MUSIC: Beethoven
Violin Sonatas #5 (1801) & #9 (1803)
Recordings: Itzhak Perlman, Violin &
Vladimir Ashkenazy, Piano (1973-74)
Note for Friday:
DQ1.04(c) was revised on 8/15
Check in with me before class:
§B: Fernandez, Forzisi, Perez, Sanseverino
§D: Centofanti, Layug, Spain
ELEMENTS B/D
Three Common 1L Issues
Class #1: Confusion
Class #2: Control
Class #3: Competition v. Cooperation
ELEMENTS B/D: Control
Sense of Control Important
for Peace of Mind
• Can’t Control Everything!!
• Can Take Steps to Feel More in Control.
ELEMENTS B/D: Control
(1) Control Over Time (v. Distractions)
Fall 1982
ELEMENTS B/D: Control
(1) Control Over Time (v. Distractions)
NOW!!!
ELEMENTS B/D: Control
(1) Control Over Time (v. Distractions)
Suggestions to Feel More in Control
A.
B.
C.
D.
Clearly Distinguish Work & Break Time
Use Timers for Both Work & Breaks
Log Your Use Of Devices Over Several Days
Just a Little Less
ELEMENTS B/D: Control
(2) Control Over the Material
& Your Performance
(Limiting Confusion)
ELEMENTS B/D: Control
(2) Control Over Material/Performance
Suggestions to Feel More in Control
–Before Class:
–Do DQs Carefully (Just a Little More)
–Do Self-Quizzes & Check Work
–Write Out Briefs
ELEMENTS B/D: Control
(2) Control Over Material/Performance
Suggestions to Feel More in Control
–After Class:
–Review & Repair
–Check Briefs Against Posted Samples
ELEMENTS B/D: Control
(2) Control Over Material/Performance
Suggestions to Feel More in Control
–Written Assignments
• Do all parts of (not just what you turn in)
• Compare to posted comments & models
ELEMENTS B/D: Control
(2) Control Over Material/Performance
Suggestions to Feel More in Control
• Throughout the Course
• Discuss Material Among Yourselves
• ASK QUESTIONS!!!
ELEMENTS B/D: Control
(3) Control & Hurricane Season
For those of you new to South Florida,
sometimes our weather has names.
ELEMENTS B/D: Control
(3) Control & Hurricane Season
Getting Good Information
• National Hurricane Center Website (check every few
days during Fall Semester): www.nhc.noaa.gov
• UM Hurricane Preparedness Site (look over):
www.miami.edu/ref/index.php/ep/emergency_prepare
dness-_before/getting_ready/hurricane_preparedness/
ELEMENTS B/D: Control
(3) Control & Hurricane Season
Preparation: You Might Not Have Power for
Several Days (1992 & 2005)
Long Term Prep
• Water; Canned Goods; Non-Electric Can Opener
• Flashlight; Battery-Op Radio; Batteries; Candles
• Non-Electric Landline Phone ($5 at Walgreens)
ELEMENTS B/D: Control
(3) Control & Hurricane Season
Preparation: You Might Not Have Power for
Several Days (1992 & 2005)
If Storm Might Be Coming
• Get Cash & Put Gas in Car
• Print Out Schoolwork You Might Need
• Check UM Websites/Emergency Phone #s for Closure &
Reopening Info
ELEMENTS B/D: Control
(3) Control & Hurricane Season
After a Storm
• UM as Refuge/Safe Space (Power & Shower)
• Missed Elements Classes Shift Forward Until You
Get New Schedule
I’ll take Qs on this after class & by e-mail
OR
Talk to folks who’ve been through storms
Pierson v. Post
CASES IN CONTEXT
• History of the Underlying Dispute (DQ1.01) (last
time; posted slides include list from whiteboard)
• How Legal System Has Handled Similar Disputes
(DQ1.02) (Precedent, cont’d)
• Overall Social/Historical Context (1805)
• How Society Has Handled Similar Disputes Outside the
Legal System (DQ1.03)
Pierson v. Post: DQ1.02
TYPES OF PRECEDENT
• Cases
• Statutes (passed by legislatures)
• Regulations (issued by executive
branch/agencies)
• Constitution
• Treatises, Law Review Articles, etc.
Pierson v. Post: DQ1.02
Precedence of Precedents: Within a
State
• Binding Authority
– Constitution
– Statutes
– Regulations
– Cases (common law)
• Persuasive Authority (Non-Binding)
Pierson v. Post: DQ1.02
Precedence of Precedents: Within a
State
• Binding Authority
– Constitution (& Cases Interpreting)
– Statutes (& Cases Interpreting)
– Regulations (& Cases Interpreting)
– Cases (common law)
• Persuasive Authority (Non-Binding)
Pierson v. Post: DQ1.02
Precedence of Precedents: Within a
State
• Binding Authority
• Persuasive Authority (Non-Binding)
– Cases (etc.) from Other Jurisdictions
– Treatises, Law Review Articles, etc.
Pierson v. Post: DQ1.02
Precedence of Precedents: Within a State
• Binding Authority
• Persuasive Authority (Non-Binding)
– Cases (etc.) from Other Jurisdictions
– Treatises, Law Review Articles, etc.
PERSUASIVENESS VARIES w SOURCE: Cases
• Prestige
– Through WW2: Often NY & Mass
– Later 20th Century: Often Calif. & NJ (& then Alaska!!)
• Similar Circumstances
– Alabama v. California
– Ontario
Pierson v. Post: DQ1.02
Precedence of Precedents: Within a State
• Binding Authority
• Persuasive Authority (Non-Binding)
– Cases (etc.) from Other Jurisdictions
– Treatises, Law Review Articles, etc.
PERSUASIVENESS VARIES w SOURCE: Scholarly Work
• Prosser on Torts v. Brittany Spears on Torts
• 1954 scholarship v. 2009 scholarship
Pierson v. Post: DQ1.02
Precedence of Precedents: Among
Levels of Government
• Federal Law
– Only if applicable: (where Federal Govt has power to
regulate and has chosen to do so)
– See Supremacy Clause of US Constitution
• State Law
• Local Ordinances and Regulations
Pierson v. Post: DQ1.02
Precedence of Precedents
QUESTIONS?
Pierson v. Post: DQ1.02
PRECEDENT (from last time)
• Pierson Majority Opinion relies on Treatises
– Books Written by Experts in Law
– Useful Because Smart People Looking at Same Problem
Pierson v. Post: DQ1.02
PRECEDENT (from last time)
• Pierson Majority Opinion relies on Treatises
– Books Written by Experts in Law
– Useful Because Smart People Looking at Same Problem
– BUT Usually Least Important Type of Precedent
• No NY or Other U.S. Cases Cited: Why?
Pierson v. Post: DQ1.02
PRECEDENT
• Majority Opinion relies on Treatises
• No New York or Other U.S. Cases Cited: Why?
– Problem Likely Not Litigated Much
• Relatively Uncommon
• Not Much at Stake (neither $$$ nor significant social issue)
– U.S. Not Very Old
Pierson v. Post: DQ1.02
PRECEDENT
• NY (and other states) adopted pre-1776
English Common Law. See Albers (late Sept.)
• Majority says English cases not relevant here
because they fall into one of two categories:
1.
2.
Cases arising under “positive statute regulations”
Cases involving doctrine of “ratione soli”
Pierson v. Post: DQ1.02
PRECEDENT
Some English cases not relevant b/c they were
“discussed and decided upon the principles of
their positive statute regulations….”
MEANS?
Why does that make them irrelevant?
Ratione Soli:
By Reason of the Soil
• An unowned wild animal
that enters privately
owned land is considered
the property of the
landowner while it
remains on the parcel.
Ratione Soli:
By Reason of the Soil
• An unowned wild animal that enters privately
owned land is considered the property of the
landowner while it remains on the parcel.
• Why might such a rule have
developed?
Pierson v. Post: DQ1.02 & 1.04(a)
PRECEDENT
Some English cases not relevant b/c decided
under “ratione soli”
• These cases would be disputes between
landowner and hunter, rather than between two
hunters.
• DQ1.04(a): Why might it matter that the fox is
caught on a deserted beach? Because there is no
landowner making a ratione soli claim.
Pierson v. Post: DQ1.02
PRECEDENT
Why use precedents at all?
Why shouldn’t the court simply
announce who wins?
Pierson v. Post: DQ1.02
PRECEDENT
Why use precedents at all? Why shouldn’t the court
simply announce who wins?
(at least)
Predictability
Consistency
Legitimacy
Pierson v. Post
CASES IN CONTEXT
• History of the Underlying Dispute (DQ1.01) (last time;
posted slides include list from whiteboard)
• How Legal System Has Handled Similar Disputes (DQ1.02)
(Precedent, cont’d)
• Overall Social/Historical Context (1805)
• How Society Has Handled Similar Disputes Outside the
Legal System (DQ1.03)
Significance of History for Us
• Background; Not Leading to Multiple Choice Test
• Info I’ll give you often about beginnings and endings:
often useful to be think about changes in society that
occur around particular dates. E.g., 1492
EUROPE BEFORE 1492
Ireland without potatoes
Italy without tomatoes
France without chocolate or tobacco
AFTER 1492
New World  Europe
SILVER
Europe  New World
Sugar Cane
Cultivation
Significance of History in Law
• Judges & Lawyers (& Some Law Profs) = Human
– Necessarily influenced by ideas & events of own time
• Can make arguments about meaning of case or other
authority from historical context
– E.g., Dissent’s suggestion that rules suggested in treatises
should not be followed because times have changed
– E.g., nobody in 1805 is going to worry about effect of case
on ecology; might act differently today
Pierson v. Post
1805
Qing Dynasty in China
Tokugawa Shogunate in Japan
George III still British Monarch
Napoleon in France
War in Europe
Pierson v. Post: 1805
War in Europe:
• Napoleon crowned Emperor in France & King of
Italy
• Destroys Russian & Austrian armies at Austerlitz,
gaining effective control of most of Central Europe
• BUT French Navy beaten badly at Battle of
Trafalgar in October leaving Great Britain in control
of seas
Pierson v. Post: 1805
Milestones:
• Births: Hans Christian Andersen, Alexis de
Tocqueville, Joseph Smith Jr (founds Church of
Latter Day Saints)
• Deaths: Lord Cornwallis; Adm. Horatio Nelson
• Beethoven’s Symphony #3 (Eroica) & Opera
Leonore premiere in Vienna (Music Note)
An Ancient Species of Mandarin Orange
Reaches Europe for 1st Time; Imported
into France from Tangier (Morocco)
Ancient Breed of Mandarin Oranges
Reaches Europe from Tangier
TANGERINES
Pierson v. Post: 1805
2d Term of Jefferson Presidency:
• 17 States: Original 13 plus VT KY TN OH
• Michigan & Lousiana Territories Created
• Huntsville, AL + Fairfax, VA + Canton OH Founded
• Treaties of Mt. Dexter & Ft. Industry & Grouseland
Acquire Parts of Mississippi & Ohio & Indiana from
Native Tribes
• Lewis & Clark Expedition Reaches Pacific in Nov
Population of Suffolk County NY
1805 = about 20,000
2012 = about 1,500,000
Pierson v. Post
CASES IN CONTEXT
• History of the Underlying Dispute (DQ1.01) (last time;
posted slides include list from whiteboard)
• How Legal System Has Handled Similar Disputes (DQ1.02)
(Precedent, cont’d)
• Overall Social/Historical Context (1805)
• How Society Has Handled Similar Disputes Outside
the Legal System (DQ1.03) (Custom)
Pierson v. Post: DQ1.03
CUSTOM & LAW
• The dissent suggests that the court should
defer to hunters’ customs.
• Can view custom as kind of precedent: what
people generally do in situation.
• Certainly useful info for court: what would
likely happen if no legal intervention
Pierson v. Post: DQ1.03
CUSTOM & LAW
• The dissent suggests that the court should defer to
hunters’ customs. Would that be a good thing?
• Subquestions in DQ1.03 designed to help you think
about this.
Pierson v. Post: DQ1.03
CUSTOM & LAW
• Do you know what relevant customs are
among hunters today?
• If not, how would you find out?
– Find Experts
– Online