ELEMENTS B1 & B2 POWER POINT SLIDES Class #17: Friday, September 23, 2016 National Great American Pot Pie Day

Instructions & Team Assignments Posted Today After Class Pictures at an Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor GWA#1 Due Tomorrow @ 2 pm I’ll Post Comments/Best Answers from Prior Classes Monday If/When All Submissions Confirmed As Soon As I Complete Grading All Submissions of Any One Argument, I’ll Post Your Work (Anonymously) on That Argument with My Comments GWA#2 Instructions & Team Assignments Posted Today After Class I’ll Take Qs Wed/Thu Coordinators Might Do Initial Contact Use Hypo as Study Tool for Midterm

DQ1.50: Mullett Factors : KRYPTON Continued Abandonment: If Abandoned, to Finder Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

DQ1.50: Mullett Factors : KRYPTON: ANIMUS REVERTENDI (AR) Evidence & Outcome in Mullett Evidence No prior returns Leaves soon after placed on island Travels 70 miles in 2 weeks with no return Outcome = No AR Doesn’t appear to have been contested (really no evidence supporting AR) , so not a separate issue in case.

DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL) Court Defines NL (1st Para p.44): NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” How Would You Prove?

DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL) Proving NL: Look at Condition of Animal When Found Is It Healthy? Has It Survived for a While? Look at Biology of Animal Where Does It Usually Live? (Climate/Habitat) What Does It Eat?

DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL) Court Defines NL: NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” Why Relevant to OO/F Disputes?

DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL) Why Relevant to OO/F Disputes? Note that court doesn’t explain this. Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses. Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses What exactly is at issue in Mullett?

DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL) What exactly is at issue in Mullett? Can animal be in natural liberty even if not natural habitat? Court says yes. Mullett provides definition and result w/o explanation. (Insufficient for you!)

DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL) Court says can be NL even if not natural habitat. Fit w purposes of Rule that, if NL F? Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses. Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses

Ravel Orchestration & Analogy to Albers Pictures at AN Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor Ravel Orchestration & Analogy to Albers

Albers v. E.A. Stephens & Co.: Intro to the BRIEF RADIUM

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Statement of the Case: Albers… ??? sued E.A. Stephens & Co, … for [cause of action] seeking [remedy]

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Statement of the Case: Albers, [fox breeder and] OO of an escaped fox killed by a third party, [as opposed to Mullett where court didn’t seem to care that OO was in business] sued E.A. Stephens & Co, … ??? for [cause of action] seeking [remedy]

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, [fox breeder,] which purchased the pelt of the fox for [cause of action] ??? seeking [remedy]

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox presumably for conversion… seeking [remedy] ???

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox, presumably for conversion seeking … damages (the value of the pelt). Even though 2d trial was replevin for return of the pelt, describe initial lawsuit in Statement.

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] Then …?

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] After a [second] trial, the court entered judgment for the plaintiff for return of the pelt or payment of its value. Defendant appealed. NOTE: $$ amount of value of the pelt doesn’t seem relevant to analysis.

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM Issue: Did the trial court err by entering judgment for the plaintiff because … the OO of an escaped fox that was killed retains property rights in its pelt where … [Like Manning: Long list of possibly relevant facts, which all need to go into fact section & narrow version of issue.] Summary of facts follows.

Albers v. E.A. Stephens & Co.: STORYLINE (Same as Kesler v. Jones.) OO breeds foxes for fur/profit Fox with cool name escapes; threatens local chickens Fox killed to protect chickens Killer either keeps fox pelt or sells to 3d party. OO demands return of pelt

DQ1.53 URANIUM E-Participation Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? E-Mail Rule to Me by 8pm Tomorrow: Real Names Not Pseudonyms B1 = Goldschmidt; Robins; Wasserman B2 = McLemore; Ricobaldi; Sholes

Manning v. Mitcherson as Precedent Using Factors & Elements Generally Manning Applied Application of Manning Factors to: Squirrel Hypothetical (OXYGEN) Facts of Albers (URANIUM) DQ1.48 & Broad Holdings (Write-Up Next Week)

Using Factors or Elements Crucial Set of Skills for Lawyering & for Exams We’ll Continue at Length Today Again in DQs Throughout Unit Two Plus Torts, Criminal Law, etc.

Using Factors or Elements Assume Each There for Separate Reason For Each: Identify Kinds of Facts that Are Relevant Look for Explicit Definitions (none in Manning) Look for Explicit & Implicit Policy Justifications We did this some already for Factors from both Manning & Mullett

Using Factors or Elements When Applying to New Facts Apply One at a Time, Then Look at Whole Picture If “Elements”, Each Has to Be Satisfied for P to Win If “Factors”, Consider Strengths & Weaknesses of All If significant arguments for both parties on any one, try to resolve with: Use of Definition (where available) Comparisons to Use of Factor/Element in Prior Cases Purpose of Factor/Element (Policy Justifications)

Manning v. Mitcherson Factors Applied to … DQ1.48: Squirrel Hypothetical (OXYGEN) DQ1.54: Facts of Albers (URANIUM)

Manning v. Mitcherson Relevant Factors Taming (or Other Investment in Animal) Emotional Bond Marking (or F Likely Aware of OO) Short Time/Distance from Escape

Manning Factors: Taming (or other Investment) Emotional Bond DQ1.48: Squirrel Hypo (OXYGEN) Relevant Evidence OO Labor to Capture, but No Purchase $$$ Responded to Name (Trained) OO Owned for Three Months No Prior Escape & Return Comfort with Humans More Helpful to Amy (OO) or Brandon (F)?

Manning v. Mitcherson Relevant Factors Emotional Bond (Going Forward) Rest of “escape” cases arise in commercial contexts (fur fox farming; whaling) where emotional bond is not very relevant. I’m not going to include emotional bond in applications of Manning in these contexts “Menagerie Animals” suggests not necessary for Manning You can bring it back for other problems we do when you can explain its relevance.

Manning Factors: Taming (or other Investment) DQ1.54: Applied to Albers (URANIUM) Evidence re Taming: Animal owned for two weeks before escape Fox took food from keeper’s hand Big Deal? How Does Court Describe?

Manning Factors: Taming (or other Investment) DQ1.54: Applied to Albers (URANIUM) Evidence re Taming: Fox took food from keeper’s hand (over 2 weeks) Court: “Semi-Domesticated” (= Trained Enough to Drive a Tractor-Trailer??) Enough for “Tamed”?

Manning Factors: Taming (or other Investment) DQ1.54: Applied to Albers (URANIUM) Evidence re Taming: Fox took food from keeper’s hand. Enough? If unsure, check for purposes behind rule Taming shows labor and emotional bond. Purposes furthered here?

Manning Factors: Taming (or other Investment) DQ1.54: Applied to Albers (URANIUM) Evidence re Taming: Pretty weak on purposes  weak case for taming. As with Mullett, could say even if animal not tamed, should protect $$$ investment.

Manning Factors: Marking (or F Likely Aware of OO) DQ1.48: Squirrel Hypo (OXYGEN) Relevant Evidence: Recognizable from “Markings” Enough Comfort with Humans to “Charm” F More Helpful to Amy (OO) or Brandon (F)?

Manning Factors: Marking (or F Likely Aware of OO) DQ1.54: Applied to Albers (URANIUM) Relevant Time to Assess F’s Awareness of Prior Owner (From Useful Qs from Saldana & Zilber) As we’ll see in Kesler, whether it was reasonable to kill fox is separate Q from who gets property rights in the pelt. Assume in Albers & Kesler, killers acted reasonably to protect fowl Then ask whether OO’s retained rights in animal’s pelt. Thus, assess what F knew or should have known at moment he takers pelt and can examine it, not at earlier moments when he sees it & decides to shoot.

Manning Factors: Marking (or F Likely Aware of OO) DQ1.54: Applied to Albers (URANIUM) Evidence re Marking: Tattoos in Ears (1/335) How Strong are Marks?

Manning Factors: Marking (or F Likely Aware of OO) DQ1.54: Applied to Albers (URANIUM) Marking = Tattoos in Ears. How Strong? 335 = Clearly Man-Made (Maybe Not 1) Unlikely to Disappear Identifies Owner Industry Practice Maybe Hard for Non-Expert to Find? (Check Size)

Manning Factors: Marking (or F Likely Aware of OO) DQ1.54: Applied to Albers (URANIUM) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder?

Manning Factors: Marking (or F Likely Aware of OO) DQ1.54: Applied to Albers (URANIUM) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder? Type of Fox Unknown in Area Industry Well-Known in Area Defendant is Member of Industry/Manager = Expert

Albers (Marking/Notice to F’) Significance of Marking Under Mullett-Blackstone Rule Blackstone, quoted in Albers p.47: “[I]f a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure; ... the owner's property in him still continues … but otherwise, if the deer has been long absent without returning.” “and” seems to say mark only matters if intent to return Last phrase seems to make time relevant as well, maybe to AR (as it’s used in Mullett).

Manning Factors: Short Time or Distance from Escape DQ1.54: Applied to Albers (URANIUM) Significance of Evidence re Time/Distance? Animal Ran Six Miles Before Being Killed Animal Killed One Day After Escape Unknown Time Before OO Claimed Pelt (Not Very Long): Escape is Jan/Feb 1926 Colo SCt Opinion is 1927 (after 2 trials & oral argument)

Manning Factors: TOGETHER DQ1.54: Applied to Albers (URANIUM) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Overall result unclear (typical for exam Q) Might argue it’s like escaped menagerie animal b/c investment & good notice to F. If so, back to OO

Manning Factors: TOGETHER DQ1.54: Applied to Albers (URANIUM) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Questions on Application of Manning to Albers Facts?

Manning Factors: Short Time or Distance from Escape DQ1.48: Squirrel Hypo (OXYGEN) Relevant Evidence: Time: Escape to Find: Unclear Distance: Escape to Find: “Across Town” Time: Find to OO Claim: 2 Months More Helpful to Amy (OO) or Brandon (F)?

Manning Factors: TOGETHER DQ1.48: Squirrel Hypo (OXYGEN) Helpful to A/OO Owned for 3 Months Responds to Name Comfortable w Humans Identifying Markings Helpful to B/F Squirrel Travels “Across Town” No Prior Return 2 Months Before Found Markings Not Man-Made (apparently)