MUSIC: Gustav Mahler, Symphony #5 (1901-02)

Vienna Philharmonic (1988)Leonard Bernstein: Conductor

Starting With: Which of These Things Which of These Things Is Not Like the Others (and Why)?Is Not Like the Others (and Why)?

LION FISH

BULL FOX

LAWYERING EXERCISE TO SET UP DEMSETZ READING FOR WED/THU

Which of These Things Is Not Like the Others (and Why)?

LION FISH

BULL FOX

GROUP ASSIGNMENT #1Standard Exam Task: Apply Authorities Studied to New

Hypothetical or “Fact Pattern”

•Assmt #1 : Structured Sequence of Assmt #1 : Structured Sequence of Arguments Arguments

– Specific arguments for each party from

(1A) Facts of Shaw

(1B) Specific Language from Shaw

(1C) Policy of Rewarding Useful Labor

GROUP ASSIGNMENT #1Standard Exam Task: Apply Authorities Studied to New Hypothetical or “Fact

Pattern”

•Assmt #1 : Structured Sequence of Assmt #1 : Structured Sequence of Arguments Arguments

– Three sets of specific arguments for each Three sets of specific arguments for each partyparty

– NotNot everything you could say about the everything you could say about the hypohypo

– But But together, good basis for an exam together, good basis for an exam answeranswer

GROUP ASSIGNMENT #1Two Important Skills to PracticeTwo Important Skills to Practice

1. Isolation: Focusing on One Narrow Topic at a Time

2. Dialogue: Finding Best Arguments for Each Party

ISOLATION: Focusing on One Narrow Topic at a Time

Common Idea in Many Contexts•Exercise or Massage Muscle Groups

•Football Film/Replays Individual Players

•Cooking Specific Ingredients

GROUP ASSIGNMENT #1Two Important Skills to Two Important Skills to

PracticePractice1. ISOLATION: Focus on One Narrow Topic at a Time– Read Instructions Carefully & Just Do Your Topic:

• (1A) Facts of Shaw - OROR -• (1B) Specific Language from Shaw -OR-OR-• (1C) Labor Policy

– For Examples, Look at Shack Qs/Comments/Models– Doing more than you’re asked earns penalties not

extra credit1. Cf. Responding to Judges in Oral Argument2. Cf. Coverage in Associate Assignments at Law Firm 3. Cf. Limited Scope Short Exam Q

GROUP ASSIGNMENT #1Two Important Skills to Two Important Skills to

PracticePractice2. DIALOGUE: Finding Best Arguments for

Each Party– Built into Structure of Assignment #1Built into Structure of Assignment #1– Until the Highest Court in a Jurisdiction Until the Highest Court in a Jurisdiction

Decides an Open QDecides an Open Q• No “Right” AnswerNo “Right” Answer• Just Best Available Arguments Just Best Available Arguments

– Good Exam Answers Reflect This & Good Exam Answers Reflect This & Often Sound Like Schizophrenic Often Sound Like Schizophrenic MonologuesMonologues

DIALOGUE: Finding Best Arguments for Each Party

Legal Smeagols

GROUP ASSIGNMENT #1Some General PointsSome General Points

1. Carefully Follow Formatting & Substantive Directions

2. Special Problems of Tie-Breaker Qs3. Working Together– Take Advantage of Multiple Perspectives– Keep Each Other on Track– Be Cooperative

QUESTIONS?

LOGISTICS: CLASS #10 (Graded Briefs)

• OXYGEN: Mullett Brief due Sun (9/14) @ 4pm– Look at IM #1: • Instructions for all Written Work • Instructions for Written Briefs

– E-Mail me if Qs

• RADIUM: – I’ve Started Grading Shaw Briefs (Goal = Wed 9/17)• Status of Grading Posted on Course Page

– Meanwhile Compare to Sample Brief (posted Tuesday)• Can take Qs to Dean’s Fellows

STATE v. SHAW DQ1.27: Radium

Next Class: Should the result in Shaw be the same if

the fishermen used a sunken boat sunken boat instead of a net to trap the fish?

Assume the boat retains the same percentage of fish that enter it as the net in Shaw.

(E.g., <4% of fish that enter escape both nets & boat)

STATE v. SHAW DQ1.27: Radium

NOTE: If Q = “Should the result be the same if we change one fact?”

Really asking: “Why might result be different if we change the fact?”

So: Why might it make a difference that people use a sunken boat rather than a net to

catch fish (if both equally effective)?

STATE v. SHAW DQ1.28: Radium

“E-Participation”“E-Participation”§B: Catrikilis, Sanseverino, Teijelo§D: Bolanos, Coleman, Furmanski

E-mail to me today by 7:00 pm: •A clear statement of the Rule you derived for DQ1.28 (Not your defense of the Rule)•Use name, not pseudonym•No need for any particular formatting

We’ll go over next class

DQ1.23-1.25 Apply Apply Pierson Pierson & & LiesnerLiesner : :

to Perfect Net Rule to Perfect Net Rule & to Specific & to Specific ShawShaw Facts Facts

Uranium

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Language from Pierson

•State would begin by arguing that Pierson says that “nets and toils [= traps]” create property in animals for those that use “such means” to catch animals.•In reply, defendants would point to the specific language of the relevant passage in the majority opinion (see next slide).

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Pierson Language re Traps:

“[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 impossiblerender 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.”

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Language from Pierson

Passage about traps seems to require that they “render escape impossible,” supporting Perfect Net Rule.

Ways Around?

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Language from Pierson: Ways around “render

escape impossible”?

Distinguish traps for individual animals from traps for groups of

animals (like fish nets).

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Language from Pierson:

Ways around “render escape impossible”?

•Dicta (traps not part of original case) and inconsistent with explicit concerns with certainty and labor (see below).•Might just refer to “otherwise intercepting” and not to “nets and toils”

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Pierson Language re Traps (Note Commas):

“[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.”

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Pierson Language re Mortal Wounding

“[M]ortal wounding … by one not abandoning his pursuit, may … be deemed possession of [the animal]; since, thereby, the pursuer

[i] manifests an unequivocal intention of appropriating the animal to his individual use, [ii] has deprived him of his natural liberty, and [iii] brought him within his certain control.

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Language from Pierson: Property where claimant…

[i] manifests an unequivocal intention of appropriating the animal to his individual use,•Big constructed nets at issue surely do this

[ii] has deprived him of his natural liberty, and •Can argue about this; probably true for most fish so long as they’re in the nets

[iii] brought him within his certain control.•Not true of any one fish; true of fish as a group

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)

Policies from Pierson: Rewarding Labor?

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Policies from Pierson: Rewarding Labor

•Point of net is to catch fish which have value to society.•Net serves this purpose & is valuable even if not perfect•Net that retains most of the fish it catches should thus be rewarded•If net needs to be perfect to be protected against theft, industry might well shut down.

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)

Policies from Pierson: Certainty?

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule

(Uranium)Policies from Pierson: Certainty

•Perfect Net Rule (like too-absolute versions of rules in Liesner) creates uncertainty b/c too difficult for net-owners to meet test:• Virtually impossible to create escape-proof net• Even if net initially is escape-proof, wear-and-tear

would quickly change this• Difficult to show test met, and becomes harder as

time goes on

DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule

(Uranium)

Arguments from Pierson Dissent?

•Meet Language (p.6): i) Pursuer w/in reach or reasonable prospect of taking +ii) Intent to convert to own use

•Other Arguments?

DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule

(Uranium)Arguments from Pierson Dissent

•Would seem to meet language (p.6): i) Pursuer w/in reach or reasonable prospect of taking +ii) Intent to convert to own use

•Even imperfect net is more control/certainty than most forms of “hot pursuit” so dissent would likely say it is enough to create property rights.•If you look to customs of fisherman, likely to find that fish in nets are considered property of net-owners. (per Gomez §D)

DQ1.24:Ways to Use Arguments from Dissents:

• If Majority not Binding on Court in Question, then Dissent can be Persuasive Authority (“We find the dissent’s position more persuasive because …”)

• Note that Pierson Dissent position seems inconsistent with rules stated in Liesner and Shaw as well, which weakens its overall persuasiveness.

DQ1.24:Ways to Use Arguments from Dissents:

(Where Majority Opinion is Binding):•Can Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”)•Can Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”

DQ1.24:Ways to Use Arguments from Dissents:

QUESTIONS?

STATE v. SHAW DQ1.25: Uranium

Applying Liesner Tests to Shaw Facts

Leave other Formulations to You & DFs

STATE v. SHAW Context

1902:I’ll include some slides

in posted version

STATE v. SHAW Context: 1902International

•China's Empress Tzu-hsi forbids binding of woman's feet•Cuba gains independence from Spain•Edward VII (60) becomes King of England (Victoria had reigned 63+ years before her death in 1901)•Boer War Ends; Britain annexes Transvaal

United States: •Teddy Roosevelt: 1st Am. President to ride in an automobile •US buys Virgin Islands from Denmark & right to build Panama Canal from French •Oliver Wendell Holmes, Jr. (Civil War veteran & Justice on Mass. Supr. Ct.) becomes Associate Justice on US Supreme Court

STATE v. SHAW Context: 1902Deaths

•Thomas Nast (cartoonist); Cecil Rhodes (explorer); Elizabeth Cady Stanton (feminist); Emile Zola (novelist)

Births •Charles Lindbergh (Aviator) & Ansel Adams (Photographer)•Meyer Lansky & Carlo Gambino (Both Organized Crime)•Richard Daley (Chi. Mayor 1968) & Thomas Dewey (ran for pres. 1948) & Strom Thurmond (ran for pres. 1948, d. 2003) •Richard Rodgers, Guy Lombardo, John Steinbeck & Langston Hughes •John Houseman (Paper Chase) & Margaret Hamilton (Wicked Witch)•Ray Kroc (McDonald’s) & Ayatollah Ruhollah Musavi Khomeini (Iran)

STATE v. SHAW Context: 1902Introduced:

•American Automobile Assn•1st Automat Restaurant in Philadelphia•"Bill Bailey Won't You Please Come Home" • "The Entertainer"•JC Penney 1st Store (in Wyoming) •London School of Economics•Marlboro•1st Movie Theater•Neon Lamps•Phi Alpha Delta

STATE v. SHAW Context: 1902Introduced:

•"Pomp and Circumstance" •Radium isolated by Marie & Pierre Curie•Rhodes Scholarships•Rose Bowl (1st College Bowl Game; Michigan 49, Stanford 0 )•Smith & Wesson .38 Caliber Special; •Texaco•The Thinker by Rodin•Tinker, Evers, and Chance (Chicago Cubs Infielders)•US Census Bureau•Window Envelopes