COMPETITION v COOPERATION COMPETITION v COOPERATION COMPETITION v

COMPETITION v. COOPERATION

COMPETITION v. COOPERATION

COMPETITION v. COOPERATION I don’t have to outrun the bear, I have to outrun you!!

COMPETITION v. COOPERATION • I have to outrun you – Bad Model for Law School

COMPETITION v. COOPERATION • I have to outrun you – Bad Model for Law School – 1 L Grading • LComm • Rest of your classes

COMPETITION v. COOPERATION • I have to outrun you • Cooperation Improves You – Different points of View – Multiple Ears/Eyes – Groups Tend to Lift Whole Group

COMPETITION v. COOPERATION • Cooperation Improves You • Patience & Consideration – E. g. , Hurricane Help • Evacuations • No Power After – Could Have Been You

Pierson v. Post CASES IN CONTEXT • Overall Social/Historical Context (1805) • History of the Underlying Dispute (DQ 1: SEE SLIDES ADDED TO THIS SET) • How Legal System Has Handled Similar Disputes (DQ 2) • How Society Has Handled Similar Disputes Outside the Legal System (DQ 3)

Pierson v. Post 1805

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)

1805: Mandarin Oranges Imported into France from Tangier (Morocco)

1805: Mandarin Oranges Imported into France from Tangier (Morocco) TANGERINES

Pierson v. Post: 1805 2 d Term of Jefferson Presidency: • Michigan Territory Created • US enters peace treaty with pirates of Barbary Coast of Africa after Marines win victory on “the shores of Tripoli” • 1 st American covered bridge built over Schuykill River in Penn. ; covered to prevent snow blockage • Lewis & Clark expedition

Significance of History for Us • Background; Not Leading to Multiple Choice Test • 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: DQ 1 SEQUENCE OF EVENTS (1) (FROM CLASS #1) • Post (п) begins hunt; starts & chases fox • 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

Pierson v. Post: DQ 1 SEQUENCE OF EVENTS (2) (FROM CLASS #1) • П’s Lawyer files “Declaration” starting lawsuit • ∆ gets lawyer (if not done before lawsuit filed) – Fact investigation, Legal research, Possibly negotiation • ∆’s lawyer files answer or motion to dismiss – If motion filed, it was denied; answer then filed • Further investigation/negotiation • Jury trial won by П • NY Supreme Court grants ∆’s motion for writ of certiorari

Pierson v. Post: DQ 1 1805 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 ∆ would use “appeal” to take case to next level, though in some situations, writ of certiorari used.

Pierson v. Post: DQ 2 TYPES OF PRECEDENT • Cases • Statutes (passed by legislatures) • Regulations (issued by executive branch/agencies) • Constitution • Treatises, Law Review Articles, etc.

Pierson v. Post: DQ 2 Precedence of Precedents: Within a State • Binding Authority – Constitution – Statutes – Regulations – Cases (common law) • Persuasive Authority (Non-Binding)

Pierson v. Post: DQ 2 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: DQ 2 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: DQ 2 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 – Alabama v. California v. Ontario – Prosser on Torts v. Brittany Spears on Torts

Pierson v. Post: DQ 2 Precedence of Precedents: Among Levels of Government • Federal Law – only if applicable – See Supremacy Clause of US Constitution • State Law • Local Ordinances and Regulations

Pierson v. Post: DQ 2 Precedence of Precedents QUESTIONS?

Pierson v. Post: DQ 2 PRECEDENT (FROM CLASS #1) • Majority Opinion relies on Treatises – Books Written by Experts in Law – Useful Because Smart People Looking at Same Problem • No New York or Other U. S. Cases Cited – Problem Likely Not Litigated Much • Relatively Uncommon • Not Much at Stake – U. S. Not Very Old

Pierson v. Post: DQ 2 PRECEDENT (FROM CLASS #1) • NY (and other states) adopted pre. Revolutionary English Common Law • Majority says not relevant here because falls into one of two categories: 1. 2. Cases arising under “positive statute regulations” Cases involving doctrine of “ratione soli”

Pierson v. Post: DQ 2 PRECEDENT 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?

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: DQ 2 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.

Pierson v. Post: DQ 2 PRECEDENT Why use precedents at all? Why shouldn’t the court simply announce who wins?

Pierson v. Post: DQ 2 PRECEDENT Why use precedents at all? Why shouldn’t the court simply announce who wins? (at least) Consistency Legitimacy Predictability

Pierson v. Post: DQ 3 CUSTOM & LAW • 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: DQ 3 CUSTOM & LAW • The dissent suggests that the court should defer to hunters’ customs. • Would that be a good thing? • Subquestions in DQ 3 designed to help you think about this.

Pierson v. Post: DQ 3 CUSTOM & LAW • Do you know what customs are among hunters today? • If not, how would you find out?

Pierson v. Post: DQ 3 CUSTOM & LAW Situations where custom differs from law?

Pierson v. Post: DQ 3 CUSTOM & LAW Situations where custom differs from law Problems caused by this difference?

Pierson v. Post: DQ 3 CUSTOM & LAW Situations where custom differs from law Problems caused by this difference include: • Disrespect for Law • Uncertainty • Discretionary Police Power

Pierson v. Post: DQ 3 CUSTOM & LAW To 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: DQ 3 CUSTOM & LAW When might conforming to custom be a bad idea?

Pierson v. Post: DQ 3 CUSTOM & LAW When might conforming to custom be a bad idea? (Includes…) • Bad customs • Uncertain customs – Disputed; or – Hard to apply • Surprise to Parties Affected