ELEMENTS B1 & B2 POWER POINT SLIDES Class #23 Monday, October 17, 2016 Tuesday, October 18, 2016

Music to Accompany Bartlett/Swift (B1 Only): Schumann, Piano Concerto in A Minor (1849) Grieg, Piano Concerto in A Minor (1872) Bavarian Radio Symphony Orchestra (2004) Conductor: Sir Colin Davis Pianist: Murray Perahia

Argument By Analogy We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as in XQ1), but should we?

Argument By Analogy We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as in XQ1), but should we? In other words, use of the analogy is possible, but is it a good idea (XQ2)?

Swiss Army Knives & Barbie’s Eye Shadow Argument By Analogy Bottom Line: Not asking if ACs are a perfect set of tools for the new context, but discussing how good a set of tools they are. Swiss Army Knives & Barbie’s Eye Shadow

Three Common Approaches Described in Course Materials: Argument By Analogy Three Common Approaches Described in Course Materials: Significance of Factual Similarities & Differences: How Close is Job Here to Jobs Tools Were Designed For? Similar Enough to Make Them Work? Usefulness of Doctrine: How Well Can These Tools Do This Job? Well Enough? Usefulness of Alternatives: What Other Sets of Tools Could We Use for This Job? Would They Work Better?

Applying Three Common Approaches Described in Course Materials: Argument By Analogy Applying Three Common Approaches Described in Course Materials: Significance of Factual Similarities & Differences (DQ2.09) (URANIUM/ME) Usefulness of Doctrine (DQ2.10) (OXYGEN/ME) Usefulness of Alternatives (DQ2.11) (OXYGEN) For Each, I’ll Talk A Little About How to Do Generally, Then We’ll Try in This Context

Argument By Analogy 1. Factual Similarities/Differences Identify Similarity or Difference Between the Two Contexts Factual not Legal (Layperson Could See) Compare Overall Situations, NOT Individual Cases. Compare Escaping Animals (Generally) to Escaping Whale Carcasses (Generally) NOT Facts in Bartlett to Facts in Albers (which is Task for XQ1)

Argument By Analogy 1. Factual Similarities/Differences Identify Similarity or Difference Between the Two Contexts Explain Why the Similarity (or Difference) You Identified Suggests that the Legal Treatment of the Two Contexts Should be the Same (or Different)

Argument By Analogy Sample Factual Similarity: Mobility Both contexts involve property that can move (w/o human intervention) away from where the owner left it.

Argument By Analogy Sample Factual Similarity: Mobility Both contexts involve property that can move (w/o human intervention) Escaping ACs good for escaping whale carcass cases b/c specifically designed to decide when to return mobile property. Cases address relevant Qs like extent of OO’s investment, OO’s labor to control or retrieve property, and whether F would have reason to believe another person has a strong claim. Can then argue re relative importance of these Qs

Argument By Analogy URANIUM DQ2.09: Additional Factual Similarities? Can You Construct This Kind of Argument Around Them?

Argument By Analogy Sample Factual Difference: Living/Dead Land animals are alive when they “escape”; whale carcasses are not.

Argument By Analogy Sample Factual Difference: Living/Dead Land animals are alive when they “escape”; whale carcasses are not. Some concepts from ACs will not work well in Taber context b/c they assume property was alive at escape. E.g., “provide for itself” & “intent to return” (AR) Can then argue re relative importance of these factors. (NOTE: AR not hugely important!)

Argument By Analogy Sample Factual Difference: Living/Dead Some concepts from ACs will not work well in Taber context b/c they assume property was alive at escape. E.g., “provide for itself” & “intent to return” Can then argue re relative importance of these factors. Again, ACs don’t have to fit 100% to be reasonable option.

Argument By Analogy URANIUM DQ2.09: Additional Factual Differences? Can You Construct This Kind of Argument Around Them?

Argument By Analogy 2. Usefulness of Doctrine Qs About Individual Rules or Factors Can you sensibly apply some or all of the legal tests in the new context? Are the purposes behind the rules relevant in the new context?

Argument By Analogy 2. Usefulness of Doctrine Overall Q: Is the doctrine targeting the right concerns? Are there important concerns raised by the precedent that aren’t relevant in the new context? Are there important concerns raised by the new context that weren’t relevant in the precedent?

Argument By Analogy DQ2.10: Usefulness of Doctrine Individual Escape Factors Whose Relevance is Pretty Clear to Disputes re Whale Carcasses (Arguably used in Taber & Bartlett): Marking/Finder’s Knowledge Rewarding Labor/Protecting Industry Abandonment (by Compulsion)/Pursuit Time/Distance (though time frame may be different than for living animals)

Based on Factual Comparisons (2) Based on Usefulness of Doctrine Argument By Analogy Arguments Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap:

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: (1) Factual Comparison: OO can attach identifying marks to both escaping animals and whale carcasses. ACs reward OOs who use strong marks that help identify the animal and give notice to Fs of prior claim For same reasons, good idea to reward OOs of whale carcasses who use strong marks Thus, this similarity supports using ACs

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: (2) Usefulness of Doctrine: ACs factor we called “marking” (Manning; Albers), rewards OOs who use strong marks that help identify the animal and give notice to Fs of prior claim. OO of whale carcass can attach identifying marks that serve the same purposes. Thus, it is a good idea to reward OOs of whale carcasses who use strong marks, which makes “marking” a useful factor to use.

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: Overlap is logical: Concerns addressed by the legal tests are made relevant by the factual setting. Factual comparisons are made relevant by the way the doctrine operates.

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: For XQ2, if you see overlapping arguments, you only need to give me one of them BUT useful to practice approaching analogy question from both directions b/c sometimes you will find it easier to see a useful point looking from one angle than from the other.

Argument By Analogy DQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? Natural Liberty Maybe NL = carcass is floating free Pros & Cons: Should Consider: LANGUAGE: E.g., “Provide for itself” v. “No artifical restraint” UNDERLYING POLICIES : I did some in Class #20

Argument By Analogy DQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? Taming or Intent to Return Could mean simply anchoring the carcass Pros & Cons include: Anchoring similar b/c labor expended to maintain control Maybe unnecessary b/c can reward anchoring using NL or general policy rewarding useful labor

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context For 1st Possession might include: auction, lottery, state ownership, most deserving, etc. For Escape might include: F always wins, OO always wins, registration systems, salvage (= alternative, not application of ACs) For other possibilities, look at old model answers (available after Group Assignment #2 submitted)

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context Don’t spend time on alternatives that seem fairly stupid or unlikely or impractical Could award carcass to oldest whaler, but this would be stupid because … Could award carcass to finder where internal temperature of carcass had fallen below 45° F, but this would be very difficult to apply in practice because of absence of reliable thermometers and logistics of measuring inside carcass …

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context Discuss the pros and cons of using each possible alternative instead of the proposed analogy Ideally provide both pros and cons for each Can consider fairness, cost, ease of administration, incentives created, whether the right Qs are being asked, etc.

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context Discuss the pros and cons of using each possible alternative instead of the proposed analogy You can identify possible alternatives and common pro/con arguments from class and from model answers. However, only way to get proficient enough to do well under exam conditions is PRACTICE.

Argument By Analogy Usefulness of Alternatives Oxygen: DQ2.11: One Particular Alternative Would salvage be a better way to resolve anchored whale cases than using the escaped animal cases? Why or why not?

Argument By Analogy Usefulness of Alternatives OXYGEN: DQ2.11: Would salvage be better than using the escaped animal cases? Might Consider: Splitting Rewards v. One Side Takes All (& Labor?) Rule Most Likely to Save Most Whale Carcasses Ease of Application: ACs = multiple factors = complex But maybe hard to do salvage where property must be cut up and altered to take on board

Argument By Analogy 3. Usefulness of Alternatives Ease of Administration: Escape Escaping ACs not bright line rule, so complex to administer (lots of factors) 2 very clear rules always available for Escape Absolute Ppty Rights (if OO can identify it, OO wins) Complete loss of ppty rts at escape = Finder’s Keepers Although Usually Other Problems with These Bright Line Rules incentives created, whether the right Qs are being asked, etc.

Applying Three Common Approaches Described in Course Materials: Argument By Analogy Applying Three Common Approaches Described in Course Materials: Significance of Factual Similarities & Differences (DQ2.09) Usefulness of Doctrine (DQ2.10) Usefulness of Alternatives (DQ2.11) Questions?

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

Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others … ?, sued Gifford … , for [cause of action] seeking [remedy].

Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford … , ??? for [cause of action] seeking [remedy].

Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift et al., owners of ship (H) whose crew killed whale sued Gifford , managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, for [cause of action] ??? seeking [remedy].

Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford , managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, presumably for conversion seeking [remedy]. ???

Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale, sued Gifford , managing owner of a ship (R), whose crew first harpooned the whale and later took it from H, presumably for conversion Seeking damages for the value of the whale.

Swift v. Gifford (Krypton) BRIEF: Procedural Posture Decision after a trial.

Swift v. Gifford (Krypton) BRIEF: Facts Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. Crew of ship H captured the whale, unaware that ship R was still pursuing it. Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. What Else Needs to Be Included?

Swift v. Gifford (Krypton) BRIEF: Facts Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. Crew of ship H captured the whale, unaware that ship R was still pursuing it. Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. Parties all understood custom.

Swift v. Gifford (Krypton) BRIEF: Facts Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. (Parties all understood.) Note: Hercules gave whale up voluntarily honoring custom (cf. Taber: reaction of Captain of Massachusetts to Zone) Suggests maybe Swift et al. are new players in whaling game: Hercules gets home & reports to Owners Swift: “You did what??!!” Swift = famous business family in Chicago, so …

Mini-Comparison Box Boston Chicago Red Sox (& Long Lost Braves) Cod & Lobster Shipping "So this is good old Boston. The home of the bean and the cod. Where the Lowells talk only to Cabots. And the Cabots talk only to God." White Sox (& New Found Cubs) Pork & Beef (Swift/Armour) Railroads “City of Broad Shoulders” & “Not for Breeding Purposes.”

Swift v. Gifford Nature of Dispute Escaping wild animals cases only apply to Taber & Bartlett by analogy. By contrast, Swift is a 1st possession wild animal case. Two hunters (ships) chasing a wild whale. Who gets? First to harpoon & pursue (Rainbow) –OR— First to kill (Hercules)

Swift v. Gifford: Nature of Dispute Two ships chasing a wild whale. Who gets? First to harpoon & pursue (Rainbow) –OR— First to kill (Hercules) Could decide using common law or custom. We will look at: How Swift addresses common law claim (from Brief) How our ACs resolve without custom (DQ2.12) How Swift addresses custom (DQ2.13-2.14)

Swift v. Gifford Swift Applying 1st Possession ACs Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal If so, Rainbow loses NOTE: 1872 = Before Liesner and Shaw = Rules now different

Swift v. Gifford (Krypton) Swift Applying 1st Possession ACs Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal R Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” Court says this reading of civil law is not “free from doubt.” May come from Pierson dissent quoting Barbeyrac (p.6). Note underlying argument that court might alter common law rule to follow trend in civil law.

Swift v. Gifford (Krypton) Swift Applying 1st Possession ACs Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” Court deals with this claim with reference to disputed fact, apparently assuming “reasonable prospect” = “reasonable probability”

Swift v. Gifford (Krypton) BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.68 end of first para.)

Swift v. Gifford (Krypton) BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.68)  Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? How does court resolve?

Swift v. Gifford (Krypton) BRIEF: Factual Dispute Where on List is “Reasonably Probable”? Absolute Certainty High Probability No More Named Storms This Hurricane Season No New Negative Info re Either Pres. Candidate by 11/8 +

Swift v. Gifford (Krypton) BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? (Very bottom p.68) “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

Swift v. Gifford (Krypton) BRIEF: Factual Dispute Where on List is “A Possibility of Success”? Absolute Certainty High Probability Reasonable Probability No More Named Storms This Hurricane Season No New Negative Info re Either Pres. Candidate by 11/8 Snowball in Hell

Swift v. Gifford (Krypton) BRIEF: Factual Dispute Levels of Probability Absolute Certainty High Probability Reasonable Probability No More Named Storms This Hurricane Season No New Negative Info re Either Pres. Candidate by 11/8 = A Possibility [of Success] Snowball in Hell So how does court resolve disputed fact?

Swift v. Gifford (Krypton) BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? “Reasonably probable” = “[much] more than a possibility of success.” Factual Finding: NO! “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

Swift v. Gifford (Krypton) BRIEF: Factual Dispute Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” Court deals with claim by finding supposed test from civil law not met on these facts, so doesn’t have to decide: If civil law really has adopted test raised by R Whether to make test part of common law QUESTIONS?

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?