MUSIC: Gustav Holst, The
Planets (1914-16)
London Philharmonia Orchestra (1996)
conductOR: Leonard Slatkin
Pierson v. Post: DQs10-11 (Types of Rules)
First-in-Time:
Likely Winners & Losers
CAPTURING ANIMALS?
Pierson v. Post: DQs10-11 (Types of Rules)
First-in-Time:
Likely Winners & Losers
PARKING FOR LAW SCHOOL
(among holders of same type of permit)
Pierson v. Post: DQs10-11 (Types of Rules)
Alternative Approaches to
First-in-Time:
CAPTURING ANIMALS?
Pierson v. Post: DQs10-11 (Types of Rules)
Alternative Approaches to
First-in-Time:
CAPTURING ANIMALS?
DQ8: What rule would you want if
you were trying to preserve the fox
population because foxes are
commercially valuable?
Pierson v. Post: DQs10-11 (Types of Rules)
Alternative Approaches to
First-in-Time:
CAPTURING ANIMALS?
DQ8: What rule would you want if you were trying to
preserve the fox population because foxes are
commercially valuable?
We’ll Return to This Q with
Demsetz Reading
Pierson v. Post: DQs10-11 (Types of Rules)
Alternative Approaches to
First-in-Time:
PARKING FOR LAW SCHOOL
(among holders of same type of permit)
Pierson v. Post: DQs10-11 (Types of Rules)
Choosing Among Property
Allocation Systems
• Relevant Considerations Include:
– Administrative Costs (Simowitz point)
– Likely Winners & Losers
– Effects on Participants’ Behavior
Pierson v. Post: DQs10-11 (Types of Rules)
Choosing Among Property Allocation Systems
Pros & Cons of First-in-Time Rules:
• Likely Benefits
– Often Reasonable Degree of Certainty
– Ease of Administration
• Possible Problems
– Can Seem Arbitrary
– May Reward Undesirable Attributes
Pierson v. Post: DQs10-11 (Types of Rules)
Choosing Among Property
Allocation Systems
We’ll Return to This Type of
Choice in Unit Two
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Some primarily to introduce you to system
• Some will be tools used regularly in course
• Anything you “need to know”, we’ll come
back to repeatedly
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
– History of Dispute & Court Proceedings
– Prior Legal Authority
– Customs & Other Social Institutions
– Historical Moment
• Language
• Social Policies
• Underlying Assumptions
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
• Language
– Difficulty Discerning Precise Holding
– Rationales
• Social Policies
• Underlying Assumptions
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
• Language
• Social Policies
– Reward Useful Labor
– Get Certainty (In Tension w Flexibility)
– Achieve Economic Benefits
• Underlying Assumptions
What to Take Away From
Pierson v. Post:
Intro to Info Found in/Relevant to Cases
• Context
• Language
• Social Policies
• Underlying Assumptions
– Irrelevance of Bad Intent
– Use of Some Form of First-in-Time
LOGISTICS: TUESDAY SEPTEMBER 4
• After class today, I’ll post Info Memo #2 & Update
Syllabus & Assignment Sheet to Reflect
• Radiums: Shaw Brief Due Thursday @9pm
– Look in IM#2 for:
• Formatting Instructions & Common Writing Problems
• Model for Liesner Brief
– I’ll take Qs tomorrow in class
• I’ll Post Instructions for Group Written Assignment
#1 Next Week & Take Qs in Class
Transition: Pierson  Liesner
• Trying to Identify “Magic Moment”
When Object (Wild Animal) Changes
from Unowned to Someone’s Property
Transition: Pierson  Liesner
• Trying to Identify “Magic Moment” When Object
(Wild Animal) Changes from Unowned to
Someone’s Property
• Fights Between 1st & 2d Hunter:
– If Animal Unowned, no Q that 2d Hunter Wins
– Issue: Had 1st Hunter Done Enough to Get Property
Rights Before 2d Hunter Intervened
Transition: Pierson  Liesner
• Trying to Identify “Magic Moment” When Animal
Changes from Unowned to Someone’s Property
• Fights Between 1st & 2d Hunter:
• Legal Rules Here Temporal Not Comparative
– Issue: Had 1st Hunter Done Enough to Get Property
Rights Before 2d Hunter Intervened
– Not asking if 2d hunter did more or better labor than
1st
Transition: Pierson  Liesner
• Trying to Identify “Magic Moment” When Animal
Changes from Unowned to Someone’s Property
• Pierson Suggests Two Ways Besides Actual
Physical Possession to get Property rights in
Wild Animals:
1. MORTAL WOUNDING (Liesner)
2. NETS & TRAPS (Shaw)
Liesner v. Wanie: Context
1914
Liesner v. Wanie: Context
1914: Deaths
•
•
•
•
Joshua Lawrence Chamberlain (Civil War Hero)
John Muir (Naturalist)
Jacob Riis (Journalist/Author)
19th Century Industrialists
– CW Post (Grape Nuts & Other Cereals)
– George Westinghouse (Railroad Brake and Electronics)
– Frederik Weyerhauser (Timber & Paper)
Liesner v. Wanie: Context
1914: Births
•
•
•
•
•
•
Alec Guiness
Bert Parks
Joe Louis
Joe DiMaggio
Ralph Ellison
Howard K. Smith
Liesner v. Wanie: Context
1914: Introduced in U.S.
• term “Birth Control” (coined by Margaret Sanger)
• First Blood Transfusion
• Doublemint chewing gum
•
•
•
•
Elastic Brassiere
Federal Trade Commission
Co. that will become Greyhound Bus
Mother’s Day (by Congr. Resolution)
Liesner v. Wanie: Context
1914: Introduced in U.S.
•
•
•
•
•
•
New Republic Magazine
Panama Canal
Pygmalion by GB Shaw
Rookie Pitcher: Babe Ruth
Tarzan of the Apes
Teletype Machine
• Traffic Lights using red-green signals
Liesner v. Wanie: Context
1914: World War I
June 28: Archduke Francis-Ferdinand
Assassinated in Sarajevo:
“The Shot Heard Round the
World”
Liesner v. Wanie: Context
1914: World War I
Sept. 5: 1st Battle of the Marne Begins
• NE of Paris, French 6th Army Attacks Germans
 Allied Victory
Liesner v. Wanie: Context
1914: World War I
Sept. 5: 1st Battle of the Marne Begins
• NE of Paris, French 6th Army Attacks Germans
 Allied Victory
• Two Million Soldiers Participate
Liesner v. Wanie: Context
1914: World War I
Sept. 5: 1st Battle of the Marne Begins
• NE of Paris, French 6th Army Attacks Germans
 Allied Victory
• Two Million Soldiers Participate
• 500,000 Killed or Wounded
Liesner v. Wanie: Context
1914: World War I
Sept. 5: 1st Battle of the Marne Begins
• NE of Paris, French 6th Army Attacks Germans  Allied
Victory
• Two Million Soldiers Participate
• 500,000 Killed or Wounded
Dec. 24-25: Christmas Truce
Liesner DQ17-18: Radium
PLAYING WITH RULES
Setting up DQ17-18 for Next Class
Too Many Cooks Spoil the Soup
Liesner DQ17-18: Radium
PLAYING WITH RULES
Too Many Cooks Spoil the Soup
• Line-Drawing: How many is “too many”?
– Vary with size of kitchen?
– Vary with amount of soup you’re preparing?
Liesner DQ17-18: Radium
PLAYING WITH RULES
Too Many Cooks Spoil the Soup
• Definitions: Who counts as a “Cook”?
– Anyone helping with preparation?
– Anyone with significant training/experience?
– Anyone making decisions about
ingredients or technique?
Liesner DQ17-18: Radium
PLAYING WITH RULES
Too Many Cooks Spoil the Soup
• Scope of Rule: “Soup” and What Else?
– Any dish?
– Any dish requiring careful balancing of flavors?
– Any dish requiring particular skill?
Liesner DQ17-18: Radium
PLAYING WITH RULES: WHICH RULE TO USE?
Too Many Cooks Spoil the Soup
v. Many Hands Make Light Work
Liesner Brief: Uranium
STATEMENT OF THE CASE:
• Who is Suing Whom?
Liesner Brief: Uranium
STATEMENT OF THE CASE:
• Liesner and another, who claim to have shot and
mortally wounded a wolf sued Wanie, who
subsequently shot and took the wolf …
– Wanie disputes on appeal whether the plaintiffs
mortally wounded the wolf, so can’t treat it as given.
– SEEKING WHAT RELIEF?
Liesner Brief: Uranium
STATEMENT OF THE CASE:
• Liesner and another, who claim to have shot and
mortally wounded a wolf sued Wanie, who
subsequently shot and took the wolf, to recover
the body of the wolf …
– This is what plaintiffs initially requested; issue of
damages raised later
– ON WHAT LEGAL THEORY?
Liesner Brief: Uranium
STATEMENT OF THE CASE:
ON WHAT LEGAL THEORY? (UNSTATED)
• Might be “Trespass on the Case” (following
Pierson) or “Trespass” (if Wisconsin views shot as
direct)
• Might be “Replevin” = Common law action for
return of goods improperly taken
Liesner Brief: Uranium
PROCEDURAL POSTURE:
• Trial court directed verdict for plaintiff and
awarded damages. Defendant appealed.
– Don’t need to mention plaintiffs’ motion for directed
verdict; that step is implicit in court’s action
– Don’t need to mention defendant’s motion for directed
verdict; doesn’t affect reasoning or outcome
Liesner DQ14: Radium
Application of Pierson to Facts of Liesner
• Cases are complex tools for lawyers.
• Applying the language and reasoning of case to a
new situation is a way to learn some of the things
you can do with the tool.
Liesner DQ14: Radium
Application of Pierson to Facts of Liesner
• Standard Law School practice to apply cases to
hypothetical situations
• Applying one case to the facts of another is like
using a hypothetical where the class already is
familiar with the relevant facts
• Useful to remember that this exercise primarily is
designed to help you understand Pierson (rather
than Liesner)
Liesner DQ14: Radium
Application of Pierson to Facts of Liesner
For purposes of this exercise, let’s use FACTS as
found by TRIAL COURT:
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
Liesner DQ14: Radium
Application of Pierson to Facts of Liesner
FACTS (as found by TRIAL COURT)
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
APPLY LANGUAGE FROM PIERSON
Liesner DQ14: Radium
Application of Pierson to Facts of Liesner
FACTS (as found by TRIAL COURT)
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
APPLY POLICIES FROM PIERSON
Reward Effective Labor?
Liesner DQ14: Radium
Application of Pierson to Facts of Liesner
FACTS (as found by TRIAL COURT)
1. Ps mortally wounded animal, pursued
2. Escape Improbable, if not impossible
3. D then shot, killed & took animal
APPLY POLICIES FROM PIERSON
Achieve Certainty?
Liesner DQ15: Uranium
DIRECTED VERDICT
• Trial Court Rules That Insufficient Evidence to Meet
Relevant Legal Standard Was Presented to the Jury
Liesner DQ15: Uranium
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
Liesner DQ15: Uranium
DIRECTED VERDICT
• Trial Court Rules That Insufficient Evidence to Meet
Relevant Legal Standard Was Presented to the Jury
• Last Time: D Conceded Relevant Legal Standards,
So Must Be Claiming That He Presented Evidence
Sufficient to Raise Jury Q
Liesner DQ15: Uranium
DIRECTED VERDICT
• Liesner is Unusual Case:
– Directed Verdict for Plaintiff
– Trial Record appears to contain 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
plaintiff)
Liesner DQ15: Uranium
DIRECTED VERDICT
What test does the Wisconsin Supreme Court appear
to apply as to when a trial court should grant a
motion for directed verdict?
“The evidence in this case very strongly tends to
establish all the facts requisite to ownership of the
wolf by plaintiffs,—so strongly that all reasonable
doubts in respect to the matter, if any would
otherwise have remained, might well have been
removed by the superior advantages which the trial
court had. 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 ….”
“The evidence in this case very strongly tends to
establish all the facts requisite to ownership of the
wolf by plaintiffs,—so strongly that all reasonable
doubts in respect to the matter, if any would
otherwise have remained, might well have been
removed by the superior advantages which the trial
court had. 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 ….”
Liesner DQ15: Uranium
DIRECTED VERDICT: IMPLICIT LEGAL TEST IN
WISCONSIN (1914)
The trial court can direct a verdict for a party if
uncontested evidence removes all reasonable
doubts that the party’s claim has been proven.
Liesner DQ15: Uranium
DIRECTED VERDICT: IMPLICIT LEGAL TEST IN
WISCONSIN (1914)
The trial court can direct a verdict for a party if uncontested
evidence removes all reasonable doubts that the party’s
claim has been proven.
What facts does Wanie claim were not proved
beyond a reasonable doubt? (from last class)
“That … the plaintiffs were in vigorous
pursuit of the game, the evidence is clear,
and that in a few moments, at most, they
would have had actual possession, is
quite as clear. 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 ….”
Liesner DQ15: Uranium
What facts does Wanie claim were not proved
beyond a reasonable doubt? Claim must be:
• Wanie presented sufficient evidence that
– either other people’s shots might have hit the wolf
– or that the Liesners’ shots didn’t hit it
to create reasonable doubts that the shot that
mortally wounded the wolf was fired by one of the
Liesners.
Liesner Brief: Uranium
ISSUE
Did the Trial Court err
• (Procedural) by directing a verdict for the plaintiffs
• (Substantive) because the defendant offered
sufficient evidence to create a reasonable doubt
about who fired the shot that mortally wounded
the wolf, thus gaining ownership of it?
Liesner Brief: Uranium
FACTS
•
•
Plaintiffs mortally wounded a wolf and pursued it
to the point that escape was improbable, if not
impossible. D then shot & killed the wolf and
took the carcass.
The Trial Court found that Plaintiffs mortally
wounded a wolf and pursued it to the point that
escape was improbable, if not impossible. D then
shot & killed the wolf and took the carcass.
Liesner DQ15: Uranium
Is the Wisconsin Supreme Court
certain that the test for directed
verdict was met in this case?
The evidence in this case very strongly tends to establish
all the facts requisite to ownership of the wolf by
plaintiffs,—so strongly that all reasonable doubts in
respect to the matter, if any would otherwise have
remained, might well have been removed by the
superior advantages which the trial court had. 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 ….
Liesner Brief: Uranium
HOLDING
No, the Trial Court did not err
• (Procedural) by directing a verdict for the plaintiff
• (Substantive) because all reasonable doubts may
well have been removed as to who fired the shot
that mortally wounded the wolf, thus gaining
ownership of it.
“The evidence in this case very strongly tends to
establish all the facts requisite to ownership of
the wolf by plaintiffs,—so strongly that all
reasonable doubts in respect to the matter, if any
would otherwise have remained, might well have
been removed by the superior advantages which
the trial court had.”
Liesner DQ16: Uranium
What are “the superior advantages
which the trial court had”?
Liesner DQ16: Uranium
What are “the superior advantages
which the trial court had”?
• Visual Observation of Witnesses
• Hearing Testimony
She asked me
to take her
to the dance.