ELEMENTS B POWER POINT SLIDES Class #23 Friday, October 23, 2015 National Boston Cream Pie Day

MUSIC: Ethel Waters Recordings

EXAM Q1 (CUSTOM): REVIEW PROBLEM 2C Should Court Treat Custom in Q as Legally Binding Pro Arguments (Krypton) v. Con Arguments (Radium) Easy Qs/Hard Qs

EXAM Q1 (CUSTOM): REVIEW PROBLEM 2C Should Custom be Treated as Law: Relevant Analysis Swift Factors: Affect Outsiders Used by Whole Industry for Long Time (Pretty Easy Yes) Easier to Use than Existing Legal Rules (Certainty) (Pretty Easy No) Reasonableness Ghen: Necessary for Industry to Operate Could do as separate factor Could do as part of Reasonableness analysis

RADIUM: No REV. PROB 2C: Treat Custom as Law? KRYPTON: Yes v. RADIUM: No Easy Swift/Ghen Factors Used by Whole Industry for Long Time (~YES) Problem says “almost” whole industry has “observed this custom for many years.” Could try to argue that need everyone to meet this factor, but lots of ad agencies & TV networks, so very hard to get all to adhere w/o gov’t oversight.

RADIUM: No REV. PROB 2C: Treat Custom as Law? KRYPTON: Yes v. RADIUM: No Easy Swift/Ghen Factors Easier to Use than Existing Legal Rules (~ NO) Custom Itself Can Be Hard to Apply (See 2B) Almost Certainly Few Limits Absent Custom Trademark or Copyright Violations Require Very Close Copying of Protected Material Apply with or without Custom Might Have More General Discussion of Certainty

RADIUM: No REV. PROB 2C: Treat Custom as Law? KRYPTON: Yes v. RADIUM: No Harder Swift/Ghen Factors Affect Outsiders (Leave for You) Necessary for (Which?) Industry to Operate? Reasonableness of Custom?

RADIUM: No REV. PROB 2C: Treat Custom as Law? KRYPTON: Yes v. RADIUM: No Harder Factors: Some Relevant Considerations Necessary for (Which?) Industry to Operate? Trying to Protect Charities Can Charities Function Successfully w/o Custom? Reasonableness of Custom: Might Consider: Good idea to protect charities more than comm’l advertisers? Free speech concerns? Whose labor should be protected and to what extent? OK if it makes it hard to market product (BB’s program)? Is copying components of ads essentially fraud/deceit?

Rose Article & DQ2.21 Cf. RANE (~1981)

Rose Article & DQ 2.21 Characterize Cases in Rose’s Terms Mullett adopting broad definition of NL (v. Limit to Nat’l Habitat): Clear Act: Requiring “nat’l habitat” too generous to OO – If animal can provide for itself, F can’t assume prior ownership – Relatively few people would know that sea lion out of place Useful Labor: Maybe insufficient labor to … – alert other people of claim. – contain animal in way that it won’t get mistaken for wild. Note that looking at Mullett this way helps explain why other cases focus on marking & finder’s knowledge: Ways to provide or identify clear act even if animal gets to NL.

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Shaw rejecting perfect net rule? – Relationship to “Rewarding Useful Labor”?

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Shaw rejecting perfect net rule? Relationship to “Rewarding Useful Labor” – Net useful even if imperfect if gets lots of fish Relationship to “Clear Act”?

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Shaw rejecting perfect net rule? Relationship to “Clear Act” – Probably most people see fish in net as owned even if imperfect. – Net has to be pretty bad to send signal that net-owner doesn’t claim fish (cf. sunken boat) – Note: State adopting rule increases “clarity” of act by confirming net doesn’t have to be perfect.

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Albers rejecting Mullett rule? Relationship to “Rewarding Useful Labor”?

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Albers rejecting Mullett rule? Relationship to “Rewarding Useful Labor” – Mullett rule insufficient protection for investment in important industry – Tattooing itself is useful labor b/c specifically identifies OO at least to insiders Relationship to “Clear Act”?

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Albers rejecting Mullett rule? Relationship to “Clear Act” – Tattoo tells everyone there is OO and specifically identifies OO to insiders (including this D) – Court leaves open possibility of different result if truly innocent finder

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Ghen adopting custom? – Relationship to “Rewarding Useful Labor”?

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Ghen adopting custom Relationship to “Rewarding Useful Labor” – Custom Rewards Labor of Whale Killer. Especially important because: Whaling Industry Useful b/c Whales Valuable Custom Necessary to Industry to Give Enough $$$ Whaler Arguably Did All Possible to Retain Whale – Finder Also Gets $$$ for Useful Labor of Reporting Relationship to “Clear Act”?

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Ghen adopting custom Relationship to “Clear Act”: – Mark Seems Very Strong – What About Interaction with Outsiders?

Rose Article & DQ 2.21 (Oxygen) Characterize Cases in Rose’s Terms Ghen adopting custom Relationship to “Clear Act”: Q re Outsiders – Maybe OK b/c Mark is Very Strong – Maybe OK b/c Have to Use Insiders to Process – Maybe OK b/c Best You Can Do

Rose Article & DQ 2.21: Characterize Cases in Rose’s Terms Swift adopting Custom Relationship to “Clear Act”: – Accepted by “Relevant Audience” Relationship to “Rewarding Useful Labor” – Labor Necessary to Get Resource Incomplete – Maybe court assumes that long agreement means industry thinks custom is right balance between labor & notice

Rose Article & DQ 2.21 Characterize Cases in Rose’s Terms I’ll also include in this set of slides a version for Swift (prior slide). Questions on Whaling Cases or Rose?

EXAM Q1 v. EXAM Q2 Apply ACs To Specific Facts of Hypo Discuss Which Party Should Win (Get Property Rights) Assess ACs as Tools For General Problems of Same Type as Hypo Discuss What Legal Approach Might Be Best for These Problems

Demsetz & Rose EXAM Q1 v. EXAM Q2 Apply XQ1 Asks You to Apply Animals Cases (ACs) – Demsetz & Rose are NOT ACs primary authority – They should not be primary authority for any XQ1 argument arising – Can use to support arguments arising from ACs. E.g., Assessing strength of mark under Albers/Taber/Bartlett Assessing reasonableness of custom under Swift/Ghen

Demsetz & Rose EXAM Q1 v. EXAM Q2 Apply XQ1 Asks You to Apply Animals Cases (ACs) – Demsetz & Rose are NOT ACs primary authority – Not primary authority for any XQ1 argument arising – Can use to support arguments arising from ACs. For XQ2, Can Use Demsetz & Rose Freely to Evaluate Strength of ACs and of Alternatives as Tools to Address New Area of Law

Group Assignment #2 ≈ EXAM Q1 Apply ACs To Specific Facts of Hypo Discuss Which Party Should Win (Get Property Rights) Last Chance for Qs Comments/Models Posted Next Week Once Submissions Checked in Opportunity re Practice Midterm

Group Assignment #3 ≈ EXAM Q2 Qs Today After Intro Slides Qs in Class: – Wed 10/28 – Mon 11/2 – Fri 11/6 Assess ACs as Tools For General Problems of Same Type as Hypo Discuss What Legal Approach Might Be Best for These Problems

Argument By Analogy: Group Written Assignment #3 Generally Task Like XQ2 for Fact Pattern A (Never Given) Helpful first to do XQ1 for Fact Pattern Comments/Models for Old XQ2s Online Soon – Can look at for ideas – I suggest you try to do yourself first We’ll Do Examples in Class for More Practice

Argument By Analogy: Group Written Assignment #3 Structure of Each Sub-Assignment Similar Doing One of Our Three Approaches Must Submit (Roughly Speaking)… – Two Arguments in Favor of Using ACs – Two Arguments Against Using ACs – One Tie-Breaker Argument Comments on Your Assignment #1 Tie-Breakers Available by 11/2 on Course Page

Argument By Analogy: Group Written Assignment #3 Specific Concerns Not Addressing Specific Dispute between Arango & Spain, but Sunken Treasure Cases Generally “Overlap” Instructions: Don’t Choose Topics That Yield Two Very Similar Arguments Stick to Approach I Give You (See Weasels) Reread Formatting & Substantive Instructions Before Finalizing QUESTIONS??

Oil & Gas: 1 st Possession DQ2.22: Someone Remind Us: Under Westmoreland, if a pool of gas lies under two adjacent parcels of land and the owner of one parcel drills a well, how much of the joint pool is he entitled to take through his well? How is this result related to the court’s description of gas as a mineral ferae naturae?

Oil & Gas: 1 st Possession DQ2.22: Cf. Hammonds p.96 “[O]il and gas are not the property of any one until reduced to actual possession by extraction This theory of ownership or, perhaps more accurately speaking, lack of ownership is practically universally recognized....” “[O]il and gas are not the property of any one until reduced to actual possession by extraction, although by virtue of his proprietorship, the owner of the surface, or his grantee …, has the exclusive right of seeking to acquire and of appropriating the oil and gas directly beneath. This theory of ownership or, perhaps more accurately speaking, lack of ownership is practically universally recognized....”

Argument By Analogy Oil & Gas: 1 st Possession Are Pierson/Liesner/Shaw Good Tools for Determining 1 st Possession of Oil & Gas? Three Common Approaches 1.Significance of Factual Similarities & Differences (DQ2.23 = OXYGEN) 2.Usefulness of Doctrine (DQ2.24 = URANIUM) 3.Usefulness of Alternatives (DQ2.25 = URANIUM)

Argument By Analogy Oil & Gas: 1 st Possession (OXYGEN) DQ2.23. Arguments re Usefulness of Pierson/Liesner/Shaw from Factual Similarities between Hunting Wild Animals Generally & Extraction of Oil & Gas

Argument By Analogy Oil & Gas: 1 st Possession (OXYGEN) DQ2.23. Arguments from Factual Similarities re Usefulness of Pierson/Liesner/Shaw Could Try, e.g., : Mobility Across Property Lines Labor Necessary to Capture

Argument By Analogy Oil & Gas: 1 st Possession (OXYGEN) Lack of DQ2.23. Arguments re Lack of Usefulness of Pierson/Liesner/Shaw from Factual Differences between Hunting Wild Animals Generally & Extraction of Oil & Gas

Argument By Analogy Oil & Gas: 1 st Possession (OXYGEN) DQ2.23. Arguments from Factual Differences re [Lack of] Usefulness of Pierson/Liesner/Shaw Could Try, e.g., Mineral Movement More Predictable Value of Oil/Gas Generally Higher

(URANIUM) Argument By Analogy Oil & Gas: 1 st Possession (URANIUM) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why)

(URANIUM) Argument By Analogy Oil & Gas: 1 st Possession (URANIUM) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why) Could Try Actual Possession; Power & Control Escape Practically Impossible

(URANIUM) Argument By Analogy Oil & Gas: 1 st Possession (URANIUM) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why)

(URANIUM) Argument By Analogy Oil & Gas: 1 st Possession (URANIUM) DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why) Could Try Mortal Wounding; Continued Pursuit