Music: Uncle Bonsai A Lonely Grain Of Corn (1984) FYI: See Song Called “Day Old Whale”

Argument By Analogy Bottom Line: Not asking if ACs are a perfect tool for the new context, but discussing how good a tool they are.

Argument By Analogy Next Week: More Practice First Possession: DQ81-83 (OXYGEN) Escape: DQ (RADIUM) Group Assignment #3 Distributed

LOGISTICS CLASS #22 Reminder DF Session Here 1:30 p.m. Group Assignment #2 Due 4 pm – Please Reread Directions Before Finalizing – Qs on Assignment? My Exam Tip Workshops Start Next Week – Try to Attend One: 10/24, 10/30, 11/1 – All from 12:30-1:50 in Room F309

Mid-September Crisis

Mid-October Crisis

Mid-October Crisis: The Upside

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes, Even When Unprepared

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Eat, Get Sleep, Take Short Breaks

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Get Sleep & Take Short Breaks 4.Plan Catch-Up Work and Outlining for One Course Each Weekend

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!

Swift v. Gifford (Uranium) DQ71: Applying 1 st Possession ACs Pierson Majority Mortal Wound + Pursuit Enough Pursuit Alone Not Enough Swift Facts Wound + Harpoon + Pursuit Enough under Pierson?

Swift v. Gifford (Uranium) DQ71: Applying 1 st Possession ACs Wound + Harpoon + Pursuit Falls into Gap in Literal Language of Pierson Can resolve with other language like “deprived of NL” Can resolve w resort to underlying policies

Swift v. Gifford (Uranium) DQ71: Applying 1 st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson Continued Pursuit Shows No Intent to Abandon – Does this pursuit + harpoon serve purpose? – F unaware of pursuit & harpoon when caught – BUT easy to determine when 2d ship arrives General Policy : Reward Effective Labor – Might look at how likely R was to succeed without H – Finding of Fact was low probability, so maybe no reward Certainty: Clearer Rule than 1 st Kill (Ford)

Swift v. Gifford (Uranium) DQ71: Applying 1 st Possession ACs Overall: Looks Like Testable Hypo Wound + Mark (iron) probably make this stronger case for 1 st Hunter than Pierson Clearly less good control than Liesner boys or net- owners in Shaw. Leave to you other arguments from Shaw, Pierson, Liesner

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? Custom: 1st iron holds whale if claim made before whale cut. Stronger for 1 st ship than version of custom discussed in Taber & Bartlett – Whale can be still alive/swimming (v. adrift) – 1 st ship just has to get harpoon to stick (v. kill)

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? Swift decides to treat custom here as binding law and provides an important discussion explaining its decision. – v. Pierson (custom ignored) – v. Bartlett (says likely wouldn’t adopt as law)

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? Swift decides to treat custom here as binding law and provides an important discussion explaining its decision. DQ73. What problems with using custom as law does Swift recognize?

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? Problems with using custom as law include: Surprise to outsiders – Note references to LOCAL custom and to ABUSES – Problem as commerce becomes more widespread Uncertainty as to what custom is or when it applies – “loose and inconclusive customs” – “liable to great misunderstandings and misinterpretations” Custom may be unreasonable

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? Problems with using custom as law include: Surprise to outsiders Uncertainty as to what custom is or when it applies Custom may be unreasonable – See Bartlett – Note discussion on p.64 re what laws can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? Problems with using custom as law include: Surprise to outsiders Uncertainty as to what custom is or when it applies Custom may be unreasonable (see Bartlett) With these in mind, court gives us a list of considerations to use when deciding whether to treat custom as law.

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? Should Custom = Law: Swift Considerations 1.Doesn’t affect outsiders 2.Used by entire business for a long time (equivalent of a contract) 3.Where legal rule is hard to apply here, use of custom may prevent quarrels 4.Custom is reasonable We’ll describe each and apply to Swift and to hunter’s customs noted in Pierson.

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (1) Doesn’t Affect Outsiders DQ72: Describe each consideration noted by court and explain how it applied in Swift.

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (1) Doesn’t Affect Outsiders Usage here is “not … open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.” p.64 DQ73. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) DQ72: Describe each consideration noted by court and explain how it applied in Swift.

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) Custom here “embraced an entire business, and had been concurred in for a long time by every one engaged in that trade.” DQ73. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (3) Legal rule may be hard to apply, so use of custom prevents quarrels DQ72: Describe each consideration noted by court and explain how it applied in Swift.

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (3) Legal rule may be hard to apply, so use of custom prevents quarrels May be harder to determine 1 st killer than 1 st harpoon. “Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. “ (p.64) DQ73. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (4) Custom is Reasonable DQ72: Describe each consideration noted by court and explain how it applied in Swift.

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (4) Custom is Reasonable Contrasts custom proposed inBartlett with custom at issue in Swift. Why is Judge Lowell especially authoritative on meaning of Bartlett?

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law? (4) Custom is Reasonable He wrote it: “I there intimated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances.” Leave for you arguments about reasonableness of hunters’ customs in Pierson.

Swift v. Gifford (Uranium) DQ74: Unpublished Opinions In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties. Problems with doing this?

Swift v. Gifford (Uranium) DQ74: Unpublished Opinions Problems with relying on unpublished opinion Lack of notice to other party (paid costs here). Lack of notice to others affected. Unpublished may mean court doesn’t want it used as precedent. Problems sufficient to justify blanket rule against doing this?

Swift v. Gifford (Uranium) DQ74: Unpublished Opinions Problems relying on unpublished opinion include: Lack of notice to other party. Lack of notice to others affected. Unpublished may mean court doesn’t want it used as precedent. Note that if opinion unpublished b/c easy application of existing law, problems don’t arise (can just rely on that existing law)

Swift v. Gifford (Uranium) QUESTIONS?

You Are Now Swift-Boat Veterans

Ghen v. Rich (KRYPTON) We move from the North Pacific to Cape Cod Massachusetts (and to Cranberry Headings)

Ghen v. Rich (1881) Historical Context: Next Class For All Taber = 1856; Bartlett = 1868; Swift = 1872 Two Significant Events Probably Relevant to Timing of Dispute Being Litigated inGhen: 1.U.S. Civil War 2.Completion of Transcontinental Railroad Ideas About Why Relevant?

Ghen v. Rich (KRYPTON): DQ77 Special Assignment Published Ghen Brief now on Course Page. In the brief, try to identify as many 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

Ghen v. Rich (KRYPTON): DQ77 Special Assignment to Me by Tue Oct 9 pm B1 KRYPTONS Garcia, Raul Mena, Lexi Shannon, Kerry B2 KRYPTONS Briggs, Brandon Ercolani, Brianna Newingham, Alison