Beethoven Cello Sonata #3 (1807-08)

Jacqueline du Pré, Cello

Daniel Barenboim, Piano

Edinburgh Festival (1970)

DQ3. Precedent. … Why use precedents at all?

Why shouldn’t the court simply announce who wins?

DQ3. Precedent. … Why use precedents at all? Why shouldn’t the court simply announce who wins?

- Consistency- Legitimacy- Predictability

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

WHO SUED WHOM?

• Plaintiff Sued Defendant

• Post Sued Pierson

WHO SUED WHOM?

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

WHO SUED WHOM?

• 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, 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?

UNDER WHAT THEORY?

• Trespass on the Case (See 1st Sentence of Case)

= Indirect Injury to П’s Property

UNDER WHAT THEORY?

• Trespass on the Case (See 1st Sentence of Case)

= Indirect Injury to П’s Property

• Compare Trespass= Direct Injury to П’s Property

STATEMENT OF THE CASE

• Who Sued Whom?

• Under What Theory?

• For What Remedy?

FOR WHAT REMEDY?

• Unclear From Case

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 ...

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 …

• Normal Remedy For Trespass on the Case is Damages

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.

PROCEDURAL POSTURE

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

• After Trial Resulted in Verdict for Plaintiff, Appellate Court Granted Defendant’s Petition for [Certiorari] Review

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.

ISSUE/HOLDING

ISSUE/HOLDING• Party Appealing Claims the Lower

Court Made a Mistake. Identify the Mistake.

ISSUE/HOLDING

• Party Appealing Claims the Lower Court Made a Mistake. Identify the Mistake.

• Procedural Component of Mistake: What Should Lower Court Have Done Differently?

ISSUE/HOLDING

• 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 Misunderstanding 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?

Allegation that plaintiff pursued the fox is

insufficient because pursuit alone does not create

property rights in the fox.

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.

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?

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?

YES. The Lower Court Erred 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.

Version of Substantive Holding:

To get property rights in a fox, you must be the first to “occupy” it, which means you must do more than pursue

it.

Version of Substantive Holding:

To get property rights in a fox found on a deserted beach, you must be the first to “occupy” it, which means you

must do more than pursue it.

DQ4. Significance of Facts.

Why might it matter that the fox is caught on a deserted beach?

Version of Substantive Holding:

To get property rights in a fox found on a deserted beach, you must be the first to “occupy” it, which means you must do

more than pursue it.

To get property rights in a fox found on unowned property, you must be the first to

“occupy” it, which means you must do more than pursue it.

Version of Substantive Holding:

To get property rights in a fox found on a deserted beach, you must be the first to “occupy” it, which means you must do

more than pursue it.

To get property rights in a fox found on unowned property, you must be the first to

“occupy” it, which means you must do more than pursue it.

DQ4. Significance of Facts.

Suppose fox fell into a well before it was shot. Change the result?

DQ4. Significance of Facts.

Suppose fox fell into a well before it was shot. Change the result?

Contemporary accounts suggest this really happened. Why isn’t this discussed in the case?

BROAD v. NARROW HOLDINGS

NARROW• Covers fewer cases• Includes more facts• More specific

BROAD• Covers more cases• Includes fewer facts• More general

Version of Substantive Holding:

To get property rights in a fox found on a deserted beach, you must be the first to “occupy” it, which means you must do

more than pursue it.

To get property rights in a fox found on unowned property, you must be the first to

“occupy” it, which means you must do more than pursue it.

Version of Substantive Holding:

To get property rights in a fox found on unowned property, you must be the first to

“occupy” it, which means you must do more than pursue it.

To get property rights in an animal found on unowned property, you must be the first to “occupy” it, which means you must do

more than pursue it. [???]

DQ4. Significance of Facts.

Why might it matter that the hunted animal is a fox as opposed to some other animal?

Version of Substantive Holding:

To get property rights in a fox found on unowned property, you must be the first to

“occupy” it, which means you must do more than pursue it.

To get property rights in a wild animal found on unowned property, you must be the first to “occupy” it, which means you

must do more than pursue it.

5. Holding and Dicta. What are the pros and cons of a court discussing facts not

before them?

Version of Substantive Holding:

To get property rights in a wild animal found on unowned property, you must be the first to “occupy” it, which means you

must do more than pursue it.

To get property rights in a wild animal found on unowned property, you must be the first to “occupy” it, which means you must mortally wound it or capture it in a

net or trap. [???]

5. Holding and Dicta. How do you know which

language in the case is part of the holding?

Next Week

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• Begin Use of Panels Wednesday

• Uranium Panel: Written Liesner brief due Wednesday

• Lunches start Tuesday

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