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 onStatement 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