1. ELEMENTS B1 & B2 POWER POINT SLIDES
Class #21: Thursday, October 13, 2016 National Train Your Brain Day

2. “Romantic Russia” London Symphony Orchestra (recorded 1956, 1966) Music: Mid- to Late 19th Century

3. Practice Midterm  Final Exam Question I
Elements Practice Midterm
1. Already Posted on Course Page
a. Practice Midterm Q
b. Comments/Best Student Answers Memo from Prior Years
2. Next Steps
a. Your Test will be Available Tomorrow (Await Instructions)
b. By Monday: I’ll Post Grading Form w Instructions
i) Roughly What I’m Using
ii) Fill Out for Your Own Test
iii) Exchange with a Colleague

4. Practice Midterm  Final Exam Question I
Similarly:
Applying Legal Authority to New Sets of Facts
First Possesion Cases
Escape Cases (including Taber & Bartlett)
Custom Analysis (from Swift & Ghen)
with “A Little Twist”:

5. Practice Midterm  Final Exam Question I
Applying Legal Authority to New Sets of Facts
with “A Little Twist”:
QI Will Require You to Apply Animals Cases by Analogy to Situations that Don’t Involve Live Animals

6. Final Exam Question I  Final Exam Question II
Applying Legal Authority to New Sets of Facts
with “A Little Twist”:
QI Will Require You to Apply Animals Cases by Analogy to New Situations
QII Will Require You to Discuss Whether Animals Cases are Good Tools for the New Situation
(New Type of Analysis from Unit II)

7. FINAL EXAM QUESTIONS 1 & 2 Single Fact Pattern for Both
Will Involve Type of Property Not Explicitly Covered in Course
I’ll Post Three Samples Today
One Primarily First Possession (& Custom) (Uninhabited Island)
One Primarily Escape (& Custom) (Gesture Strongly Associated with Celebrity: L-Bowing)
One All Three (Computer Program)

8. FINAL EXAM QUESTIONS 1 & 2
XQ1: “Assuming Animals Cases Apply, Discuss Who Should Get Property Rights?”
Basically Issue-Spotter Like Practice Midterm
Same Skills We’ve Been Working On
Same Close Knowledge of Cases Required
But Need to Be Creative Applying Doctrine
E.g., Whale Carcasses & Natural Liberty

9. FINAL EXAM QUESTIONS 1 & 2
XQ2: “Discuss Whether Animals Cases Are Good Tools to Use in New Scenario”
Testing Ability to Analyze When/Whether Analogy is Useful & Assess Value of Rules
Should Utilize Three Approaches We’ll Work With (EXTENSIVELY) in Unit Two (& Group Assignment #3)
E.g., Good rule to say if anchored whale returns to NL (floats free), should go to finder?

10. FINAL EXAM QUESTIONS 1 & 2 We’ll Start Doing Sample Qs
In class week after next
In DF starting next Thursday
I’ll Post Full Set of Old Qs with Comments & Model Answers in a Couple of Weeks
Like Briefs, Can Do Under Exam Conditions, Compare to Models & Bring Qs to Me
Look at Posted Samples, Then Me if Qs

11. Group Written Assignment #2
Info on GWA #1
Comments & Best Answers Posted; Me if Qs
Goal on Your Work is to Have Posted by Next Friday Comments on Arguments 1, 6, 3
I’ll Take Qs in Class Again Next Wednesday/Thursday
Be Careful Using Cases
Common Problem on Midterms: Manning & AR; Mullett & Abandonment
Common Problem on GWA Argument #1: 2d Prong of Shaw Test (Look at Slides; Review in DF Today/Monday)

12. HISTORIC PROBLEM: Ratione Soli & Assignment #2
Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.
No help to either party in Assignment #2.

13. HISTORIC PROBLEM: Ratione Soli & Assignment #2
Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.
No help to either party in Assignment #2.
Trap-Owner must get stronger form of property rights while the animal is on his land, or he loses claim as soon as animal crosses property line.

14. HISTORIC PROBLEM: Ratione Soli & Assignment #2
Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.
No help to either party in Assignment #2.
Killer cannot claim property rights via Ratione Soli if Trap-Owner owns the wolverine under the First Possession cases when the animal crosses property line. Killer must rely on Escape Cases instead.

15. HISTORIC PROBLEM: Ratione Soli & Assignment #2
Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel.
No help to either party in Assignment #2.
THINK ABOUT IT & ME IF QUESTIONS

16. Group Written Assignment #2
QUESTIONS NOW ?
(OTHER THAN RATIONE SOLI)

17. UNIT II: EXTENSION BY ANALOGY (WHALING CASES)
OXYGEN :Taber v. Jenny Brief & DQ
KRYPTON: DQ

18. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Identifying parties a little complicated in these cases. Initially looks like ship v. ship

19. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Hillman killed and anchored a whale
Zone found and took the whale
BUT a ship is an inanimate object that can’t really do these things. 

20. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Hillman, a ship whose crew killed and anchored a whale
Zone, a ship whose crew found and took the whale
So who are Taber and Jenny?
Who would get value of goods created from whale carcass?

21. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Who are Taber and Jenny?
Who would get value of goods created from whale carcass?
Not Crew: paid in wages, room & board
Might be Ship Captains, but probably salaried. Also case gives their names as Cook and Parker

22. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Who are Taber and Jenny?
Who would get value of goods created from whale carcass?
Not Crew: paid in wages, room & board
Might be Ship Captains, but probably salaried. Also case gives their names as Cook and Parker
See Bottom p.64: When the whale had been killed and taken possession of by the boat of the Hillman, it became the property of the owners of that ship….

23. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Taber, presumably the owner of Hillman, a ship whose crew killed and anchored a whale sued Jenny, presumably the owner of Zone, a ship whose crew found and took the whale ….
But court refers to libellants & respondents in the plural, so …

24. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Taber and others, presumably the owners of Hillman, a ship whose crew killed and anchored a whale sued Jenny and others, presumably the owners of Zone, a ship whose crew found and took the whale ….
for [cause of action]???
Seeking [remedy] ???

25. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
1st Sentence of Case:
“This is a libel to recover the value of a whale.”
What does “libel” mean in this context?

26. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
1st Sentence of Case:
“This is a libel to recover the value of a whale.”
In an admiralty action, the initiating pleading [until 1966], corresponding to the declaration, bill, or complaint in an ordinary civil action. (Glossary)
In an ordinary civil suit, libel = a tort (defamation in a written form).

27. Taber v. Jenny BRIEF (OXYGEN): Statement of the Case
Taber and others, presumably the owners of Hillman, a ship whose crew killed and anchored a whale sued Jenny and others, presumably the owners of Zone, a ship whose crew found and took the whale ….
Presumably for conversion (see Bartlett) (not libel!!)
Seeking damages for the value of the whale.

28. Taber v. Jenny BRIEF (OXYGEN): Procedural Posture
Decision after a trial.
(See Briefing Instructions for Trial Court Cases)

29. E.g., Legal Framework of Taber & Bartlett
Basic Facts of Both Cases:
Crew of 1st ship kills whale, marks and anchors it, leaves
Whale carcass moves some, then found & taken by crew of 2d ship
Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

30. Legal Framework of Taber & Bartlett
Basic facts of both cases:
1st Crew kills whale, marks, anchors, leaves
Whale found & taken by crew of 2d ship
Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale
Issue Like Escape Cases: Did 1st Crew Lose Property Rights by Leaving Whale Behind?

31. Taber v. Jenny BRIEF (OXYGEN): ISSUE
No procedural element because not an appeal (so no error by court below).

32. Taber v. Jenny BRIEF (OXYGEN): ISSUE
Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]?
Most Important Facts
for This Purpose?

33. Taber v. Jenny BRIEF (OXYGEN): ISSUE
Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [for example]
killer anchors whale leaving marks indicating killer’s identity
killer returns as soon as practicable to collect whale
finder of whale sees identifying marks and knows whale is less than 12 hours dead? (in last paragraph)

34. Taber v. Jenny BRIEF (OXYGEN): ISSUE
Parties/Case suggest several ways to resolve Legal Issue:
Law of Salvage (DQ2.04) (OXYGEN)
Whaling Customs (DQ2.02) (KRYPTON)
Common Law of Property

35. Taber v. Jenny BRIEF (KRYPTON): ISSUE
Parties/Case suggest several ways to resolve:
Law of Salvage (DQ2.04) (OXYGEN)
Whaling Customs (DQ2.02) (KRYPTON)
Common Law of Property
Before we look at those:
Look at Factual Disputes/Findings to Clarify Details
Try Applying Escape Cases (DQ2.01) (KRYPTON)

36. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
New Section of Brief for Trial Court Cases
In case without jury, Trial Judge responsible for making “findings” resolving factual disputes between the parties
Read carefully to identify disputes & findings
Look for language suggesting parties disagreed or evidence conflicted
Look for language indicating court resolved dispute by accepting one version of facts (unresolved factual disputes likely irrelevant to legal analysis)

37. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
New Section of Brief for Trial Court Cases
In case without jury, Trial Judge responsible for making “findings” resolving factual disputes between the parties
Read carefully to identify disputes
Distinguishing Factual from Legal Disputes
Facts occur out in world without reference to legal system (usually prior to filing of lawsuit)
Legal disputes address what legal consequences from given set of facts should be .

38. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
Zone relied on a custom that applied to whales that are found adrift. “But, from the evidence, it does not appear that this whale was found adrift. On the contrary, I am satisfied that it was anchored when taken by the boat of the Zone.” (top p.65)  ???

39. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
“from the evidence, it does not appear that this whale was found adrift. On the contrary, I am satisfied that it was anchored when taken by the boat of the Zone.” 
Dispute #1: Was whale anchored when found by ship Z?
Finding #1: Yes.

40. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
“Whether it was found in the place where it had been left by the captors, or had dragged the anchor [MEANS?], and if it had dragged, how far, is left in some uncertainty. I do not think it is shown to have dragged, certainly not to any considerable distance….” (top p.65)  ???

41. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
“Whether it … had dragged the anchor, and if it had dragged, how far, is left in some uncertainty. I do not think it is shown to have dragged, certainly not to any considerable distance….” 
Dispute #2: Had whale dragged its anchor when found by ship Z?
Finding #2: No, at least not "to any considerable distance."

42. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
“I do not think [the whale] is shown to have dragged [its anchor], certainly not to any considerable distance, and if it had, there is no proof of usage embracing such a case.”
(top p. 65)  ???

43. Taber v. Jenny BRIEF (OXYGEN): Factual Disputes & Findings
“I do not think [the whale] is shown to have dragged [its anchor], … and if it had, there is no proof of usage embracing such a case.” 
Dispute #3: Was there a custom [= usage] in whaling industry that if an anchored whale dragged its anchor, ownership can be lost?
Finding #3: No evidence of such a custom.

44. DQ2.01: Taber under Mullett (KRYPTON)

45. DQ2.01: Taber under Mullett (KRYPTON):
Abandonment
Easy to Apply to Almost Any Kind of Property
Evidence of No Abandonment?

46. DQ2.01: Taber under Mullett (KRYPTON)
Abandonment
Easy to Apply to Almost Any Kind of Property
Lots of Evidence of No Abandonment:
Value of Whale
Anchored & Marked
Left Due to Fog: Returned as Soon as Could
Search/Pursuit When Missing

47. DQ2.01: Taber under Mullett (KRYPTON)
Natural Liberty
What might you call the “natural liberty” of a dead whale? (from last time)
“free from artificial restraint”
“free to follow the bent of its natural inclination”

48. DQ2.01: Taber under Mullett (KRYPTON)
Natural Liberty
What might you call the “natural liberty” of a dead whale?
“free from artificial restraint”
“free to follow the bent of natural inclination”
MAYBE: A dead whale adrift = NL

49. DQ2.01: Taber under Mullett (KRYPTON)
Natural Liberty
Maybe a dead whale adrift = NL
Would float with current
Whale out of control of OO & hard to find
Could be there naturally
F might have trouble locating OO
If NL means “adrift”, no NL here

50. DQ2.01: Taber under Mullett (KRYPTON)
Intent to Return (AR)
Clearly Dead Whale Has No Intent at All
Note:
Escape Cases Don’t Use This to Mean Intent of OO to Return or to Get Property Back,
Can’t Really Use Evidence of 1st Crew’s Intent to Return
Can You Think of Something in This Scenario that Might Serve the Same Function as Animal’s Intent to Return?

51. DQ2.01: Taber under Mullett (KRYPTON)
Intent to Return
Can You Think of Something in This Scenario that Might Serve the Same Function?
Try This Characterization of AR: “Labor by OO Enabling OO to Safely Allow Animal Out of Her Immediate Control”

52. DQ2.01: Taber under Mullett (KRYPTON)
Intent to Return
Can You Think of Something in This Scenario that Might Serve the Same Function?
Try This Characterization of AR: Labor by OO Enabling OO to Safely Allow Animal Out of Her Immediate Control
Maybe Anchoring Animal Serves Same Role; if so, they did here.

53. DQ2.01: Taber under Mullett (KRYPTON)
Overall: If You Accept My Metaphors, Easy Case for OO Under Mullett
Lots of Evidence of No Abandonment
If NL = Adrift (a little stretch), It Isn’t
If AR = Anchored (a bigger stretch) , It Is

54. DQ2.01: Taber under Albers (KRYPTON)

55. DQ2.01: Taber under Albers (KRYPTON)
Marking
Evidence:
Anchor & Tow-Line
Waif (8-foot staff w flag at top)
2 Irons (harpoons)
How strong are marks (and why)?

56. DQ2.01: Taber under Albers (KRYPTON)
Strength of Marking
Evidence:
Anchor & Tow-Line
Waif (8-foot staff w flag at top)
2 Irons (harpoons) w initials H.N.B.
Very Clear Indication of Existence of OO
Man-Made & Specifically Identify OO

57. DQ2.01: Taber under Albers (KRYPTON)
Strength of Marking
“A whale not being the product of human care or labor, does not, of itself, purport [means?] to be property, and what would have been the right of the finders, if the captors had abandoned it without any marks of appropriation [means?], need not now be considered.” (p.65 last sentence)
Taber explicitly makes marks relevant.

58. DQ2.01: Taber under Albers (KRYPTON)
Evidence of F’s Knowledge?
Marks: “the anchor, waif and irons, were unequivocal proofs, not only that it had been killed and appropriated, but of the intention of the captors to reclaim … it.”
Other Evidence?

59. DQ2.01: Taber under Albers (KRYPTON)
Evidence of F’s Knowledge?
Marks: “the anchor, waif and irons, were unequivocal proofs, not only that it had been killed and appropriated, but of the intention of the captors to reclaim … it.” PLUS
F in industry (like Albers) & marks of type that is customary in industry (like fox tattoos)
“[T]he appearance of the whale” would “show to the finders that it could have been killed only a short time, not exceeding twelve hours.” [Matters because…?]

60. DQ2.01: Taber under Albers (KRYPTON)
Evidence of F’s Knowledge?
Marks: “the anchor, waif and irons, were unequivocal proofs, not only that it had been killed and appropriated, but of the intention of the captors to reclaim … it.” PLUS
F in industry (like Albers) & marks of type that is customary in industry (like fox tattoos)
“[T]he appearance of the whale” would “show to the finders that it could have been killed only a short time, not exceeding twelve hours.”
Thus killer’s return likely; whale probably not lost or abandoned.

61. DQ2.01: Taber under Albers (KRYPTON)
Protecting Labor/Industry
Labor: What Labor Worth Protecting/ Rewarding?

62. DQ2.01: Taber under Albers (KRYPTON)
Protecting Labor/Industry
Labor: Voyage; Killing; Careful Marking/Securing; Abandonment Only by Compulsion; Return as Soon as Practical
Industry: How Might You Protect Industry & Participants?

63. DQ2.01: Taber under Albers (KRYPTON)
Protecting Labor/Industry
Labor: Voyage; Killing; Careful Marking/Securing; Abandonment Only by Compulsion; Return as Soon as Practical
Industry:
Protect whalers that did best job they could under circumstances
Don’t encourage unnecessary risk-taking to keep carcass (“Ishmael, stay here with the whale all night”)

64. DQ2.01: Taber under Albers (KRYPTON)
Time/Distance
Time: Less than 12 hours
Distance: Did not move “any considerable distance”
Both Very Short (Less than Albers)

65. DQ2.01: Taber under Albers: Overall
Marking? Strong (Man-Made; Owner I.D.)
F’s Knowledge? Knew of Claim & Likely Return
Protecting Labor/Industry? Both
Time/Distance? Both Short
Bottom Line Under Albers: Strong Case for 1st Ship (OO)

66. Taber v. Jenny BRIEF: ISSUE
Does killer of whale lose property rights when it leaves the body of the whale in the ocean [on facts here] ?
Parties/Case suggest several ways to resolve issue:
Law of Salvage (DQ2.04) (OXYGEN)
Whaling Customs (DQ2.02) (KRYPTON)
Common Law of Property

67. Taber DQ2.04: Salvage (OXYGEN)
Definition: Party finds property belonging to another (OO) adrift on open seas.
Finder recovers property & returns to OO.
Finder then receives standard “salvage” fee from OO.
Begins as custom, but is established as law by the time of these cases.
Parties that regularly conduct trade on the high seas will periodically lose property to storms and wrecks, so (mostly) willingly participate in system.

68. Taber DQ2.04: Salvage (OXYGEN)
Party finds property belonging to another (OO) adrift on open seas
Finder recovers property & returns to OO
Finder then receives standard “salvage” fee from OO
Why not employed in Taber?

69. Taber DQ2.04: Salvage (OXYGEN)
Why not employed in Taber?
Zone owners never claimed salvage rights
Zone didn’t behave like salvor (= return found goods and ask for $)
Rule: if try to adopt salvage property for own use, can forfeit salvage rights
Note: Salvage is usually for goods found adrift, so not clear would apply here anyway

70. Taber DQ2.04: Salvage (OXYGEN)
Taber uses a comparison with the law of salvage (but not salvage itself) to support its result:
Doctrinal Rationale: Law [of Salvage] says if property found adrift at sea, finder entitled to fee for salvage but not to property itself. Owner of property that is not adrift has an even stronger interest, so does not lose rights to finder.

71. Taber v. Jenny BRIEF: ISSUE
Does killer of whale lose property rights when it leaves the body of the whale in the ocean [on facts here] ?
Parties/Case suggest several ways to resolve issue:
Law of Salvage (DQ2.04) (OXYGEN)
Whaling Customs (DQ2.02) (KRYPTON)
Common Law of Property

72. Taber & Bartlett : Whaling Customs Generally
Existence and Scope of Custom is Question of Fact:
Determine through testimony of experts & experienced whalers
We discussed in context of DQ1.03
In exam Q, can think of as similar to application of a legal standard: Do facts meet standard for when custom applies?

73. Taber & Bartlett : Whaling Customs Generally
Existence and Scope of Custom is Question of Fact
Whether to Treat Applicable Custom as Legally Binding is Question of Law
Taber doesn’t address
Bartlett discusses hypothetically
Swift & Ghen provide legal framework