ELEMENTS D1 & D2 POWER POINT SLIDES Class #28 Wednesday, November 8, 2017 Thursday, November 9, 2017

MUSIC TO ACCOMPANY DQ2.23-2.25: THERE WILL BE BLOOD (SOUNDTRACK) (2007) Fajer Exam Workshop (Encore Presentation): TODAY @ 12:30-1:50 pm in Room E352 Friday Both Sections Together 8:05-10:15 New on Course Page Office Hours for 11/25-11/30 Info Memo #4 (Custom Toolbox; Intrnet Ghen Brief) GWA#2: Comments & Best Answers from Prior Years GWA#2: Preliminary Comments on 2017 Work Bank of Old Exam Qs 1 & 2 with Comments/Best Student Answers 2016 Exam Qs1 & 2;

Ghen v. Rich (1881) (cont’d) MOSTLY LECTURE & URANIUM for DQ 2.16(d) Paul Gauguin, The Beach at Dieppe (1885)

Ghen v. Rich BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder, presumably for conversion seeking damages for the value of the whale.

Ghen v. Rich BRIEF: FACTS As in Swift, Crucial Fact = Custom Custom on Cape Cod: Whaler shoots a finback whale with marked lance. Whale dies and sinks. Several days later, it rises to surface. If whale gets stranded on beach, F notifies owner of lance; receives small payment. Lance owner gets whale. Note: Custom is variation on salvage

Ghen v. Rich BRIEF: FACTS Custom on Cape Cod: If finback whale killed with marked lance, lance owner gets whale & finder gets small fee Ghen killed finback whale using a marked lance. The whale floated up and was found by 3d party, who sold it to Rich. 3d party and Rich “knew or might have known” that a professional whaler killed the whale. Can’t really translate as “should have known” Stronger & term of art; can say “could have known”

Ghen v. Rich On These Facts Who Gets Whale? (Complex) What would happen without custom? Case doesn’t fit neatly into prior precedent. Did Ghen ever get property rights at all? Killed, but no clear moment of possession and no pursuit. Assuming Ghen owns at moment of death, does he lose property rights when carcass sinks? Should custom apply as law? DQ2.16: Let’s Look at Precedent We Have

Ghen v. Rich : DQ2.16: Application of Prior Cases Did Ghen ever get property rights at all under Shaw’s first possession analysis? Brought whale “into his power and control”? “[S]o maintain[ed] his control as to show that he does not intend to abandon [it] again to the world at large.”?

Ghen v. Rich : DQ2.16: Application of Prior Cases (b) Assuming Ghen owns at moment of death, does he lose property rights under the escaped animal analysis of Albers? Look at: Marking/Finder’s Knowledge Time/Distance Abandonment/Pursuit Labor/Industry

Ghen v. Rich : DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Marking/Finder’s Knowledge?

Ghen v. Rich : DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Marking/Finder’s Knowledge: Maybe a little Weaker than Albers b/c F not in industry & whales native to area (but see Prather point & Slide 39: maybe OK b/c outsiders can’t use product w/o expert help) Time/Distance? Kill to find: 3 days & 17 miles Find to claim by killer: 3 days Helpful to …? Because….?

Ghen v. Rich : DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Time/Distance: Pretty Helpful to Killer Abandonment/Pursuit?

Ghen v. Rich : DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? No Pursuit but seems like Abandonment by Compulsion Labor/Industry?

Ghen v. Rich : DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Labor/Industry Very Strong for Killer Killer not negligent re confinement; unclear what else could do Court says industry fails if Fs could take: Overall Albers = pretty strong for killer if OK w Finder outside industry

Ghen v. Rich : DQ2.16: Application of Prior Cases (c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett? Similar: Killer did all possible to mark Similar: Fs have reason to know of & can identify killer Different: Killer never had actual control Different: No return/pursuit; rely on others to find Different: Longer time frame Overall Result? Because …?

Ghen v. Rich : DQ2.16: Application of Prior Cases (c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett? Note Ghen reading of Bartlett & Taber (dicta in last para p.76): If fisherman does all he can do to make animal his own, would seem to be sufficient. All differences on previous slide seem unavoidable given technology.

Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? Look at: Doesn’t affect outsiders? Used by entire business for a long time? Legal rule harder to apply than custom? Custom is reasonable?

Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? Doesn’t affect outsiders? Obviously can affect outsiders who find whales (beachcombing tourists). Why might we think this isn’t a big problem?

Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? Doesn’t affect outsiders: Sometimes does, but maybe OK b/c can’t process whale w/o people in industry (have to learn about custom to get value) Used by entire business for a long time? Court says YES. Legal rule harder to apply than custom?

Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? Legal rule harder to apply than custom? Unclear. Court suggests killer might win under Taber/Bartlett Would be similar facts over & over, so likely to be pretty certain over time. 4. Custom is reasonable?

Ghen v. Rich (Uranium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? Custom is reasonable? Rewards Labor Appropriately Whalers doing all they can. Finder Gets Fee for Labor Necessary for Cont’d Operation of Industry Might Treat as Separate Custom Q BUT Not True in Swift (Different Custom in Atlantic) Qs on Ghen?

Closing Up Whaling Cases Whaling Cases on property rights & custom = “Animals Cases” for purposes of exam Treat salvage as alternative, not part of ACs Useful exercise: Apply Whaling cases & Rose to wolverine problem. Might do charts of Whaling cases mapping, e.g., Labor; Marking; Applicability of Custom (fact Q); Decision to Treat Custom as Law (legal Q) QUESTIONS?

Ghen v. Rich (Radium) : DQ2.19 E-Participation “Internet Ghen Brief” in Info Memo #4 on CP In the brief, try to identify as many substantive mistakes and questionable statements about the case as you can. Don’t worry that their briefing form is different from ours. [I.e., don’t include as “mistakes” missing parts of our briefs or including info in “wrong” section of brief.] Useful way to organize: Download copy of brief and list any mistakes under relevant headings.

“InternetGhen Brief” in Info Memo #4 Ghen v. Rich (Radium) : DQ2.19 E-Participation Due Sunday 11/12 @ 2pm D1: Carver * Fernandez * Paulino * Seals D2: Dean * Rabin * Raijman * Roca “InternetGhen Brief” in Info Memo #4 In the brief, try to identify as many substantive mistakes and questionable statements about the case as you can. Don’t worry that their briefing form is different from ours. Work-Product: Annotated copy of brief, listing any mistakes under relevant headings. E-Mail directly to me using real names (No Pseudonyms!)

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Structure of Your Final Exam & EXAM Q1 v Structure of Your Final Exam & EXAM Q1 v. EXAM Q2: (FEATURING The Passover Q)

WHY IS THIS YEAR DIFFERENT FROM ALL OTHER YEARS?

WHY IS THIS YEAR DIFFERENT FROM ALL OTHER YEARS? Traditional Format: Covering Units One + Two + Three Three Equally Weighted Qs Q1 & Q2: Single Fact-Pattern (Not Animals) Q1 = Issue-Spotter Assume Animals Cases (ACs) Govern Covers Two or Three of 1st Possession. Escape, Custom Q2: Analogy Q: Discuss Whether ACs are Good Tool for this Type of Problem

WHY IS THIS YEAR DIFFERENT FROM ALL OTHER YEARS? Traditional Format: Three Units  Three Equally Weighted Qs Q1 & Q2: Issue-Spotter & Analogy 2017 Only Covering Units One & Two Yields One Long Fact Pattern Q1 = Three-Part Issue-Spotter: (1A) 1st Possession & (1B) Custom & (1C) Escape Each 30 min & 20% of Points on Test Q2 Analogy Q: 60 min & 40% of Points on Test

WHY IS THIS YEAR DIFFERENT FROM ALL OTHER YEARS? In prior years, Q1 covered either two or three of the relevant toolboxes (1st Possession, Custom, Escape). Sometimes the instructions specified which toolboxes to use; often they did not. Occasionally Q1 was explicitly divided into sub-questions; usually it was not. Again, in 2017, Q1 will be divided into three Sub-Questions, each explicitly covering one of the three too;boxes.

EXAM Q1 v. EXAM Q2 Apply ACs To Specific Facts of Hypo Assess ACs as Tools For General Problems of Same Type as Hypo

EXAM Q1 v. EXAM Q2 Apply ACs To Specific Facts of Hypo Discuss Which Party Should Win (Get/Keep Property Rights) Assess ACs as Tools For General Problems of Same Type as Hypo Discuss What Legal Approach Might Be Best for These Problems

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)

EXAM Q1 v. EXAM Q2 Apply ACs to Specific Facts of Hypo & Discuss Who Should Win E.g., GWA #1, GWA#2, Midterm Necessary Background for GWA#3 Assess ACs as Tools For General Problems of Same Type as Hypo E.g., DQs 2.09-2.11 (escaping whale carcasses); DQ2.23-2.25 (1st Poss & Natural Gas); DQ2.33-2.37 (“Escaping” Natural Gas) Written Submission in GWA#3

EXAM Q1 v. EXAM Q2 Apply [Escape] ACs to Facts of Hypo & Discuss Who Should Win (Background for GWA#3) Look at Old Qs + Comments + Student Ansewers on CP; Make Sure You Get This ASAP Assess [Escape] ACs as Tools For General Problems of Same Type as Hypo (Sunken Treasure: Written Submission in GWA#3) Look at Old Qs + Comments + Student Ansewers on CP; Make Sure You Get This ASAP

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas Overall Q: How Useful Are Pierson-Liesner-Shaw as Tools for Determining 1st Possession of Oil & Gas? Background/Recap: Left Off w DQ2.22: Under Westmoreland, if a pool of gas lies under two adjacent parcels of land and the owner of one parcel drills a well, Driller is entitled to extract ALL of joint pool through his well if he des so before other owner acts.

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas Overall Q: How Useful Are ACs as Tools for Determining 1st Poss. of Oil & Gas? Background/Recap: Under Westmoreland, property rights to any amount of oil/gas from joint pool go to first person to lawfully extract it. Cf. Hammonds p.96: “[O]il and gas are not the property of any one until reduced to actual possession by extraction, although by virtue of his proprietorship, the owner of the surface, or his grantee …, has the exclusive right of seeking to acquire and of appropriating the oil and gas directly beneath. This theory of ownership or, perhaps more accurately speaking, lack of ownership is practically universally recognized. ...”

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas Overall Q: How Useful Are ACs as Tools for Determining 1st Poss. of Oil & Gas? Background/Recap: Under Westmoreland, property rights to any amount of oil/gas from joint pool go to first person to lawfully extract it. XQ2: Three Common Approaches: Significance of Factual Similarities & Differences (DQ2.23 = RADIUM) Usefulness of Doctrine (DQ2.24 = OXYGEN) Usefulness of Alternatives (DQ2.25 = KRYPTON)

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas 1st Approach: Arguments from Factual Comparisons (How Similar are the Jobs) Starting Point = Facts, Not Legal Doctrine Not Comparing Facts of Individual Case to Facts of Problem. Instad Identify Factual Comparisons betw 1st Poss ACs Generally (Hunting/Trapping) & New Job (Extraction of Oil & Gas) Generally

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas 1st Approach: Arguments from Factual Comparisons (How Similar are the Jobs) Starting Point = Facts, Not Legal Doctrine Identify Factual Comparisons betw 1st Poss ACs Generally (Hunting/Trapping) & New Job (Extraction of Oil & Gas) Generally Then Explain What Comparison Suggests re Usefulness of ACs for New Situation

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas) RADIUM: DQ2.23. Arguments re Usefulness of 1st Poss ACs from Factual Similarities between Hunting/Trapping Wild Animals Generally & Extraction of Oil/Gas

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas) RADIUM: DQ2.23. Arguments from Factual Similarities Could Try, e.g., : Mobility Across Property Lines Labor Necessary to Capture

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas) RADIUM: DQ2.23. Arguments re Usefulness of 1st Poss ACs from Factual Differences between Hunting/Trapping Wild Animals Generally & Extraction of Oil/Gas

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas) RADIUM: DQ2.23. Arguments from Factual Differences Could Try, e.g., : Mineral Movement More Predictable Value of Oil/Gas Generally Higher

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas 2d Approach: Arguments re Usefulness of Rules/Doctrine (How Well Does the Toolbox Work?) Starting Point = Particular Legal Rules/Tests from ACs Not Applying to Facts of Problem. Instead Discuss Usefulness for New Job (Extraction of Oil & Gas) Generally Toolbox Can Be Useful Even if Some Tools Are Not, But More Useful Tools Make Toolbox Better for Job

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas 2d Approach: Arguments re Usefulness of Rules/Doctrine (How Well Does the Toolbox Work?) Discuss Usefulness of Particular Rules/Factors for New Job (Extraction of Oil & Gas) Generally Some Rules/Factors Might Warrant Two-Sided Discussion re Usefulness.

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas) Some Rules/Factors Might Warrant Two-Sided Discussion re Usefulness. E.g., DQ2.24 & “Deprivation of NL” Not Crazy to Say NL = Ability to Move Freely w/o Human Intervention & Test Met if Can No Longer Do So

XQ2: Argument By Analogy Sample: 1st Possession of Oil & Gas) Some Rules/Factors Might Warrant Two-Sided Discussion re Usefulness. E.g., DQ2.24 & “Deprivation of NL” Not Crazy to Say NL = Ability to Move Freely w/o Human Intervention & Test Met if Can No Longer Do So BUT: Hard to See How This Could Happen without Complete Actual Possession so NL Doesn’t Add Much