ELEMENTS B1 & B2 POWER POINT SLIDES Class #12 Monday, September 12, 2016 Tuesday, September 13, 2016

MUSIC (to accompany demsetz): The Beatles MAGICAL MYSTERY TOUR (1967) NOW ON COURSE PAGE: Rest of Unit One Course Materials Extended Syllabus & Assignment Sheet WED/THU: We’ll Begin with: Overview of Unit IB (Escape) (37-38) OXYGEN: DQs 1.41-1.42(38)

Finishing Up STATE v. SHAW Brief

STATE v. SHAW Brief ISSUE (from Last Week): 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 the fish can escape from the nets?

STATE v. SHAW Brief NARROW HOLDING YES. The trial court erred in directing a verdict for the defendant on the grounds that defendant did not commit grand larceny because net-owners can have property rights in fish found in their nets even if some fish can escape from the nets.

STATE v. SHAW Brief RESULT Reversed & Remanded For New Trial (Thomas Could Still Prove He Didn’t Commit Crime Even if Fish Belonged to Net-Owners) On remand, trial court will have to instruct jury about when net creates property rights in fish for net-owners Can’t simply say “Net doesn’t have to be perfect.” Broader version(s) of holding needed for this.

STATE v. SHAW Brief BROADER HOLDINGS On remand, trial court will have to instruct jury about when net creates property rights in fish. Broader version(s) of holding needed. Possible Rules/Holdings: Any Net is OK? (Raggedy Volleyball Net??) Look to Language in Case

STATE v. SHAW Brief FINDING BROADER HOLDINGS BONUS SLIDE #1: Look to Language in Case: 1st Two Paragraphs after “Davis, J.” Discuss Law Quotes in 1st paragraph are authorities apparently rejecting claim that wild fish cannot be property. They say that fish in a tank or net are sufficiently confined that they can be property. Court cites Young at end of long paragraph on 28-29 for the proposition that net-owners have no property rights to fish frightened away before they could enter the nets. In between, court explicitly rejects perfect net rule, but nowhere says that any fish in any net belong to the net-owner. Thus, look to language in long paragraph to help determine when fish in nets are property of net-owners.

STATE v. SHAW Brief BROADER HOLDINGS On remand, trial court will have to instruct jury about when net creates property rts in fish. Broader version(s) of holding needed. Possible Rules/Holdings: Any Net is OK? (Raggedy Volleyball Net??) Look to language in case: Two plausible rules (long para. pp.28-29), either of which could be incorporated into broader version of holding.

Two Plausible Rules (long para. pp.28-29) STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

Two Plausible Rules (long para. pp.28-29) STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny.

First Plausible Rule (bottom of p.28) STATE v. SHAW Brief First Plausible Rule (bottom of p.28) “[T]he pursuer must … [i] bring them into his power and control, and … [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Note two parts/requirements Need to work through 2d requirement carefully

STATE v. SHAW Brief “[T]he pursuer must [i] bring them into his power and control, and … [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”  [ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.”

STATE v. SHAW Brief “[T]he pursuer must [i] bring them into his power and control, and … [ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.” Let go + “I intend to keep you 4ever. ♡” Let go + Tag: “I intend to keep him 4ever. ♡” Don’t let go.

Second Plausible Rule (pp.28-29) STATE v. SHAW Brief Second Plausible Rule (pp.28-29) The trapper acquires property in wild animals “[w]hen … [i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and … [ii] maintains reasonable precautions to prevent escape….” Again, two parts/requirements We’ll mostly focus in class on 1st Plausible Rule; 2d Rule provides slightly different language you can use.

STATE v. SHAW Brief BONUS SLIDE 2 Note that my raggedy volleyball net example should fail 2d prong of each plausible rule: Even if net “maintains control” of a fish caught in its weave, probably doesn’t do so in a way that shows other people net-owner’s intent to keep the fish. Raggedy net by itself probably doesn’t constitute “reasonable precautions to prevent escape….”

Interpreting Legal Tests in Context of Cases Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests. E.g., fish caught in nets have been brought within net-owner’s “power and control.” E.g., set up of these nets = “reasonable precautions to prevent escape.” Thus, can use facts of Shaw to help explain what the tests mean going forward.

STATE v. SHAW Brief: One Broader Version of Holding YES. The trial court erred in directing a verdict for the defendant because net- owners have property rights in fish found in their nets if the nets [i] bring the fish into their power and control, and [ii] so maintain their control as to show that they do not intend to abandon the fish again to the world at large. QUESTIONS ON HOLDING OR LEGAL TESTS FOUND IN SHAW?

SHAW Brief Rationales Doctrinal Rationales from Authorities Cited on pp. 28-29 in Sample Brief (Posted Tomorrow) Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). MEANS?

SHAW Brief Rationales Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). Probably refers to difficulty of proof/certainty arguments; might also refer to failing to reward useful labor because of technicality. Court says possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.29) Significance?

OTHER DIFFERENT POLICY CONCERNS? SHAW Brief Rationales Policy Rationales (Hints from Language of Case): Possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.27) Maybe refers to certainty of capturing fish (as a group) or of identifying owners Maybe goes to sufficiency of Net-owners’ labor OTHER DIFFERENT POLICY CONCERNS?

SHAW Brief Rationales Policy Rationales: Could discuss protecting important industry (subset of labor argument), but need to be clear that court doesn’t reference explicitly. Posted Sample Brief contains fully articulated examples of each of the ideas mentioned here. E-Mail Me if Qs

DQ1.26-1.27: Krypton Applying State v. Shaw

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” We’ll work with this test and leave other plausible rule & policy arguments from Shaw for you and DF Sessions

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Pierson Facts

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Pierson facts

STATE v. SHAW DQ1.27: Krypton Should the result in Shaw be the same if the fishermen used a sunken boat instead of a net to trap the fish? Assume the boat retains the same percentage of fish that enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat)

STATE v. SHAW DQ1.27: Krypton Marking/Notice of Claim to Others is an important recurring policy concern See Shaw test part 2: “so maintain his control as to show that he does not intend to abandon” See Pierson: Mortal wounding + pursuit OK because hunter “thereby manifests an unequivocal intention of appropriating the animal” Could fix with clear sign on buoy attached to boat.

STATE v. SHAW DQ1.27: Krypton Additional Reason to Treat Sunken Boat Differently Net is easily visible (28-foot square & top 4 feet above water) Sunken boat may not be visible so may be safety hazard to lake traffic if not very well marked May not want to reward trap that is dangerous to humans

STATE v. SHAW DQ1.28: Krypton Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw? Looking at 2 student submissions from prior classes For substance For clear concise writing I’ll go a little quickly b/c you can review slides in more detail later

STATE v. SHAW DQ1.28: Krypton STUDENT #1: Property rights to a wild animal occur when a pursuer, who continues to pursue the animal and has no intent of releasing him back into the wild, has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.

STATE v. SHAW DQ1.28: Krypton STUDENT #1: Property rights to a wild animal occur when a pursuer, [ii] who continues to pursue the animal and has no intent of releasing him back into the wild, [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances. Put in normal chronological sequence.

STATE v. SHAW DQ1.28: Krypton Property rights to a wild animal occur when a pursuer …  A pursuer acquires property rights to a wild animal when the pursuer… Eliminating passive voice.

STATE v. SHAW DQ1.28: Krypton A pursuer acquires property rights to a wild animal when the pursuer… [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.

STATE v. SHAW DQ1.28: Krypton A pursuer acquires property rights to a wild animal when the pursuer… [i] has substantially rid the animal of his natural liberty  Need both (a) & (b)??  (b) as to render escape highly unlikely (c) under normal circumstances.

STATE v. SHAW DQ1.28: Krypton A pursuer acquires property rights to a wild animal when the pursuer… [i] has rendered escape highly unlikely (b) under normal circumstances. (Very clever idea)

STATE v. SHAW DQ1.28: Krypton A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal and (b) has no intent of releasing him back into the wild,

STATE v. SHAW DQ1.28: Krypton A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal and (Do you want to require (a) for traps/nets?) (b) has no intent of releasing him back into the wild

STATE v. SHAW DQ1.28: Krypton A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal and (b) has no intent of releasing him [it] back into the wild (Do you want test of pure intent w/o actions?)

STATE v. SHAW DQ1.28: Krypton A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal or otherwise to show he has no intent of releasing it. Takes care of traps & eliminates test based on pure intent.

STATE v. SHAW DQ1.28: Krypton STUDENT #2: A wild animal is deemed property of a person pursuing it if he through his actions made escape of the animal highly unlikely and through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.

STATE v. SHAW DQ1.28: Krypton STUDENT #2: A wild animal is deemed property of a person pursuing it if he [i] through his actions made escape of the animal highly unlikely and [ii] through his actions has substantially decreased the likelihood of escape since the outset of the pursuit. Pronoun ambiguity plus passive voice.

STATE v. SHAW DQ1.28: Krypton A wild animal is deemed property of a person pursuing it if he …  A person acquires property rights in a wild animal if the person … through his actions made escape of the animal highly unlikely and through his actions has substantially decreased the likelihood of escape since the outset of the pursuit. How else would you accomplish these tasks?

STATE v. SHAW DQ1.28: Krypton A person acquires ppty rts in a wild animal if the person … made escape of the animal highly unlikely and has substantially decreased the likelihood of escape since the outset of the pursuit. Interesting idea, BUT Hard to prove Not clear would lead to Pierson result Not clear how would apply to traps/nets

STATE v. SHAW DQ1.28: Krypton I’ll do a more extensive write-up of the submissions from this & prior years and put in a future Information Memo. Qs on DQ1.28?

Shaw  Demsetz: Introduction to Externalities KRYPTON DQ 1.29

STATE v. SHAW DQ1.29(a): Krypton Assume net-owners have no enforceable rights in fish caught in their nets until they physically remove the fish from the nets. Thomas chooses to take fish from the owners’ nets. Who might be affected by this decision? Which of these effects is Thomas likely to take into account when deciding whether to take the fish? TO WHITEBOARD