MUSIC: ERIK SATIE OEUVRES POUR PIANO ( ) Aldo Ciccolini, Piano ( Disc 2: Recordings ) Tue Sep 23 (Today): Office Hours Cancelled Wed Sep 24 (Tomorrow) Both Sections Meet 7:55-9:15

DQ 1.49: Applying Manning ‘ s Factors to Facts of Mullett Factors Together: Taming: No Evidence (But Lot of $$$) Taming: No Evidence (But Lot of $$$) Marking: Good I.D.; Not Strong re Notice Marking: Good I.D.; Not Strong re Notice Emotional Bond: No Evidence of Emotional Bond: No Evidence of Short Time/Distance from Escape: Worse than Manning, Especially Year to Discover Short Time/Distance from Escape: Worse than Manning, Especially Year to Discover

DQ 1.49: Applying Manning ‘ s Factors to Facts of Mullett Factors Together Taming: No Evidence of (though $$$) Marking: Good I.D.; Not Strong re Notice Emotional Bond: No Evidence of Short Time/Distance: Worse than Manning, Esp. Year Pretty weak case for OO under Manning unless court considers $$$ investment very important.

LOGISTICS CLASSROOM TOMORROW §D Seating §B Opposite of Class #7 If you normally sit on the side where your section is sitting tomorrow, take your usual seat. If you normally sit on the side where the other section is sitting tomorrow, sit on the other side in the back four rows (i.e., behind the usual seating). §D: All but 4 of the §B students remembered their make- up class, even though it was day after 3-day weekend.

DQ 1.53 Oxygen 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 6 pm Tonight Section B Ciani, Nick Hennings, Spencer Maclaughlin, Stephanie Section D (PH balanced) Gilmartin, Christopher Miller-Taylor, Randolph Rapp, Howard

COVERAGE: CLASS #16  #17 TODAY Primarily Cold Calls; Keep Hands to Yourself Till I Ask 1. Mullett factors & Rest of Mullett brief (RADIUM) 2.Apply Mullett factors – to facts of Manning DQ1.51 (OXYGEN) & DQ1.55 (KRYPTON) – to facts of Albers DQ1.54 (KRYPTON) TOMORROW I’ll Lecture More Than Usual 1.Brief Intro to Unit Two. Look at/I’ll Take Qs on: – Instructions for Briefing Trial Court Decisions (56-57) – Intro to Whaling Cases (57-59)

COVERAGE: CLASS #17 TOMORROW (Continued) 2.Finish Albers facts under Mullett factors DQ1.54 (KRYPTON) 3.Apply Manning factors – to Squirrel Hypo DQ 1.48 (URANIUM) – to Facts of Albers DQ 1.54 (KRYPTON) 4.Closing Up Mullett & Manning – DQ1.48 & 1.53 (Me from E-Participation) – DQ 1.52: : Stronger case for OO: Manning or Mullett (OXYGEN) 5.Begin Structure & Reasoning of Albers – I’ll go to Uranium some for Brief & DQ1.56 – I won’t get to Radium DQs until Monday/Tuesday

COVERAGE: CLASS #17  #18 Thursday-Friday: No Class Sunday 9/28 4:00 pm Uranium Written Brief #1: Kesler v. Jones Uranium Written Brief #1: Kesler v. Jones Radium Written Brief #2: Taber v. Jenny Radium Written Brief #2: Taber v. Jenny Monday/Tuesday (9/29-30) Pick up where we left off w Albers – Finish Brief & DQ1.56 (Uranium) – Cover DQ (Radium) Begin Kesler Brief & DQs (Oxygen)

Mullett v. Bradley DQ 1.50: RADIUM Before Returning to Brief, We’ll Examine the Three Factors that the Court adopts from the English Common Law

DQ 1.50: Mullett Factors : RADIUM 1.Abandonment: If Abandoned, to Finder 2.Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO 3.Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

DQ 1.50: Mullett Factors : RADIUM For Each Factor, We’ll: 1.Define & Discuss How to Prove 2.Discuss Why It Is Relevant to OO/F Disputes 3.Discuss Evidence & Outcome in Mullett 4.Later Discuss How It Would Apply to Facts of Manning and Albers

DQ 1.50: Mullett Factors : RADIUM ABANDONMENT Define & Discuss How to Prove No Definition in Case; Usually Means Intentionally Giving Up Property Rights in Something. Look for act by OO indicating intent to relinquish ownership. Negligence in caring for the animal or in maintaining possession is insufficient (again, laptops in library).

DQ 1.50: Mullett Factors : RADIUM ABANDONMENT Why Relevant to OO/F Disputes? Typically, we allow people to choose to give up property rights if they want to Maybe unfair to return to OO, esp. if F aware of act of abandonment or has invested in animal

DQ 1.50: Mullett Factors : RADIUM : ABANDONMENT Evidence & Outcome in Mullett Evidence of Abandonment Here?

DQ 1.50: Mullett Factors : RADIUM : ABANDONMENT Evidence & Outcome in Mullett Evidence of Abandonment Here? – Investment, but low commercial value – Left unenclosed on island – No pursuit – BUT court says reasonable to think couldn’t find. Why Not? Should it Matter?

DQ 1.50: Mullett Factors : RADIUM : ABANDONMENT Evidence & Outcome in Mullett Evidence of Abandonment Here? – Investment, but low commercial value – Left unenclosed on island – No pursuit – BUT court says reasonable to think couldn’t find. Outcome in Mullett?

DQ 1.50: Mullett Factors : RADIUM : ABANDONMENT Outcome in Mullett? (see last para. p.44) [C]ounsel for the defendant [suggested] that the animal had been abandoned by the plaintiffs …. It is, however, unnecessary to pass upon this, in view of the conclusion to which we have come that the plaintiff had lost his right of property in the sea lion [because] it had regained its natural liberty without any intention of returning.

DQ 1.50: Mullett Factors : RADIUM : ANIMUS REVERTENDI ( AR ) Define & Discuss How to Prove Animus Revertendi is “Intent to Return” in Latin. In this context, means animal (that is out of OO’s immediate control) intended to return home How do you prove what goes on in mind of animal?

DQ 1.50: Mullett Factors : RADIUM : ANIMUS REVERTENDI ( AR ) Define & Discuss How to Prove Animus Revertendi is “Intent to Return” Blackstone: Can “only” show by “usual custom of returning.” Why Relevant to OO/F Disputes?

DQ 1.50: Mullett Factors : RADIUM : ANIMUS REVERTENDI ( AR ) Why Relevant to OO/F Disputes? Shows labor/training by OO Shows connection betw OO and animal Reasonable for OO to let loose Evidence in Mullett?

DQ 1.50: Mullett Factors : RADIUM : 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?

DQ 1.50: Mullett Factors : RADIUM : 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, so not a separate issue in case.

DQ 1.50: Mullett Factors : RADIUM : 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.” How Would You Prove?

DQ 1.50: Mullett Factors : RADIUM : 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?

DQ 1.50: Mullett Factors : RADIUM : 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?

DQ 1.50: Mullett Factors : RADIUM : 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

DQ 1.50: Mullett Factors : RADIUM : Return to NATURAL LIBERTY ( NL ) What exactly is at issue in Mullett?

DQ 1.50: Mullett Factors : RADIUM : 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!)

DQ 1.50: Mullett Factors : RADIUM : 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

Understanding Mullett Factors : Types of Information Case Might Provide Definition General Info on Evidence That Shows if Factor Met List of Evidence in This Case Relevant to Factor Decision as to Whether Factor Met in This Case Indication of Purpose of Factor

Understanding Mullett Factors : Types of Information Case Might Provide Definition: NL General Info on Evidence That Shows if Factor Met: AR (Usual Custom) List of Evidence in This Case Relevant to Factor: AR Whether Factor Met in This Case: AR, NL Indication of Purpose of Factor: No.

Understanding Mullett Factors : Types of Information Case Might Provide List of Evidence in This Case Relevant to Factor: AR – Because no list for NL or Aband., we can (and have to) speculate as to what facts are relevant. – Because court tells us for AR, must rely on this list for what facts in the case are “relevant” – Have to be careful, e.g., re clever point about scarring as evidence of AR

Mullett v. Bradley BACK TO IN - CLASS CASE BRIEF : RADIUM

Mullett v. Bradley BRIEF : RADIUM ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when …

Mullett v. Bradley BRIEF : RADIUM ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when it escapes into the Atlantic with no intent to return, where the Atlantic is not its natural habitat?

Mullett v. Bradley BRIEF : RADIUM NARROW HOLDING: No, the trial court did not err in dismissing plaintiff’s case because the owner of an escaped sea lion does not retain property rights in the animal when it escapes into the Atlantic with no intent to return, even though the Atlantic is not its natural habitat.

Mullett v. Bradley BRIEF : RADIUM NARROW  BROAD SUBSTANTIVE HOLDING: The owner of an escaped sea lion does not retain property rights in the animal when it escapes with no intent to return into the Atlantic, even though the Atlantic is not its natural habitat. Example: The owner of an escaped animal ferae naturae does not retain property rights in the animal when it escapes with no intent to return to a place where it is free of all artificial restraint and can provide for itself.

Mullett v. Bradley BRIEF : RADIUM RATIONALES See Models in Sample Brief Doctrinal Rationales: Can derive from Blackstone and other authorities cited. Policy Rationales: Court provides no explicit policy rationales for its decision. Can provide speculative versions based on policies we identified as relevant to NL

Mullett v. Bradley I’ll post sample brief for Mullett after class Tuesday Qs on Mullett?

Using Factors or Elements 1.Crucial Set of Skills for Lawyering & for Exams 2.We’ll Do at Length Today 3.Again Next Week in DQs for Taber, Then Throughout Unit Two 4.Plus Torts, Adverse Possession, etc.

Using Factors or Elements 1.Assume Each There for Separate Reason 2.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 already for Factors from both Manning & Mullett

Using Factors or Elements When Applying to New Facts 1.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 2.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)

Mullett v. Bradley Factors Applied to … DQ1.51: Facts of Manning (OXYGEN) DQ1.54: Facts of Albers (KRYPTON)

Mullett Factors ABANDONMENT Types of Evidence of Abandonment Relevant in Prior Discussions Value to OO Care in Confinement Pursuit

Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (OXYGEN) Types of Evidence Relevant to Abandonment Value to OO? Care in Confinement Pursuit

Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (OXYGEN) Types of Evidence Relevant to Abandonment Substantial Value to OO (Strong Emotional Bond) Care in Confinement? Pursuit

Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (OXYGEN) Types of Evidence Relevant to Abandonment Substantial Value to OO (Strong Emotional Bond) Confined Well Enough So Only 2 escapes in 2 Years Pursuit?

Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (OXYGEN) Types of Evidence Relevant to Abandonment Substantial Value to OO (Strong Emotional Bond) Confined Well Enough So Only 2 escapes in 2 Years OO pursued/claimed as soon as had info SOLID EVIDENCE OF NO ABANDONMENT

Albers v. E.A. Stephens & Co.: STORYLINE (Same as Kesler) 1.OO breeds foxes for fur/profit 2.Fox with cool name escapes; threatens local chickens 3.Fox killed to protect chickens 4.Killer either keeps fox pelt or sells to 3d party. 5.OO demands return of pelt We’ll Look at Under Mullett & Manning Factors

Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant to Abandonment Value to OO? Care in Confinement Pursuit

Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant to Abandonment Substantial Value to OO (Pelt + Breeding) Care in Confinement? Pursuit

Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant to Abandonment Substantial Value to OO (Pelt + Breeding) Substantial Care in Confinement Investment in special enclosure Got through “inner gate” + “outer fence” Pursuit? – What Did P Do? – How Does Court Describe?

Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (KRYPTON) Evidence Relevant to Abandonment Pursuit: Followed Until Nightfall Raises Issues re What OO Has to Do: – Should Abandoning Pursuit = “Abandonment”? – Is “Abandonment by Compulsion” OK? (cf. Mullett: Reasonable to Believe Pursuit Hopeless)

Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (KRYPTON) Evidence Relevant to Abandonment Pursuit: Followed Until Nightfall Colorado Supreme Court must believe not abandoned, or would give pelt to Dfdt.

Mullett Factors Intent to Return ( AR ) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Possible Purposes Behind AR as Factor Shows Training Shows Emotional Bond Shows Reasonable to Allow Animal Out

Mullett Factors Intent to Return ( AR ) DQ1.51: Applied to Manning (OXYGEN) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Evidence in Manning Relevant to AR One prior return This time away 5 days In same town; flew into a different house Arguments re This Evidence?

Mullett Factors Intent to Return ( AR ) DQ1.51: Applied to Manning (OXYGEN) Evidence in Manning Relevant to AR – One prior return No custom v. 100% Bird returned despite no evidence of relevant training – Away 5 days; to different house in same town (trying?) Fit Purposes Behind Factor? – Shows Training? – Shows Emotional Bond? – Shows Reasonable to Allow Animal Out?

Mullett Factors Intent to Return ( AR ) DQ1.51: Applied to Manning (OXYGEN) Evidence in Manning Relevant to AR – One prior return – Away 5 days; to different house in same town (trying?) Not Great Fit With Purposes Behind Factor – Actions Consistent w No Training or Emotional Bond – No Real Evidence That Reasonable to Allow Animal Out

KRYPTON DQ1.55 Albers on Manning How does Albers characterize the holding in Manning?

KRYPTON DQ1.55 Albers on Manning How does Albers characterize the holding in Manning? One Escape/Return = Animus Revertendi (Bottom p.47) Is This a Fair Characterization?

KRYPTON DQ1.55 Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR So why does court say this?

KRYPTON DQ1.55 Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” Court (or treatise authors) might read Manning this way to reconcile result with the Mullett-Blackstone Rule: Court returned bird to OO, so must’ve believed AR. Other ways to reconcile?

KRYPTON DQ1.55 Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” Other ways to reconcile the result with the Mullett-Blackstone Rule? Canary was domesticated not wild. Canary never returned to NL.

KRYPTON DQ1.55 Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” Trying to reconcile the result with the Mullett-Blackstone Rule Note that Georgia case and NY case do not have to agree; OK if not reconcilable.

Mullett Factors Intent to Return ( AR ) DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Evidence Here?

Mullett Factors Intent to Return ( AR ) DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning”: None Mullett: Behavior of Animal Escaped w/in two weeks from significant enclosure Had run six miles in about a day Strong Case for No AR (so no need to look to policy)

Albers (Animus Revertendi) Evidence re AR Note: Court says determine AR for individual animal, not by species (bottom p.47) Not binding on other states as to meaning of AR, but you can use to argue individual case.