MUSIC: Beethoven (Last Day of Ludwig)
Symphonies #4 (1807) & #7 (1813)
Recordings: Chamber Orchestra of Europe
Nikolaus Harmoncourt, Conductor (1991)
Section B Lunch Today
Meet on Bricks @ 11:55
Bradley & Calarco
Liesner v. Wanie:
DQs to Help You Understand Case Featuring
From Section D:
Crosby
Furmanski
Kasdin
Miller-Taylor
From Section B:
Randolph
Vogel
Ciani
Forzisi
Liesner v. Wanie: DQ1.12
Liesner and another, by next friend,
Respondents, v. Wanie, Appellant
What does “next friend” mean?
Liesner v. Wanie: DQ1.12
Next Friend
Legal representative for party who cannot
adequately represent own interests.
Such as…?
Liesner v. Wanie: DQ1.12
Next Friend
Legal representative for party who cannot
adequately represent own interests.
• Minors
• Mentally Incompetent
• Married Women (at Common Law)
Liesner v. Wanie: DQ1.12
Next Friend
Legal representative for party who cannot
adequately represent own interests
To whom might ‘next friend’
refer in Liesner itself?
Liesner v. Wanie: DQ1.13
Second paragraph of opinion begins:
“It is conceded that …”
What was conceded here?
Liesner v. Wanie: DQ1.13
“It is conceded that if the plaintiffs had
substantially permanently deprived the
wolf of his liberty—had him so in their
power that escape was highly improbable,
if not impossible, before defendant
appeared on the scene and with his gun
pointed so as to reach within some three
feet of the animal delivered a finishing
shot, it had become the property of
plaintiffs….”
Liesner v. Wanie: DQ1.13
“It is conceded that if the plaintiffs had
substantially permanently deprived the wolf
of his liberty—had him so in their power
that escape was highly improbable, if not
impossible, before defendant appeared on
the scene and with his gun pointed so as to
reach within some three feet of the animal
delivered a finishing shot, [then] it had
become the property of plaintiffs….”
Common Form of Legal Rule
IF [particular facts occur],
THEN [legal outcome follows].
• NOTE: Use of wood grain in header = foundational
idea relevant in many legal contexts.
Liesner v. Wanie: DQ1.13
Second paragraph of opinion begins:
“It is conceded that …”
Who conceded it?
Liesner v. Wanie DQ1.14
DIRECTED VERDICT
Trial Court Rules That One Party Presented
Insufficient Evidence to the Jury to Meet
the Relevant Legal Standard.
Liesner v. Wanie DQ1.14:
Liesner is Unusual Case:
 Directed Verdict for Plaintiff (who has burden of
proof in civil case).
 Language of opinion suggests that Trial Record
contains factual disputes.
 Trial Court must have believed that undisputed
evidence proved P’s case (i.e., D presented
insufficient evidence to contradict undisputed
evidence supporting P)
Liesner v. Wanie: DQ1.14
DIRECTED VERDICT
• Trial Court Rules That Insufficient Evidence to Meet
Relevant Legal Standard Was Presented to the Jury
• Two Possible Grounds for Appeal
– Trial Court Applied Wrong Legal Standard
– Evidence Was Sufficient to Meet Legal Standard
Which was Wanie’s claim here?
Liesner v. Wanie: DQ1.14
Wanie conceded the relevant legal
rule, so must be challenging
assessment of evidence.
What exactly is still contested?
Liesner v. Wanie: DQ1.14
What exactly is still contested?
“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, thus permitting
appellant to substantially reach it with the muzzle of
his gun at the instant of delivery of the finishing
shot.”
Liesner v. Wanie: DQ1.14
What exactly is still contested?
“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, thus
permitting appellant to substantially reach it with
the muzzle of his gun at the instant of delivery of the
finishing shot.”
Liesner v. Wanie: DQ1.14
Questions re What Appellant
Disputed on Appeal?
Liesner v. Wanie DQ1.18(a)
Prevailing Rule: “The instant a wild animal
is brought under the control of a person so
that actual possession is practically
inevitable, a vested property interest in it
accrues which cannot be divested by
another’s intervening and killing it.”
Meaning of Vested?
Liesner v. Wanie DQ1.18(a)
Prevailing Rule: “The instant a wild animal is
brought under the control of a person so
that actual possession is practically
inevitable, a vested property interest in it
accrues which cannot be divested by
another’s intervening and killing it.”
Meaning of Vested?
Of Divested?
Liesner v. Wanie DQ1.18(a)
Example of Kind of Property Right
We’ve Discussed That is Contingent
(As Opposed to Vested)?
Liesner v. Wanie DQ1.18(a)
Example of Kind of Property Right
We’ve Discussed That is Contingent
(As Opposed to Vested)?
RATIONE SOLI
LOGISTICS: CLASS #6
Next Week: Monday & Tuesday
• Monday: No Sec. B Class (Labor Day)
• Tuesday: Both Sections Meet Together
– Finish Pierson & Continue Liesner
– I’ll call on Uraniums & Oxygens from both
sections for assigned material.
– Special Seating:
»
•
•
•
§B
§D
Students w Assigned Seats on Your Side: Stay Put
Students w Assigned Seats on Other Side, Move to
Back 4 Rows on Your Side
Try to Come a Little Early to Sort Out Properly
LOGISTICS: CLASS #6
Next Week: Wed/Thu/Fri
• Wed/Thurs: Start Liesner Trial Transcript
– I’ll post Self-Quiz this weekend
– Wait to read until after you brief appellate
opinion & do DQs assigned for Tuesday
• Radium: Written Shaw Brief Due Thu 9pm
– I’ll take Qs in class on Tuesday
• Friday: Start State v. Shaw
• I’ll post Self-Quiz this weekend
Pierson v. Post: DQ1.08 (Economic Benefits)
Helpful to argue to court that particular rule
would tangibly/materially improve society.
• E.g., Dissent says foxes harmful to society, so
good to kill them:
“[O]ur decision should have in view the greatest
possible encouragement to the destruction of an
animal, so cunning and ruthless in his career.” (p.5)
Pierson v. Post: DQ1.08 (Economic Benefits)
Helpful to argue to court that particular rule
would tangibly/materially improve society.
• E.g., Dissent says foxes harmful to society, so
good to kill them.
• NOTE: Can strengthen this type of argument with,
e.g., description or evidence re
– Importance of poultry farming
– Extent of harm caused by foxes
Pierson v. Post: DQ1.08 (Economic Benefits)
Helpful to argue to court that particular rule
would tangibly/materially improve society.
• E.g., Dissent…
– Says foxes harmful to society, so good to kill them.
– Assumes its hot pursuit rule would result in more
foxes being killed.
Elaborate why Judge Livingston might believe this
to be true.
Pierson v. Post: DQ1.08 (Economic Benefits)
Why does the dissent think its rule will result in more foxes
being killed? Unhappy Posts choose alternative activity.
Dissent: “[W]ho would keep a pack of hounds; or … would
mount his steed, and for hours together ... pursue the
windings of this wily quadruped, if just as night came on,
and his stratagems and strength were nearly exhausted,
a saucy intruder … were permitted to come in at the
death, and bear away in triumph the object of pursuit?”
Pierson v. Post: DQ1.08 (Economic Benefits)
Dissent: “[W]ho would keep a pack of hounds; or … would
mount his steed, and for hours together ... pursue the
windings of this wily quadruped, if just as night came on,
and his stratagems and strength were nearly exhausted, a
saucy intruder, … were permitted to come in at the
death, and bear away in triumph the object of pursuit?”
READING NOTE
• Self-Quiz asked, “Who is saucy intruder?”
• Answers said “Pierson,” BUT this passage is really
describing a hypothetical situation, so more
precise answer would be “A person like Pierson.”
(per Pinkert §D)
Pierson v. Post: DQ1.08 (Economic Benefits)
Why does the dissent think its rule will result
in more foxes being killed? Unhappy Posts
Choose Alternative Activity
Argument that Majority’s Rule will
result in more foxes being killed?
Pierson v. Post: DQ1.08 (Economic Benefits)
• Why does the dissent think its rule will
result in more foxes being killed? Unhappy
Posts Choose Alternative Activity
• Argument that Majority’s Rule will result in
more foxes being killed? Determined Posts
Work Harder at Killing (e.g., Whaling)
Pierson v. Post: DQ1.08 (Economic Benefits)
Common Problem:
If you are not going to get expected
reward for labor, how do you
respond?
Pierson v. Post: DQ1.08 (Economic Benefits)
Common Problem: If you are not going to get
expected reward for labor, how do you respond?
• Substitution Effect: Might choose different activity (in part or completely) that
pays more or costs less.
Pierson v. Post: DQ1.08 (Economic Benefits)
Common Problem: If you are not going to get
expected reward for labor, how do you respond?
• Substitution Effect: Might choose different
activity that pays more or costs less.
-OR-
• Income Effect: Could increase labor--do
more of activity; more effort; more
investment--until you earn desired reward.
Pierson v. Post: DQ1.08 (Economic Benefits)
Common Problem: If you are not going to get
expected reward for labor, how do you respond?
• Substitution Effect: Could choose different
activity -OR• Income Effect: Could increase labor
Often hard to predict which effect will
predominate in any particular situation.
(Empirical Q)
Pierson v. Post: DQ1.08 (Economic Benefits)
The dissent assumes that we want to kill foxes
as quickly as possible.
What Rule Would Be Appropriate if You Were
Trying to Preserve Foxes Because They Were
Commercially Valuable?
We’ll come back to in contexts of
DQ1.10 & then Demsetz article in
two weeks.
Pierson v. Post: (Intangible Interests)
Post unlikely to have cared much about
monetary value of fox pelt; more likely
angered by deliberate interference with
activity of hunting.
DQ1.09(a): Is the “right” to hunt without
interference a right society should protect
(where hunting is legal)?
Pierson v. Post: (Intangible Interests)
DQ1.09(b): Post might believe Pierson
killed fox spitefully for no reason except to
bother Post (ongoing family feud).
Majority says we shouldn’t care.
Pierson v. Post: (Intangible Interests)
Majority (last para.): “However
uncourteous or unkind the conduct of
Pierson towards Post … may have been,
yet his act was productive of no injury or
damage for which a legal remedy can be
applied.”
Nice Version of “So What?”
Pierson v. Post: (Intangible Interests)
Majority: “However uncourteous or unkind the
conduct of Pierson towards Post … may have been,
yet his act was productive of no injury or damage
for which a legal remedy can be applied.”
DQ109(b): Is majority correct? Should
a court take into account whether
Pierson had “bad intent” (as opposed
to genuine attempt to hunt fox for
sport or pelt)?
Pierson v. Post: (Intangible Interests)
If a court wants to take “bad intent”
into account, what evidence could you
use to prove Pierson’s intent here (not
having access to Vulcan Mind Meld)?
Pierson v. Post: (Intangible Interests)
PROOF OF INTENT
• Required in Intentional Tort & Criminal Cases
• Often Not Legally Relevant in Property
Ownership Cases
Pierson v. Post: DQ1.09 (Intangible Interests)
PROOF OF INTENT
• Required in Intentional Tort & Criminal Cases
• Often Not Relevant to Property Ownership
• Proof of Intent Often Expensive/Complex
– Ignoring Intent = Cheaper, More Certain Results
– Determining Intent = More Fact-Specific
“Justice”
Pierson v. Post: DQ1.09 (Intangible Interests)
Can Use Unmade/Rejected Policy Arguments :
• To support similar rejection in future cases:
“The Pierson Majority treated bad intent as
irrelevant, therefore….”
•
Pierson v. Post: DQ1.09 (Intangible Interests)
Can Use Unmade/Rejected Policy Arguments :
• To support similar rejection in future cases:
“The Pierson Majority treated bad intent as
irrelevant, therefore….”
• To distinguish future cases: “The Pierson
majority did not see bad intent as important
in those circumstances, but clearly it is more
important here because ….”
Pierson v. Post:
DQs1.10-1.11
First-in-Time
v.
Alternative Types of Rules
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
• DQ1.10-1.11: Opportunity to Compare Firstin-Time Rules to Alternative Types of Rules
in Two Contexts:
– Hunting Wild Animals (in Places You Are
Allowed to Hunt)
– Allocating Parking Spaces (in Places You Are
Allowed to Park)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
• DQ1.10-1.11: Opportunity to Compare First-inTime Rules to Alternative Types of Rules
• Allocating Parking Spaces (in Places You Are
Allowed to Park).
• Note that parking spaces usually allocated on
First-in-Time Basis, e.g.,
– among permit-holders in Pavia Garage
– among public in mall parking lots
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
• Pierson allocates property rights on a First-in-Time
Basis (first to occupy unowned animal gets
property rights)
• First-in-Time is a type of rule
• First-in-Time different from, e.g.,
– Most Deserving Gets
– Lottery (Winner Randomly Selected)
– Auction (Highest Bidder Gets)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
• Pierson allocates property rights on a First-in-Time
Basis (first to occupy unowned animal gets
property rights)
• First-in-Time is a type of rule
• Pierson opinions agree on First-in-Time, but not on
which version
– Dissent: First in Hot Pursuit
– Majority: First to [Something More]
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
• Pierson allocates property rights on a First-inTime Basis (first to occupy unowned animal
gets property rights)
• First-in-Time is a type of rule
• Multiple Examples Possible
– First to Actually Possess
– First to Wound or Capture (if no wound)
– First to See (cf. five-year-olds)
Pierson v. Post: DQs1.10-1.11 (Types of Rules)
• Pierson opinions agree on First-in-Time, but
not on which version
– Dissent: First in Hot Pursuit
– Majority: First to [Something More]
– Possible Options After Majority Opinion (if no
trap):
• First Physical Possession
• First Wound
• First Mortal Wound