CHLORINES: Place Swift Briefs Face Down in Box on Front Table PRACTICE MIDTERM Q POSTED ON COURSE PAGE TRY UNDER EXAM CONDITIONS COMMENTS & BEST ANSWERS AVAILABLE BY 10/22 BRIEFING ASSMTS KRYPTONS Albers Available A.M. Friday Ghen Due Monday OXYGENS Kesler Available After Class Monday White Due Monday Oct 20.

Questions on Returned Briefs Qs about grading or relative weight of Briefing Assignments: See Info Memo #1 Substantive Qs about my comments: See write-ups of briefs in Info Memos #2-4 Qs about translating my writing or substantive Qs after reading write-ups: Black out pseudonyms on your brief and on my comment sheets & then show me.

Recurring Issue re Wolverine Assignments Instructions say to make arguments… “based on the materials in Unit One.” This means in your team submissions… No arguments based on Whaling Cases No arguments based on Rose Article Can do as study tool later on.

Wolverine Team Assignment Due UPDATED ASSIGNMENTS Friday 10/10 Finish DQ66-67 (as needed) Swift & DQ68-70 Albers Briefs Returned Monday 10/13 Oxygen: Ghen Brief Due Ghen & DQ71-72 Kesler Briefs Returned Wednesday 10/15 Wolverine Team Assignment Due Rose Article Intro to Oil & Gas

From Discussion Monday (& More) DQ59: Taber under Albers From Discussion Monday (& More) Marking? Strong (Man-Made; Owner I.D.) F’s Knowledge? Knew Claim & Likely Return Protecting Labor/Industry? Labor: Killing & Careful Marking/Securing + Abandonment Only by Compulsion Industry: Protect whaler that did best job they could under circs + don’t encourage unnecessary risk-taking to keep carcass

DQ59: Taber under Albers Marking? Strong (Man-Made; Owner I.D.) F’s Knowledge? Knew Claim & Likely Return Protecting Labor/Industry? Both Time/Distance? 12 Hours (Relatively Short); Distance = How far has property in Q moved since out of control of OO = Very Little

Bottom Line Under Albers: Strong Case for 1st Ship (OO) DQ59: Taber under Albers Marking? Strong (Man-Made; Owner I.D.) F’s Knowledge? Knew Claim & Likely Return Protecting Labor/Industry? Both Time/Distance? Relatively Short; Very Little Bottom Line Under Albers: Strong Case for 1st Ship (OO)

OXYGEN DQ62: In Taber, what is the significance of the participation in the dispute of the Captain of the Massachusetts?

KRYPTON DQ60: Bartlett: Factual Differences from Taber Preliminary Question “Anchor Not Holding” Means …? Two Possiblilities

KRYPTON DQ60: Bartlett: Factual Differences from Taber “Anchor Not Holding” Means …? Anchor no longer attached to whale –OR- Anchor attached to whale but not to sea bottom Evidence from the Case?

KRYPTON DQ60: Bartlett: Factual Differences from Taber “Anchor Not Holding” Means …? “[T]he right to this whale appears to stand on the same footing as the right to the anchor attached to it, which was very properly restored to its owner” Anchor was still attached to whale but not to the sea bottom.

KRYPTON DQ60: Bartlett: Factual Differences from Taber “Anchor Not Holding” means anchor was still attached to whale but not to the sea bottom. Gotta Read Carefully

KRYPTON DQ60: Bartlett: Factual Differences from Taber? Marker Gone From Carcass. Significance?

KRYPTON DQ60: Bartlett: Factual Differences from Taber? Marker Gone = Marking/Notice Less Strong, But Anchor Still Attached Whale Adrift: Significance?

KRYPTON DQ60: Bartlett: Factual Differences from Taber? Whale Adrift: Maybe natural liberty increase in distance less likely OO will find less effective labor by OO Longer Time (few hours v. next morning): Significance?

KRYPTON DQ60: Bartlett: Factual Differences from Taber? Longer Time (few hours v. next morning): Time itself a factor in some escape cases Less likely owner will return (which finder may be able to determine) Maybe less effective labor by OO

Taber & Bartlett: Issue No procedural element because not an appeal (no court below so no error by court below to identify)

Taber & Bartlett: Issue Does killer of whale lose property rights in the carcass by leaving the carcass in the ocean where …?

E.g., Taber: Issue Does killer of whale lose property rights in the carcass by leaving the carcass in the ocean where … Killer anchors carcass leaving marks indicating killer’s identity Killer returns as soon as practicable to collect carcass Carcass is still anchored when found and finder sees identifying marks and knows whale is less than 12 hours dead?

Taber & Bartlett: Issue Cases suggest three ways to resolve: Law of Salvage Whaling Customs Common Law of Property

DQ62: LAW OF SALVAGE Party finds property belonging to another (OO) adrift on open seas Finder recovers property & returns to OO Finder receives standard “salvage” fee from OO Begins as custom, but is established as law by the time of these cases

DQ62: LAW OF SALVAGE Party finds property belonging to another (OO) adrift on open seas Finder recovers property & returns to OO Finder receives standard “salvage” fee from OO OXYGEN: Why not employed in Taber?

DQ62: LAW OF SALVAGE Why not employed in Taber? Zone owners never claimed salvage rights Zone didn’t behave like salvor (= return found goods and ask for $) Rule: if try to adopt salvage property for own use, can forfeit salvage rights Note: Salvage is usually for goods found adrift, so not clear should apply here

DQ62: LAW OF SALVAGE Taber uses a comparison with the law of salvage to support its result: Doctrinal Rationale: Law says if property found adrift at sea, finder entitled to fee for salvage but not to property itself. Owner of property that is not adrift has an even stronger interest, so does not lose rights to finder.

Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Relevance to Taber? Doesn’t apply because whale not adrift.

Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Note fact dispute/finding in Taber: Was there a custom in whaling industry that if an anchored whale dragged its anchor, ownership can be lost? No evidence of such a custom.

Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Relevance to Bartlett? Factual Finding: Custom only applies if no anchor attached, so not applicable here. Anchor is different from harpoons because it is proof of actual possession.

Bartlett: Finds no custom giving dead whale with anchor attached to finder if it’s adrift. “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

NEON DQ65: MEANING OF … “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

NEON DQ65: MEANING OF … “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

Bartlett: Policy Rationale: A rule that treated whales that had recently gone adrift differently from anchored whales would be imprudent because it would take property rights from the OO in a very short period and would encourage finders to lie about what they found or to fraudulently set the whale adrift.

NEON DQ65: MEANING OF … “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” Bartlett provides arguments for refusing to treat particular customs as law

What do Taber & Bartlett decide? Salvage Inapplicable No Relevant Custom Anchored Whale Remains Property of OO Forever? Taber & Bartlett = Short Time Frame Result unclear if longer time frame; policy against wasting resource might change result I’ll give you summary of their significance in the next Info Memo

In other words, use of the analogy is possible, but is it a good idea? Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? We’ve seen that we could use the escape cases to resolve cases like Taber and Bartlett, but should we? In other words, use of the analogy is possible, but is it a good idea?

Three Common Approaches: Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: 1) Applicability of the Doctrine 2) Factual Comparison 3) Comparison with Alternative Schemes

Three Common Approaches: Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: Applicability of the Doctrine 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? 2) Factual Comparison 3) Comparison with Alternative Schemes

Three Common Approaches: Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: Applicability of the Doctrine 2) Factual Comparison Are there factual similarities between the two contexts that suggest similar treatment Are there factual differences between the two contexts that suggest different treatment 3) Comparison with Alternative Schemes

DQ66: FACTUAL COMPARISON Identify Similarity or Difference Between the Two Contexts (Factual not Legal) Explain Why the Similarity (or Difference) You Identified Suggests that the Legal Treatment of the Two Contexts Should be the Same (or Different)

DQ66: FACTUAL COMPARISON Sample #1: Similarity Mobility: Both contexts involve property that can move (w/o human intervention) away from where the owner left it. Escaping ACs good for Taber context b/c specifically designed to decide when to return mobile property. They address relevant questions like extent of OO’s investment, OO’s labor to control or retrieve property and whether finder would have reason to believe another person has a strong claim. [Can then argue re relative importance.]

DQ66: FACTUAL COMPARISON Sample #2: Difference Living/Dead: Land animals are alive when they “escape”; whale carcasses are not. Some concepts from Escaping ACs (“provide for itself” & “intent to return”) assume property was alive at escape; these will not work well in Taber context. [Can then argue re relative importance; doesn’t have to be 100% suitability to be reasonable option.]

Three Common Approaches: Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: 1) Applicability of the Doctrine 2) Factual Comparison 3) Comparison with Alternative Schemes What alternative approaches might be used to address the new context? What are the pros and cons of using any of these alternatives instead of the proposed analogy?