§d lunch mon sep 8 meet on bricks @ 11:55am bartz * dilican * klock * mahoney

MUSIC: CLAUDE DEBUSSY Afternoon of a Faun (1894);

Nocturnes (1900); The Sea (1905); Images D’Orchestre (1905-12)Boston Symphony Orchestra

conductOR: CHARLES MUNCH (1956-62)

§D Lunch Mon Sep 8Meet on Bricks @ 11:55am

Bartz * Dilican * Klock * Mahoney Rusick * Speziale * Suarez, Li.

Closing Up Liesner

DQ1.18 (b) & (c): OxygenDQ1.18 (d): Volunteers

Liesner DQ1.18 (c): Oxygen

COMPARE POSSIBLE RULES1.Actual Possession Likely2.Actual Possession Practically Inevitable3.Actual Possession Inevitable

Policies Supporting Choice … of #2 v. #3?



Policies Supporting Choice of #2 v. #3?•#3 = Too difficult to meet standard–Discourages hunters fewer kills–Doesn’t reward most-of the-way labor



Policies Supporting Choice … of #2 v. #1?



Policies Supporting Choice of #2 v. #1?•#1 = Too uncertain in application– Yields too many disputes/lawsuits (v. higher claim

threshold for #2)–May reward ineffective/insufficient labor

Liesner DQ1.18 (b): Oxygen

“Prevailing rule” (Three Formulations):

•(1) substantially permanently deprive [animal] of liberty (SPDL)•(2) [have the animal] so in their power that escape improbable, if not impossible•(3) [bring the animal] under control so that actual possession practically inevitable

MEANING OF LANGUAGE? (from last time)


Property Rights in Animal IF:

•substantially permanently deprived [animal] of his liberty

MEANING OF LANGUAGE Significance of Two Separate Adverbs?

Liesner DQ1.18(d)Apply to Pierson Facts:

Property Rights if … •substantially permanently deprived [animal] of [its] liberty


Property Rights in Animal if:

•so in their power that escape was highly improbable, if not impossible •under the control of a person so that actual possession is practically inevitable

MEANING OF LANGUAGEDifference betw. underlined phrases?


Property Rights in Animal if:

•so in their power that escape was highly improbable, if not impossible •under the control of a person so that actual possession is practically inevitable

MEANING OF LANGUAGE?Difference betw. underlined phrases?


Property Rights if … •under the control of a person so that actual possession is practically inevitable


Property Rights if … •so in their power that escape was highly improbable, if not impossible

We’ll leave for you

Applying Legal Rule/TestApplying Legal Rule/Test1. Look for best arguments for each party– Be cognizant of structure of test– Use care with language– Utilize definitions

2. If significant doctrinal arguments for both parties, try to resolve with: – Comparisons to facts of cases– Other language from cases– Policy arguments (incl. purpose of rule)

Musical InterludeShaw-1902 1908 1914-Liesner

The Most Performed Waltz in American Popular

Music

LOGISTICS: CLASS #9

Group Assignment #1•Instructions Posted on Course Page– Groups of three or four students (3-3-3 or 4-2-4)– One person acts as coordinator

•I’ll explain more & take Qs during class Mon/Tues•Can start on right away (especially logistics)•Due Sun Sept 21 @ 2pm (note re Krypton briefs)•Comments & Best Student Answers from Parallel Shack Exercise Posted on Course Page

LOGISTICS: CLASS #9Posted on Course Page

• Self-Quiz on Demsetz Reading for Next Week (by 9/6 @ 4 pm)

• Materials for Last Part of Unit One (Posted)– We’ll Introduce Next Friday:• A Few Pages of Reading on Escape• Two New DQs (Radium)

– 1st Two Cases (Manning & Mullett) • Quizzes Posted by next Thursday• Oxygen: Written Mullett Brief due Sun Sep 14. • In-Class Coverage Week of Sept 15

ALL: EXERCISE FOR MON/TUE

Which of These Things Is Not Like the Others (and Why)?

LION FISH

BULL FOX

STATE v. SHAW Brieffeaturing

Wallpaper with Fish!

++More Oxygen(Can Never Have Too Much

Oxygen)

STATE v. SHAW Brief: Oxygen

Uniquely Appropriate for Intersection of Fish & Oxygen:

§D: Gil(martin) §B: Gil


STATEMENT OF THE CASE?CRIMINAL CASE

•Government Government always brings the suit, so can say:

• “State (or U.S.) charged X with [name of crime].” -OR-

• “Criminal action against X for [name of crime].”

•Relief Requested Relief Requested always is incarcerationincarceration or finesfines; can leave unstated.


STATEMENT OF THE CASE?• “State charged [names?], • [relevant description?],• with [name of crime?].


STATEMENT OF THE CASE?• “State charged o Shaw, Thomas and another (or)o Three defendants including Shaw and

Thomaso Shaw to tie to name of caseo Thomas because his trial is the one that is

appealed

• [relevant description?],• with [name of crime?].


STATEMENT OF THE CASE?•“State charged Shaw, Thomas and another, who removed fish from nets belonging to others …

• Can’t say “stole” or that fish “belonged to others” b/c that’s what’s at issue

• with [name of crime?].


STATEMENT OF THE CASE?•“State charged Shaw, Thomas and another, who removed fish from nets belonging to others with grand larceny.


PROCEDURAL POSTURE?Note that indictment is method by

which State charged Ds, so don’t need here (already in Statement of Case)


PROCEDURAL POSTURE?•Thomas was tried separately. •At the close of the state’s evidence, the trial court directed a verdict for Thomas. •The state excepted [appealed].


We’ll Return to FACTS After ISSUE

ISSUE: PROCEDURAL PART?


ISSUE: PROCEDURAL PART?Did the trial court err in directing a

verdict for the defendant …


ISSUE: SUBSTANTIVE PART?•To prove “grand larceny” state must show that defendants took property belonging to other people.•Directed verdict means state’s evidence was insufficient to show the crime. •Why did Trial Court think state’s evidence was insufficient here?


ISSUE: SUBSTANTIVE PART?•To prove “grand larceny” state must show that defendants took property belonging to other people.

•Trial Court held fish at issue were not property of net-owners because nets do not create property rights when some fish can escape from nets. (“Perfect Net Rule”)•What does state say is wrong with Trial Court’s position?


ISSUE: SUBSTANTIVE PART?•Trial Court held fish at issue were not property of net-owners because nets do not create property rights when some fish can escape from nets (“Perfect Net Rule”)

•State says net need not be perfect to create property rights in net-owners.


ISSUE: Did the trial court err in directing a verdict for the defendant …[on the grounds that defendant did not commit grand larceny] …because net-owners do not have property rights in fish found in their nets where some fish can escape from the nets?

STATE v. SHAWDiscussions of Shaw: Focus On

“Perfect Net Rule” Used by Trial Court

•Do our other cases support that rule?•Policy arguments for and against that rule.•When Ohio Supreme Court rejects that rule, what does it leave in its place?

FIRST: BACK TO THE FACTS

STATE v. SHAW: FACTSSignificance of Indictment

•Issued by Grand Jury after viewing evidence presented by Prosecution (no evidence presented by defense).•Particular charges included if Grand Jury believes it saw evidence sufficient to support going forward with them.


•Phrase “with force and arms” in indictment:• Boilerplate language traditionally used in

conjunction with anyany criminal charge • Does not mean that evidence showed guns

were actually used in this case.


•Once trial begins, trial court only looks at evidence actually presented by parties. • Claims in indictment then effectively become

irrelevant for most purposes• Same thing happens to complaint in a civil case unless

(as in Pierson) claim on appeal is that complaint should have been dismissed before trial.

STATE v. SHAW: FACTSOhio S.Ct. Treats State’s Evidence as

“Facts” for Purposes of Appeal•Directed Verdict in favor of defendant means that Trial Court believed that, even looking at all the evidence “in the light most favorable” to the State, State cannot win.

STATE v. SHAW: FACTSOhio S.Ct. Treats State’s Evidence as “Facts”

•Directed Verdict = even looking at all the evidence “in the light most favorable” to the State, State cannot win.•To review Directed Verdict, appellate court must:• Treat all of state’s evidence as true• Make all reasonable inferences from the evidence in

favor of the State

STATE v. SHAW: FACTSOhio S.Ct. Treats State’s Evidence as “Facts”•Common to treat information from a particular source as true for purposes of appeal•E.g., allegations in declaration in Pierson

STATE v. SHAW: FACTS

NOW TO WHITE BOARD FOR “FACTS” FOR PURPOSES OF BRIEF

STATE v. SHAW SIGNIFICANT FACTS

(in chronological order)• Third parties put nets in public waters to catch fish.• Some fish that got into the nets could escape, but

“under ordinary circumstances, few, if any, fish escape.” (p.29)• Thomas and others (Ds) removed fish from the

nets.

§d lunch mon sep 8 meet on bricks @ 11:55am bartz * dilican * klock * mahoney

Documents