ELEMENTS B1 & B2 POWER POINT SLIDES

ELEMENTS B1 & B2 POWER POINT SLIDES
Class #19 Wednesday, September 28, 2016 Thursday, September 29,

The Essential Louis Armstrong: Disc 1 (Recordings 1925-30)
Pre-Midterm Office Hours Thu a.m. Thu 3:30-5:30 p.m. I’ll Respond to Reasonable Qs Sent by 4:00 p.m. Thursday Thursday B2 Lunch Meet on 12:30 Beltran * Bernstein * Fish Fontalvo * Ledbetter Shevlin * Stevenson Very Last Lunch!

Group Written Assignment #2: McKinley v
Group Written Assignment #2: McKinley v. Ford The Case of the Wounded Wolverine

Skills: Applying Legal Authority Group Written Assignment #2
Important Exam Task/Skill: Apply Authorities Studied to New Hypothetical or “Fact Pattern” Assmt #1 : Structured Sequence of Particular Arguments from a Single Authority Assmt #2: Wider Range of Arguments from Multiple Authorities

Wide Range of Arguments w 3 Limits Each Team Only Addresses One Issue: “First Possession” = Was There a Moment When Wolverine Became Property of P? “Escape” = Did P Lose Property Rights When Wolverine “Escaped” to D’s Property (Must Assume P Acquired a Property Right)

Wide Range of Arguments w 3 Limits Each Team Only Addresses One of Two Issues (1st Possession -OR- Escape) Stick to Your Issue Be Very Careful to Explain Relevance If You Use Authority Focused on Other Issue

Wide Range of Arguments w 3 Limits Each Team Only Addresses One Issue Representing One Particular Party All Arguments Must Support Your Client Legal Smeagols: Identify Other Side’s Best Arguments, Then Respond to Them

Wide Range of Arguments w 3 Limits Each Team Only Addresses One Issue Representing One Particular Party Arguments must be “based on the materials in Unit One.” No arguments based on Whaling Cases on Rose Article from Unit Two Can include policy arguments we’ve discussed even if not clearly stated in Unit One materials.

One “Argument” Means One Subject E.g., Arguments Made in Assignment #1 Applying One Legal Test Comparing Facts of One Case to Hypo Applying One Relevant Policy Consideration

One “Argument” Means One Subject E.g., Arguments Made in Assignment #1 E.g., Applying One Relevant Factor Mortal Wounding Return to Natural Liberty Deriving a Rule from Multiple Cases and Applying It See DQ1.28 (1st Possession Cases) See DQ1.53 (Manning & Mullett)

One “Argument” Means One Subject Some Degree of Judgment Involved Mortal Wounding (+ Pursuit?) Two Similar Tests from Separate Cases? Address Counter-Argument in Same Argument or Separately? When in Doubt, Avoid Substantial Overlap

Working Together Be Responsible for Submission as a Whole Covering all Key Arguments You Identify Addressing Key Counterarguments Separating Out Different Ideas Avoiding Substantial Overlap Due October 23 (Sunday Two Weeks after Break) Before Break Coordinator Should Try to Start to Work Out Individual Responsibilities and Timing Cooperate to Achieve Best Possible Joint Product

General Points Care re Formatting & Substantive Directions Review “Common Writing Concerns” Look at Feedback on Assignment #1 Comments & Best Answers Memo on Course Page Individual Comments on Your Work Will Start Appearing During Break QUESTIONS?

Kesler v. Jones: Holding & Use as Precedent in Escape Problems

Kesler v. Jones FACTS Fox owned and cared for by Ps had escaped and been recaptured at least once. It escaped again and Ps pursued. A short time after the escape and a short distance away, a neighbor found it among her chickens and asked D for help. D shot and killed the fox, unaware of its prior captivity or Ps’ ownership. Ps requested that D return fox’s pelt. D refused.

Kesler v. Jones DQ1.61: Factual Differences from Albers
Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance Explanation of Significance is Key Part of More General Point: Use Every Fact I Give You Can do DQ1.61 as Midterm Prep Similar exercise on course page: if change facts in wolverine problem, how might it affect result?

Kesler v. Jones DQ1.62: Differences in Analysis from Albers
Albers assumes F wins under Mullett rule, so it rejects use of that rule for valuable wild animals. Kesler says, “Albers, a case squarely in point, supports the conclusion herein ....” [i.e., NOT the reasoning.]

Kesler DQ1.62: Differences in Analysis from Albers
Albers assumes F wins under Mullett rule, so it rejects use of that rule for valuable wild animals. Kesler reaches same result (OO wins) by applying Mullett rule, holding that the fox never returned to natural liberty…

Kesler DQ1.62: Differences in Analysis from Albers
Albers assumes F wins under Mullett rule, so it rejects use of that rule for valuable wild animals. Kesler reaches same result (OO wins) by applying Mullett rule, holding that the fox never returned to natural liberty because she … “had formerly escaped and been recaptured [NOTE: Different from escape & return by animal]; she had been out of her pen but a short time; her owners were in pursuit [and] she was killed but a short distance from her pen….”

Kesler : MAJOR ESCAPE POINTS
Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture. Unlike Albers, explicitly makes relevant: Pursuit: Helps OO, especially if continues until F arrrives Short Time & Distance: Helps OO, at least by showing OO hasn’t completely lost control. Unlike Albers, no reference at all to: Marking or F’s Knowledge Value of Animal, Investment, or Industry QUESTIONS?

Pierson and Kesler : First Possession v. Escape
Same terms can have different significance depending on context.

Same terms can have different significance depending on context: Pursuit Unowned Animal: Close pursuit insufficient to create ownership. Escaped Animal: Close pursuit may be sufficient to maintain ownership.

Same terms can have different significance depending on context: Natural Liberty Unowned Animal: Close pursuit insufficient to deprive animal of NL Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL.

Manning and Mullett Factors Under Albers & Kesler
TAMING/ INVESTMT Valuable Animal & Industry  Helps OO (Don’t Use Mullett Rule) No Mention MARKING Marking & Other Forms of F’s Knowledge Help OO TIME/ DISTANCE Short Time & Distance BUT No Mention Short Time/Distance Help OO (Can Show No NL) ABANDON- MENT Pursuit Seems to Help OO; Can Have Abandmt by Compulsion Ongoing Pursuit Helps OO (Can Show No NL) ANIMUS REV. Individual Not Species Prior Recapture (Relevant to NL not AR) RETURN TO NL Court Assumes Yes; Not in List of Relevant Facts Under New Rule No NL If Close Pursuit & Short Time/Distance

Fall Break 1. Generally: 2. For Elements:
a. Day or two really off b. Steady work on individual courses: avoid juggling problem by doing at least one solid day for each course 2. For Elements: I’ll Post Clean-Up Assignment re Albers/Kesler for 1st Class Back I’ll Post Unit Two Materials & Assignments: Can read ahead (Taber/Bartlett/Swift), but don’t do Ghen until we do the others. Use experience of midterm (& posted comments & models) to guide studying/outlining I’ll be around most of break; if you have Qs, you can me for appointment

The Logic of Albers 2. Domesticated or Wild?
Determine by Individual not Species Birth in Captivity Irrelevant Taxation of Fur Foxes? (DQ1.56(c)) (featuring G.I. Joe!) [Continued from Class #18] Black’s’ Definition of “Domestic Animal”

Characterization of Same Item in Different Legal Contexts
Sensible to argue that legal treatment of the item in one context should be RELEVANT to its treatment in other contexts. BUT be aware that, because different sets of rules have different purposes, there is no requirement that an item has to be treated in a consistent manner by different sets of applicable rules. E.g., characterizations for tax purposes are frequently different than others.

G.I. Joe: I am an “Action Figure” …

G.I. Joe: I am an “Action Figure” even though Customs Regulations…

G.I. Joe: I am an “Action Figure” even though Customs Regulations call me a “Doll” 

The Logic of Albers 2. Domesticated or Wild?
Determine by Individual not Species Birth in Captivity Irrelevant Taxation of Fur Foxes Irrelevant Black’s’ [Law Dictionary] Definition of “Domestic Animal”

The Logic of Albers: Domesticated or Wild? (4)
Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.”

Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” Again, P must have argued that, b/c she makes $$$ off of foxes, they are “domestic animals” under this definition. The court in italicized phrase rejects the definition as too inclusive, and thus inconsistent with requiring individualized determination of “domestic” v. “wild”.

Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” “Would include” here is conditional form, used to describe hypothetical situations.

Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” Sense here is “If we adopted this as the legal definition (which we won’t), all fur-bearing animals in captivity would be characterized as ‘domestic animals’ (which would be wrong).”

The Logic of Albers Questions? 2. Domesticated or Wild?
Determine by Individual Birth in Captivity Irrelevant Taxation of Fur Foxes Irrelevant Black’s’ Definition of “Domestic Animal”: Too Broad As noted, Colorado S.Ct. must’ve decided the fox was wild or case would be much shorter/simpler Questions?

Addressing Prior Authority
The Logic of Albers What The Case Holds Domesticated or Wild? Addressing Prior Authority Critique

The Logic of Albers 3. Addressing Prior Authority
Tort Liability v. Property Rights Prior Escape Cases Manning (DQ1.55): Generally (DQ1.57(a)) Ontario Case (DQ1.56(a)) “Wholly Inapplicable” Cases Statute re Common Law (DQ1.56(b))

The Logic of Albers: Addressing Prior Authority
p.48 (3d para.): Discussion of legal connection between tort liability and property rights: We’ll come back to next time with Kesler & DQ1.60

The Logic of Albers 3. Addressing Prior Authority Prior Escape Cases
Tort Liability v. Property Rights Prior Escape Cases Manning (DQ1.55): We Did Earlier Generally (DQ1.57) Ontario Case (DQ1.56(a)) “Wholly Inapplicable” Cases Statute re Common Law (DQ1.56(b))

Tort Liability v. Property Rights Prior Escape Cases Manning Generally (DQ1.57(a)) Ontario Case (DQ1.56(a)) “Wholly Inapplicable” Cases Statute re Common Law (DQ1.56(b))

The Logic of Albers: Addressing Prior Authority DQ1.57(a):
Top p.48: Prior authorities on escape “are rather confusing than enlightening….”

Top p.48: Prior authorities “even suggest that one modification of the rule would permit the owner to recover if he could identify his property. “Even” means here?

Top p.48: Prior authorities “even [wrongly/ stupidly go so far as to] suggest that one modification of the rule would permit the owner to recover if he [merely] could identify his property. We know of no case so applying it (save those dealing with bees)… .”

Top p.48: Prior authorities “even suggest that one modification of the rule would permit the owner to recover if he could identify his property … [T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.” To whom does court think it’s unjust?

[T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.” Under “modification,” OO always wins if can i.d. animal., so must be unjust to F. Possible Reasons Why Unjust?

[T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.” Must be unjust to F, since under “modification” OO always wins if can i.d. animal. Maybe because F has no notice (“ordinary” animals) Maybe because F might start to invest Also maybe because OO hasn’t done enough to control

Tort Liability v. Property Rights Prior Escape Cases Manning Generally Ontario Case (DQ1.56(a)) “Wholly Inapplicable” Cases Statute re Common Law (DQ1.56(b))

The Logic of Albers: Addressing Prior Authority DQ1.56(a): KRYPTON
Campbell v. Hedley (Ontario 1917) Essentially same facts as Albers. “In an action to recover the value of [the fox] pelt the plaintiff was defeated. That court applied the common-law rule, citing Blackstone and … Mullett….”

The Logic of Albers: Addressing Prior Authority DQ1.56(a): KRYPTON
Campbell v. Hedley (Ontario 1917) Essentially same facts as Albers. Finder wins under common law rule. Ontario legislature “corrects” the case by passing “An act for the protection of property in foxes kept in captivity.” [Presumably protecting fox-fur industry] What is the significance to the logic of Albers of the Ontario statute “correcting” the case?

Campbell v. Hedley (Ontario 1917): Essentially same facts as Albers. Finder wins under common law rule. Ontario legislature “corrects” by passing “An act for the protection of property in foxes kept in captivity.” Colo. S.Ct: Ontario legislature “found it necessary to correct” the common law rule because it “was so inapplicable to present-day conditions.” (bottom p.48) Supports argument that common law rule shouldn’t be used where there’s a fox-fur industry and so is inapplicable.

Campbell v. Hedley (Ontario 1917): Essentially same facts as Albers. Finder wins under common law rule. Ontario legislature “corrects” by passing “An act for the protection of property in foxes kept in captivity.” Colo. S.Ct: Ontario legislature “found it necessary to correct” the common law rule because it “was so inapplicable to present-day conditions.” Supports argument that common law rule shouldn’t be used where there’s a fox-fur industry and so is inapplicable. Questions on Use of Ontario Law?

Tort Liability v. Property Rights Prior Escape Cases “Wholly Inapplicable” Cases Statute re Common Law (DQ1.56(b))

(1st full para. p.48): “We take no notice of” cases involving theft from traps & cages and theft of dogs because they are “wholly inapplicable.” OO would win all these cases, so P must have raised them. “Wholly inapplicable” because they involve either domestic animals or animals completely within control of owner.

Tort Liability v. Property Rights Prior Escape Cases “Wholly Inapplicable” Cases” Statute re Common Law (DQ1.56(b)) (KRYPTON)

The Logic of Albers: Addressing Prior Authority DQ1.56(b): KRYPTON
1861 Colo. Statute (Bottom p.48): The common law of England, so far as the same is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. What argument did D make relying on this statute?

1861 Colo. Statute (Bottom p.48): The common law of England, so far as the same is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. D must have argued that statute required the court to follow the common law Mullett-Blackstone rule, since not repealed by Colo. Legislature. Why did the court reject the argument?

1861 Colo. Statute: The common law of England, so far as the same is applicable … shall be the rule of decision… Court finds the common law rule “inapplicable” because unsuited to present conditions Cites Morris (an earlier Colo. Case) as rejecting a common law rule for the same reason. Why unsuited here?

Court finds the common law rule “inapplicable” because unsuited to present conditions. Why unsuited here? Common Law Rule designed under assumption that wild animals had no material value Before development of breeding farms and zoos Need different rule to account for significant value

The Logic of Albers: Addressing Prior Authority DQ1.56(b)
Court finds the common law rule “inapplicable” because unsuited to present conditions. Common Law Rule assumed wild animals had no material value Since that is no longer true, need different rule. Common Type of Legal Argument: Check purpose of old rule to see if it should still apply. Questions?

The Logic of Albers Critique: DQ1.58-1.59 What The Case Holds
Domesticated or Wild? Addressing Prior Authority Critique: DQ

The Logic of Albers: Critique DQ 1.59: KRYPTON
Can you describe what happened in Albers in terms of Demsetz’s first thesis?

DEMSETZ FIRST THESIS = DESCRIPTION/EXPLANATION
Identify decision/activity at issue Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

The Logic of Albers: Critique KRYPTON DQ1.59: Demsetz’s 1st Thesis
Decision: Finder’s Choice: Keep found animal or pelt v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities?

Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances?

Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms [+ Zoos, etc.] Increase in Externalities?

Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms Increase in Externalities? OO losses greater; harm to state economy Change in Rule?

Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms Externalities = OO losses  ; harm to state economy Change in Rule? Colo. S.Ct. (and Ontario Legislature) alter Mullett rule to protect fox farms. Would Demsetz Like the Result?

The Logic of Albers: Critique KRYPTON DQ1.59: Demsetz’s 2d Thesis
Would Demsetz Like the Result? YES! Change in Albers creates stronger private property rights & fewer valuable escaped animals returning to commons. Seems consistent with tendency toward more private property that Demsetz (2d Thesis) sees as good because of reduced externalities over time.

The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.)
Court here essentially: a. carved out exception to the Mullett rule b. to meet perceived policy need. 2. Alternative (as in Ontario): a. Court applies existing rule b. Legislature responds by enacting new statute modifying rule to meet policy need.

Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)?

Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)? Might look at: Relative institutional strengths? Democratic theory? Certainty/notice?

The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) (Not Shown in Class)
Courts v. Legislature: Relative Institutional Strengths Include: Access to Information: Legislature has power to hold extensive investigations and likely to hear from most affected constituents. Courts hear from parties to suit and occasionally from other affected groups through Amicus briefs. Type of Rule: Legislature better equipped to develop complex regulations and to resolve difficult line-drawing problems Courts tend to develop rules that are manageable in judicial setting but may be better at determining individual justice

Moore v. Regents of University of California
The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) (Not Shown in Class) Courts v. Legislature: Relative Institutional Strengths: Example: Moore v. Regents of University of California Suit about Univ. hospital using valuable spleen cells from patient without patient’s knowledge or permission. Issue of first impression so P raised several legal theories. Cal. S. Ct. did not rule on whether cells were “property,” probably in part because that would raise complex legal and ethical problems better suited for legislature. Court resolved case as an issue of medical disclosure, which was easier approach for Court because: Unlikely to be controversial that doctors & hospital should’ve asked/told. Already established tort caselaw re standards for medical disclosure.

Having then neither statute nor applicable common-law rule governing the case, we must so apply general principles in the light of custom, existing facts, and common knowledge, that justice will be done. So the courts of England and the United States have acted from time immemorial, and so the common law itself came into existence. (2d Para. p.49)

Skills Exam Prep (& Fall Break)
Lot of Info Today I’ll Go Through Fast Because You’ll Have Slides Me if Qs

Try to Think About Exam Prep in Terms of Skills Relevant Skills in Elements Include: I. Applying Legal Authority to New Sets of Facts II. Determining Appropriate Legal Test for Particular Situation

1. Generally: a. Day or two really off b. Steady work on individual courses: at least one solid day each 2. For Elements: a. I’ll be around; if you have Qs, me for appointment b. Opportunity for Careful Prep on Seven (!!) Cases Already Covered c. Much less material than other courses  i) Good News: Can do more in-depth ii) Bad News: Must do more in-depth iii) Suggestions Throughout Presentation

Exam Technique Generally I’ll Create “Exam Headquarters” at Bottom of Course Page I’ll Post Soon a Short Memo on General Exam Technique I do Faculty-Perspective Exam Skills Workshops in November Dates, Times, Locations on Assignment Sheet Worth your time (very well-received) I am world’s leading expert on what I look for in student exam answers to my own tests. 

Applying Legal Authority to New Sets of Facts Most Basic Version: Applying Single Case to New Situation Examples: Group Assignment #1; Unit One DQs Fall Break Prep 1: Reviewing Individual Cases Fix Notes & Briefs by Comparing to Slides & Sample Briefs Take/Retake Self-Quizzes Look at Comments/Models for Assignment 1 & Write Up of DQ1.48 (Coming) If in Doubt, Ask Qs or Reread

Applying Legal Authority to New Sets of Facts Most Basic Version: Applying Single Case to New Situation Examples: Group Assignment #1; Unit One DQs Fall Break Prep 1: Reviewing Individual Cases Fall Break Prep 2: Doing the Task Play w Weasel & Squirrel Hypos w Rest of Relevant Cases Posted Shack Hypo As Exam Q (Comments/Models Posted Soon) Apply Individual Unit One Cases to Issues in Whaling Cases

Applying Legal Authority to New Sets of Facts More Complex: Applying Group of Cases to New Situation Examples: Group Assignment #2; DQs 1.28 & DQ1.53

Applying Legal Authority to New Sets of Facts More Complex: Applying Group of Cases to New Situation Examples: Group Assignment #2; DQs 1.28 & DQ1.53 Fall Break Prep 1: Working with Group of Related Cases Try/Retry DQs 1.28 & 1.53 & Look at Write-Ups Case Charting

CHARTING AS STUDY TOOL FACTOR MANNING MULLETT ALBERS MARKING/ FINDER’S
KNOWLEDGE (FK) Parted Crest (Man-Made, Not Permanent; Other Bird has) Treated as Relevant Refers to Menagerie Animals/Organ Grinder Monkey; could mean FK Scarring (Likely permanent; probably not clearly man-made) Not Treated as Relevant Holds: can be NL w/o being Nat’l Habitat; could be concern about FK, but not explicit Tattoo w #s in Ears (man-made; permanent; industry custom; i.d.s OO); F knew of industry & that fox likely from fox farm Treats both mark and FK as relevant F can’t take Seal in Millpond; Bear in City; looks like FK Has Blackstone language re mark only matters if AR likely permanent

Applying Legal Authority to New Sets of Facts More Complex: Applying Group of Cases to New Situation Examples: Group Assignment #2; DQs 1.28 & DQ1.53 Fall Break Prep 1: Working with Group of Related Cases Fall Break Prep 2: Doing the Task Play w Weasel & Squirrel Hypos Arguing from Cases as Group Work on Group Assignment #2 Take Elements Practice Midterm

Elements Practice Midterm 1. Posted on Course Page by Monday a. Practice Midterm Q with Instructions for “Exam Conditions” b. Comments/Best Student Answers Memo from Prior Years 2. For Feedback from Me a. First Look at Posted Memo on Exam Technique b. Do Practice Midterm Under “Exam Conditions” (as Described in Instructions) c. Go through Comments /Best Answers Memo d. Bring me Specific Qs (I can’t go through 76 line-by-line)

Applying Legal Authority to New Sets of Facts “A Little Twist”: Your Test Will Require You to Apply Animals Cases by Analogy to Situations that Don’t Involve Live Animals

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)

Legal Framework of Taber & Bartlett
“Kodak Moment” (1913)

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?” So We’ll Try to Apply Factors from Escaping Animals Cases (See DQ2.01)

DQ2.01: Taber under Mullett
Natural Liberty What might you call the “natural liberty” of a dead whale? “free from artificial restraint” “free to follow the bent of its natural inclination” (obviously can’t “provide for itself”)

DQ2.01: Taber under Mullett
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 Arguably shows negligence by OO Arguably F can’t tell there’s an OO

Applying Legal Authority to New Sets of Facts “A Little Twist”: Your Test Will Require You to Apply Animals Cases to Situations that Don’t Involve Live Animals Oil & Gas Law: Minerals ferae naturae The Internet, Analogy & the Future of Lawyering Leads us into Second Type of Skill

Skills Exam Prep (After Fall Break)
What Should the Law Be: Determining Appropriate Legal Test for Particular Situation When Should We Treat Industry Customs as Binding Law? Whaling Cases will provide Guidelines for Analysis

Skills Exam Prep (After Fall Break)
What Should the Law Be: Determining Appropriate Legal Test for Particular Situation When Should We Treat Industry Customs as Binding Law? When Should We Use a Set of Existing Rules to Govern a New Area of Law By Analogy Ways to Approach in Readings Today & in Unit Two DQs Group Assignment 3 Involves These Types of Arguments

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 Over Break One Primarily First Possession (& Custom) (Uninhabited Island) One Primarily Escape (& Custom) (Gesture Strongly Associated with Celebrity: L-Bowing) One All Three (Computer Program)

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

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?

Back to Work!!

Kesler v. Jones: Radium In-Class Brief & DQ1.60-1.62
MARIE CURIE: Discoverer of Radium

Kesler v. Jones BRIEF: Radium
Statement of the Case: Kesler … and the Davises… ??? sued Jones … for [cause of action] seeking [remedy].

Statement of the Case: Kesler, the original owner (OO) of an escaped fox, and the Davises, its caretakers … Fox is “property” of “other appellant”: must be Kesler Davises probably plaintiffs because they had custody of the fox and would be liable to Kesler for its loss

Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers …, sued Jones … ??? for [cause of action] seeking [remedy].

Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, Need both killing & keeping pelt. for [cause of action] ??? seeking [remedy].

Statement of the Case: Kesler, the owner of an escaped fox, and the Davises, its caretakers sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, … for unlawful killing of the fox and unlawful retention of its pelt seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?

Statement of the Case: seeking [remedy] ??? Case doesn’t say explicitly. Hint from case? Court orders new trial to determine “the value of the pelt”  seeking damages

Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages. PROCEDURAL POSTURE?

Procedural Posture: After a trial, the court found for defendant on both claims. Plaintiffs appealed. How do you know there was a trial?

Procedural Posture: After a trial, the court found for defendant on both claims. Plaintiffs appealed. How you know there was a trial: “The court was justified … in concluding from the evidence…” “the cause remanded for a new trial …”

How Many Radiums Saw That There Were Two Issues in Case? (Show of Hands) (Uraniums are Radioactive for This Purpose and Must Be Silent and Still!)

How You Know There Are Two Issues In Case: Two different kinds of legal claims addressed Unlawful killing of fox (Tort Q: Justification for shooting) Unlawful retention of pelt (Property Q: Ownership of escaped animal) Judgment is affirmed in part, reversed in part. Means: One issue decided in favor of D One issue decided in favor of Ps

1st Issue (Unlawful Killing): Did trial court err in entering judgment for defendant because … Hard to be precise about relevant facts b/c Court doesn’t say why Ps thought the killing was unreasonable We aren’t studying defenses to intentional torts here, so don’t have other examples to look at.

1st Issue (Unlawful Killing): Pretty General Version (E.g.:) Did trial court err in entering judgment for defendant because a person has no right to kill a fox escaped from captivity when asked to help protect a neighbor’s chickens from the fox? Probably helpful to also include some language about reasonableness.

1st Narrow Holding (Unlawful Killing): (E.g.:) No, trial court did not err in entering judgment for defendant because a person does have the right to kill a fox escaped from captivity when reasonably necessary to help protect a neighbor’s chickens from the fox. QUESTIONS?

Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights
Both Albers and Kesler treat the question of the right to kill the fox as independent of the question of who owns it. If the plaintiffs owned both foxes, why was it legally acceptable for a 3d party to kill them?

Can have some rights with regard to an object without having all possible rights Common Examples: Landlord-Tenant Ratione Soli

Can have some rights with regard to an object without having all possible rights Your “right” not to have others destroy your property can be lost when your property endangers person or property of others. Common Example: Necessity Neighbor can cut down your trees to limit spread of fire

Can have some rights with regard to an object without having all possible rights Common Example: Necessity Neighbor can cut down your trees to limit spread of fire BUT You still own the cut wood.

Here, court says OK for Dr. Jones to kill a fox owned by Kesler because he acted (for Mrs. White) as “a reasonably prudent person” would, “under reasonably apparent necessity, in the protection of his own property” (chickens).

Here, court says OK for Dr. Jones to kill a fox owned by Kesler because he acted (for Mrs. White) as “a reasonably prudent person” would, “under reasonably apparent necessity, in the protection of his own property” (chickens). Looks like standard defense to intentional tort for “defense of property.” Could fold some of this language into issue/holding.

BOTTOM LINE Fox owners’ property rights limited to protect property of others (e.g., chickens) Jones had right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot. Qs?

Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers
Note that Kesler describes Albers as “a case squarely in point ….” BUT cases not really absolutely identical, so we’ll look at factual differences.

Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance Weakest Answers Tend to Ignore Differences Better Answers See Arguments that New Facts Change Result Best Answers Discuss Why New Facts Might or Might Not Change Result

Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance Explanation of Significance is Key Part of More General Point: Use Every Fact I Give You I’ll give you an exercise later: if change facts in wolverine problem, how might it affect result?

Identify Factual Differences Between Kesler and Albers & Discuss Possible Significance Start by Creating List of Differences

Probably Less Significant Differences (from Prior Years) Semi-Domesticated v. Not (Only Very Mild Help in Albers) Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers) D was F in Kesler; Bought from F in Albers: (Might matter if Q of D being innocent purchaser, but not true in Albers) Caretakers in possession rather than OO (not clear why this would effect result).

Differences Possibly Going to Value of Fox Noted in 2015:
Kesler v. Jones (Radium) (Not Shown in Class) DQ1.61: Factual Differences from Albers Differences Possibly Going to Value of Fox Noted in 2015: Clever ideas, although I’m not sure value of individual fox would matter much (as opposed to average value or existence of industry). Color: Albers Fox = Black or Silver-Black. Kesler Fox = “Cross-Bred.” Might be what Albers calls “Cross.” Sex Albers Fox = Male Kesler Fox = Female. Maybe worth less b/c can’t mate with multiple males at same time. However, foxes tend to have only one mate. See Comparison Box #1.

Probably Most Significant Differences Kesler caretakers still in pursuit when fox killed. Probably shorter time & distance from escape to kill Fox in Kesler had escaped once before & been recaptured. Kesler finder/defendant is not expert. No evidence Kesler fox has tattoo. Kesler takes place in Idaho, not Colorado.

Help OO or F (and Why?) Kesler caretakers still in pursuit when fox killed. Probably shorter time & distance from escape to kill Fox in Kesler had escaped once before & been recaptured. Kesler finder/defendant is not expert. No evidence Kesler fox has tattoo. Kesler takes place in Idaho, not Colorado.

Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance Explanation of Significance is Key Part of More General Point: Use Every Fact I Give You I’ll give you an exercise later: if change facts in wolverine problem, how might it affect result?

Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from Albers
Albers assumes F would win under the rule in Mullett, so it carves out an exception to that rule for valuable wild animals. How does Kesler deal with the Mullett rule?

Kesler holds that the fox never returned to natural liberty because she … “had formerly escaped and been recaptured; she had been out of her pen but a short time; her owners were in pursuit [and] she was killed but a short distance from her pen….”

Kesler says, “Albers, a case squarely in point, supports the conclusion herein ....” [i.e., NOT the reasoning.]

Albers: Returns pelt to OO by rejecting Mullett rule & creating new rule for valuable animals v. Kesler: Returns pelt to OO by applying Mullett rule

Kesler v. Jones Slides From Here to End Not Shown in Class on October 2. I’ll Go Over Most Important Concepts on Monday After Break, But These Will Allow You to Mostly Complete Your Work on Kesler.

2d Issue (Escape/Unlawful Retention): Did trial court err in entering judgment for defendant because … ??? Helpful to frame in terms of what constitutes return to NL

2d Issue (Escape/Unlawful Retention): Did trial court err in entering judgment for defendant because the original owner of a escaped fox with no intention of returning retains property rights because the fox had not returned to natural liberty, where it had escaped and been recaptured before, it was killed a short time and distance from its escape, and its owners were still pursuing it when it was killed?

Note block quote from treatise (p.53): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.”

Compare block quote (p.53) to Manning (p.40): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.” v. It “is hardly to be expected … that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion.”

Kesler v. Jones : MAJOR POINTS
Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers) Explicit relevance of pursuit, time, distance Severability of Property Rights QUESTIONS?

Same terms can have different significance depending on context.

Same terms can have different significance depending on context: Pursuit Unowned Animal: Close pursuit insufficient to create ownership. Escaped Animal: Close pursuit may be sufficient to maintain ownership.

Same terms can have different significance depending on context: Natural Liberty Unowned Animal: Close pursuit insufficient to deprive animal of NL Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL.

LOGISTICS: CLASS #15 GROUP ASSIGNMENTS Group Assignment #1:
Comments & Good Student Answers Posted Comments on Your Work Posted as Complete Group Assignment #2: Instructions Posted with Teams. I’ll Take Qs in Class Wednesday Coordinators Might Want to Start Arranging Logistics So You Have a Game Plan by Break

UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES
QUESTIONS ON: Instructions for Briefing Trial Court Cases (59-60) Intro to Whaling Cases (60-62) Glossary (63)

UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES
MAJOR LEGAL Qs COVERED Taber v. Jenny: Escape (by Analogy); Custom Bartlett v. Budd: Escape (by Analogy); Custom Swift v. Gifford: 1st Possession; Custom (Key) Ghen v. Rich: Like Wolverine Problem (Both 1st Possession & Escape (by Analogy)); Custom (Key)

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

ELEMENTS B1 & B2 POWER POINT SLIDES

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