ELEMENTS B POWER POINT SLIDES

Class #1Wednesday, August 19, 2015

(Constructive Monday)

ELEMENTS B: Prof. Fajer

Please Select Seats Please Select Seats Only in the First Five Rows Only in the First Five Rows

MUSIC: Emile Giles, PianoBeethoven, Piano Sonatas 21, 23, 26

Composed: 1803, 1805, 1810Recorded: 1986

ELEMENTS B CLASS #1

1.Why Elements?2. Why Animals/Pierson?3. Logistics4. Begin Pierson & DQs 1.01 & 1.02

ELEMENTS B CLASS #1

1. Why Elements?

2.Why Animals/Pierson?3. Logistics4. Begin Pierson & DQs 1.01 & 1.02

William ShakespeareThe Merchant of Venice

Act V Scene 1

Launcelot Gobbo (enters):

Sola, sola.

William ShakespeareThe Merchant of Venice

Act V Scene 1

Launcelot Gobbo (enters):

Sola, sola!

From Assignment Sheet:

CLASS #1: Introduction; Pierson v. Post Wed Aug 19: 8:00-9:20 am (ConstructiveConstructive Monday)

MEANS?

From Assignment Sheet:

CLASS #1: Introduction; Pierson v. Post Wed Aug 19: 8:00-9:20 am (ConstructiveConstructive Monday)

MEANS?•Can mean “useful” or “helping to build up” as in constructive criticism.•Here?

From Assignment Sheet:

CLASS #1: Introduction; Pierson v. Post Wed Aug 19: 8:00-9:20 am (ConstructiveConstructive Monday)

•Can mean “useful” or “helping to build up” as in constructive criticism.

•Black’s Law Dictionary: Black’s Law Dictionary: “That which has not the “That which has not the character assigned to it in its own essential nature, but character assigned to it in its own essential nature, but acquires such character in consequence of the way in acquires such character in consequence of the way in which it is regarded by a rule or policy of law.”which it is regarded by a rule or policy of law.”

From Assignment Sheet:

ConstructiveConstructive Monday

•Black’s Law Dictionary: Black’s Law Dictionary: “That which has not the “That which has not the character assigned to it in its own essential nature, but character assigned to it in its own essential nature, but acquires such character in consequence of the way in acquires such character in consequence of the way in which it is regarded by a rule or policy of law.”which it is regarded by a rule or policy of law.”

– A Wednesday is not a Monday (in its own essential nature).A Wednesday is not a Monday (in its own essential nature).

– By rule, we are treating this Wednesday as a Monday.By rule, we are treating this Wednesday as a Monday.

– In other words, we are “constructing it” as a Monday. In other words, we are “constructing it” as a Monday.

ELEMENTS B CLASS #11. Why Elements?2. Why Animals/Pierson?

3.Logistics4. Begin Pierson & DQs 1.01 & 1.02

ELEMENTS B CLASS #1Logistics

Forms to Circulate•Seating Charts

• Acting as Attendance Sheets Today• Preferred First Names

•Lunches•Contact Info •Pseudonyms

ELEMENTS B CLASS #1Logistics

Dean’s Fellow:

Bryston “B.A.”

Stafford

ELEMENTS B CLASS #1Logistics

Operation of the Class•Class time as rehearsal/workshop

ELEMENTS B CLASS #1Logistics

Operation of the Class•Class time as rehearsal/workshop

•Mechanics in Info Memo #1; Note Especially:– Courtesy

– Discussion Questions (DQs)

– Panel System

ELEMENTS B Next 3 Classes

Three Common 1L Issues

Class #2: Confusion

Class #3: Control

Class #4: Competition v. Cooperation

ELEMENTS B CLASS #11. Why Elements?2. Why Animals/Pierson?3. Logistics4. Begin Pierson & DQs 1.01 & 1.02

– Start Movie

Pierson v. PostCASES IN CONTEXT

•History of the Underlying Dispute (DQ1.01)•How Legal System Has Handled Similar Disputes (DQ1.02)•Overall Social/Historical Context (1805) (Class #2)•How Society Has Handled Similar Disputes Outside the Legal System (DQ1.03) (Class #2)

Pierson v. Post: Who is Who?

Pierson v. Post: Who is Who?

2d sentence of case (p.3): “The declaration stated that Post … did ‘find and start … a fox,’ and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, … kill and carry it off.’

Pierson v. Post: Who is Who?

• Post did find and start the fox, hunted and pursued it.

• Pierson, knowing the fox was hunted and pursued, did kill and carry it off.

So Why Is Case Called

Pierson v. Post?

Pierson v. Post: Who is Who?

Why Is Case Called Pierson v. Post?

First Sentence (p.3): “This was an action of trespass on the case commenced in a

justice’s court by the present defendant against the now plaintiff.”

Some appellate courts put the name of the party appealing first.

(e.g., here; US Supreme Ct.)

Pierson v. Post: Who is Who?

Why Is Case Called Pierson v. Post?

Some appellate courts put the name of the party appealing first.

Some appellate courts leave the name of the case as originally

filed (e.g., U.S. Courts of Appeal)

Pierson v. Post: Who is Who?

Why Is Case Called Pierson v. Post?

Some appellate courts put the name of the party appealing first; some

appellate courts leave the name of the case as originally filed .

SO HAVE TO READ CAREFULLY!!

Pierson v. Post: DQ1.01

Fill in Sequence of Events

•Post (п) has breakfast; begins hunt; starts fox.

•П’s Lawyer files lawsuit.

•N.Y. Supreme Court issues judgment for Pierson (∆).

Pierson v. Post: DQ1.01

SEQUENCE OF EVENTS (1) •Post (п) begins hunt; starts & chases fox on deserted beach•Pierson(∆), aware of hunt, shoots & kills fox•Probably confrontation where п claims fox but ∆ takes it.•Maybe negotiation•Maybe discussions/social consequences that push п to act•П goes to lawyer

– Fact investigation– Legal research– Possibly negotiation

•П’s Lawyer files “Declaration” starting lawsuit

Pierson v. Post: DQ1.01

SEQUENCE OF EVENTS (2) •∆ gets lawyer (if not done before lawsuit filed)

– Fact investigation, legal research, possibly negotiation•∆’s lawyer files response [“Answer”] or motion to dismiss

– If motion filed, it was denied; answer then filed•Further investigation/negotiation [Today: “Discovery”]•[Maybe: Pre-Trial Motions]•Jury trial won by П•NY Supreme Court grants ∆’s motion for writ of certiorari•Briefs filed by parties & probably oral arguments•[Maybe additional negotiation]•Court deliberates, then issues opinion and Judgment for ∆

Pierson v. Post: DQ1.01

Verdicts & Judgments•Decision of a jury is called a “verdict”; ultimate decision by a judge is called a “judgment” •Judgment must be entered even after a verdict:

– Normally judge enters j-ment pursuant to verdict– Occasionally, if judge has strong reason to disagree,

enters judgment essentially overturning verdict (“Judgment notwithstanding the verdict.”)

Pierson v. Post: DQ1.011805 v. Today

•Today start civil lawsuit with “complaint” (not “declaration”)•Today can do court-supervised fact investigation process after complaint filed (“Discovery”)•In most jurisdictions, a losing ∆ would use “appeal” to take case to next level, though in some situations, writ of certiorari used.

Pierson v. Post: DQ1.02PRECEDENT

•What types of authorities does the court rely on as precedent? Why are these authorities considered helpful?

Pierson v. Post: DQ1.02PRECEDENT

•Majority Opinion relies on Treatises – Books Written by Experts in Law– Useful Because Smart People Looking at

Same Problem– Treatises here all by experts in “Civil Law”

• System based in Codes of Law & Statutes– E.g., Roman Law (Justinian); Napoleonic Code– Used Today in Continental Europe, Latin America,

Louisiana

• Contrast “Common Law”: – Judge-made law based in cases– Used in systems developed from English Law (Most of

U.S. & Canada, British West Indies, etc.)

Pierson v. Post: DQ1.02PRECEDENT

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 BUT Usually Least Important Type of

PrecedentPrecedent

•No NY or Other U.S. Cases No NY or Other U.S. Cases Cited: Why? Cited: Why?

Pierson v. Post: DQ1.02PRECEDENT

•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 in 1805

Pierson v. Post: DQ1.02PRECEDENT

•Good Smilanich Point: Majority says English cases not relevant here because they fall into one of two categories:

1. Cases arising under “positive statute regulations”

2. Cases involving doctrine of “ratione soli”

We’ll go through these two categories in more detail next class.