elements b power point slides class #3 monday, august 24, 2015

ELEMENTS B POWER POINT SLIDES

Class #3Monday, August 24, 2015

MUSIC: Beethoven Symphonies #1 (1800) & #3 (1805)Recordings: Chamber Orchestra of EuropeNikolaus Harmoncourt, Conductor (1991)

SCHEDULES SCHEDULES for DF Sessions for DF Sessions

& Lunches & Lunches Posted on Posted on

Course PageCourse Page

LUNCH TODAYLUNCH TODAYMeet on Brix @ 11:55:Burroughs * Dykes * Emenike Pijls * Salvatore *

Strickland

ELEMENTS B

Three Common 1L Issues

Class #2: Confusion

Class #3: ControlClass #3: Control

Class #4: Competition v. Cooperation

ELEMENTS B: ControlSense of Control Important

for Peace of Mind

•Can’t Control Everything!!

•Can Take Steps to Feel More in Control.

ELEMENTS B: Control(1) Control Over Time (v. Distractions)

Fall 1982

ELEMENTS B: Control(1) Control Over Time (v. Distractions)

NOW!!!

ELEMENTS B: Control(1) Control Over Time (v. Distractions)

Suggestions to Feel More in ControlA. Clearly Distinguish Work & Break Time B. Use Timers for Both Work & BreaksC. Log Your Use Of Devices Over Several DaysD. Just a Little Less

ELEMENTS B: Control(2) Control Over the Material

& Your Performance(Limiting Confusion)

ELEMENTS B: Control(2) Control Over Material/Performance

Suggestions to Feel More in Control

–Before Class: –Do DQs Carefully (Just a Little More)–Do Self-Quizzes & Check Work–Write Out Briefs

ELEMENTS B: Control(2) Control Over Material/Performance

Suggestions to Feel More in Control

–After Class: –Review & Repair –Check Briefs Against Posted Samples

ELEMENTS B: Control(2) Control Over Material/Performance

Suggestions to Feel More in Control

–Written Assignments• Do all parts of (not just what you turn in)• Compare to posted comments & models

ELEMENTS B: Control(2) Control Over Material/Performance

Suggestions to Feel More in Control

• Throughout the Course• Discuss Material Among Yourselves• ASK QUESTIONS!!!

ELEMENTS B: Control(3) Control & Hurricane Season

For those of you new to South Florida, sometimes our weather has names.

ELEMENTS B/D: Control(3) Control & Hurricane Season

Getting Good InformationGetting Good Information• National Hurricane Center Website (check every few days during Fall Semester): www.nhc.noaa.gov •UM Hurricane Preparedness Site (look over): www.miami.edu/ref/index.php/ep/emergency_preparedness-_before/getting_ready/hurricane_preparedness/

ELEMENTS B: Control(3) Control & Hurricane Season

Preparation: You Might Not Have Power for Preparation: You Might Not Have Power for Several Days (1992 & 2005)Several Days (1992 & 2005)

Long Term PrepLong Term Prep•Water; Canned Goods; Non-Electric Can Opener

•Flashlight; Battery-Op Radio; Batteries; Candles

•Non-Electric Landline Phone ($5 at Walgreens)

ELEMENTS B: Control(3) Control & Hurricane Season

Preparation: You Might Not Have Power for Preparation: You Might Not Have Power for Several Days (1992 & 2005)Several Days (1992 & 2005)

If Storm Might Be ComingIf Storm Might Be Coming•Get Cash & Put Gas in Car•Print Out Schoolwork You Might Need •Check UM Websites/Emergency Phone #s for Closure & Reopening Info

ELEMENTS B: Control(3) Control & Hurricane Season

After a StormAfter a Storm•UM as Refuge/Safe Space (Power & Shower)•Missed Elements Classes Shift Forward Until You Get New Schedule

I’ll take Qs on this after class & by e-mail I’ll take Qs on this after class & by e-mail

OR OR

Talk to folks who’ve been through stormsTalk to folks who’ve been through storms

ELEMENTS BDean’s Fellow Sessions

• 1st Semester Dean’s Fellows All Do Identical “Skills” Curriculum in Context of Substantive Material of Particular Course

• Never Intended that 1Ls Attend Four Sessions/Week

• Choose Thoughtfully Based on Effectiveness for You– Given How You Learn– Given How Particular DFs Teach

Pierson v. PostCASES IN CONTEXT

•History of the Underlying Dispute (DQ1.01) (Wednesday)•How Legal System Has Handled Similar Disputes (DQ1.02) (Precedent; Wednesday/Friday)•Overall Social/Historical Context (1805; Friday)

•How Society Has Handled Similar How Society Has Handled Similar Disputes Outside the Legal System Disputes Outside the Legal System (DQ1.03) (Custom; continued from (DQ1.03) (Custom; continued from Friday)Friday)

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

Examples of Situations Where Custom Differs from Law?

Pierson v. Post: DQ1.03

CUSTOM & LAWSituations where custom differs from law

Problems Caused by theseDifferences?

Pierson v. Post: DQ1.03

CUSTOM & LAWSituations where custom differs from law

Problems caused by this difference include:

• Uncertainty• Discretionary Police Power • Disrespect for Law

Pierson v. Post: DQ1.03

CUSTOM & LAWTo 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

Pierson v. Post: DQ1.03

CUSTOM & LAWWhen might conforming to custom be a

bad idea?

Pierson v. Post: DQ1.03

CUSTOM & LAWWhen might conforming to custom be a bad idea?

(Includes…)• Bad customs• Uncertain customs–Disputed; or–Hard to apply

• Surprise to Parties Affected

Pierson v. Post: DQ1.03

CUSTOM & LAWWhen might conforming to custom be a bad idea?

(Includes…)• Bad customs• Uncertain customs

– Disputed; or– Hard to apply

• Surprise to Parties Affected

Is Pierson v. Post a good situation to have law conform to hunters’ customs?

Pierson v. Post: DQ1.03

CUSTOM & LAWIs Pierson v. Post a good situation to allow law

to conform to hunters’ customs?

Lawyering Note: Often focus on “Who is appropriate decision-maker?”,

rather than “Is particular decision best one possible?”

Pierson v. Post: DQ1.03

CUSTOM & LAWWhen should law conform to custom?• Recurring question in many areas of law– Contract Law v. Normal Business Practices– Tort Law: Use Industry Practices as Standard of Care?

• We’ll return to this question with regard to whaling customs in Unit Two

Pierson v. Post: DQ1.03

Qs on Custom?

CASE BRIEF: Generally

LIKE A RESUME•Standardized Information•Range of Successful Ways to Present•Alter for Different Audiences•Rarely the Whole Story

Pierson v. Post: Citation

Pierson v. Post, 3 Caines 175 (N.Y. 1805)

•See Bluebook for citation forms generally.•In-Class Qs on Case Briefs: – Avoid “Is it OK that I put ….”– Make Qs More General or Wait Until After

Class

CASE BRIEF: Statement of the Case

• Succinct Statement of Nature of Original Lawsuit (complete Statement unlikely to be stated explicitly in case itself)

CASE BRIEF: Statement of the Case

• Succinct Statement of Nature of Original Lawsuit

• In Case Brief: Reminds You Quickly What Case Is About

CASE BRIEF: Statement of the Case

• Succinct Statement of Nature of Original Lawsuit

• In Case Brief: Reminds You Quickly What Case Is About

• In Legal Memos: & Court Submissions: Quickly Explains to Reader Nature of Case You Are Discussing

CASE BRIEF: Statement of the Case

1. Who Sued Whom? – In initial lawsuit– NOT “Who appealed?”

Pierson v. Post: Who Sued Whom?

Not Helpful•“Plaintiff Sued Defendant” (always true; provides no info)

Pierson v. Post: Who Sued Whom?

Not Helpful•“Plaintiff Sued Defendant”•“Post Sued Pierson” (provides no info about lawsuit)

Statement of the Case:WHO SUED WHOM?

Describe Parties in Way that Gives Sense of Subject of Lawsuit

•Apartment Landlord Sued Former Tenant Who Abandoned Unit…•Purchasers of Leaky New House Sued Developer ...•Consumer Injured By Exploding Blender Sued Manufacturer and Seller of Blender ...

Statement of the Case:WHO SUED WHOM?

Helps Clarity of Case Brief to Include Parties’ Names

•Matheson, Apartment Landlord Sued Jacobson, Former Tenant Who Abandoned Unit…•Aldens, Purchasers of Leaky New House Sued Landco, Developer,•Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, and Walmart, Seller of Blender ...

Then can reference by name in rest of brief.

Pierson v. Post: Who Sued Whom?

Post, … (?) sued Pierson, … (?)Descriptions of parties should help you understand what lawsuit was about without including unnecessary detail …

Pierson v. Post: Who Sued Whom?

• Post, a blond 27-year old Dutch-American asthmatic unemployed son of a Revolutionary War hero ...

(None of this seems relevant.) • *Better descriptions of Post? (several

plausible versions)

Pierson v. Post: Who Sued Whom?

• Post, a hunter who had been pursuing a fox, sued Pierson, …

• *Descriptions of Pierson? (again several plausible versions)

Pierson v. Post: Who Sued Whom?

• Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit ...

(One plausible version)

CASE BRIEF: Statement of the Case1. Who Sued Whom?

2. Under What Theory (Legal Cause of Action)?

• Aldens, Purchasers of Leaky New House Sued Landco, Developer, for Breach of Warranty …

• Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, for Negligent Design...

Pierson v. Post: Under What Theory?

• Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit,

*for …

Pierson v. Post: Under What Theory?

• Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for “Trespass on the Case” (see 1st Sentence of Case) …

*Means?

Pierson v. Post: Under What Theory?

• ““Trespass on the Case” Trespass on the Case” – IndirectIndirect Injury to П’s Property– E.g., left fire burning on own land & ruined П’s house

• Compare “Trespass”“Trespass”• DirectDirect Injury to П’s Property• E.g., entered П’s land and stomped on garden

*Why Might Injury Be Indirect Here?

Pierson v. Post: Under What Theory?

• “Trespass on the Case” (Indirect Injury) v. “Trespass” (Direct Injury)

• Could be indirect here because Pierson did not harm property in Q (fox) with his bare hands, but used some kind of weapon (maybe a projectile).

• Distinction not important for our class—– Opinions in Pierson do not discuss this distinction.– Distinction won’t be referenced in our later cases.

BUT good to get used to noting things like this.

• Compare “Trespass”= Direct Injury to П’s Property

• Why Indirect Here?

CASE BRIEF: Statement of the Case1. Who Sued Whom?2. Under What Theory (Legal Cause of Action)?

3. Seeking What Remedy?• Aldens, Purchasers of Leaky New House Sued

Landco, Developer, for Breach of Warranty, seeking Rescission [= Undoing] of the Sales Contract.

• Ortiz, Consumer Injured By Exploding Blender, Sued Gemco, Manufacturer, for Negligent Design, seeking Damages [for medical bills, lost wages and pain and suffering].

Pierson v. Post: For What Remedy?

Post, a hunter who had been pursuing a fox, sued Pierson, who killed the fox knowing of the pursuit, for Trespass on the Case, seeking … [not stated in Majority Opinion.]

*Possibilities?

Pierson v. Post: For What Remedy?

• Not Stated in Majority Opinion. Could be:– Damages OR– Return of the fox or its pelt.

• Dissent (p.5): “In a court … constituted [of hunters], the skin and carcass of poor reynard would have been properly disposed of ...” (This suggests remedy requested is return of property.)

Pierson v. Post: For What Remedy?

• Not Stated in Majority Opinion• Dissent suggests remedy requested is

return of property• Normal remedy for Trespass on the Case

is “Damages” (= $$$) (Dissent point could be rhetoric.)

How might you handle?

Pierson v. Post: Sample Statement

• 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.

• Again, Number of Possible Versions• Qs

CASE BRIEF: Procedural Posture

• Procedural Steps –After Lawsuit Filed (filing of lawsuit already

described in Statement) …

CASE BRIEF: Procedural Posture

• Procedural Steps – After Lawsuit Filed …

–Up to Step That Gets Case to the Appellate Court that Issued the Opinion You are Briefing.

CASE BRIEF: Procedural Posture

• Procedural Steps – After Lawsuit Filed …– Up to Step That Gets Case to the Appellate Court.

–Try to Limit to Steps Necessary to Understand Case • Usually have to edit what’s given in opinion.• Lots of opportunities to edit in future case briefs.

Pierson v. Post: Procedural Posture

• After Trial Resulted in Verdict for Post [Π], N.Y. Supreme Court Granted Pierson’s [Δ’s] Petition for [Certiorari] Review.–Note that you don’t have to give name of

appellate court where already clear from the citation.

–Questions?

CASE BRIEF: Facts• Only include facts arguably relevant to

court’s analysis.–Can’t determine relevance on 1st read• Initial description of “facts” usually includes more

detail than you need • Important facts may only appear later in opinion

– Select/edit facts after reading whole case.

• We’ll do for Pierson after discussing DQs 1.04 & 1.05 & issue/holding