ELEMENTS B1 & B2 POWER POINT SLIDES Class #24 Wednesday, October 19, 2016 Thursday, October 20, 2016

Paul Gauguin, The Beach at Dieppe (1885) Music to Accompany Ghen Uncle Bonsai, A Lonely Grain of Corn (1984) featuring “Day Old Whale” Paul Gauguin, The Beach at Dieppe (1885)

Starting Oil & Gas Friday Assignment Sheet for Next Week on CP LOGISTICS CLASS #24 Starting Oil & Gas Friday I’ll Lecture Through Westmoreland Difficult Case to Understand Both re Gas Extraction and Business Transaction Read Through for Plot; Don’t Try to Brief Look at in Advance & Try to Be in Class Because Presentation Will Primarily Be at White Board (Almost No Slides) Assignment Sheet for Next Week on CP

Review Problems (Course Materials p.106-07) LOGISTICS CLASS #24 Review Problems (Course Materials p.106-07) Examples of Old XQ1 & XQ2 Start Doing Some in Class Next Week Cover in DF Sessions: One a Week that We Won’t Do in Class This Week (Thu/Mon): (Posted) Problem 2D First Possession of Computer Program Based on 1997 Exam Q1 (on course page) DF Coverage Going Forward Posted on Course Page

LOGISTICS: CLASS #24 Group Assignments Posted on Course Page Saturday I’ll Do Intro & Take Qs in Class Mon/Tue Group Assignment #1: My Primary Task for Next Three Days Get as Much Feedback Posted as Possible by late Friday night

LOGISTICS: CLASS #24 Group Assignments Most Qs to Date: Single Topic & Multi-Topic Rules (cf. IRAC) 1st Possession Cases & Escape Arguments; Escape Cases & First Possession Arguments

LOGISTICS: CLASS #24 Group Assignments Might Also Want to Look Through Grading Form for Midterm (Posted Today) I’ll Take Other E-Mail Qs Through Tonight (Thursday) @ 9:00 p.m. Questions Now?

LOGISTICS: CLASS #24 Overall Schedule (Yes It’s Time) GWA #2 Due Sunday GWA #3 Due 3 Wks from Yesterday (Wed) Thanksgiving = 5 Weeks from Today Last Class = Mon 11/28 Review Session = Tue 11/29 Elements Exam = 6 Weeks from Friday LOTS OF WORK AHEAD!!

Mid-September Crisis

Mid-October Crisis

Mid-October Crisis: The Upside

Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now

Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now Cut Down on Outside Activities (Friday: 6 Weeks to First Exam) Push Yourself Each Day to Do a Little More Than You Want To Basic Skills Get Better the More You Practice

Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now BUT if/when you can’t get everything done … [some advice]

Mid-October Crisis: SOME ADVICE Don’t Miss Classes, Even When Unprepared

Mid-October Crisis: SOME ADVICE Don’t Miss Classes If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later

Mid-October Crisis: SOME ADVICE Don’t Miss Classes If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later Eat, Get Sleep, Take Short Breaks

Mid-October Crisis: SOME ADVICE Don’t Miss Classes If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later Get Sleep & Take Short Breaks Plan Catch-Up Work and Outlining for One Course Each Weekend

Mid-October Crisis: SOME ADVICE Don’t Miss Classes If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later Get Sleep & Take Short Breaks Plan Catch-Up Work and Outlining for One Course Each Weekend Thanksgiving One Day Off; Rest is Work Go Home Onlyif Family Will Allow Work

Mid-October Crisis: Like Doing Law School Exam Qs Can’t do everything as well as you’d like; do the best you can with time you have Be very careful not to waste time Identify what work is most important for you and spend time accordingly Be realistic in your expectations; don’t get upset that you are not superhuman. This too shall pass!

Swift v. Gifford (1872) “First Iron Holds the Whale” (Continued) KRYPTON: Brief & DQ2.13-2.15 OXYGEN: DQ2.12

Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Swift facts under Pierson Majority? Pierson Majority Mortal Wound + Pursuit Enough Pursuit Alone Not Enough Swift Facts Wound + Harpoon + Pursuit Enough under Pierson?

Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit Falls into Gap in Literal Language of Pierson Can resolve with other language. E.g., Did Rainbow Deprive Whale of NL?

Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit Falls into Gap in Literal Language of Pierson Can resolve with other language like “deprived of NL” Can resolve w resort to underlying policies. Try: Reward Effective Labor? Certainty? Notice to Others of Claim?

Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson General Policy : Reward Effective Labor Might look at how likely R was to succeed without H Killing Whales Generally Hard to Do Finding of Fact was low probability, so maybe no reward Could Check if H’s labor dependent on R’s labor If1st iron seriously wounds whale, might slow down so easy to kill Might be relatively minor wound Certainty:?

Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson Certainty: Maybe Clearer Rule than 1st to Kill Don’t Have to Decide if Wound is Mortal In Pierson, Continued Pursuit After Mortal Wound Shows No Intent to Abandon. Here?

Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson In Pierson Continued Pursuit After Mortal Wound Shows No Intent to Abandon. Does this pursuit + harpoon serve purpose? F unaware of pursuit & harpoon when caught BUT easy to tell when 2d ship arrives b/c marked iron Again, may depend on whether 1st iron slows whale noticeably.

Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Overall: Looks Like Testable Hypo Wound + Mark (iron) probably make this stronger case for 1st Hunter than Pierson Clearly less good control than Liesner boys or net-owners in Shaw. Leave to You: Other Arguments from Pierson Arguments from Shaw & Liesner (DF)

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Custom: 1st iron holds whale if claim made before whale cut. Note: Stronger custom for 1st ship than version of custom discussed in Taber & Bartlett Whale can be still alive/swimming (v. adrift) 1st ship just has to get harpoon to stick (v. kill)

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Swift decides to treat custom here as binding law and provides an important discussion explaining its decision. v. Pierson (custom ignored) v. Bartlett (says likely wouldn’t adopt as law)

Krypton: Swift v. Gifford When Should Custom Become Law? Swift decides to treat custom here as binding law and provides an important discussion explaining its decision. DQ2.14. What problems with using custom as law does Swift recognize?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems w using custom as law include: Surprise to Outsiders Note references to LOCAL custom and to ABUSES Problem grows as commerce reaches further Uncertainty (re what custom is/when it applies) “loose and inconclusive customs” “liable to great misunderstandings and misinterpretations” Custom may be Unreasonable.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems with using custom as law include: Surprise to outsiders Uncertainty as to what custom is or when it applies Custom may be unreasonable See Bartlett (open to fraud & deceit) Note discussion on p.69 re what laws can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems with using custom as law include: Surprise to outsiders Uncertainty as to what custom is or when it applies Custom may be unreasonable (see Bartlett) With these in mind, court gives us a list of considerations to use when deciding whether to treat custom as law.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Should Custom = Law: Swift Considerations Doesn’t affect outsiders Used by entire business for a long time (equivalent of a contract) Where legal rule is hard to apply on site, use of custom may prevent quarrels Custom is reasonable We’ll describe each and apply (2.13) to Swift and (2.14) to hunter’s customs noted in Pierson.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. Concern about outsiders generally (just did). Relevance in Swift?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders MEANS: Q here is whether custom is likely to be applied to uninformed outsiders to their surprise/disadvantage. (NOT asking whether industry affects outsiders.) In Swift: Usage here is “not … open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.” p.69 (Nobody but whalers likely to be involved). DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. Meaning of Reference to Contract Generally? Relevance in Swift?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) Reference to “Contract”: If all agreed to & relied on, reasonable to treat as legally binding. Custom here “embraced an entire business, and had been concurred in for a long time by everyone engaged in that trade.” DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels DQ2.13: Describe each consideration noted by court and explain how it applied in Swift.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels May be harder to determine 1st killer or mortal wound than 1st harpoon. “Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. “ (p.69) DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. Court explicitly says custom is “reasdonable.” Note: “Reasonableness” allows you to bring in a variety of concerns that don’t fit neatly in other categories (fairness, benefits to industry, rewarding labor, etc.)

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable Contrasts custom proposed inBartlett with custom at issue in Swift: Re Bartlett: “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.70)

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable Contrasts custom proposed in Bartlett with custom in Swift: Re Bartlett: “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.70) Might say that here, 1f 2d ship hasn’t cut in, not really fully possessed yet. Custom here reasonable b/c only gets whale if fully possessed.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable Contrasts custom proposed inBartlett with custom at issue in Swift. Why is Judge Lowell especially authoritative on meaning of Bartlett?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable He wrote it: “I there intimated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances.” Leave for you arguments about reasonableness of hunters’ customs in Pierson (maybe certainty v. safety)

Swift v. Gifford (Krypton) DQ2.15: Unpublished Opinions In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties. Possible problems with doing this?

Swift v. Gifford (Krypton) DQ2.15: Unpublished Opinions Problems with relying on unpublished opinion Lack of notice to other party (paid costs here). Lack of notice to others affected. Unpublished may mean court doesn’t want it used as precedent. Problems sufficient to justify blanket rule against doing this?

Swift v. Gifford (Krypton) DQ2.15: Unpublished Opinions Problems relying on unpublished opinion include: Lack of notice to other party. Lack of notice to others affected. Unpublished may mean court doesn’t want it used as precedent. Note that if (as often true) opinion unpublished b/c easy application of existing law, problems don’t arise: Can just rely on that existing law.

Swift v. Gifford Wrap-Up (Absent Custom) Swift = Additional 1st Possession Animals Case Hard to Resolve Under Prior Cases Wound + Mark = More than Mere Pursuit Briefly Had Whale Attached to Ship w Line/Harpoon BUT Low Probability of Capture Hurts R’s Claim Swift Says Need Actual Possession, so H would win BUT prior to Liesner & Shaw

Swift v. Gifford Wrap-Up (Custom) Swift: Custom at issue treated as law Provides List of relevant considerations Affect outsiders? Used by entire business for long time? Easier to apply on site than otherwise applicable legal rule? Reasonable?

Swift v. Gifford QUESTIONS?

Ghen v. Rich (1881) URANIUM: BRIEF & DQs 2.16-2.18 Paul Gauguin, The Beach at Dieppe (1885)

Ghen v. Rich We move from the North Pacific to Cape Cod Massachusetts (and to Cranberry Headings)

Ghen v. Rich (1881) DQ2.17: Historical Context Taber = 1856; Bartlett = 1868; Swift = 1872 Odd Because More Technologically Difficult Commerce in the Earlier Cases Background: Finback & “Right” Whales

Ghen v. Rich (1881) DQ2.17: Historical Context Taber = 1856; Bartlett = 1868; Swift = 1872 Significant Events Probably Relevant to Timing of Development of Industry & Custom in Ghen: U.S. Civil War (1861-65): Provides Technology for Bomb-Lances Completion of Transcontinental Railroad (1876) Whaling in Pacific from New England ports no longer profitable (ship products east by train) Gives New England whalers reason to find ways to make fin-back whaling more possible

Ghen v. Rich (Uranium) BRIEF: Statement of the Case sued Rich… , for [cause of action] seeking [remedy].

Ghen v. Rich (Uranium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach] , sued Rich… , for [cause of action] seeking [remedy].

Ghen v. Rich (Uranium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach] ?, sued Rich, who purchased carcass from finder , for [cause of action]?? seeking [remedy].

Ghen v. Rich (Uranium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder, presumably for conversion seeking [remedy]. ??

Ghen v. Rich (Uranium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder, presumably for conversion seeking damages for the value of the whale.

Ghen v. Rich (Uranium) BRIEF: FACTS As in Swift, Crucial Fact = Custom Custom on Cape Cod: Whaler shoots a finback whale with marked lance. Whale dies and sinks. Several days later, it rises to surface. If whale gets stranded on beach, F notifies owner of lance; receives small payment. Lance owner gets whale. Note: Custom is variation on salvage

Ghen v. Rich (Uranium) BRIEF: FACTS Custom on Cape Cod: If finback whale killed with marked lance, lance owner gets whale & finder gets small fee Ghen killed finback whale using a marked lance. The whale floated up and was found by 3d party, who sold it to Rich. 3d party and Rich “knew or might have known” that a professional whaler killed the whale. Can’t really translate as “should have known” Stronger & term of art; can say “could have known”