ELEMENTS D2 & D1 POWER POINT SLIDES Class #20 Monday, October 16, 2017 Tuesday, October 17, 2017 .

Music to Accompany Kesler: Ethel Waters (1929-1939) Friday 10/20 Both Sections Meet 8:15-10:15 Midterm Review Qs on GWA #2 2007 Exam Q1 Monday No Office Hours Monday/Wednesday DF on General Exam Prep (especially Post-Midterm Qs/Concerns)

Group Written Assignment #2: McKinley v Group Written Assignment #2: McKinley v. Ford The Case of the Wounded Wolverine

Skills: Applying Legal Authority Group Written Assignment #2 Important Exam Task/Skill: Apply Authorities Studied to New Hypothetical or “Fact Pattern” Assmt #1 : Structured Sequence of Particular Arguments from a Single Authority Assmt #2: Wider Range of Arguments from Multiple Authorities

Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits Each Team Only Addresses One Issue: “First Possession” = Was There a Moment When Wolverine Became Property of P? “Escape” = Did P Lose Property Rights When Wolverine “Escaped” to D’s Property (Must Assume P Acquired a Property Right)

Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits Each Team Only Addresses One of Two Issues (1st Possession -OR- Escape) Stick to Your Issue Be Very Careful to Explain Relevance If You Use Authority Focused on Other Issue

Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits Each Team Only Addresses One Issue Representing One Particular Party All Arguments Must Support Your Client Legal Smeagols: Identify Other Side’s Best Arguments, Then Respond to Them

Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits Each Team Only Addresses One Issue Representing One Particular Party Arguments must be “based on the materials in Unit One.” No arguments based on Whaling Cases on Rose Article from Unit Two Can include policy arguments we’ve discussed even if not clearly stated in Unit One materials.

Skills: Applying Legal Authority Group Written Assignment #2 One “Argument” Means One Subject E.g., Arguments Made in Assignment #1 Applying One Legal Test Comparing Facts of One Case to Hypo Applying One Relevant Policy Consideration

Skills: Applying Legal Authority Group Written Assignment #2 One “Argument” Means One Subject E.g., Arguments Made in Assignment #1 E.g., Applying One Relevant Factor Mortal Wounding Return to Natural Liberty Deriving a Rule from Multiple Cases and Applying It See DQ1.28 (1st Possession Cases) See DQ1.53 (Manning & Mullett)

Skills: Applying Legal Authority Group Written Assignment #2 One “Argument” Means One Subject Some Degree of Judgment Involved Mortal Wounding (+ Pursuit?) Two Similar Tests from Separate Cases? Address Counter-Argument in Same Argument or Separately? When in Doubt, Avoid Substantial Overlap

Skills: Applying Legal Authority Group Written Assignment #2 Working Together Be Responsible for Submission as a Whole Covering all Key Arguments You Identify Addressing Key Counterarguments Separating Out Different Ideas Avoiding Substantial Overlap Due Tuesday Night October 31 @ 9pm Coordinators Should Try to Start to Work Out Individual Responsibilities and Timing Very Soon Cooperate to Achieve Best Possible Joint Product

Skills: Applying Legal Authority Group Written Assignment #2 General Points Care re Formatting & Substantive Directions Review “Common Writing Concerns” Look at Feedback on Assignment #1 Comments & Best Answers Memo on Course Page by Friday Individual Comments on Your Work Will Start Appearing Soon

Group Written Assignment #2 QUESTIONS? Today In Class Friday, Next Mon-Tues, Next Friday By E-Mail Until Sun 10/29 @ 11:59 pm

UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES Part 2: OIL & GAS CASES

UNIT II: EXTENSION BY ANALOGY Continuing Practice Reading & Briefing Cases Application of Animal Cases (ACs) in New Contexts 1st Possession Whales ARE Animals (No Analogy) Oil & Gas (Minerals Ferae Naturae) Escape of [Dead] Whales/Stored Natural Gas Plus: Custom as Binding Law (cf. Pierson) SKILLS Continuing Practice Applying ACs New Skill: Using Legal Tests by Analogy New Skill: Arguments about When Use by Analogy is Appropriate

UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES Continuing Practice Reading & Briefing Cases Begin with Intro to Whaling Cases (61-63) All are 19th Century Cases  Glossary (64) All are Trial Court Cases (Written Decisions following Trials)  Special Briefing Form (60-61) I’ll Take Qs on These by E-Mail or Next Class

UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES MAJOR LEGAL Qs COVERED Taber v. Jenny: Escape (by Analogy); Custom Bartlett v. Budd: Escape (by Analogy); Custom Swift v. Gifford: 1st Possession; Custom (Key) Ghen v. Rich: Like Wolverine Problem (Both 1st Possession & Escape (by Analogy)); Custom (Key)

E.g., Legal Framework of Taber & Bartlett ESCAPE (by Analogy) Basic Facts of Both Cases: Crew of 1st ship kills whale, marks and anchors it, leaves Whale carcass moves some, then found & taken by crew of 2d ship Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

Legal Framework of Taber & Bartlett ESCAPE (by Analogy) “Kodak Moment” (1913)

Legal Framework of Taber & Bartlett ESCAPE (by Analogy) Basic facts of both cases: 1st Crew kills whale, marks, anchors, leaves Whale found & taken by crew of 2d ship Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale Issue Like Escape Cases: “Did 1st Crew Lose Property Rights by Leaving Whale Behind (given Specific Facts)?” We’ll Try to Apply Factors from Escaping Animals Cases (See DQ2.01)

DQ2.01: Taber under Mullett E.g., Natural Liberty What might you call the “natural liberty” of a dead whale? “free from artificial restraint” “free to follow the bent of its natural inclination” (obviously can’t “provide for itself”)

DQ2.01: Taber under Mullett E.g., Natural Liberty What might you call the “natural liberty” of a dead whale? “free from artificial restraint” “free to follow the bent of natural inclination” MAYBE: A dead whale adrift = NL Arguably shows negligence by OO Arguably F can’t tell there’s an OO

DQ2.01: Taber under Mullett E.g., Natural Liberty What might you call the “natural liberty” of a dead whale? MAYBE: A dead whale adrift = NL Arguably fits part of definition Arguably fits policies behind factor We’ll see if/when whaling cases say carcass adrift goes to finder.

UNIT II: EXTENSION BY ANALOGY New Skill: Arguments about When Analogy is Appropriate (Lot of Time on This in Unit II) Very Important Type of Argument, Especially re New Technology Examples in Reading re Treatment of Internet Fourth Amdt & New Technology Often Useful: Can employ any time someone wants to extend a rule to a new situation Examples of Relevant Inquiries in DQs “Escaping” Whales: DQ2.09-2.11 1st Possession of Oil & Gas: DQ2.23-2.25 “Escaping” Natural Gas: DQ2.33-2.37

BUT FIRST, BACK TO ALBERS & KESLER

The Logic of Albers Critique: DQ1.58-1.59 What The Case Holds Domesticated or Wild? Addressing Prior Authority Critique: DQ1.58-1.59

The Logic of Albers: Critique DQ 1.59: ALL (URANIUM) Can you describe what happened in Albers in terms of Demsetz’s first thesis?

DEMSETZ FIRST THESIS = DESCRIPTION/EXPLANATION Identify decision/activity at issue Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis Decision: Finder’s Choice: Keep found animal or pelt v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities?

The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances?

The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms [+ Zoos, etc.] Increase in Externalities?

The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms Increase in Externalities? OO losses greater; harm to state economy Change in Rule?

The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms Externalities = OO losses  ; harm to state economy Change in Rule? Colo. S.Ct. (and Ontario Legislature) alter Mullett rule to protect fox farms. Would Demsetz Like the Result?

The Logic of Albers: Critique DQ1.59: Demsetz’s 2d Thesis Would Demsetz Like the Result? YES! Change in Albers creates stronger private property rights & fewer valuable escaped animals returning to commons. Seems consistent with tendency toward more private property that Demsetz (2d Thesis) sees as good because of reduced externalities over time.

The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law 1861 Colo. Statute (Bottom p.48): The common law of England, so far as the same is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. D must have argued that statute required the court to follow the common law Mullett-Blackstone rule, since not repealed by Colo. Legislature.

The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law 1861 Colo. Statute: The common law of England, so far as the same is applicable … shall be the rule of decision… Court finds the common law rule “inapplicable” because unsuited to present conditions Cites Morris (an earlier Colo. Case) as rejecting a common law rule for the same reason.

The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law Court finds the common law rule “inapplicable” because unsuited to present conditions. Why unsuited here? Common Law Rule designed under assumption that wild animals had no material value Before development of breeding farms and zoos Need different rule to account for significant value

The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law Court finds the common law rule “inapplicable” because unsuited to present conditions. Common Law Rule assumed wild animals had no material value Since that is no longer true, need different rule. Common Type of Legal Argument: Check purpose of old rule to see if it should still apply. Questions?

The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Court here essentially: a. carved out exception to the Mullett rule b. to meet perceived policy need. 2. Alternative (as in Ontario): a. Court applies existing rule b. Legislature responds by enacting new statute modifying rule to meet policy need.

The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)?

The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)? Might look at: Relative institutional strengths? Democratic theory? Certainty/notice? Relevance of Pending Legislation?

The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Courts v. Legislature: Relative Institutional Strengths Include: Access to Information: Legislature has power to hold extensive investigations and likely to hear from most affected constituents. Courts hear from parties to suit and occasionally from other affected groups through Amicus briefs. Type of Rule: Legislature better equipped to develop complex regulations and to resolve difficult line-drawing problems Courts tend to develop rules that are manageable in judicial setting but may be better at determining individual justice

The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Courts v. Legislature: Relative Institutional Strengths: Example: Moore v. Regents of University of California Suit about Univ. hospital using valuable spleen cells from patient without patient’s knowledge or permission. Issue of first impression so P raised several legal theories. Cal. S. Ct. did not rule on whether cells were “property,” probably in part because that would raise complex legal and ethical problems better suited for legislature. Court resolved case as an issue of medical disclosure, which was easier approach for Court because: Unlikely to be controversial that doctors & hospital should’ve asked/told. Already established tort caselaw re standards for medical disclosure.

The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE) Having then neither statute nor applicable common-law rule governing the case, we must so apply general principles in the light of custom, existing facts, and common knowledge, that justice will be done. So the courts of England and the United States have acted from time immemorial, and so the common law itself came into existence. (2d Para. p.49)

Kesler v. Jones: Uranium In-Class Brief

Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler … and the Davises… ??? sued Jones … for [cause of action] seeking [remedy].

Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the original owner (OO) of an escaped fox, and the Davises, its caretakers … Fox is “property” of “other appellant”: must be Kesler Davises probably plaintiffs because they had custody of the fox and would be liable to Kesler for its loss

Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers …, sued Jones … ??? for [cause of action] seeking [remedy].

Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, Need both killing & keeping pelt. for [cause of action] ??? seeking [remedy].

Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the owner of an escaped fox, and the Davises, its caretakers sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, … for unlawful killing of the fox and unlawful retention of its pelt seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?

Kesler v. Jones BRIEF: Uranium Statement of the Case: seeking [remedy] ??? Case doesn’t say explicitly. Hint from case? Court orders new trial to determine “the value of the pelt”  seeking damages

Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages. PROCEDURAL POSTURE?

Kesler v. Jones BRIEF: Uranium Procedural Posture: After a trial, the court found for defendant on both claims. Plaintiffs appealed. How do you know there was a trial?

Kesler v. Jones BRIEF: Uranium Procedural Posture: After a trial, the court found for defendant on both claims. Plaintiffs appealed. How you know there was a trial: “The court was justified … in concluding from the evidence…” “the cause remanded for a new trial …”

Kesler v. Jones FACTS Fox owned and cared for by Ps had escaped and been recaptured at least once. It escaped again and Ps pursued. A short time after the escape and a short distance away, a neighbor found it among her chickens and asked D for help. D shot and killed the fox, unaware of its prior captivity or Ps’ ownership. Ps requested that D return fox’s pelt. D refused.

Kesler v. Jones BRIEF How Many People Saw That There Were Two Issues in Case? (Show of Hands) Evidence That There Are Two Issues In Case?

Kesler v. Jones BRIEF: Uranium How You Know There Are Two Issues In Case: Two different kinds of legal claims addressed Unlawful killing of fox (Tort Q: Justification for shooting) (We’ll come back to at end w DQ1.62) Unlawful retention of pelt (Property Q: Ownership of escaped animal) Judgment is affirmed in part, reversed in part. Means: One issue decided in favor of D One issue decided in favor of Ps

Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers Note that Kesler describes Albers as “a case squarely in point ….” BUT cases not really absolutely identical, so we’ll look at factual differences.

Kesler v. Jones DQ1.60: Factual Differences from Albers Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance (GWA#1 Arg4) Weakest Answers Tend to Ignore Differences Better Answers Argue that New Facts Change Result Best Answers Discuss Why New Facts Might or Might Not Change Result

Kesler v. Jones DQ1.60: Factual Differences from Albers Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance Explanation of Significance is Key Part of More General Point: Use Every Fact I Give You I’ll give you an exercise later: if change facts in wolverine problem, how might it affect result?

Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers Identify Factual Differences Between Kesler and Albers & Discuss Possible Significance Start by Creating List of Differences