diversity (Broadly Understood)
• Different experiences
• Different points of view
• Multiple Ears/Eyes
COMPETITION v. COOPERATION
• Cooperation Benefits You
– Diversity (Broadly Understood) 
– You Know Lots More Collectively
than Individually
• Downside from “Confusion”: Can Feel
Stupid
COMPETITION v. COOPERATION
• Cooperation Benefits You
– Diversity (Broadly Understood) 
– You Know Lots More Collectively
than Individually
• Upside: Good Group Work Tends to
Lift Whole Group
COMPETITION v. COOPERATION
• Cooperation Benefits You
• Patience & Consideration
– E.g., in event of illness or
accident, family emergency,
laptop disaster
– Remember, could have been you
CASE BRIEF: Statement of the Case
1.
2.
Who Sued Whom?
Under What Theory (Legal Cause of Action)?
3. Seeking What Remedy?
Pierson v. Post: For What Remedy?
 Post, a hunter who had been pursuing a fox,
sued Pierson, who killed the fox knowing of
the pursuit, for Trespass on the Case, seeking
… [not stated in Majority Opinion. Could be: ]
– Damages OR
– Return of the fox or its pelt.
*Evidence of Either?
Pierson v. Post: For What Remedy?
• Not Stated in Majority Opinion. Could be:
– Damages OR
– Return of the fox or its pelt.
• Dissent (p.5): “In a court … constituted [of
hunters], the skin and carcass of poor reynard
would have been properly disposed of ...” (This
suggests remedy requested is return of property.)
Pierson v. Post: For What Remedy?
• Not Stated in Majority Opinion
• Dissent suggests remedy requested is return of
property
• BUT Normal remedy for Trespass on the Case
is “Damages” (= $$$) (Dissent point could be
rhetoric.)
How might you handle this uncertainty?
Pierson v. Post: Sample Statement
• Post, a hunter who had been pursuing a fox,
sued Pierson, who killed the fox knowing of
the pursuit, for trespass on the case,
presumably [or “possibly”] seeking damages.
• Number of Possible Versions, but Try to Be
Accurate re What You Really Know from Case
• Qs
CASE BRIEF: Procedural Posture
• Procedural Steps
– After Lawsuit Filed (filing of lawsuit already
described in Statement) …
CASE BRIEF: Procedural Posture
• Procedural Steps
– After Lawsuit Filed …
– Up to Step That Gets Case to the Appellate
Court that Issued the Opinion You are
Briefing. [Decision in that court referenced in
“Holding and “Result” sections].
CASE BRIEF: Procedural Posture
• Procedural Steps
– After Lawsuit Filed …
– Up to Step That Gets Case to the Appellate Court.
– Try to Limit to Steps Necessary to Understand
Case
• Usually have to edit what’s given in opinion.
• Lots of opportunities to edit in future case briefs.
Pierson v. Post: Procedural Posture
• After Trial Resulted in Verdict for Post [Π],
the [N.Y. Supreme] Court Granted Pierson’s
[Δ’s] Petition for [Certiorari] Review.
– Note don’t need separate sentences to say (i) Pierson
petitioned & (ii) Court granted petition
– Note you don’t have to give name of appellate court
where already clear from the citation.
–Questions?
CASE BRIEF: Facts
• Only include facts arguably relevant to court’s
analysis.
– Can’t determine relevance on 1st read
Initial description of “facts” usually includes more detail
than you need
2. Important facts may only appear later in opinion
1.
– Select/edit facts after reading whole case.
• We’ll do for Pierson after discussing DQs 1.04 &
1.05 & issue/holding
CASE BRIEF: Issue
• Party Appealing Always Claims the
Lower Court Made a Mistake. To
Identify the Issue, Identify the
Mistake.
CASE BRIEF: Issue
• Party Appealing Claims the Lower Court
Made a Mistake. Identify the Mistake.
• Procedural Component of Mistake:
What Should Lower Court Have
Done Differently?
CASE BRIEF: Issue
• Party Appealing Claims the Lower Court Made a
Mistake. Identify the Mistake.
• Procedural Component of Mistake: What Should
Lower Court Have Done Differently?
• Substantive Component of Mistake:
What Misunderstanding About the
Relevant Legal Rule Caused the Lower
Court to Make the Procedural Mistake?
CASE BRIEF: Issue
• Party Appealing Claims the Lower Court Made a
Mistake. Identify the Mistake.
– Procedural Component of Mistake: What Should Lower
Court Have Done Differently?
– Substantive Component of Mistake: What
Misunderstanding About the Legal Rule Caused the
Lower Court to Make the Procedural Mistake?
• For this class, we’ll create versions of issue and
holdings that incorporate both the procedural and
the substantive component.
Pierson v. Post: Issue
End of 1st paragraph: Pierson claimed that
“the declaration and the matters therein
contained were not sufficient in law to
maintain an action.”
*What did he think was insufficient
about the claims Post made in the
declaration?
Pierson v. Post: Issue
SUBSTANTIVE MISTAKE: Claim that Post
pursued the fox is insufficient because pursuit
alone doesn’t create property rights in the fox.
•
•
Trespass on the Case = Indirect Interference with
Property Rights.
If Post did not have “Property Rights” in the fox,
Pierson did not commit Trespass on the Case
when he killed it.
Pierson v. Post: Issue
* IF PIERSON WAS CORRECT ABOUT
WHAT WAS WRONG WITH THE
DECLARATION, WHAT SHOULD THE
LOWER COURT HAVE DONE
DIFFERENTLY?
Pierson v. Post: Issue
WHAT SHOULD THE LOWER COURT HAVE DONE
DIFFERENTLY?
PROCEDURAL MISTAKE: The Lower Court
Should Have Dismissed the Case [as a Matter
of Law] for Failure to State a Claim on Which
Relief Could Be Granted
As I noted in slides for DQ1.01, might have been
raised at the beginning of the case; we don’t know.
Pierson v. Post: Issue (Recap)
PROCEDURAL COMPONENT OF MISTAKE: The
Lower Court Should Have Dismissed the Case
[as a Matter of Law] for Failure to State a
Claim [on Which Relief Could Be Granted].
•
In other words, even if everything stated in
Declaration was true, Post was not entitled to
any legal remedy (or “SO WHAT?”).
REPLYING TO DECLARATION/ COMPLAINT
[Note re Wood Grain]:
• Motion to Dismiss for Failure to State a
Claim (“So What?”) v.
• Answer (“Did Not!!”)
Defendants often try versions of both,
either concurrently re different claims
or consecutively re the same claim.
Pierson v. Post: Issue
For Elements Briefs, Combine Both Alleged Mistakes
PROCEDURAL MISTAKE: The Lower Court Should Have
Dismissed the Case for Failure to State a Claim on Which
Relief Could Be Granted
+
SUBSTANTIVE MISTAKE: Allegation that plaintiff pursued the
fox is insufficient because pursuit alone does not create
property rights in the fox.
[One very awkward yes/no sentence.]
Pierson v. Post: Issue
For Elements Briefs, (i) Combine Both Alleged
Mistakes (ii) into a Yes/No Q
(E.g.,) 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?
Pierson v. Post: Issue
Examples of Simple Substantive Issue
(Appropriate for Torts or Contracts)
“Is Pursuit of a Fox Sufficient to Create
Property Rights in the Fox?”
-OR“What Acts are Sufficient to Create Property
Rights in a Fox?”
Pierson v. Post: Issue
Simple Substantive Issue (for Other Classes)
• E.g., What Acts are Sufficient to Create Property Rights in
the Fox?
• E.g., Pierson p.3: “[W]hat acts amount to occupancy,
applied to acquiring right to wild animals[?]”
Issue for Elements Briefs: Include procedural
component & frame as a yes/no question.
CASE BRIEF: Issue  Holding
Simplest Version of Holding:
• Issue is a question.
• Answer question “yes” or “no.”
• Repeat issue in statement form (adjust for
positive or negative).
Pierson v. Post: 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?
Pierson v. Post: Issue  Holding
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.
Qs on Issue/Holding So Far?
CASE BRIEF: Issue/Holding
SIDE NOTE: CASES FREQUENTLY HAVE
TWO OR MORE ISSUES/HOLDINGS
• If so, your brief should separately list each issue
followed by:
– One or more versions of the holding deciding that issue
– All rationales supporting that holding
• Most cases in first two units (including Pierson) only
have one issue, but keep your eyes open.
CASE BRIEF: Issue/Holding
Hard Q: How Much Detail to Include?
• Try to include factual detail that seems relevant to
analysis/outcome.
• Can have different versions of issue and/or holding that
incorporate more or less detail (narrower/broader).
• For Elements, start with a narrow version of the issue &
holding, then try broader holdings
• DQ1.04-1.05 intended to help you start thinking about how
to do this.
Pierson v. Post: Issue/Holding
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.
Pierson v. Post: Issue/Holding
Version of Substantive Holding (adding detail):
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.
Pierson v. Post: DQ1.04(a)
Significance of Facts (Recap)
Why might it matter that the fox is found on a
deserted beach?
On land that is not private property, no
superceding claim by landowner (ratione
soli).
Pierson v. Post: Issue/Holding
Versions of Substantive Holding (Generalizing):
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 land], you must be the first to
“occupy” it, which means you must do more
than pursue it.
Pierson v. Post: Issue/Holding
Versions of Substantive Holding (Generalizing):
To get property rights in a fox [found on unowned land], you
must be the first to “occupy” it, which means you must do
more than pursue it.
Note: Might also get fight between two hunters (as opposed to
between hunter and landowner) IF:
1. Landowner permitted both hunters to hunt; OR
2. Landowner chooses not to claim the animal.
1 or 2 probably true in next case (Liesner)
Pierson v. Post: DQ1.04(c)
Significance of Facts
Suppose fox was in a well at the time
it was killed. Why might that affect
the result in the case?
Assume well is also unowned.
Pierson v. Post: DQ1.04(c)
Suppose fox was inside a well when it was killed…
• If fox mortally wounded by fall into well, might belong to
whoever drove it into well.
• Could treat as trap (“toil”), which case suggests equals
possession if fox cannot escape (see p.4): Can get
possession of animals when traps “deprive them of their
natural liberty, and render escape impossible….”
– Significance of this may depend on whether fox driven into well by
Pierson or by Post.
• BUT Could still say that Post still did not have actual
physical possession of the fox.
Pierson v. Post: DQ1.04(c)
Suppose fox was inside a well when it was killed…
• If fox mortally wounded by fall into well, might belong to
whoever drove it into well.
• Could treat as trap (“toil”), which case suggests equals
possession for “trapper” if fox cannot escape
• BUT Could still say that Post still did not have actual
physical possession of the fox.
Pierson v. Post: DQ1.04(c)
Suppose fox was in a well when it was killed ….
• Contemporary accounts outside the legal
record say this was what happened.
• Assuming this is correct, probably not
discussed in case b/c not in declaration. Why
might Post’s lawyer have failed to include
this information?
Pierson v. Post: DQ1.04(c)
Significance of Facts
Suppose fox was inside a well when it was killed.
Why wouldn’t lawyer include it in declaration?
• Maybe strategic decision.
• Maybe lawyer didn’t think it was important.
• Maybe lawyer didn’t know (asked wrong Qs)!
Note Importance of Lawyer
Pierson v. Post: DQ1.04(c)
Significance of Facts
Given what you know about the case, anything
wrong with this image of the well?
Jack & Jill
Pierson v. Post: DQ1.04(c)
Significance of Facts
This kind of well on a beach on Long
Island would fill with salt water.
Pierson v. Post: DQ1.04(c)
• For years I assumed Pierson shot fox at bottom of
stereotypical (Jack-and-Jill) well, BUT wouldn’t
have this kind of well on beach.
• BUT Detail in contemporary account says:
– Fox went into a “shoal well” (shallow hole on beach
that collects fresh water).
– Pierson hit fox on the head with a broken fence rail
(“broke its crown”?).
• ONE MORAL OF THE STORY: KEEP REREADING!!
Pierson v. Post: DQ1.04(c)
• Note that NY SCt is ruling on the sufficiency of
Post’s Declaration.
• It appears that the Declaration doesn’t mention a
well or how Pierson killed the fox, so those “facts”
are not part of the court’s analysis/decision.
• FYI: Bethany R. Berger, It's Not About the Fox: The
Untold History of Pierson v. Post, 55 Duke L.J. 1089
(2006)
CASE BRIEF: Narrower v. Broader
Versions of Holdings
Different ways to articulate what a court
decided that contract or expand the
scope/reach of the decision.
CASE BRIEF:
Narrower v. Broader Versions of Holdings
NARROWER
BROADER
• Covers fewer
situations
• Includes more facts
• Covers more
situations
• Includes fewer
facts
• More general
• More specific
Pierson v. Post: Issue/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.
(Narrower) 
To get property rights in a fox [found on unowned
land], you must be the first to “occupy” it, which
means you must do more than pursue it.
(Broader)
FAILED RELATIONSHIPS: Narrower v.
Broader Versions of “Holdings”
Different ways to articulate the lesson
you should take away from the breakup that contract or expand the
scope/reach of the lesson.
FAILED RELATIONSHIPS: Narrower v.
Broader Versions of “Holdings”
Different ways to articulate the lesson you should
take away from the break-up that contract or
expand the scope/reach of the lesson.
“I’ll never date a musician again!!”
FAILED RELATIONSHIPS:
Narrower Versions of “Holdings”
Different ways to articulate the lesson you should take
away from the break-up that contract the scope/reach of
the lesson.
“I’ll never date a musician again!!”
Musician who is an Only Child?
Keyboardist?
Person in a Rock Band?
FAILED RELATIONSHIPS:
Broader Versions of “Holdings”
Different ways to articulate the lesson you should take
away from the break-up that expand the scope/reach of the
lesson.
“I’ll never date a musician again!!”
Woman?
Human Being?
Sentient Creature?
Pierson v. Post: Issue/Holding
To get property rights in [a fox] found on
unowned land, you must be the first to
“occupy” it, which means you must do more
than pursue it. (Narrower) 
To get property rights in [an animal] found on
unowned land, you must be the first to
“occupy” it, which means you must do more
than pursue it. (Too Broad???)
Pierson v. Post: DQ1.04(b)
Significance of Facts
Why might it matter that the hunted
animal is some other animal as
opposed to a fox?
Pierson v. Post: DQ1.04(b)
Significance of Facts
Why might it matter that the hunted fox is
wearing a steel wool hair piece & a t-shirt?
THIS FOX
LOVES
DONALD
TRUMP
Pierson v. Post: DQ1.04(b)
Might want different rules for:
• Pets/Domestic Animals (Different Rules Exist)
– Fox w Steel Wool Hair & Trump T-Shirt  Likely Domesticated
or Pet
•
•
•
•
Endangered Species
Animals in School/Flock
Very Valuable Animal/Food Animal
Animal Directly Endangeriung Persons or Property