Music: Beethoven, Piano Sonata #23(Appassionata) (1805)

Performer: Emil Giles, Piano (1972)LUNCH TUESDAY

1. FOXHOVEN

2. GALLO

3. KINZER

4. MELIA

5. RAINES

6. RUBIN

7. WARRICK

LUNCH THURSDAY

1. BANE

2. CORTLAND

3. GAZZE

4. NEUGROSCHEL

5. TANNENBAUM

6. TANOOS

7. TASBY

DQ5. Should Courts Discuss Facts Not Before Them?

PROS• Helps Clarify

Reasoning• Instructions to

Lawyers for Future

DQ5. Should Courts Discuss Facts Not Before Them?

PROS• Helps Clarify

Reasoning• Instructions to

Lawyers for Future

CONS• No Experience With• No Atty Arguments• Not Judicial Role

DQ5. Should Courts Discuss Facts Not Before Them?

PROS• Helps Clarify

Reasoning• Instructions to

Lawyers for Future• E.g., Pierson: “Not

enough” v. “Here’s the Line”

CONS• No Experience With• No Atty Arguments• Not Judicial Role • E.g., adding death

penalty discussion to Pierson

RATIONALES

• Doctrinal Rationales: Result required or strongly suggested by prior authorities

• Policy Rationales: Result is good for society

TWO COMPETING RULES

• Majority: more than “mere pursuit” needed [More than Pursuit]

• Dissent: sufficient if pursuit “inevitably and speedily [would] have terminated in corporal possession” [Hot Pursuit]

DQ6. Certainty in Pierson

• Majority: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All.

DQ6. Certainty in Pierson

• Majority: Too Difficult to Determine How Much Pursuit is “Hot” Enough or Even if There’s Pursuit at All.

• BUT: How do you tell if a wound is “mortal”?

DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty

• Allows Planning

• Creates Stability

• Majority “Peace & Order”: May Reduce Quarrels

Sample Policy Rationale

• The majority stated that its decision would provide “certainty” and “preserv[e] peace and order,” presumably because it would be difficult for a hunter that sees an animal to tell if another hunter had been pursuing it, and the resulting confusion would create “quarrels and litigation” if pursuit was enough to create ownership.

THREE KINDS OF CERTAINTY

• Easy to apply at the time

• Easy to apply in court

• Everyone aware of rule

DQ6. Certainty Generally

• Reduces Anxiety Related to Uncertainty

• Allows Planning

• Creates Stability

• Majority “Peace & Order”: May Reduce Quarrels

• BUT: At cost of flexibility & sensitivity to particular circumstances

BRIGHT-LINE RULES

v.

FLEXIBLE STANDARDS

ANNOUNCEMENTS

• URANIUM: Liesner Brief Due Wednesday– Just Brief Appellate Opinion– Read Directions Carefully

• If we lose one or more days to storm:– Assignments slide to next actual class meeting– Lunches cancelled; Students sign up for new time

• Lunch Procedures & Etiquette

DQ7. LABOR

The majority suggests that it will confer property rights on those who, using their

“industry and labor,” have captured animals.

DQ7. LABOR

[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.

DQ7. LABOR

Generally Understood: Good idea to provide rewards for industry & labor as an

incentive to encourage working hard.

DQ7. LABOR: Are there some categories of labor you would

not want to reward?

DQ7. LABOR: Are there some categories of labor you would

not want to reward?

• Ineffective Labor

• Harmful/Dangerous Labor

• Related Problem of Setting Optimal Reward

DQ7. LABOR

Suppose Post pays somebody to kill foxes for him? Who should get property in the foxes? Why?

DQ8. ECONOMIC BENEFITS

• Why does the dissent think its rule will result in more foxes being killed?

DQ8. 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?

DQ8. 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?

Posts Work Harder at Killing

If you don’t get expected reward for labor, what happens?

• Substitution Effect: Choose different activity that pays more or costs less

OR• Income Effect: Increase labor until

you achieve desired reward

DQ8. ECONOMIC BENEFITS

• What Rule Would Be Appropriate if You Were Trying to Preserve Foxes Because They Were Commercially Valuable?

DQ8. ECONOMIC BENEFITS

• What Rule Would Be Appropriate if You Were Trying to Preserve Foxes Because They Were Commercially Valuable?

• Come Back to with Demsetz Excerpt in Two Weeks

DQ9. INTANGIBLE INTERESTS

• Is the right to hunt without interference a right society should protect?

DQ9. INTANGIBLE INTERESTS

“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.”

Should a court take into account whether Pierson had “bad intent”?

DQ9. INTANGIBLE INTERESTS

“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.”

Should a court take into account whether Pierson had “bad intent”? How would you prove Pierson’s intent?

PROOF OF INTENT

• Required in Intentional Tort & Criminal Cases

• Often Not Legally Relevant in Property Ownership Cases

• Proof of Intent Often Expensive/Complex

• Cheaper More Certain Results v. Fact-Specific “Justice”