1. ELEMENTS D2 & D1 2017 POWER POINT SLIDES
Class #12: Wednesday, September 27 & Thursday September 28

2. MUSIC (to accompany Shaw ): SCOTT JOPLIN: HIS GREATEST HITS Richard Zimmerman, PIANO COMPOSED ; RECORDED 2006
D1 Lunch Thursday
Meet on 12:05
Melchiorre * Perez
A.Rodrigues * Sigman
No Office Hours Thursday
Friday: Both Sections Together Here 8:15-10:15 a.m. No Assigned Seats

3. DEMSETZ ARTICLE

4. “In the world of Robinson Crusoe property rights play no role.” (p.30)
DEMSETZ ARTICLE & DQ1.30
“In the world of Robinson Crusoe property rights play no role.” (p.30)
Means?

5. “In the world of Robinson Crusoe property rights play no role.”
One definition of Property: “Legal relations between people with regard to things.”
Helpful to think of Property not as a noun but as an adjective (like sacred or beautiful).
Some animals are Sacred; some are not. Some animals are Property, some are not.
In different cultures, different animals defined as Sacred or as Property. E.g., insects (other than bees) rarely seen as Property.

6. In different cultures, different animals get defined as Property.
Bombyx Moth treated as Property in China for several thousand years. Why?

7. DEMSETZ ARTICLE IN ELEMENTS D
Unit One-A has been about how people acquire Property rights in unowned animals.
This is part of a broader issue: How and why do things or intangible interests change from being NOT-Property to Property .
Demsetz provides one way to look at this issue that largely revolves around the concept of “internalizing externalities,” to which we’ll return at the end of our discussion of Shaw.
Hold Qs until We Work with in Detail Friday

8. Policies from Pierson: Rewarding Useful Labor Achieving Certainty
DQ1.23 Apply Pierson Majority Policies to Perfect Net Rule & Shaw Facts
Policies from Pierson:
Rewarding Useful Labor
Achieving Certainty

9. Back to DQ Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts ME: Recap of Radium for in DF

10. DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule
Policies from Pierson: Rewarding Labor
(Addressed Indirectly in Class #10)
Point of net is to catch fish which have value to society.
Net serves this purpose & is valuable even if not perfect
Net that retains most of the fish it catches should thus be rewarded
If net needs to be perfect to be protected against theft, industry might well shut down. (LABOR  INDUSTRY)

11. DQ1.23 Apply Pierson Majority Policies to Perfect Net Rule
Policies from Pierson: Certainty
(Addressed Indirectly in Class #10)
Perfect Net Rule (like too-absolute versions of rules in Liesner) creates uncertainty b/c too difficult for net-owners to meet test:
Virtually impossible to create escape-proof net (by definition, net has holes in it!)
Even if net initially is escape-proof for fish of certain size, wear-and-tear would change this in time
Difficult to show test met, and becomes harder as time goes on

12. DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule (Radium)
Arguments from Pierson Dissent?

13. DQ1.24 Pierson Dissent/Shaw (Radium)
Facts would seem to meet language (p.6):
i) Pursuer w/in reach or reasonable prospect of taking +
ii) Intent to convert to own use
Even imperfect net is more control/certainty than most forms of “hot pursuit” so dissent would likely say it is enough to create property rights.
“Perfect Net Rule” could discourage hunting (use of nets)
Importance of killing pest that harms chickens (human food) arguably similar to importance of killing fish that are themselves human food (per R.Rodriguez D1)
If you look to customs of fisherman, likely to find that fish in nets are considered property of net-owners.

14. DQ1.24: Using Arguments from Dissents
If Case in Different Jurisdiction:
Majority in other state not Binding on Court in Question
Dissent can be Persuasive Authority (“We find the dissent’s position more persuasive because …”)
Note that Pierson Dissent position seems inconsistent with rules stated in Liesner and Shaw as well, which weakens its overall persuasiveness.

15. DQ1.24: Using Arguments from Dissents
Where Majority Opinion is Binding:
Cannot rely on dissent positions explicitly rejected by Majority.
Can Use to Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”)
Can Use to Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”

16. DQ1.24: Using Arguments from Dissents
QUESTIONS?

17. STATE v. SHAW DQ1.25 Arguments from Liesner:
Applying Versions of Prevailing Rule to Shaw Facts (& Other Arguments)
I’ll Leave to You & DF Sessions This Week
Next 3 Slides [not shown in class] have Partial Examples

18. Applying Liesner Tests to Shaw Facts
STATE v. SHAW DQ1.25
Applying Liesner Tests to Shaw Facts
Substantially permanently deprived of liberty?
Can’t say for sure that any particular fish is permanently deprived of liberty
Maybe “substantially permanently”, because very high likelihood for particular fish
Maybe meet test b/c substantial # of fish permanently deprived

19. Applying Liesner Tests to Shaw Facts
STATE v. SHAW DQ1.25
Applying Liesner Tests to Shaw Facts
Escape Highly Improbable?
Court seems to say so.
May depend on frequency of storms or other events outside “ordinary circumstances.”
Leave further arguments to you.

20. Applying Liesner Tests to Shaw Facts
STATE v. SHAW DQ1.25
Applying Liesner Tests to Shaw Facts
Under control so possession is practically inevitable?
Fair to describe fish as “under control”?
Is possession “practically inevitable”?

21. E-Participation Follow-Up on Some Assigned DQs for [Selected] 21st Century Law Students
Used Where:
Work-Product Not Well-Suited to Oral Reporting
E.g., When I’m Asking You to Draft Language
Direct Submission to Prof:
Use Your Name (Not Pseudonym)
Generally No Special Format Needed
Students Selected Get Participation Credit for the Submissions and Individual Fedback

22. STATE v. SHAW DQ1.28: Krypton
Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw?
Why is this a useful exercise?
Explain unreconciled cases
In court or legal memo
Ideally reconciles cases AND shows that your side wins.
BUT hard to examine/critique your rules efficiently if I have to deal immediately with oral responses in class, so …

23. DQ1.28 (Krypton): “E-Participation”
D1: Greber, Iragorri, Small
D2: Bartolini, Levey, Schmitt
to me by 7 p.m. Tonight (Day of Class):
A clear statement of the Rule you derived for DQ (Not your defense of the Rule)
Use name, not pseudonym
No need for any particular formatting
We’ll go over a couple of samples next class and I’ll post other samples with comments.
Qs at break, after class, or by .

24. Key idea in Demsetz excerpt is “internalizing externalities.”
DEMSETZ DQ1.31 URANIUM
Key idea in Demsetz excerpt is “internalizing externalities.”
DQ1.31 asks you (Uraniums) to provide examples of this from outside the reading. I will do this in class Friday.
However, meaning of “externalities” and of “internalizing” (in this context) have proved elusive for many past Elements students.
To take advantage of your collective online search skills…

25. E-PARTICIPATION URANIUM DQ1.31
I’d like the following students each to locate one site online that provides a clear helpful example and/or explanation of the particular concept you are assigned and the link to that site to me by 5 p.m. on Sunday October 1. I’ll check them out and post the links to those that look helpful.
Examples/Explanations of EXTERNALITIES
D1: Bente & Perez D2: Hodges & McCroskey
Examples/Explanations of INTERNALIZING Externalities
D1: Cass & Johnson D2: Shields & Fernández
Qs at break, after class, or by .

26. STATE v. SHAW Context: 1902

27. STATE v. SHAW Context: 1902 International
Cuba gains independence from Spain
China's Last Empress (Tzu-Hsi) forbids binding of woman's feet
Edward VII (60) becomes King of England
Victoria reigned 63+ years before her death in 1901 (Elizabeth II surpassed about a year ago)
Cf. Prince Charles will turn 68 in November
Boer War Ends; Britain annexes Transvaal

28. STATE v. SHAW Context: 1902 United States:
Teddy Roosevelt becomes 1st Am. President to ride in an automobile.
US buys Virgin Islands from Denmark & right to build Panama Canal from French.
Oliver Wendell Holmes, Jr. (Civil War veteran & Justice on Mass. Supr. Ct.) becomes Associate Justice on US Supr. Ct.

29. STATE v. SHAW Context: 1902 Deaths Births
Thomas Nast (cartoonist); Cecil Rhodes (explorer); Elizabeth Cady Stanton (feminist); Emile Zola (novelist)
Births
Charles Lindbergh (Aviator) & Ansel Adams (Photographer)
Meyer Lansky & Carlo Gambino (Both Organized Crime)
Richard Daley (Chi. Mayor 1968) & Thomas Dewey (ran for pres. 1948) & Strom Thurmond (ran for pres. 1948, d. 2003)
Richard Rodgers, Guy Lombardo, John Steinbeck & Langston Hughes
John Houseman (Paper Chase) & Margaret Hamilton (Wicked Witch)
Ray Kroc (McDonald’s) & Ayatollah Ruhollah Musavi Khomeini (Iran)

30. STATE v. SHAW Context: 1902 Introduced: American Automobile Assn.
1st Automat Restaurant (in Philadelphia)
"Bill Bailey Won't You Please Come Home"
"The Entertainer"
JC Penney 1st Store (in Wyoming)
London School of Economics
Marlboro
1st Movie Theater
Neon Lamps
Phi Alpha Delta

31. STATE v. SHAW Context: 1902 Introduced: "Pomp and Circumstance"
Radium isolated by Pierre & Marie Curie
Rhodes Scholarships
Rose Bowl (1st College Bowl Game; Michigan 49, Stanford 0 )
Smith & Wesson .38 Caliber Special
Texaco
The Thinker by Rodin
Tinker, Evers, and Chance (Chicago Cubs Infielders)
US Census Bureau
Window Envelopes

32. STATE v. SHAW What Case Says/Does
BRIEF: ME on Holdings (& Result)
DQ1.26 (Krypton) Applying Key Language
BRIEF: ME & OXYGEN on Rationales
DQ1.27 (Krypton) Sunken Boat Hypo

33. STATE v. SHAW Brief ISSUE (from Last Class):
Did the trial court err in directing a verdict for the defendant on the grounds that defendant did not commit grand larceny because net-owners do not have property rights in fish found in their nets where the fish can escape from the nets?

34. STATE v. SHAW Brief NARROW HOLDING
YES. The trial court erred in directing a verdict for the defendant on the grounds that defendant did not commit grand larceny because net-owners can have property rights in fish found in their nets even if some fish can escape from the nets.

35. STATE v. SHAW Brief RESULT
Reversed & Presumably Remanded
for New Trial
(Thomas Could Still Prove He Didn’t Commit Crime Even if Fish Belonged to Net-Owners)
On remand, trial court will have to instruct jury about when net creates property rights in fish for net-owners
Can’t simply say “Net doesn’t have to be perfect.”
Broader version(s) of holding needed for this.

36. STATE v. SHAW Brief BROADER HOLDINGS
On remand, trial court will have to instruct jury about when net creates property rights in fish. Broader version(s) of holding needed.
Possible Rules/Holdings:
Any Net is OK? (Raggedy Volleyball Net??)
Look to Language in Case

37. STATE v. SHAW Brief FINDING BROADER HOLDINGS
Look to Language in Case:
1st Two Paragraphs after “Davis, J.” Discuss Law
Quotes in 1st paragraph are authorities apparently rejecting claim that wild fish cannot be property. They say that fish in a tank or net are sufficiently confined that they can be property.
Court cites Young at end of long paragraph on for the proposition that net-owners have no property rights to fish frightened away before they could enter the nets.
In between, court explicitly rejects perfect net rule, but nowhere says that any fish in any net belong to the net-owner.
Thus, look to language in long paragraph to help determine when fish in nets are property of net-owners.

38. STATE v. SHAW Brief BROADER HOLDINGS
On remand, trial court will have to instruct jury about when net creates property rts in fish. Broader version(s) of holding needed.
Possible Rules/Holdings:
Any Net is OK? (Raggedy Volleyball Net??)
Look to language in case: Two plausible rules (long para. pp.28-29), either of which could be incorporated into broader version of holding.

39. Two Plausible Rules (long para. pp.28-29)
STATE v. SHAW Brief
Two Plausible Rules (long para. pp.28-29)
To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

40. Two Plausible Rules (long para. pp.28-29)
STATE v. SHAW Brief
Two Plausible Rules (long para. pp.28-29)
When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny [= his property].

41. First Plausible Rule (bottom of p.28)
STATE v. SHAW Brief
First Plausible Rule (bottom of p.28)
“[T]he pursuer must …
[i] bring them into his power and control, and …
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
Note two parts/requirements
Need to work through 2d requirement carefully

42. STATE v. SHAW Brief
“[T]he pursuer must [i] bring them into his power and control, and …
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
In context, doesn’t mean purpose of clause is to “show” necessary intent. Rather should read as…)
[ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.”

43. STATE v. SHAW Brief
“[T]he pursuer must [i] bring them into his power and control, and …
[ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.” = Intent w/o continued control insufficient.
Let go + “I intend to keep you 4ever. ♡”
Let go + Attach a Tag: “I intend to keep him 4ever. ♡”
Don’t let go.

44. Second Plausible Rule (pp.28-29)
STATE v. SHAW Brief
Second Plausible Rule (pp.28-29)
The trapper acquires property in wild animals “[w]hen …
[i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure,
In case, net belonged to net-owners, BUT water inside net was part of Lake Erie, so not privately owned.
and …
[ii] maintains reasonable precautions to prevent escape….”
Again, two parts/requirements
We’ll mostly focus in class on 1st Plausible Rule; 2d Rule provides slightly different language you can use.

45. STATE v. SHAW Brief
Note that my raggedy volleyball net example should fail 2d prong of each plausible rule:
Even if raggedy net (improbably) “maintains control” of a fish caught in its weave, probably doesn’t do so in a way that shows other people net-owner’s intent to keep the fish.
Raggedy net by itself probably doesn’t constitute “reasonable precautions to prevent escape….”

46. Interpreting Legal Tests in Context of Cases
Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests.
E.g., fish caught in nets have been brought within net-owner’s “power and control.”
E.g., set up of these nets = “reasonable precautions to prevent escape.”
Thus, can use facts of Shaw to help explain what the tests mean going forward.

47. STATE v. SHAW Brief: One Broader Version of Holding
YES. The trial court erred in directing a verdict for the defendant because net- owners have property rights in fish found in their nets if the nets [i] bring the fish into their power and control, and [ii] so maintain their control as to show that they do not intend to abandon the fish again to the world at large.
QUESTIONS ON HOLDING OR LEGAL TESTS FOUND IN SHAW?

48. STATE v. SHAW What Case Says/Does
BRIEF: ME on Holdings (& Result)
DQ1.26 (Krypton): Applying Key Language
BRIEF: ME & OXYGEN on Rationales
DQ1.27 (Krypton) Sunken Boat Hypo

49. STATE v. SHAW DQ1.26: Krypton
“[T]he pursuer must …
[i] bring them into his power and control, and
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
We’ll work with this test and leave other plausible rule & policy arguments from Shaw for you

50. STATE v. SHAW DQ1.26: Krypton
“[T]he pursuer must …
[i] bring them into his power and control, and
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

51. STATE v. SHAW DQ1.26: Krypton
“[T]he pursuer must …
[i] bring them into his power and control, and
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

52. STATE v. SHAW DQ1.26: Krypton
“[T]he pursuer must …
[i] bring them into his power and control, and
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
Apply to Pierson Facts

53. STATE v. SHAW DQ1.26: Krypton
“[T]he pursuer must …
[i] bring them into his power and control, and
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
Apply to Pierson facts

54. STATE v. SHAW What Case Says/Does
BRIEF: ME on Holdings (& Result)
DQ1.26 (Krypton) Applying Key Language
BRIEF: ME & OXYGEN on Rationales
DQ1.27 (Krypton) Sunken Boat Hypo

55. SHAW Brief Rationales: OXYGEN
Doctrinal Rationales from Authorities Cited on pp in Sample Brief (Posted After Class #12)
Policy Rationales (Hints from Language of Case):
Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28).
MEANS?

56. SHAW Brief Rationales: OXYGEN
Policy Rationales (Hints from Language of Case):
Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28).
Probably refers to difficulty of proof/certainty arguments;
Might also refer to failing to reward useful labor because of technicality.
Court says possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.29) Significance?

57. SHAW Brief Rationales: OXYGEN
Policy Rationales (Hints from Language):
Possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.27)
Maybe refers to certainty of capturing fish (as a group) or certainty of identifying owners
Maybe goes to sufficiency of Net-owners’ labor
OTHER DIFFERENT POLICY CONCERNS?

58. SHAW Brief Rationales Policy Rationales:
Could discuss protecting important industry (subset of labor argument), but need to be clear that court doesn’t reference explicitly.
Posted Sample Brief contains fully articulated examples of each of the ideas mentioned here. Me if Qs

59. STATE v. SHAW What Case Says/Does
BRIEF: ME on Holdings (& Result)
DQ1.26 (Krypton): Applying Key Language
BRIEF: ME & OXYGEN on Rationales
DQ1.27 (Krypton) Sunken Boat Hypo (slides included with Class #13)