ELEMENTS B POWER POINT SLIDES

Class #2Friday, August 21, 2015

MUSIC: Beethoven Violin Sonatas #5 (1801) & #9 (1803)

Recordings: Itzhak Perlman, Violin & Vladimir Ashkenazy, Piano (1973-74)

Notes for Monday:Notes for Monday:1.Class Begins @ 7:552.Miami-Dade Public Schools Open; Commutes of Any Distance Will Be Significantly Worse3.I’ll Ask You to Tell Me Who (if Anyone) You’d Like Me to Put on Same Panel with You

ELEMENTS B

Three Common 1L Issues

Class #1: ConfusionClass #1: Confusion

Class #2: Control

Class #3: Competition v. Cooperation

ELEMENTS B: COFNUSION

ELEMENTS B: COFNUSIONSOME REASONS FOR CONFUSION:

•Reality TV Analogy: Missing the Key

ELEMENTS B: CONFUSIONSOME REASONS FOR CONFUSION:

•Reality TV Analogy: Missing the Key

•Metal Shop Analogy: Identifying the “Machines”

ELEMENTS B: CONFUSIONSOME REASONS FOR CONFUSION:

•Reality TV Analogy: Missing the Key

•Metal Shop Analogy: Identifying the “Machines”

•Different Backgrounds– Hard Qs & Easy Qs

– Old Techniques May Not Work

ELEMENTS B: CONFUSIONHelpful to Think of as Immersion in New

Language/Culture

•Don’t expect to get everything quickly

•Read slowly & carefully & then reread

•Thinking about Fall Break

ELEMENTS B: COFNUSION

BE PATIENT WITH OTHER STUDENTS

ELEMENTS B: COFNUSION

& ESPECIALLY

BE PATIENT WITH YOURSELF!!

ELEMENTS B: COFNUSION

96

Disability Services Info

“If you have a disability, or suspect that you may have a disability, the Law School encourages you to contact Jessie Howell, Acting Coordinator, Disability Services in the Office of Disability Services for information about available opportunities, resources, and services. Her phone number is 305-284-1924, and her email address is jhowell@law.miami.edu . You may also visit the Office of Disability Services website at www.law.miami.edu/disability-services.

Pierson v. PostCASES IN CONTEXT

•History of the Underlying Dispute History of the Underlying Dispute (DQ1.01) (last time; posted slides (DQ1.01) (last time; posted slides include list from whiteboard)include list from whiteboard)•How Legal System Has Handled How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent, Similar Disputes (DQ1.02) (Precedent, cont’d)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, Canada

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 (Recap) 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: DQ1.02

PRECEDENT (Recap) •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

•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. Cases arising under “positive statute regulations”

2. Cases involving doctrine of “ratione soli”

Pierson v. Post: DQ1.02PRECEDENT

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?

Pierson v. Post: DQ1.02PRECEDENT

Some English cases not relevant b/c they were “discussed and decided upon the principles of

their positive statute regulations….”

Statutes &

JURISDICTION

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: DQ1.02PRECEDENT

Why use precedents at all?

Why shouldn’t the court simply announce who wins?

Pierson v. Post: DQ1.02PRECEDENT

Why use precedents at all? Why shouldn’t the court simply announce who wins?

(at least) PredictabilityConsistencyLegitimacy

Pierson v. PostCASES 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 Overall Social/Historical Context (1805) (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 Sugar Cane CultivationCultivation

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

1805Qing Dynasty in China

Tokugawa Shogunate in JapanGeorge III still British Monarch

Napoleon in FranceWar 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 An Ancient Species of Mandarin Orange Reaches Europe for 1Reaches Europe for 1stst Time; Imported Time; Imported into France from Tangier (Morocco) into France from Tangier (Morocco)

Ancient Breed of Mandarin Oranges Reaches Ancient Breed of Mandarin Oranges Reaches Europe from Tangier Europe from Tangier TANGERINES

Pierson v. Post: 1805

2d Term of Jefferson Presidency: •17 States: Original 13 plus VT KY TN OH•Michigan & Louisiana 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 20,0002012 = about 1,500,000

Pierson v. PostCASES 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 How Society Has Handled Similar Disputes Outside the Legal System Disputes Outside the Legal System (DQ1.03) (Custom)(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?

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: – Internet– Some Good Ideas for Sources• Hunting Clubs (Henry)• Teachers of Official Courses (Tate)• Relevant Organizations (American Fox Hunters) (Pijls)