ELEMENTS D2 & D1 POWER POINT SLIDES

ELEMENTS D2 & D1 POWER POINT SLIDES
Class #17: Monday, October 9, 2017 National Chess Day Native American Day

Pictures at an Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor GWA#1 Due 9 pm Coordinators Remember Before Submission to Get Pseudonyms (Can Recheck w Tina) Recheck Instructions Now is Last Opportunity for Qs URANIUMS & KRYPTONS One Team Member Needs to Bring Hard Copy of First Page of Brief to Your Meeting

LOGISTICS Midterm: For You, So Helpful to Take Seriously GWA#1:
Covers Manning, Mullett, Albers (Opportunity to Develop Toolbox) Info Memo #3 now on top of Course Page Detailed Logistical Info & Exam Tips ( Me if Qs) Explanation of Feedback Process Write-Up of Shack Problem as Exam Q Extra Office Hours Late Afternoon Wed/Thu (on Course Page) GWA#1: I’ll Post Comments/Best Answers from Prior Classes as Soon as All Submissions Confirmed As Soon As I Complete Grading All Submissions of Any One Argument, I’ll Post Your Work (Anonymously) on That Argument with My Comments

DQ1.53 URANIUM E-Participation Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? Rule to Me by 7pm Tonight: Real Names Not Pseudonyms D2 = Hochsztein, O’Brien, White D1 = Elser, Halpern, Phillips

DQ1.50: KRYPTON Mullett v. Bradley
We’ll Now Examine the Three Factors that the Court adopts from the English Common Law

DQ1.50: Mullett Factors : KRYPTON
Abandonment: If Abandoned, to Finder Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder NOTE: No Escape Case Says OOs Lose Property Rights if they Fail to Maintain Control

For Each Factor, We’ll: Define & Discuss How to Prove Discuss Why It Is Relevant to OO/F Disputes Discuss Evidence & Outcome in Mullett Later Discuss How It Would Apply to Facts of Manning and Albers

DQ1.50: Mullett Factors : KRYPTON ABANDONMENT
Define & Discuss How to Prove No Definition in Case; As We’ve Noted: Technical Meaning = Intentionally Giving Up Property Rights in Something. Look for clear act or statement by OO indicating intent to relinquish ownership. Negligence in caring for the animal or in maintaining possession is insufficient (again, laptops in library).

Why Relevant to OO/F Disputes? Typically, we allow people to choose to give up property rights if they want to. Maybe unfair to return to OO, esp. if F aware of act of abandonment or has invested in animal.

Evidence & Outcome in Mullett Evidence of Abandonment Here?

DQ1.50: Mullett Factors : KRYPTON: ABANDONMENT
Evidence & Outcome in Mullett Evidence of Abandonment Here? Investment, but low commercial value Left unenclosed on island No pursuit BUT court says reasonable for OO to think he couldn’t find the animal. Why Not? Should it Matter?

Evidence & Outcome in Mullett Evidence of Abandonment Here? Investment, but low commercial value Left unenclosed on island No pursuit BUT court says reasonable to think couldn’t find. Outcome in Mullett?

Outcome in Mullett? (see last para. p.44) [C]ounsel for the defendant [suggested] that the animal had been abandoned by the plaintiffs …. It is, however, unnecessary to pass upon this, in view of the conclusion to which we have come that the plaintiff had lost his right of property in the sea lion [because] it had regained its natural liberty without any intention of returning. READ CAREFULLY!!!

DQ1.50: Mullett Factors : KRYPTON: ANIMUS REVERTENDI (AR)
Define Animus Revertendi is “Intent to Return” in Latin. In this context, means animal (that is out of OO’s immediate control) intended to return home when F took it. Why Relevant to OO/F Disputes?

Why Relevant to OO/F Disputes? Shows labor/training by OO Shows connection betw OO and animal Reasonable for OO to let loose How Show What Goes on in Head of Animal? Generally? In Mullett?

Relevant Evidence Blackstone: Can “only” show by “usual custom of returning.” BUT in Mullett, Evidence of no AR: No prior returns Leaves soon after placed on island Travels 70 miles in 2 weeks with no return Despite Blackstone, Seems to Allow Other Evidence of Animal’s Behavior to Disprove AR Not Clear You Could Use Sea Lion Whisperer as Evidence that Animal Intended to Return

Evidence & Outcome in Mullett Evidence No prior returns Leaves soon after placed on island Travels 70 miles in 2 weeks with no return Outcome = No AR Doesn’t appear to have been contested (really no evidence supporting AR) , so not a separate issue in case.

DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL)
Court Defines NL (1st Para p.44): NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” How Would You Prove?

Proving NL: Look at Condition of Animal When Found Is It Healthy? Has It Survived for a While? Look at Biology of Animal Where Does It Usually Live? (Climate/Habitat) What Does It Eat? NOTE: Whether animal has AR is completely separate Q from Return to NL.

Court Defines NL: NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” Why Relevant to OO/F Disputes? Note that court doesn’t explain this, so need to speculate/hypothesize.

Why Relevant to OO/F Disputes? Note that court doesn’t explain this. Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses. Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses What exactly is at issue in Mullett?

What exactly is at issue in Mullett? Can animal be in natural liberty even if not natural habitat? Court says yes. Mullett provides definition and result w/o explanation. (Insufficient for you!)

Court says can be NL even if not natural habitat. Fit w purposes of Rule that, if NL F? Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses. Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses

Mullett v. Bradley BRIEF & NL
ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when it escapes into the Atlantic with no intent to return, because it cannot have returned to its natural liberty when the Atlantic is not its natural habitat?

Mullett v. Bradley BRIEF
NARROW HOLDING: No, the trial court did not err in dismissing plaintiff’s case because the owner of an escaped sea lion does not retain property rights in the animal when it escapes into the Atlantic with no intent to return, because it had returned to its natural liberty even though the Atlantic is not its natural habitat.

Mullett v. Bradley BRIEF:
NARROW  BROAD SUBSTANTIVE HOLDING: The owner of an escaped sea lion does not retain property rights in the animal when it escapes with no intent to return into the Atlantic, because it had returned to its natural liberty even though the Atlantic is not its natural habitat. One Example: The owner of an escaped animal ferae naturae does not retain property rights in the animal when it escapes with no intent to return to a place where it is free of all artificial restraint and can provide for itself.

Mullett v. Bradley BRIEF: KRYPTON
RATIONALES Doctrinal Rationales: Can derive from Blackstone and other authorities cited. Policy Rationales: Court provides no explicit policy rationales for its decision. Can provide speculative versions based on policies we identified as relevant to NL & concerns we noted about making “natural habitat” a key part of the rule. See Examples in Sample Brief Posted on Course Page consistent with our earlier discussion

Abandonment: If Abandoned, to Finder Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder Qs on Mullett or Factors?

Ravel Orchestration & Analogy to Albers
Pictures at AN Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor Ravel Orchestration & Analogy to Albers

Albers v. E.A. Stephens & Co.: Intro to the BRIEF RADIUM

Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
Statement of the Case: Albers… ??? sued E.A. Stephens & Co, … for [cause of action] seeking [remedy]

Statement of the Case: Albers, [fox breeder and] OO of an escaped fox killed by a third party, [as opposed to Mullett where court didn’t seem to care that OO was in business] sued E.A. Stephens & Co, … ??? for [cause of action] seeking [remedy]

Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, [fox breeder,] which purchased the pelt of the fox for [cause of action] ??? seeking [remedy]

Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox presumably for conversion… seeking [remedy] ???

Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox, presumably for conversion seeking … damages (the value of the pelt). Even though 2d trial was replevin for return of the pelt, describe initial lawsuit in Statement.

Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] Then …?

Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] After a [second] trial, the court entered judgment for the plaintiff for return of the pelt or payment of its value. Defendant appealed. NOTE: $$ amount of value of the pelt doesn’t seem relevant to analysis.

(2d) Issue: Did the trial court err by entering judgment for the plaintiff because … the OO of an escaped fox that was killed retains property rights in its pelt where … [Like Manning: Long list of possibly relevant facts, which all need to go into fact section & narrow version of issue.] NOTE SWITCH RE SEQUENCE OF ISSUES Summary of facts follows.

Albers v. E.A. Stephens & Co.: STORYLINE (Same as Kesler v. Jones.)
OO breeds foxes for fur/profit Fox with cool name escapes; threatens local chickens Fox killed to protect chickens Killer either keeps fox pelt or sells to 3d party. OO demands return of pelt

Mullett v. Bradley Factors Applied to …
DQ1.51: Facts of Manning (URANIUM) DQ1.54: Facts of Albers (OXYGEN)

Quick Point re Abbr. on My Exams
Understanding the Mullett Factors : Types of Information a Case Might Provide Definition: NL General Info on Evidence That Shows if Factor Met: AR (Usual Custom) List of Evidence in This Case Relevant to Factor: AR Whether Factor Met in This Case: AR, NL Indication of Purpose of Factors: NONE!! Quick Point re Abbr. on My Exams

Understanding the Mullett Factors : Types of Information a Case Might Provide
List of Evidence in This Case Relevant to Factor: AR Because no list for NL or Aband., we have to speculate as to what facts are relevant. Because court lists evidence for AR, must rely on this list for what facts in the case are “relevant” Time & distance from point of escape (Presumably in addition to “usual custom of returning”) Have to be careful, e.g., re clever 2014 point about scarring as evidence of no AR

Mullett Factors (from Blackstone)
Abandonment: If Abandoned, to Finder (Very Rare) Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO (Also Very Rare) Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

Mullett Factors ABANDONMENT
Types of Evidence of Abandonment Relevant from Prior Discussions Value to OO (Goes to OO’s Likely Desire to Retain) Care in Confinement (More Presumably Better for OO, Though Negligence isn’t Necessarily Abandonment) Pursuit (More/Quicker Effort Presumably Better for OO) URANIUM: Apply to Manning?

DQ1.51: Applied to Manning Types of Evidence Relevant to Abandonment Substantial Value to OO (Strong Emotional Bond) Confined Well Enough So Only 2 escapes in 2 Years OO pursued/claimed as soon as bird located SOLID EVIDENCE OF NO ABANDONMENT

OXYGEN: DQ1.54: Applied to Albers Types of Evidence Relevant to Abandonment Substantial Value to OO (Pelt + Breeding) (When Chasing Fox, Not Anticipating Death) Substantial Care in Confinement Investment in special enclosure Got through “inner gate” + “outer fence” Pursuit?

DQ1.54: Applied to Albers Types of Evidence Relevant to Abandonment Substantial Value to OO (Pelt + Breeding) Substantial Care in Confinement Pursuit? OO Pursues Immediately but Stops at Nightfall Court Describes as “Abandonment by Compulsion” Colorado S.Ct. must have believed OO did not abandon fox, or would have given pelt to Dfdt.

Albers Leaves Qs re Meaning of “Abandonment” When Should Failure to Pursue or Stopping Pursuit = “Abandonment”? (F Case Improve as Time Passes?) Phrase “Abandonment by Compulsion” (ABC) Suggests Doesn’t Hurt OO. What counts as ABC? Matter if could start pursuit again later? (Sight v. Smell) Was Mullett itself ABC? (NY Court: Reasonable to believe pursuit hopeless) Testable Issues!!

Mullett Factors Intent to Return (AR)
Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal (at least to show not AR) Purposes Behind AR Factor Might Show Training (Labor) Might Show Animal has Emotional Bond Might Shows Reasonable for OO to Allow Animal Out URANIUM: Apply to Manning

URANIUM: DQ1.51: Applied to Manning Evidence in Manning Relevant to AR One prior return Not “usual custom” & no evidence of relevant training v. Cute argument: 100% return rate (likely not winner) Away 5 days; goes to house in same town (trying?) Maybe Close Q so Check if Evidence Fits Purposes Shows Training? Shows Emotional Bond? Shows Reasonable to Allow Animal Out?

DQ1.51: Applied to Manning Evidence in Manning Relevant to AR One prior return; apparently no relevant training Away 5 days; enters house in same town (trying?) Not Great Fit With Purposes Behind Factor Evidence Consistent w No Training nor Emotional Bond on Bird’s Side No Real Evidence That Reasonable to Allow Animal Out

DQ1.54(b): Albers on Manning
How does Albers characterize the holding in Manning? One Escape/Return = Animus Revertendi (Top of Long Para on p.48) BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR So why does court say this?

DQ1.55: Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” Court (or treatise authors) might read Manning this way to reconcile Manning with the Mullett-Blackstone Rule: Court returned bird to OO, so must’ve believed AR. Other ways to reconcile Manning with the Mullett-Blackstone Rule? Canary was domesticated not wild. Canary never returned to NL. Note that Georgia case and NY case do not have to agree; OK if not reconcilable. Note that Colorado S.Ct. is not authoritative as to meaning of Georgia S.Ct. opinion (could simply be wrong).

DQ1.54: Applied to Albers Albers Evidence Relevant to AR Blackstone: “Usual Custom of Returning”: None Mullett: Behavior of Animal Escaped w/in two weeks from significant enclosure Had run six miles in about a day Strong Case for No AR (so no need to look to policy)

Using Factors or Elements
When Applying to New Facts Apply One at a Time, Then Look at Whole Picture If significant arguments for both parties on any one factor (= HARD CASE), try to resolve with: Use of Definition (where available) Comparisons to Use of Factor/Element in Prior Cases Purpose of Factor/Element (Policy Justifications) Hard Cases/Easy Cases: Quite EASY CASE: “Intent to Return” & Albers (No evidence) Arguably HARD CASE : “Intent to Return” & Single Return in Manning Quite EASY (hypothetical) CASE: Animal left/returned every day for two years

Albers (Evidence of AR)
Types of Evidence Relevant to AR from Mullett Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal (at least to show no AR) Albers: Determine AR for individual animal, not by species (long para. on p.48) Generally consistent with analysis in Mullett Only binding in Colorado as to meaning of AR, but you can use to argue AR should be handled this way.

Mullett Factors Return to Natural Liberty
Evidence Relevant Under Definition of NL Condition of the Animal Similarity of Area to Natural Habitat (Food, Climate, etc.) Purpose(s) of Rule Consistent w Definition Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal Protect Ordinary F Who Can’t Tell if Prior Owner

Evidence in Cases re Natural Habitat & NL Canaries Not Native to Georgia & Silver-Black Foxes Not Native to Relevant Part of Colorado. Not Dispositive Under Mullett as to NL Must Look to Definition

Mullett Definition (Reminder): NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” URANIUM DQ1.51: Applied to Manning?

URANIUM: DQ1.51: Applied to Manning? Definition: “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” Bird out for 5 days then flew into B’s kitchen; Also Check Local Dec. Ga Weather (Coast v. Mtns) v. Canary Habitats Availability of Food Canaries Eat Physical Health of Bird When Found

DQ1.51: Applied to Manning Evidence Thin So Hard to Check Against Purpose(s) of Rule Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal Protect Ordinary F Who Can’t Tell if Prior Owner

Mullett Factors Together
DQ1.51: Applied to Manning Abandonment: Strong Evidence Against Intent to Return (AR): One Escape & Return Return to Natural Liberty (NL): Unclear Not sure if could survive Georgia winter Not sure if most finders would know there must be prior owner

DQ1.54: Applied to Albers Silver-Black Foxes Not Native to Area (Not Conclusive) Types of Evidence Relevant Under Definition of NL Condition of the Animal: No evidence of problems (strong enough to threaten chickens), but not out very long. Similarity of Area to Natural Habitat: No evidence re habitat of silver-black foxes, but language suggests other foxes are native. Helpful to F w/o evidence of different diet or needs

DQ1.54: Applied to Albers Evidence of Fit with Purpose(s) of Rule Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal Protect Ordinary F Who Can’t Tell if Prior Owner Might turn on whether ordinary farmers in area likely to recognize it as a fur farm fox & return.

Albers: Return to NaturalLiberty
The Supreme Court of Colorado must have believed that the fox returned to natural liberty before it was killed and that thus D would win under Mullett. Otherwise, no reason to reject Mullett rule (to protect industry) in cases involving valuable animals.

Mullett Factors Together
DQ1.54: Applied to Albers Abandonment: By compulsion, which (court seems to say) doesn’t count against OO AR: No Return to NL: Court must have thought “Yes” QUESTIONS on Mullett: Factors, Brief or Generally?

ELEMENTS D2 & D1 POWER POINT SLIDES

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