ELEMENTS D2 & D1 POWER POINT SLIDES Class #24 Wednesday, October 25, 2017 Thursday, October 26, 2017 .

MUSIC: MAX BRUCH Violin Concerto #1 (1868) Scottish Fantasy (1880) Royal Philharmonic Orchestra (Recording 1972) Rudolf Kempe, Conductor * Kyung Wa Chung, Violin World Series Quiz: What MLB Team Has Won Its Last Nine World Series Games?

MUSIC: MAX BRUCH Violin Concerto #1 (1868) Scottish Fantasy (1880) Royal Philharmonic Orchestra (Recording 1972) Rudolf Kempe, Conductor * Kyung Wa Chung, Violin World Series Quiz: What MLB Team Has Won Its Last Nine World Series Games?

Practice Midterm: Self-Grading Form Significance of Counting Exercises is Relative Range, Not Exact Numbers. Usefulness of Tie-Breakers for Individual Topics & Overall QUESTIONS?

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)?

Infomercials, Swiss Army Knives 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. Infomercials, 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? Key Differences Unaddressed? Usefulness of Doctrine: How Well Can These Tools Do This Job? Well Enough? Do Tools tend to favor the right parties (like “winners & losers” in DQ1.10-1.11)? 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: (DQ2.09) Significance of Factual Similarities (URANIUM) & Differences (RADIUM) (DQ2.10) Usefulness of Doctrine (URANIUM) (DQ2.11) Usefulness of Alternatives (RADIUM) 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 v. Dead Land animals are alive when they “escape”; whale carcasses are not.

Argument By Analogy Sample Factual Difference: Living v. 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 factor!)

Argument By Analogy Sample Factual Difference: Living v. 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 RADIUM DQ2.09: Additional Factual Differences? Can You Construct This Kind of Argument Around Them?

ELEMENTS D2 & D1 POWER POINT SLIDES Class #24 Wednesday, October 25, 2017 Thursday, October 26, 2017 .

MUSIC: MAX BRUCH Violin Concerto #1 (1868) Scottish Fantasy (1880) Royal Philharmonic Orchestra (Recording 1972) Rudolf Kempe, Conductor * Kyung Wa Chung, Violin World Series Quiz: What MLB Team Has Won Its Last Nine World Series Games?

MUSIC: MAX BRUCH Violin Concerto #1 (1868) Scottish Fantasy (1880) Royal Philharmonic Orchestra (Recording 1972) Rudolf Kempe, Conductor * Kyung Wa Chung, Violin World Series Quiz: What MLB Team Has Won Its Last Nine World Series Games?

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 (Last 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 (& Change Your Focus Distance)

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 Only if 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!

2012 FACT PATTERN: Human Gestures/Celebrities Exam Q1 (Custom) (Next Week) Exam Q1 (Escape) (Today): Uranium (for L-Bow) v. Radium (against L-Bow) Assume No Binding Custom or Other Relevant Law, PLUS Gesture has “Escaped” if Someone Else Can Do It If OO Retains Property, F Needs OO’s Permission in Commercial Setting (Like Songs Today) We’ll Focus on Two Factors: Marking/Finder’s Knowledge Protecting OO’s Labor/Investment General Tip re Multiple Disputes: Look for Ways Analysis Might Differ: BB v. CA/KG I’ll Post Comments/Best Answers after Both Classes Cover

2012 FACT PATTERN: Property in Human Gestures L-Bow begins doing “Elbowing Gesture” (EG) in conjunction with his impressive basketball plays while in college. Shortly after turning pro, L-Bow starts doing charitable ads featuring EG. Many people try to do EG but very few can; L-Bow sends congratulations to people who succeed. Several years pass  2012

2012 FACT PATTERN: Property in Human Gestures Several years pass  2012 4/12: KG does spectacular dunk with EG in women’s college basketball finals; L-Bow tweets approval. 11/12: KG has becomes Cane-Ade spokesperson; Cane- Ade runs ad including video of dunk w EG 11/12: BB starts marketing exercise program using video of himself doing EG. “Last week” (as of time of exam, so 12/12): L-Bow sues to enjoin commercial use of EG.

2012 FACT PATTERN: EXAM Q1 (Escape): Human Gestures Discuss whether, if the ACs are the relevant authority, L-Bow retains sufficient property rights to the “elbowing” gesture (EG) to prevent BB and/or Cane-Ade from using the EG in their marketing campaigns.

2012 FACT PATTERN: EXAM Q1 (Escape): Human Gestures Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns? Assume that, for the purposes of applying the animals cases, L-Bow is the OO of the EG and EG has “escaped” when someone else does it. Assume that human gestures do not receive trademark or copyright protection and that no other applicable [legal] doctrines address property rights in human gestures. Note that if you don’t think there should be any property rights in human gestures, you discuss that in Q2 (not here).

2012 FACT PATTERN: EXAM Q1 (Escape): Human Gestures Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns? Arguments re Marking/Finder’s Knowledge? Arguments re Protecting OO’s Labor/Industry? URANIUM (for L-Bow) RADIUM (For BB & CA)