1. ELEMENTS B1 & B2 POWER POINT SLIDES
Class #16 Thursday, September 22, 2016 First Day of Fall & Elephant Appreciation Day

2. MUSIC: Gilbert & Sullivan PIRATES OF PENZANCE (1879) Welsh National Opera Recording: Charles Mackerras, Conductor
B2 Lunch Today
Meet on 12:30
Campo * Gangemi
Masson * McLemore
Saldana
On Course Page
GWA#1: Qs from Last Night & My Answers
Sample Briefs for Shaw & Manning
Detailed Info re In-Class Sequence for Tomorrow (Everyone Up for Something!)

3. Mining Manning ‘s Meaning: DQ1.47: RADIUM (p.40 last para.)
To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice.
WHY?
This is unsupported rhetoric. You need to do better.
More explanation = More Persuasive = More Points

4. Mining Manning ‘s Meaning: DQ1.47: RADIUM
To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY?
MAYBE: Unfair to OO; too close in time and distance to lose rights (protect emotional & material investment)
MAYBE: Finder should know that there is prior OO, so shouldn’t keep it
MAYBE BOTH
PLAUSIBLE ADDITIONAL ARGUMENT: Court is concerned that OO not have to over-invest in confinement (Canary Alcatraz) to maintain ownership. Cf. Shaw.

5. Mining Manning ‘s Meaning: DQ1.47 RADIUM (p.40 last para.)
To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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.
Again looks like short time/distance relevant.

6. Mining Manning ‘s Meaning: DQ1.47: RADIUM (p.40 last para.)
To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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.
WHAT IS A MENAGERIE?

7. Mining Manning ‘s Meaning: DQ1.47: RADIUM
Animals Referenced in Last Paragraph:
Wild Animals in a Menagerie (= Zoo)
Organ Grinder’s Monkey
Why These Animals?

8. Mining Manning ‘s Meaning: DQ1.47: RADIUM
Why Animals Referenced in Last Paragraph:
Wild Animals in a Menagerie (= Zoo)
Organ Grinder’s Monkey
MAYBE: Valuable (but canary much less $$$)
MAYBE: F should know there’s prior owner
NOTE: Menagerie animals again inconsistent with simply relying on “tamed”

9. Mining Manning ‘s Meaning: DQ1.47 & POSSIBLE POLICY RATIONALES
Based in Labor/Investment
The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie. These analogies suggest that it might be trying to protect the original owner’s investment in training and purchasing the animal. This idea would support returning the canary to the plaintiff in this case.
Can Do Similar Based in Notice to Finder
(I’ll Add Slide)

10. Mining Manning ‘s Meaning: DQ1.47 & POSSIBLE POLICY RATIONALES
Based in Notice to Finder
The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie. These analogies suggest that it might believe that the finders of all these animals ought to know that they have a prior owner, and so should return them. This idea would support returning the canary to the plaintiff in this case.

11. Lots of Ways to Articulate Manning Holding
DQ1.48: Articulating Manning Holding For Squirrel Hypo: Nature of the Exercise
Lots of Ways to Articulate Manning Holding
Can Include or Exclude Particular Facts
Can Describe Facts More Specifically or More Generally
Point of Broadening & Narrowing is to Identify Ways to Characterize Case to Help Use It as Precedent
Squirrel Hypo designed to get you to
Play with the holding in the way that litigators do
Find plausible versions helpful to client’s position.
Good Way to Start Exercise
Apply Manning Factors we derived to Hypo
Determine strengths & weaknesses under Manning of each client’s position.

12. Mining Manning ‘s Meaning: DQ1.48 (Squirrel Hypothetical) (OXYGEN)
Tomorrow In-Class: OXYGENS Apply Manning Factors to Squirrel Hypothetical
E-Participation Due Tomorrow: Selected OXYGENS each submit simply a version of Manning holding helpful to their client (See next slide)
Next Week: I’ll Give You Comments on Some Sample Holdings Articulated to Favor Each Party.

13. Mining Manning ‘s Meaning: DQ1
Mining Manning ‘s Meaning: DQ1.48 OXYGEN E-Participation Holding to Me by 8pm Friday I’ll Take Qs at Break/After Class/Tomorrow
For Amy:
Akkaya, Filiz
Augustin, Cailey
Beltran, Nathania
Wisnoski, Nevin
For Brandon:
Dubberly, Steve
Fernandez, Brian
Robledo, Manuel
Wilson, Heather

14. Albers v. E. A. Stephens & Co
Albers v. E.A. Stephens & Co.: Important Case (Start Tomorrow Plus Much of Next Week)
Legal Analysis Most Complex We’ve Done
Colo. S.Ct. addressed lots of arguments rapidly w/o always articulating what it’s responding to
Look at brief introduction in materials
Read carefully
Take time to carefully brief & answer DQs & do Self-Quiz
Compare to Kesler v. Jones (similar facts but different reasoning)

15. Introduction to Mullett v. Bradley
CASE BRIEF: KRYPTON

16. Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett … ???
sued Bradley …
for [cause of action]
seeking [remedy]

17. Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, original owner of an escaped sea lion,
sued Bradley … ???
for [cause of action]
seeking [remedy]

18. Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, OO of an escaped sea lion,
sued Bradley, who purchased the animal from its finder
for [cause of action] … ???
seeking [remedy]

19. Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F
for conversion (1st sentence of case)
seeking [remedy] … ???

20. Mullett v. Bradley BRIEF: KRYPTON
Statement of the Case:
Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F, for conversion seeking damages. (1st sentence of case)

21. Mullett v. Bradley BRIEF: KRYPTON
Procedural Posture:
The lower court dismissed the complaint. The plaintiff appealed.
After a Trial or on a Dispositive Motion?
How do you know?

22. Mullett v. Bradley BRIEF: KRYPTON
Procedural Posture:
The lower court dismissed the complaint after a trial. The plaintiff appealed.
“The complaint was dismissed on the merits.” (Top p.43)
Statements referring to evidence and proof, e.g., “The evidence not only fails to show that there was any animus revertendi on its part, but the inference from the facts proven is quite the contrary.” (Long para. mid-p.43)

23. Mullett v. Bradley BRIEF: KRYPTON
Facts Relevant to Analysis:
Court’s analysis makes no mention of capture, transport, blemishes, rejection by buyer, so we can start with …
P placed sea lion he owned on island …
What’s Next ?

24. Mullett v. Bradley BRIEF: KRYPTON
Facts Relevant to Analysis:
P placed sea lion he owned on island. Sea lion escaped. P made no effort to recapture it.
Fisherman found sea lion 2 weeks later, 70+ miles from the island. Fisherman sold it to D.
A year later, plaintiff recognized the sea lion and demanded its return. D refused.
ADDITIONAL FACT NOT FOUND IN FACT SECTION OF OPINION?

25. Mullett v. Bradley BRIEF: KRYPTON
Facts Relevant to Analysis:
Sea lions are native to Pacific Ocean; not found in the Atlantic.
P placed sea lion he owned on island in Atlantic. Sea lion escaped. P made no effort to recapture it.
Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles from the island. Fisherman sold it to D.
A year later, plaintiff recognized the sea lion and demanded its return. D refused.

26. Mullett v. Bradley
“Fish-pound” is submerged net for catching fish (as in Shaw)
Could call this (unnamed) sea lion “Thomas” b/c taking fish out of nets belonging to others.

27. DQ1.49: Mullett Facts & Manning Factors (Oxygen)
Mullett v. Bradley
DQ1.49: Mullett Facts & Manning Factors (Oxygen)
We’ll Do It My Way !!

28. OXYGEN DQ1.49: Applying Manning ‘s Factors (from Last Class) to Facts of Mullett
Taming (or Other Investment in Animal)
Marking (or F Likely Aware of OO)
Emotional Bond
Short Time/Distance from Escape

29. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Taming (or Other Investment in Animal)
Evidence Here?

30. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Taming (or Other Investment in Animal)
Evidence Here
No Evidence of Taming/Training
Probably Significant $$$ Investment (Cross-Country Travel)
Factor Help OO Under Manning?

31. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Taming (or Other Investment in Animal)
Evidence Here
No Evidence of Taming/Training
Probably Significant $$$ Investment
Factor Help OO Under Manning?
Not Tamed
Unclear How Much $$$ Investment Helps Under Manning (Maybe b/c of Menagerie Animals)

32. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Marking (or F Likely Aware of OO)
Evidence Here?

33. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Marking (or F Likely Aware of OO)
Evidence Here
“Blemishes” (Scarsides)
Maybe F Should Know b/c in Atlantic (Save for Discussion of Natural Liberty)
Blemishes as Marks Help OO Under Manning? (Can compare to crest.)
To Identify Animal?
As Notice to Finder of Prior OO?

34. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Marking = “Blemishes”
As I.D., Probably Better Than Crest
More Permanent
Others Unlikely to Have Exact Same
As Notice to Finder, Probably Weaker
Could Occur Naturally in Wild
Unless Scarring Pattern “Unnatural” (E.g., Imprint of Collar or Net)

35. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Emotional Bond: No Evidence at All
“He stuck me on this stupid island and he doesn’t call, he doesn’t write ….”

36. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Related: Time of Ownership
Escape “a few days” after returned to OO Cf. Manning: Owned for 2 Years
Not Helpful to OO of Sea Lion
Little Additional Investment
No Emotional Bonding

37. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Evidence Here:
Captured by F ~2 Weeks After Escape
Captured by F 70 Miles from “Home”
OO discovers animal about 1 year later

38. ME DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Captured ~2 Weeks/70 Miles from “Home”
Cf. Manning: 5 days/Nearby in Same Town
Longer Time & Distance Might Mean:
Less Training or Likelihood of Return
OO Less Likely to Recover
Animal More Likely to Have Returned to Wild
BUT: 70 Miles for Sea Lion Probably Much Less Than for Canary (cf. Seattle  Ventura)

39. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Claimed by OO 1 Year After Found
Cf. Manning: 1 Day After Found
Significance?

40. OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Short Time/Distance from Escape
Claimed by OO 1 Year After Found (v. 1 Day) Could Mean
Insufficient Pursuit by OO
Significant Investment by F
Helps F

41. DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Factors Together:
Taming: No Evidence (But Lot of $$$)
Marking: Good I.D.; Not Strong re Notice
Emotional Bond: No Evidence of
Short Time/Distance from Escape: Worse than Manning, Especially Year to Discover

42. DQ1.49: Applying Manning ‘s Factors to Facts of Mullett
Factors Together
Taming: No Evidence of (though $$$)
Marking: Good I.D.; Not Strong re Notice
Emotional Bond: No Evidence of
Short Time/Distance: Worse than Manning, Esp. Year
Pretty weak case for OO under Manning unless court considers $$$ investment very important.

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

44. 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

45. DQ1.50: Mullett Factors : KRYPTON
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

46. 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 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).

47. DQ1.50: Mullett Factors : KRYPTON ABANDONMENT
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.

48. DQ1.50: Mullett Factors : KRYPTON ABANDONMENT
Evidence & Outcome in Mullett
Evidence of Abandonment Here?

49. 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?

50. 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 to think couldn’t find.
Outcome in Mullett?

51. DQ1.50: Mullett Factors : KRYPTON: ABANDONMENT
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!!!

52. 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?

53. DQ1.50: Mullett Factors : KRYPTON: ANIMUS REVERTENDI (AR)
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?

54. DQ1.50: Mullett Factors : KRYPTON: ANIMUS REVERTENDI (AR)
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