Transcript ELEMENTS B1: Prof. Fajer

MUSIC: Gustav Mahler,
Symphony #5 (1901-02)
Vienna Philharmonic (1988)
Leonard Bernstein: Conductor
Starting With: Which of These Things 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 #1
Standard Exam Task: Apply Authorities Studied
to New Hypothetical or “Fact Pattern”
• Assmt #1 : Structured Sequence of Arguments
– Specific arguments for each party from
(1A) Facts of Shaw
(1B) Specific Language from Shaw
(1C) Policy of Rewarding Useful Labor
GROUP ASSIGNMENT #1
Standard Exam Task: Apply Authorities Studied
to New Hypothetical or “Fact Pattern”
• Assmt #1 : Structured Sequence of Arguments
– Three sets of specific arguments for each party
– Not everything you could say about the hypo
– But together, good basis for an exam answer
GROUP ASSIGNMENT #1
Two 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
• Football Film/Replays
• Cooking
Muscle Groups
Individual Players
Specific Ingredients
GROUP ASSIGNMENT #1
Two Important Skills to Practice
1. ISOLATION: Focus on One Narrow Topic at a Time
– Read Instructions Carefully & Just Do Your Topic:
• (1A) Facts of Shaw - OR • (1B) Specific Language from Shaw -OR• (1C) Labor Policy
– For Examples, Look at Shack Qs/Comments/Models
– Doing more than you’re asked earns penalties not
extra credit
• Cf. Responding to Judges in Oral Argument
• Cf. Coverage in Associate Assignments at Law Firm
• Cf. Limited Scope Short Exam Q
GROUP ASSIGNMENT #1
Two Important Skills to Practice
2. DIALOGUE: Finding Best Arguments for
Each Party
Built into Structure of Assignment #1
Until the Highest Court in a Jurisdiction Decides
an Open Q
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No “Right” Answer
Just Best Available Arguments
Good Exam Answers Reflect This & Often Sound
Like Schizophrenic Monologues
DIALOGUE: Finding Best
Arguments for Each Party
Legal
Smeagols
GROUP ASSIGNMENT #1
Some General Points
1. Carefully Follow Formatting & Substantive
Directions
2. Special Problems of Tie-Breaker Qs
3. 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 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”
§B: Catrikilis, Sanseverino, Teijelo
§D: Bolanos, Coleman, Furmanski
E-mail to me today by 7:00 pm:
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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 Pierson & Liesner :
to Perfect Net Rule
& to Specific Shaw 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 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
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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:
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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 netowners. (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: 1902
International
• 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: 1902
Deaths
• 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: 1902
Introduced:
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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: 1902
Introduced:
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"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