1. ELEMENTS D2 & D1 POWER POINT SLIDES
Class #18 Tuesday, October 10, 2017 Wednesday, October 11,

2. KRYPTON MEETINGS SCHEDULED FOR TODAY (INFO ON RESCHEDULING TOMORROW)
To Accompany Albers: JELLY ROLL MORTON & THE RED HOT PEPPERS Original Victor Jazz Recordings Vol. 1 ( )
OFFICE HOURS:
Today: 4:15-7:15 pm
Thu: 11:15-12:30
5:30-7:30
Pre-Midterm Qs Until 7pm Thursday
KRYPTON MEETINGS SCHEDULED FOR TODAY
POSTPONED
(INFO ON RESCHEDULING TOMORROW)
URANIUM MEETING STILL HAPPENING TODAY

4. Manning v. Mitcherson Factors Applied to …
DQ1.54:
Facts of Albers
(ME & OXYGEN)

5. Manning v. Mitcherson Relevant Factors
Taming (or Other Investment in Animal)
[Emotional Bond]
Marking (or F Likely Aware of OO)
Short Time/Distance from Escape

6. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (OXYGEN)
Evidence re Taming:
Animal owned for two weeks before escape
Fox took food from keeper’s hand
Big Deal?
How Does Court Describe?

7. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (OXYGEN)
Evidence re Taming:
Fox took food from keeper’s hand (over 2 weeks)
Court: “Semi-Domesticated” (= Trained Enough to Drive a Tractor-Trailer??)
Enough for “Tamed”?

8. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (Oxygen)
Evidence re Taming:
Fox took food from keeper’s hand. Enough?
If unsure, check for purposes behind rule
Taming shows labor and emotional bond.
Purposes furthered here?

9. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (Oxygen)
Evidence re Taming:
Pretty weak on purposes  weak case for taming.
As with Mullett, could say even if animal not tamed, should protect $$$ investment.

10. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (Oxygen)
Relevant Time to Assess F’s Awareness of Prior Owner
As we’ll see in Kesler, whether it was reasonable to kill fox is separate Q from who gets property rights in the pelt.
Assume in Albers & Kesler, killers acted reasonably to protect fowl
Then ask whether OO’s retained rights in animal’s pelt.
Thus, assess what F knew or should have known at moment he takers pelt and can examine it (not at earlier moments when he sees pelt) & decides to shoot.

11. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (Oxygen)
Evidence re Marking:
Tattoos in Ears (1/335)
How Strong are Marks?

12. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (Oxygen)
Marking = Tattoos in Ears. How Strong?
335 = Clearly Man-Made (Maybe Not 1)
Unlikely to Disappear
Identifies Owner
Industry Practice
Maybe Hard for Non-Expert to Find? (Check Size)

13. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (Oxygen)
Marking/Notice to Finder
Tattoos in Ears = Quite Strong Marking
Other Facts Giving Notice to Finder?

14. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (Oxygen)
Marking/Notice to Finder
Tattoos in Ears = Quite Strong Marking
Other Facts Giving Notice to Finder?
Type of Fox Unknown in Area
Industry Well-Known in Area
Defendant is Member of Industry/Manager = Expert

15. Albers (Marking/Notice to F’)
Significance of Marking Under Mullett-Blackstone Rule
Blackstone, quoted in Albers p.47: “[I]f a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure; ... the owner's property in him still continues … but otherwise, if the deer has been long absent without returning.”
“and” seems to say mark only matters if intent to return
Last phrase seems to make time relevant as well, maybe to AR (as it’s used in Mullett).

16. Manning Factors: Short Time or Distance from Escape
DQ1.54: Applied to Albers (Oxygen)
Significance of Evidence re Time/Distance?
Animal Ran Six Miles Before Being Killed
Animal Killed One Day After Escape
Unknown Time Before OO Claimed Pelt (Not Very Long):
Escape is Jan/Feb 1926
Colo SCt Opinion is 1927 (after 2 trials & oral argument)

17. Manning Factors: TOGETHER
DQ1.54: Applied to Albers (Oxygen)
TAMING/$$$: Weak re Taming; More $$$ than Manning
MARKING/NOTICE: Very strong; better than Manning
TIME & DISTANCE
Prior to Escape: Less than Manning
After Escape: Similar to Manning
Overall result unclear (typical for exam Q)
Might argue it’s like escaped menagerie animal b/c investment & good notice to F. If so, back to OO

18. Manning Factors: TOGETHER
DQ1.54: Applied to Albers (Oxygen)
TAMING/$$$: Weak re Taming; More $$$ than Manning
MARKING/NOTICE: Very strong; better than Manning
TIME & DISTANCE
Prior to Escape: Less than Manning
After Escape: Similar to Manning
Questions on Application of Manning
to Albers Facts?

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

20. The Logic of Albers: What The Case Holds
Preliminarily, rejects P’s apparent claim that animal is “domestic” not wild.
Not precisely a separate holding b/c doesn’t affect result (P wins case anyway).
We’ll go through arguments next class.

21. The Logic of Albers: What The Case Holds
Rejects claim that animal is “domestic” not wild.
Decides Mullett/Blackstone rule inapplicable here because of changed circumstances (valuable animal; development of fox fur industry).
Implicit: D would win under Mullett/Blackstone
Implicit: Could still use Mullett/Blackstone for animals without commercial value (like pet canary)

22. The Logic of Albers: What The Case Holds
Rejects claim that animal is “domestic” not wild.
Mullett/Blackstone rule inapplicable for valuable animal
Doesn’t articulate specific replacement rule. Instead, court says original owner wins where … [Manning-like list but with even more facts].

23. The Logic of Albers: What The Case Holds
(p.50): Original owner wins where fox:
“had been held in captivity, semidomesticated, escaped by accident, fled against the will of his owner, and pursuit was abandoned by compulsion. This defendant in fact had, or is charged with, knowledge that the pelt purchased was the product of a vast, legitimate, and generally known industry; that it had a considerable and easily ascertainable value; that it bore the indicia of ownership; that it had been taken in an unusual way; that the seller was not the owner; that no right of innocent purchasers had intervened; and that it was from an animal taken in a locality where its kind ferae naturae was unknown and in a state where large numbers were kept in captivity.”

24. The Logic of Albers: What The Case Holds
(p.49): Original owner wins where fox:
“had been held in captivity,
semi-domesticated,
escaped by accident*,
fled against the will of his owner*, and
pursuit was abandoned by compulsion.”
PLUS ….
* = Doesn’t Seem to Add Much

25. The Logic of Albers: What The Case Holds
D “had, or is charged with, knowledge that:
the pelt purchased was the product of a vast, legitimate, and generally known industry
it had a considerable/easily ascertainable value
that it bore the indicia of ownership
it had been taken in an unusual way;
the seller was not the owner;
PLUS …

26. The Logic of Albers: What The Case Holds
D “had, or is charged with, knowledge that:
no right of innocent purchasers had intervened; &
it was from an animal taken
in a locality where its kind ferae naturae was unknown; and
in a state where large numbers were kept in captivity.”

27. Logic of Albers: What The Case Holds
DQ1.57(b): Factors that Albers treats as relevant that are not explicitly part of the analysis in Manning or Mullett:
Industry/Investment
Focus of discussion of why Mullett inapplicable.
Could see as extension of taming  $$$ investment hinted at in Manning in reference to menagerie animals/OG monkey
Finder’s Knowledge
Focus of penultimate paragraph: grizzly bear in NY; elephant in cornfield; seal in millpond.
Could see as extension of marking hinted at in Manning in reference to menagerie animals/OG monkey

28. Manning Factors as Adopted/Modified by Albers
Taming (or Other Investment in Animal)  Explicit Recognition of $$$ Investment & Industry
Emotional Bond (Not Relevant; Commercial Case)
Marking (or F Likely Aware of OO)  Explicit Recognition of Other Forms of F’s Knowledge
Short Time/Distance from Escape (Not Discussed in Albers; We’ll Revisit with Kesler))

29. The Logic of Albers: What The Case Holds
DQ1.57(c): Articulate Possible Rule in Albers
(I’ll leave for you)
Helpful to Recognize Dual Focus (on OO & F):
Acts of OO: investment, protection, animus rev., pursuit, taming
2. Likely Knowledge of Finder : nat’l liberty, other evidence F knew of OO
Both: marking

30. The Logic of Albers: What The Case Holds
Completing Albers Brief
Like Manning, many possible broad holdings.
Rationales
Doctrinal = Difficult because court rejects most prior authorities.
Policy = Several possibilities; again helpful to note dual focus
Examples of Holdings & Rationales in Sample Brief.
Qs on Albers Holding or Reasoning?

31. The Logic of Albers Addressing Prior Authority (Me & Krypton)
What The Case Holds
Addressing Prior Authority
(Me & Krypton)
Domesticated or Wild?
Critique

32. The Logic of Albers 2. Addressing Prior Authority
Tort Liability v. Property Rights (DQ156(c)
Prior Escape Cases
Manning (DQ1.54(b)):
Generally (DQ1.56(a))
Ontario Case (DQ1.56(d))
“Wholly Inapplicable” Cases (1.56(b))
Statute re Common Law (DQ1.56(e))

33. The Logic of Albers: Addressing Prior Authority
(DQ156(c)): p.48 (3d para.): Discussion of legal connection between tort liability and property rights: We’ll come back to next week with Kesler & DQ1.62

34. The Logic of Albers 2. Addressing Prior Authority Prior Escape Cases
Tort Liability v. Property Rights (DQ156(c)
Prior Escape Cases
Manning (DQ1.54(b)): (did earlier)
Generally (DQ1.56(a))
Ontario Case (DQ1.56(d))
“Wholly Inapplicable” Cases (1.56(b))
Statute re Common Law (DQ1.56(e))

35. The Logic of Albers 2. Addressing Prior Authority Prior Escape Cases
Tort Liability v. Property Rights (DQ156(c)
Prior Escape Cases
Manning (DQ1.54(b)):
Generally (DQ1.56(a))
Ontario Case (DQ1.56(d))
“Wholly Inapplicable” Cases (1.56(b))
Statute re Common Law (DQ1.56(e))

36. The Logic of Albers: Addressing Prior Authority DQ156(a)
Top p.48: Prior authorities on escape “are rather confusing than enlightening….”

37. The Logic of Albers: Addressing Prior Authority DQ156(a)
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?

38. The Logic of Albers: Addressing Prior Authority DQ156(a)
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)… .”

39. The Logic of Albers: Addressing Prior Authority DQ156(a)
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?

40. The Logic of Albers: Addressing Prior Authority DQ156(a)
[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?

41. The Logic of Albers: Addressing Prior Authority DQ156(a)
[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

42. The Logic of Albers 2. Addressing Prior Authority Prior Escape Cases
Tort Liability v. Property Rights (DQ156(c)
Prior Escape Cases
Manning (DQ1.54(b)):
Generally (DQ1.56(a))
Ontario Case (DQ1.56(d))
“Wholly Inapplicable” Cases (1.56(b))
Statute re Common Law (DQ1.56(e))

43. The Logic of Albers: Addressing Prior Authority DQ1.56(d): 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….”

44. The Logic of Albers: Addressing Prior Authority DQ1.56(d): 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?

45. The Logic of Albers: Addressing Prior Authority
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.

46. The Logic of Albers: Addressing Prior Authority
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?

47. The Logic of Albers 2. Addressing Prior Authority
Tort Liability v. Property Rights
Prior Escape Cases
“Wholly Inapplicable” Cases (1.56(b))
Statute re Common Law (DQ1.56(e))

48. The Logic of Albers: Addressing Prior Authority
(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.

49. The Logic of Albers 2. Addressing Prior Authority
Tort Liability v. Property Rights
Prior Escape Cases
“Wholly Inapplicable” Cases”
Statute re Common Law (DQ1.56(e))

50. The Logic of Albers: Addressing Prior Authority
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?

51. The Logic of Albers: Addressing Prior Authority
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?

52. The Logic of Albers: Addressing Prior Authority
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?

53. The Logic of Albers: Addressing Prior Authority
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

54. The Logic of Albers: Addressing Prior Authority
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?