ELEMENTS B1 & B2 POWER POINT SLIDES Class #27 Friday, October 28, 2016 National Chocolate Day!!

REVIEW PROBLEM 2C Custom Binding = URANIUM Custom Not Binding = RADIUM Music to Accompany White: Stan Getz & the Oscar Peterson Trio (Recorded 1957) Stan Getz, Tenor Sax * Oscar Peterson, Piano Herb Ellis, Guitar * Ray Brown, Bass REVIEW PROBLEM 2C Custom Binding = URANIUM B2 = Campo + Evans + Morejon (Alt: Sholes) B1 = Robins + Wasserman + Zimet (Alt: Zilber) Custom Not Binding = RADIUM B2 = Brody + D’Bazo + Dudley (Alt: Gangemi) B1 = Lecca + W.Pereira + Sainte (Alt: Solis)

EXAM Q1 (CUSTOM): REVIEW PROBLEM 2C Should Court Treat Custom in Q as Legally Binding Pro Arguments (Uranium) v. Con Arguments (Radium) Easy Qs/Hard Qs

EXAM Q1 (CUSTOM): REVIEW PROBLEM 2C Should Custom be Treated as Law: Relevant Analysis Swift Factors: Affect Outsiders Used by Whole Industry for Long Time (Pretty Easy Yes) Easier to Use than Existing Legal Rules (Certainty) (Pretty Easy No) Reasonableness Ghen: Necessary for Industry to Operate Could do as separate factor Could do as part of Reasonableness analysis

REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No Easy Swift/Ghen Factors Used by Whole Industry for Long Time (~YES) Problem says “almost” whole industry has “observed this custom for many years.” Could try to argue that need everyone to meet this factor, but lots of ad agencies & TV networks, so very hard to get all to adhere w/o gov’t oversight.

REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No Easy Swift/Ghen Factors Easier to Use than Existing Legal Rules (~ NO) Custom Itself Can Be Hard to Apply (See 2B) Almost Certainly Few Limits Absent Custom Trademark or Copyright Violations Require Very Close Copying of Protected Material Apply with or without Custom Might Have More General Discussion of Certainty

REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No Harder Swift/Ghen Factors Affect Outsiders (Leave for You) Necessary for (Which?) Industry to Operate? Reasonableness of Custom?

REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No Harder Swift/Ghen Factors Affect Outsiders (Leave for You) Necessary for (Which?) Industry to Operate? Trying to Protect Charities Can Charities Function Successfully w/o Custom? Reasonableness of Custom?

REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No Harder Factors: Some Relevant Considerations Necessary for (Which?) Industry to Operate? Trying to Protect Charities Can Charities Function Successfully w/o Custom? Reasonableness of Custom: Might Consider: Good idea to protect charities more than comm’l advertisers? Free speech concerns? Whose labor should be protected and to what extent? OK if it makes it hard to market product (BB’s program)? Is copying components of ads essentially fraud/deceit? (Bartlett) Is copying components of ads appropriation/larceny (following language in whaling cases per Wood B2)

Argument By Analogy Oil & Gas: 1st Possession Are Pierson/Liesner/Shaw Good Tools for Determining 1st Possession of Oil & Gas? Intro then Three Common Approaches Significance of Factual Similarities & Differences (DQ2.23 = OXYGEN) (B1 Wed.) Usefulness of Doctrine (DQ2.24 = OXYGEN) (B1 = Wed.) Usefulness of Alternatives (DQ2.25 = KRYPTON)

Argument By Analogy Oil & Gas: 1st Possession (OXYGEN) DQ2.23. Arguments from Factual Similarities re Usefulness of Pierson/Liesner/Shaw Could Try, e.g., : Mobility Across Property Lines Labor Necessary to Capture

Argument By Analogy Oil & Gas: 1st Possession (OXYGEN) DQ2.23. Arguments re Lack of Usefulness of Pierson/Liesner/Shaw from Factual Differences between Hunting Wild Animals Generally & Extraction of Oil & Gas

Argument By Analogy Oil & Gas: 1st Possession (OXYGEN) DQ2.23. Arguments from Factual Differences re [Lack of] Usefulness of Pierson/Liesner/Shaw Could Try, e.g., Mineral Movement More Predictable Value of Oil/Gas Generally Higher

Argument By Analogy Oil & Gas: 1st Possession (Oxygen) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why)

Argument By Analogy Oil & Gas: 1st Possession (Oxygen) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why) Could Try Actual Possession; Power & Control Escape Practically Impossible

Argument By Analogy Oil & Gas: 1st Possession (Oxygen) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why)

Argument By Analogy Oil & Gas: 1st Possession (Oxygen) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why) Could Try Mortal Wounding; Continued Pursuit

Argument By Analogy Oil & Gas: 1st Possession DQ2.24. Usefulness of Doctrine On Exam, Can Have Discussion About Whether Particular Factor or Test is Useful or Not (with Arguments Both Ways)

Argument By Analogy Oil & Gas: 1st Possession DQ2.25 (Krypton) Disputes Most Likely to Occur Among Various Owners of Surface Above Oil & Gas Pools Westmoreland: Owning surface gives you only right to “hunt” No permanent claim on unextracted oil & gas Only way to get permanent claim is actual possession POSSIBLE ALTERNATIVES?

Argument By Analogy Oil & Gas: 1st Possession (Krypton) DQ2.25. Some Alternatives First in Time First to Extract (Westmoreland) First to Drill into Pool Gets Whole Pool First to Provide Relevant Notice (Registration?) Rights Proportional to Surface Ownership Pure Proportional Ownership Proportional Ownership with Fair “Fee” for Labor State Ownership

Argument By Analogy Oil & Gas: 1st Possession (Krypton) DQ2.25. Pros & Cons Westmoreland (Rule of Capture) v. Distribution of Profits Proportional to Surface Area (w Reasonable Fee to Drillers for Labor and Risks) Assume Some Large Oil/Gas Fields Under Multiple Surface Lots Think About, e.g., Ease of Operation, Incentives, Effects on Market, etc. First Some Preliminary Qs to Help See What’s at Stake

Argument By Analogy Oil & Gas: 1st Possession (Krypton) DQ2.25. Pros & Cons: Preliminary Qs Westmoreland & Incentives What are people likely to do when they see that a neighbor is producing oil or gas from a well? What problems might that cause?

Argument By Analogy Westmoreland & Incentives: Wichita Falls, TX

Argument By Analogy Oil & Gas: 1st Possession (Krypton) DQ2.25. Pros & Cons: Preliminary Qs Westmoreland & Incentives What are people likely to do when they see that a neighbor is producing oil or gas from a well? What problems might that cause? Unneeded Wells: Environmental Concerns & Increased Cost of Extraction Decreased Total Production (Loss of Pressure)

Argument By Analogy Oil & Gas: 1st Possession (Krypton) DQ2.25. Pros & Cons: Preliminary Qs Westmoreland & Incentives What are people likely to do when they see that a neighbor is producing oil or gas from a well? Resulting problems? Readings refer to “Oversupply” Primarily of concern to industry  low prices, low profits Good for consumers in short run Long run, may encourage overuse of petroleum products b/c cheap (cars v. mass transit, etc.)

Argument By Analogy Oil & Gas: 1st Possession (Krypton) DQ2.25. Pros & Cons: Preliminary Qs Proportional Allocation (w Labor Fees) How do you determine where the oil or gas field lies in order to determine proportional interests? In 1889? Today? How do you decide where drilling occurs?

Argument By Analogy Oil & Gas: 1st Possession (Krypton) DQ2.25. Other Pros & Cons? Westmoreland v. Proportional Allocation (w Labor Fees) (I’ll Add Slide w Best Suggestions)

Argument By Analogy Oil & Gas: 1st Possession: DQ2.25 Westmoreland Preferable to Proportional Certainty Hard to Divy Up w/o Good Geologic Info Low Administrative Costs Rewards Labor & Clear Act of Extraction Proportional Preferable to Westmoreland Fairer to Small Landowners Lower Externalities

EXAM Q1 v. EXAM Q2 Apply ACs To Specific Facts of Hypo Discuss Which Party Should Win (Get/Keep Property Rights) Role: Counselor (Identify Strongest Points for Each Side) Assess ACs as Tools For General Problems of Same Type as Hypo Discuss What Legal Approach Might Be Best for These Problems Role: Legislator (Consider Best Way to Address Category of Problems)

Demsetz & Rose EXAM Q1 v. EXAM Q2 XQ1 Asks You to Apply Animals Cases (ACs) Demsetz & Rose are NOT ACs They should not be primary authority for any XQ1 argument Can use to support arguments arising from ACs. E.g., Assessing strength of mark under Albers/Taber/Bartlett Assessing reasonableness of custom under Swift/Ghen

Demsetz & Rose EXAM Q1 v. EXAM Q2 XQ1 Asks You to Apply Animals Cases (ACs) Demsetz & Rose are NOT ACs Not primary authority for any XQ1 argument Can use to support arguments arising from ACs. For XQ2, Can Use Demsetz & Rose Freely to Evaluate Strength of ACs and of Alternatives as Tools to Address New Area of Law

Group Assignment #3 ≈ EXAM Q2 E-Mail Qs Today or Over Weekend Qs in Class: Mon/Tue 10/31-11/1 Fri 11/4 Additional E-Mail Qs Through Sunday Night 11/6 Assess ACs as Tools For General Problems of Same Type as Hypo Discuss What Legal Approach Might Be Best for These Problems

Argument By Analogy: Group Written Assignment #3 Generally Task Like XQ2 for Sample Exam Q (Never Given) Helpful first to do XQ1 for Fact Pattern Comments/Models for Old XQ2s Online Soon Can look at for ideas I suggest you try to do yourself first We’ll Do More Examples in Class

Argument By Analogy: Group Written Assignment #3 Structure of Each Sub-Assignment Similar Doing One of Our Three Approaches Must Submit (Roughly Speaking)… Two Arguments in Favor of Using ACs Two Arguments Against Using ACs One Tie-Breaker Argument

Argument By Analogy: Group Written Assignment #3 Specific Concerns Not Addressing Specific Dispute between Windsor & Spain, but Sunken Treasure Cases Generally “Overlap” Instructions: Don’t Choose Topics That Yield Two Very Similar Arguments Stick to Approach I Give You (See Weasels) Reread Formatting & Substantive Instructions Before Finalizing