Music: Beethoven String Quartet opus 131 (1826)

Music: Beethoven

• String Quartet opus 131 (1826)

• Vienna Philharmonic

• Leonard Bernstein, Conductor

• Recorded 1977

Context of a Case

• Historical Background

• Generally (1805)
• History of Dispute (DQ1)

• Prior Treatment of Problem

• By Legal System (Precedent DQ2)
• By Society (Custom DQ3)

DQ3: Custom & Law

• The dissent suggests that the court should defer to hunters’ customs.

• Would that be a good thing?

• Subquestions in DQ3 designed to help you think about this.

DQ3: Custom & Law

• Do you know what customs are among hunters today?

• If not, how would you find out?

DQ3: Custom & Law

• Situations where custom differs from law?

DQ3: Custom & Law

• Situations where custom differs from law?

• Problems caused by this difference?

• Disrespect for Law

• Uncertainty

• Discretionary Police Power

DQ3: Custom & Law

• To avoid these problems, gov’t can change law to conform to custom.

• Sometimes, improves situation

• May be exercise of common sense

• Soia & paths through the grass

DQ3: Custom & Law

• When might conforming to custom be a bad idea?

DQ3: Custom & Law

• When might conforming to custom be a bad idea?

• Bad customs

• Uncertain customs

• Disputed; or
• Hard to apply

• Surprise

DQ3: Custom & Law

• Gov’t can change law to conform to custom.

• Is Pierson v. Post a good situation to have law conform to custom?

DQ3: Custom & Law

• Gov’t can change law to conform to custom.

• Is Pierson v. Post a good situation to have law conform to custom?

• Lawyering Note: Can focus on decision-maker, not decision

DQ3: Custom & Law

• When should law conform to custom?

• Recurring question in many areas of law

• e.g., Contract Law v. Business Practices

• We’ll return to this question with regard to whaling customs in Unit II

DQ3: Custom & Law

• Qs on custom?

LOGISTICS

• End of Class: Submit Teams for Panels

• I’ll post on course page over weekend:

• Panels
• Updated assignment sheet
• List of lunches
• Slides from Today (Always Posted)

• E-mail to add or change lunch date or if you have to miss lunch

• “Control” on Monday

TRAFFIC MONDAY!!!

COMPETITION v. COOPERATION

COMPETITION v. COOPERATION

• Two guys were camping in the woods, when the saw an angry bear rushing towards them…

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
• LRW
• Rest of your classes

COMPETITION v. COOPERATION

• I have to outrun you

• Cooperation Improves You

• Different points of View
• Multiple Ears/Eyes
• Groups Tend to Lift Whole Group

COMPETITION v. COOPERATION

• I have to outrun you

• Cooperation Improves You

• Patience & Consideration

CASE BRIEF = RESUME

• Standardized Information

• Range of Successful Ways to Present

• Alter for Different Audiences

• Rarely the Whole Story

STATEMENT OF THE CASE

STATEMENT OF THE CASE

• Succinct Statement of Nature of Original Lawsuit

STATEMENT OF THE CASE

• Succinct Statement of Nature of Original Lawsuit

• In Case Brief: Reminds You Quickly What Case Is About

STATEMENT OF THE CASE

• Succinct Statement of Nature of Original Lawsuit

• In Case Brief: Reminds You Quickly What Case Is About

• In Court Submissions: Quickly Explains Nature of Cases You Discuss In Your Arguments

STATEMENT OF THE CASE

• Who Sued Whom?

WHO SUED WHOM?

• Plaintiff Sued Defendant (X)

WHO SUED WHOM?

• Plaintiff Sued Defendant (X)

• Post Sued Pierson (X)

WHO SUED WHOM?

• Post, the shy blond 27-year old Dutch-American asthmatic unemployed son of a Revolutionary War hero ...

WHO SUED WHOM?: Look for Relationship Relevant to Legal Issue

• Apartment Landlord Sued Former Tenant …

• Purchasers of Leaky New House Sued Developer ...

• Consumer Injured By Exploding Blender Sued Manufacturer and Seller of Blender ...

WHO SUED WHOM?

• Post, [relevant description], sued Pierson, [relevant description]

• Several Plausible Versions

WHO SUED WHOM?

• One Plausible Version:

• Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit ...

STATEMENT OF THE CASE

• Who Sued Whom?

• Under What Theory?

• Legal cause of action plaintiff alleged
• NOT elaborate explanation of plaintiff’s lawyer’s arguments

UNDER WHAT THEORY?

• “Trespass on the Case”

• (See 1st Sentence of Case)
• = Indirect Injury to π’s Property

Side Note: Common Practice

• π = Plaintiff

• Δ = Defendant

UNDER WHAT THEORY?

• Trespass on the Case

• = Indirect Injury to П’s Property

• Compare “Trespass”

• = Direct Injury to П’s Property

• Why Indirect Here?

STATEMENT OF THE CASE

• Who Sued Whom?

• Under What Theory?

• For What Remedy?

FOR WHAT REMEDY?

• Unclear From Majority Opinion

• Possibilities?

FOR WHAT REMEDY?

• Unclear From Majority Opinion

• Dissent: “In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of ...”

• Suggests plaintiff sought return of the pelt.

FOR WHAT REMEDY?

• Unclear From Case

• Dissent: In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of …

• Could be Rhetoric: Normal remedy for Trespass on the Case is Damages

SAMPLE STATEMENT: (Lots of Possible Versions)

• 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 seeking damages.

Qs on Statement of the Case

PROCEDURAL POSTURE

PROCEDURAL POSTURE

• Statement of the case basically describes original complaint (declaration)

PROCEDURAL POSTURE

• Statement of the case basically describes original complaint (declaration)

• Procedural Posture = Procedural Steps After Complaint Filed Up To Step Getting Case to the Appellate Court

PROCEDURAL POSTURE

• Procedural Steps After Complaint Filed Up To Step Getting Case to the Appellate Court

• Limit to Steps Necessary to Understand Case

PROCEDURAL POSTURE

• Procedural Steps After Complaint Filed Up To Step Getting Case to the Appellate Court

• Limit to Steps Necessary to Understand Case

• Here: After Trial Resulted in Verdict for Plaintiff, Appellate Court Granted Defendant’s Petition for [Certiorari] Review

PROCEDURAL POSTURE

• Here: After Trial Resulted in Verdict for Plaintiff, Appellate Court Granted Defendant’s Petition for [Certiorari] Review

• Qs on Procedural Posture

FACTS

FACTS

• Limit to facts relevant to court’s analysis.

FACTS

• Limit to facts relevant to court’s analysis.

• Can’t determine relevance on 1st read; select or edit after reading whole case.

FACTS

• Straightforward Here:

• Post was pursuing a fox he was hunting.

• Pierson, aware that Post was pursuing the fox, shot and killed it and took the carcass.

ISSUE & HOLDING

ISSUE

• Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake.

ISSUE

• Party Appealing Claims the Lower Court Made a Mistake. Identify the Claimed Mistake.

• There will be both

• a procedural component and

• a substantive component.

ISSUE

• Party Appealing Claims the Lower Court Made a Mistake. Identify the Mistake.

• Procedural Component of Mistake: What Should Lower Court Have Done Differently?

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 Misunderstand-ing About the Legal Rule Caused the Lower Court to Err

“[T]he declaration and the matters therein contained were not sufficient in law to maintain an action.”

“[T]he declaration and the matters therein contained were not sufficient in law to maintain an action.”

• WHAT WAS

• INSUFFICIENT

• ABOUT IT?

Trespass on the case = indirect injury to plaintiff’s property rights. Allegation that π pursued the fox is insufficient because pursuit alone does not create property rights in the fox, so π had no property rights here.

WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

WHAT SHOULD THE LOWER COURT HAVE DONE DIFFERENTLY?

• The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted

ALLEGED MISTAKE

• The Lower Court Should Have Dismissed the Case for Failure to State a Claim on Which Relief Could Be Granted

• Allegation That Plaintiff Pursued the Fox Is Insufficient Because Pursuit Alone Does Not Create Property Rights in the Fox.

Now Let’s Put it All Together …

Now Let’s Put it All Together into a Very Long Sentence …

Now Let’s Put it All Together into a Very Long Sentence with Questionable Grammar

Full Formal Version of 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?

Simple Substantive Issue: Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox?

Simple Substantive Issue: Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox? Cf. p.2: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]”

Simple Substantive Issue: Is Pursuit of a Fox Sufficient to Create Property Rights in the Fox? Cf. p.2: “[W]hat acts amount to occupancy, applied to acquiring right to wild animals[?]” Note: Court doesn’t really answer this, so it can’t be the “issue” for our purposes