MUSIC: The Beatles MAGICAL MYSTERY TOUR (1967) §B Lunch Wed Sep 10 Meet on 12:15pm Gil * McLaughlin Martinez * Morales Pope * Randolph * Rose §D Lunch Thu Sep 11 Meet on 11:55am Baronoff * Coplowitz Di Mattia * Freitez Arteaga Kleinberg * Novak * Sinner

LOGISTICS: CLASS #11 Friday: We’ll begin with Introduction to Escape & DQs (Radium) Then pick up with Demsetz material wherever we leave off today. After Friday, I’ll adjust assignment sheet to reflect where we actually leave off.

Finishing Up STATE v. SHAW Brief

STATE v. SHAW Brief ISSUE (from Friday): Did the trial court err in directing a verdict for the defendant on the grounds that defendant did not commit grand larceny because net-owners do not have property rights in fish found in their nets where the fish can escape from the nets?

STATE v. SHAW Brief Narrow Holding: YES. The trial court erred in directing a verdict for the defendant on the grounds that defendant did not commit grand larceny because net-owners can have property rights in fish found in their nets even if some fish can escape from the nets.

STATE v. SHAW Brief To Set Up Broader Holding & Rationales, Let’s Jump Forward Result?

STATE v. SHAW Brief Result: Reversed & Remanded for New Trial Will State necessarily win?

STATE v. SHAW Brief Result: Reversed & Remanded for New Trial Will State necessarily win? No. Jury could still find that Thomas didn’t do it.

STATE v. SHAW Brief Result: Reversed & Remanded For New Trial On remand, trial court will have to instruct jury about when net creates property rights in fish for net-owners Can’t simply say “Net doesn’t have to be perfect.” Broader version(s) of holding needed for this.

STATE v. SHAW Brief On remand, trial court will have to instruct jury about when net creates property rights in fish. Broader version(s) of holding needed. Possible Rules/Holdings: 1.Any Net is OK? (Raggedy Volleyball Net??)

STATE v. SHAW Brief On remand, trial court will have to instruct jury about when net creates property rights in fish. Broader version(s) of holding needed. Possible Rules/Holdings? 1.Any Net is OK? 2.Look to language in case: Two plausible rules (long para. pp.28-29), either of which could be incorporated into broader version of holding.

STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) 1.To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large. 2.When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny.

STATE v. SHAW Brief First Plausible Rule (bottom of p.28) “[T]he pursuer must … [i] bring them into his power and control, and … [i] bring them into his power and control, and … [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Note two parts/requirements Note showing intent is not a separate requirement (and is not sufficient by itself), but instead is part of the requirement of maintaining control

STATE v. SHAW Brief Second Plausible Rule (pp.28-29) The trapper acquires property in wild animals “[w]hen … [i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and … [ii] maintains reasonable precautions to prevent escape….” Again, two parts/requirements Slightly different language you can use; we’ll mostly focus on 1st Plausible Rule

STATE v. SHAW Brief Note on Interpreting Legal Tests in Context of Cases Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests. E.g., fish caught in nets have been brought within net- owner’s “power and control.” E.g., set up of these nets = “reasonable precautions to prevent escape.” Thus, can use facts of Shaw to help explain what the tests mean going forward.

OneBroader Version of Holding STATE v. SHAW Brief One Broader Version of Holding bring the fish into their power and control, [ii] so maintain their control as to show that they do not intend to abandon the fish again to the world at large. YES. The trial court erred in directing a verdict for the defendant because net-owners have property rights in fish found in their nets if the nets [i] bring the fish into their power and control, and [ii] so maintain their control as to show that they do not intend to abandon the fish again to the world at large. QUESTIONS ON HOLDING OR TESTS?

STATE v. SHAW Brief Rationales: Doctrinal Rationales from Authorities Cited on pp Provided in Sample Brief Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). MEANS?

STATE v. SHAW Brief Rationales: Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). Probably refers to difficulty of proof/certainty arguments. Court says possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.29) Significance?

STATE v. SHAW Brief Policy Rationales (Hints from Language of Case): Possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.27) Maybe refers to certainty of capturing fish (as a group) or of identifying owners Maybe goes to sufficiency of Net-owners’ labor OTHER DIFFERENT POLICY CONCERNS?

STATE v. SHAW Brief Rationales: Policy Rationales (Hints from Language of Case): Could discuss protecting important industry (subset of labor argument), but need to be clear that court doesn’t reference explicitly.

APPLYING STATE v. SHAW DQ RADIUM

STATE v. SHAW DQ1.26: Radium “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” We’ll work with this test and leave other plausible rule & policy arguments from Shaw for you and DFs

STATE v. SHAW DQ1.26: Radium “[T]he pursuer must … [i] bring them into his power and control [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

STATE v. SHAW DQ1.26: Radium “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

STATE v. SHAW DQ1.26: Radium “[T]he pursuer must … [i] bring them into his power and control [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Pierson facts.

STATE v. SHAW DQ1.26: Radium “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Pierson facts

STATE v. SHAW DQ1.27: Radium sunken boat Should the result in Shaw be the same if the fishermen used a sunken boat instead of a net to trap the fish? Assume the boat retains the same percentage of fish that enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat)

STATE v. SHAW DQ1.27: Radium Marking/Notice of Claim to Others is an important recurring policy concern See Shaw test part 2: “ maintain his control as to show that he does not intend to abandon” See Pierson: Mortal wounding + pursuit OK because hunter “thereby manifests an unequivocal intention of appropriating the animal”

STATE v. SHAW DQ1.27: Radium Nice Additional Policy Reason to Treat Sunken Boat Differently (Griffin-Fall ’12 & Kasdin §D) Net is easily visible (28-foot square & top 4 feet above water) Sunken boat may not be visible so may be safety hazard to lake traffic if not very well marked May not want to reward trap that is dangerous to humans

STATE v. SHAW DQ1.28: Radium Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw? Why is this a useful exercise? Explain unreconciled cases In court or legal memo Ideally reconciles cases AND shows that your side wins

STATE v. SHAW DQ1.28: Radium Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw? We’ll look at two student submissions For substance For clear concise writing I’ll go a little quickly b/c you can review slides in more detail later

STATE v. SHAW DQ1.28: Radium STUDENT #1: Property rights to a wild animal occur when a pursuer, who continues to pursue the animal and has no intent of releasing him back into the wild, has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.

STATE v. SHAW DQ1.28: Radium STUDENT #1: Property rights to a wild animal occur when a pursuer, [ii] who continues to pursue the animal and has no intent of releasing him back into the wild, [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances. Note normal chronological sequence.

STATE v. SHAW DQ1.28: Radium Property rights to a wild animal occur when a pursuer …  A pursuer acquires property rights to a wild animal when the pursuer… Eliminating passive voice.

STATE v. SHAW DQ1.28: Radium A pursuer acquires property rights to a wild animal when the pursuer… [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.

STATE v. SHAW DQ1.28: Radium A pursuer acquires property rights to a wild animal when the pursuer… [i] (a)has substantially rid the animal of his natural liberty  Need both (a) & (b)?  (b) as to render escape highly unlikely (c) under normal circumstances.

STATE v. SHAW DQ1.28: Radium A pursuer acquires property rights to a wild animal when the pursuer… [i] (a)has rendered escape highly unlikely (Very clever idea) (b) under normal circumstances. (Very clever idea)

STATE v. SHAW DQ1.28: Radium A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] (a) continues to pursue the animal and (b) has no intent of releasing him back into the wild,

STATE v. SHAW DQ1.28: Radium A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] (a)continues to pursue the animal (Do you want to require (a) for traps/nets?) and (b) has no intent of releasing him back into the wild

STATE v. SHAW DQ1.28: Radium A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] (a)continues to pursue the animal and [it] (Do you want test of pure intent w/o actions?) (b) has no intent of releasing him [it] back into the wild (Do you want test of pure intent w/o actions?)

STATE v. SHAW DQ1.28: Radium A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal or to otherwise show he has no intent of releasing it. Takes care of traps & eliminates test based on pure intent.

STATE v. SHAW DQ1.28: Radium STUDENT #2: A wild animal is deemed property of a person pursuing it if he through his actions made escape of the animal highly unlikely and through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.

STATE v. SHAW DQ1.28: Radium STUDENT #2: A wild animal is deemed property of a person pursuing it if he [i] through his actions made escape of the animal highly unlikely and [ii] through his actions has substantially decreased the likelihood of escape since the outset of the pursuit. Pronoun problem plus passive voice.

STATE v. SHAW DQ1.28: Radium A wild animal is deemed property of a person pursuing it if he …  A person acquires property rights in a wild animal if he … 1.through his actions made escape of the animal highly unlikely and 2.through his actions has substantially decreased the likelihood of escape since the outset of the pursuit. How else would you accomplish these tasks?

STATE v. SHAW DQ1.28: Radium A person acquires property rights in a wild animal if he … 1.made escape of the animal highly unlikely and 2.has substantially decreased the likelihood of escape since the outset of the pursuit. Interesting idea, BUT Hard to prove Hard to prove Not clear would lead to Pierson result Not clear would lead to Pierson result Not clear how would apply to traps/nets Not clear how would apply to traps/nets

STATE v. SHAW DQ1.28: Radium I’ll do a more extensive write-up of the submissions from this & prior years and put in a future Information Memo. Qs on DQ1.28?

DQ : Krypton Demsetz Excerpt DQ1.29(a) & (b) = Exercise re Shaw Facts to Introduce Concepts DQs on Introductory Paragraphs of Excerpt

STATE v. SHAW DQ1.29(a): Krypton Assume net-owners have no enforceable rights in fish caught in their nets until they physically remove the fish from the nets. Thomas chooses to take fish from the owners’ nets. Who is affected by this decision? Which of these effects is Thomas likely to take into account when deciding whether to take the fish?

STATE v. SHAW DQ1.29(a): Krypton Thomas Likely to Consider Own Exertions/Cost of Equipment, etc. Benefits to Dependents Benefits to Likely Purchasers Likely Externalities Costs to Net-Owners, Their Dependents, Their Purchasers Costs to Net Manufacturers Effect on Ecosystem (note might be benefits if “theft” discourages use of big nets)