ELEMENTS D1 & D2 POWER POINT SLIDES

ELEMENTS D1 & D2 POWER POINT SLIDES
Class #29: Friday, November 10, 2017 National Forget-Me-Not Day This Photo by Unknown Author is licensed under CC BY-SA

Music to Accompany Rose Excerpt: Paul Winter, Canyon (1985)
Next Week: Normal Class Schedule Monday 11/20: Both Sections Together 7:55-9:20 Tuesday 11/28: Both Sections Together 7:55-9:55 New on Course Page GWA#2: Preliminary Comments on 2017 Submissions Sample Ghen Brief (Fajer Version) 2007 XQ1 Comments & Best Student Answers Power Point Slides from Exam Technique Workshop

DEMSETZ FIRST THESIS (Recap)
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

DEMSETZ FIRST THESIS & DQ2.18 Development of Ghen Custom
Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Externalities = Sometimes whaler lost whale he killed (= investment)  might mean less whaling (BUT infrequent pre-bomb lance b/c mostly capture at sea) Identify change in circumstances? Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

Activity = Collecting Whales from Beach Old Rule + Finder’s Keepers Ext. = Sometimes whaler lost whale & investment Change: Killing Finbacks w Marked Bomb-Lances (from causes we’ve discussed + adding marking to limit disputes) Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

Old Rule for Whales on Beach = Finder’s Keepers  Ext. = Sometimes whaler lost whale he killed Change: Killing Finbacks w Marked Bomb-Lances Ext.  More $$$ at stake b/c Method means more whales on beach Industry arises; greater economic ripple effects from lost whales Cost of externalities > cost of change  change in rule? (Describe)

Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Ext. = Sometimes whaler lost whale he killed Change: Killing Finbacks w Bomb-Lances Ext.  Industry arises/more whales & $$$ Higher Externalities > Social Inertia  Custom Develops

Ext.  Industry arises/more whales & $$$ High Externalities > Social Inertia  Custom Develops NOTE: If some folks on shore don’t follow custom (as in Ghen), externalities may remain high enough to create pressure for further change, which should lead to litigation or legislation and (perhaps) adoption of custom as law. QUESTIONS?

Rose Article & DQ2.21 (RADIUM)

Rose Article & DQ 2.21 Characterize Cases in Rose’s Terms
Mullett favoring finders by adopting broad definition of NL (v. Limit to Nat’l Habitat): Clear Act: If “nat’l habitat,” too generous to OO If animal can provide for itself, F can’t assume prior ownership Relatively few people would know that sea lion out of place Useful Labor: Maybe insufficient labor by OO to … alert other people of claim. contain animal in way that it won’t get mistaken for wild. Prevent otherwise unnecessary labor by F

Mullett favoring finders by adopting broad definition of NL (v. Limit to Nat’l Habitat): Clear Act: Requiring “nat’l habitat” too generous to OO If animal can provide for itself, F can’t assume prior ownership Relatively few people would know that sea lion out of place Useful Labor: Maybe insufficient labor by OO to … alert other people of claim. contain animal in way that it won’t get mistaken for wild. Prevent otherwise unnecessary labor by F Note that looking at Mullett this way helps explain why other cases focus on marking & finder’s knowledge: Ways to provide or identify clear act even if animal gets to NL.

Rose Article & DQ 2.21 (Radium) Characterize Cases in Rose’s Terms
Shaw favoring net-owners by rejecting perfect net rule? Relationship to “Rewarding Useful Labor”?

Shaw rejecting perfect net rule? Relationship to “Rewarding Useful Labor” Net useful even if imperfect if gets lots of fish Relationship to “Clear Act”?

Shaw rejecting perfect net rule? Relationship to “Clear Act” Probably most people see fish in net as owned even if imperfect. Net has to be pretty bad to send signal that net-owner doesn’t claim fish (cf. sunken boat) Note: State adopting rule increases “clarity” of act by confirming net doesn’t have to be perfect.

Albers favoring OOs by rejecting Mullett rule? Relationship to “Rewarding Useful Labor”?

Albers rejecting Mullett rule? Relationship to “Rewarding Useful Labor” Mullett rule insufficient protection for investment in important industry Tattooing itself is useful labor b/c specifically identifies OO at least to insiders Relationship to “Clear Act”?

Albers rejecting Mullett rule? Relationship to “Clear Act” Tattoo tells everyone there is OO and specifically identifies OO to insiders (including this D) Court leaves open possibility of different result if truly innocent finder

Ghen favoring whaling industry by adopting custom? Relationship to “Rewarding Useful Labor”?

Ghen adopting custom Relationship to “Rewarding Useful Labor” Custom Rewards Labor of Whale Killer. Especially important because: Whaling Industry Useful b/c Whales Valuable Custom Necessary to Industry to Give Enough $$$ Whaler Arguably Did All Possible to Retain Whale Finder Also Gets $$$ for Useful Labor of Reporting Relationship to “Clear Act”?

Ghen adopting custom Relationship to “Clear Act”: Mark Seems Very Strong What About Interaction with Outsiders?

Ghen adopting custom Relationship to “Clear Act”: Q re Outsiders Maybe OK b/c Mark is Very Strong Maybe OK b/c Have to Use Insiders to Process Maybe OK b/c Best You Can Do

Rose Article & DQ 2.21: Characterize Cases in Rose’s Terms
Swift adopting Custom (Not Shown in Class) Relationship to “Clear Act”: Accepted by “Relevant Audience” Relationship to “Rewarding Useful Labor” Labor Necessary to Get Resource Incomplete Maybe court assumes that long agreement means industry thinks custom is right balance between labor & notice

I’ll also include in this set of slides a version for Swift (previous slide). Questions on Rose?

EXAM Q1 v. EXAM Q2 Apply ACs To Specific Facts of Hypo
Discuss Which Party Should Win (Get/Keep Property Rights) Role: Counselor (Identify Strongest Points for Each Side) Assess ACs as Tools For General Problems of Same Type as Hypo Discuss What Legal Approach Might Be Best for These Problems Role: Legislator (Consider Best Way to Address Category of Problems)

Demsetz & Rose EXAM Q1 v. EXAM Q2
XQ1 Asks You to Apply Animals Cases (ACs) Demsetz & Rose are NOT ACs They should not be primary authority for any XQ1 argument Can use to support arguments arising from ACs. E.g., Assessing strength of mark under Albers/Taber/Bartlett Assessing reasonableness of custom under Swift/Ghen

Demsetz & Rose EXAM Q1 v. EXAM Q2
XQ1 Asks You to Apply Animals Cases (ACs) Demsetz & Rose are NOT ACs Not primary authority for any XQ1 argument Can use to support arguments arising from ACs. For XQ2, Can Use Demsetz & Rose Freely to Evaluate Usefulness of ACs and of Alternatives as Tools to Address New Area of Law

OIL & GAS CASES IN ELEMENTS D
I Put in Course Primarily as Real-Life Example of Application of ACs by Analogy 1st Possession: Widely Used & Reasonably Successful Escape: More Problematic Cases & DQs Provide Opportunity for Skills Work Practice Applying ACs Outside Original Context (XQ1) Practice Making Arguments re Usefulness of Analogy (XQ2)

OIL & GAS CASES EXAM Q1 v. EXAM Q2
XQ1 Asks You to Apply Animals Cases (ACs) Oil & Gas Cases are NOT ACs They should not be primary authority for any XQ1 argument Can use in XQ1 to show how ACs factors/rules might be used by analogy (E.g., “It’s possible to describe non-living property as returning to NL. See Hammonds)

OIL & GAS CASES EXAM Q1 v. EXAM Q2
XQ1 Asks You to Apply Animals Cases (ACs) Oil & Gas Cases are NOT ACs: Not primary authority for any XQ1 argument; can be examples of use of ACs by analogy For XQ2, Can Use Oil & Gas Cases (and Ideas from Discussions of DQs Modeled on XQ2) as Examples of Ways ACs might be Useful or Problematic

Group Written Assignment #3 Due Sun. Nov. 19 @ 7 pm
QUESTIONS? Today In Class Next Mon-Tues, Next Friday By Until Thu 11:59 pm

Remaining Classwork after Today: EXAM Q1 v. EXAM Q2
Mon/Tues Class Complete Analogy DQs: 1st Poss. of Oil & Gas 2012 XQ1 (Custom) Analogy DQs: “Escaping” Natural Gas Mon/Wed DF 1997 XQ2 (1st Poss) Wed/Thu Class 2012 XQ2 (Esc) 2014 XQ1 (1st Poss) Fri Class 2014 XQ2 (1st Poss) 2014 XQ1 (Esc) Mon 11/20 Closing Class 2014 XQ1 (Custom) Mon 11/20 DF 2007 XQ2 (1st Poss) Tue 11/28 Review Session 2016 XQ1 (Custom/1st Poss) 2016 XQ2 (1st Poss)

CHOOSING YOUR 1L ELECTIVE

Section D Spring 2017 L.COMM II (D1) 9:00-10:50 (D2) (D3/D4) CON LAW I
MON TUE WED THU FRI L.COMM II (D1) 9:00-10:50 (D2) (D3/D4) CON LAW I FENTON 11:00-12:20 ELECTIVE CRIM PRO SUNDBY 2:00-3:20 CONTRACTS ROSEN 3:30-5:20 PROPERTY

The most important decision you will make…

The most important decision you will make next Tuesday or Wednesday.

The most important decision you will make next Tuesday or Wednesday. Maybe.

You are picking one course out of the 20 or so electives you will take in law school.

You are not picking a spouse.

CHOOSING YOUR 1L ELECTIVE: LOGISTICS
Read Descriptions Carefully; Watch Videos Learn Registration Procedures Including Wait Lists & Add/Drop Note re “Full” Classes & Room Changes Check Registration Time (Significance) Checking Availability in Advance

CHOOSING YOUR 1L ELECTIVE: SOME CONSIDERATIONS
Course Available to Take Later? Method of Evaluation Prerequisite/Intro to Other Courses Furthering Skills & Career Goals Special Notes re Pers. Rep. & Gen’l Business Reputation among Students (Grain of Salt) All Choices except Sub. Crim. Taught as 1L electives last year by same Profs Sub Crim Prof (Mahoney) taught Property to §B (Bryan W, Emily W) last spring.

FAMILY LAW (PERLMUTTER)
Legal Relationships between Spouses/Life Partners and between Parents & Children Offered Every Year for Upper Level Method of Evaluation: Final Exam Intro/Prereq. to Upper Level Family Law Electives Significant # of Students Practice Family Law; Also Useful for Personal Representation & Gen’l Practice

IMMIGRATION LAW (SHARPLESS)
Legal Treatment of Process of Immigration and of Immigrants Once Inside U.S. Offered Every Year for Upper Level Final Exam Intro/Prereq. to Upper Level Immigration Electives incl. Immigration Clinic In Places w Many Immigrants (S.Fla., NY, TX, Calif.): Large Pro Bono Practice + Arises in Many Other Practice Areas; Synergy w Con Law I Good Intro to Working with Complex Statutes & Gov’t Agencies/Regulations

INT’L HUMAN RIGHTS (NICKEL)
Int’l Law of (& Nature of) Human Rights Usually Offered Every Year for Upper Level Method of Evaluation: Class Participation, Presentation, and Final Exam Intro to Public International Law Useful skills working with treaties & int’l law; relevant to gov’t int’l practice, immigration, and US civil rights.

LAW PRACTICE: SOCIAL IMPACT ADVOCACY (VALDES)
Access to Justice: Lawyering Role & Skills Sometimes Offered as Upper Level Course (Not in ) Regular Attendance/Participation, Weekly Exercises, Final Project High Level of Participation Required Read Course Description Carefully!!

SUBSTANTIVE CRIMINAL LAW (MAHONEY)
Elements of Crimes & Defenses Offered Every Semester for Upper Level Method of Evaluation: Midterm (15%); Final Exam; Class Participation Intro/Prereq. to Upper Level Crim Electives; Good Synergy with Crim. Pro. Many Students Practice Criminal Law; Comes Up in Every Area of Practice, Personal Representation, and Family Conversations. Good Experience with Common Kind of Statute.

QUESTIONS?

What Hammonds calls “Escape” the industry calls “Reinsertion”
Oil & Gas: “Escape” * Starting Point: What Hammonds calls “Escape” the industry calls “Reinsertion” *Featuring “Sybil Green” Font (reinsertions into empty spaces)

Factual Setting of Hammonds & White
Oil & Gas: “Escape” Factual Setting of Hammonds & White Gas pool underneath multiple surface lots All usable gas extracted from pool Gas Co. (G) uses empty pool for storage: G has lawful access from some point on surface G wants to extract and reinsert at will G does not want to pay surface Os for right to store gas in the underground parts of their lots

Legal Issue in Hammonds & White
Oil & Gas: “Escape” Legal Issue in Hammonds & White White (p.102): [W]hether title to natural gas, once having been reduced to possession, is lost by the injection of such gas into a natural underground reservoir for storage purposes.

Oil & Gas: “Escape” Legal Issue in Hammonds & White White (p.102): [W]hether title to natural gas, once having been reduced to possession, is lost by the injection of such gas into a natural underground reservoir for storage purposes. Hammonds (p.97-98): “[W]hether the gas, having once been reduced to possession …, was restored to its original wild and natural status, by being replaced in a similar reservoir of nature….” (???!!!)

Oil & Gas: “Escape” Legal Issue in Hammonds & White White (p.102): [W]hether title to natural gas, once having been reduced to possession, is lost by the injection of such gas into a natural underground reservoir for storage purposes. Hammonds (p.97-98): “[W]hether the gas, having once been reduced to possession …, was restored to its original wild and natural status, by being replaced in a similar reservoir of nature….” PROBLEMS WITH THIS: “Fact Q” as stated What does “orig & natural status” mean re O&G SIGNIFICANCE: Analogy has Become “Reality” for court

Factual/Legal Setting in Hammonds
Oil & Gas: “Escape” Factual/Legal Setting in Hammonds Dfdt CKNG has gas it extracted from different places. Stores “vast quantities of gas” in depleted underground reservoir, a portion of which is part of Plaintiff Hammonds’s land. H sues for trespass. Claim means …?

Factual/Legal Setting in Hammonds
Oil & Gas: “Escape” Factual/Legal Setting in Hammonds CKNG has gas extracted from different places. Stores gas in depleted underground reservoir, a portion of which is part of H’s land. H sues for trespass. Claim means …? CKNG allegedly trespassing by deliberately placing gas in part of pool belonging to H. Like CKNG parking gas truck in H’s backyaed.

Oil & Gas: “Escape” Factual Settings: Hammonds v. White
BOTH = Gas Co. (G) uses empty pool for storage Hammonds = Dispute betw G & Surface O White = Different Problem Reinserted Gas Leaked into Adjacent Gas Pool Person with Interest in Adjacent Pool Wants to Pump Out Reinserted Gas Through That Pool

Could do CBA to help resolve.
Hammonds v. C. Ky. Nat’l Gas Co. DQ2.26: Cost/Benefit Analysis (CBA: D1 Uranium) CKNG uses empty pool for storage. Surface O (H) sues to prevent use of her portion of pool. Could do CBA to help resolve.

Hammonds v. C. Ky. Nat’l Gas Co. DQ2.26: CBA (D1 Uranium)
CBA: CKNG using H’s portion of empty pool for storage. Material Harm to H if CKNG stored its gas in the part of the reservoir in her land?

Hammonds v. C. Ky. Nat’l Gas Co. DQ2.26: DQ2.26: CBA (D1 Uranium)
Material Harm to H if CKNG stored its gas in the part of the reservoir in her land? Alternate Uses? Very Unlikely (Shoe Storage??) Danger from Reinsertion: Very unlikely to have leaks or explosions b/c in original reservoir surrounded by non-permeous rock + CKNG knows it’s liable for this kind of harm + H didn’t raise Noise/Fumes: Likely no more than from original extraction; H has 54-acre lot, so mostly not affected. Other Kinds of Harm?

Other Harm to H if CKNG stored its gas in the part of the reservoir in her land? Loss of Rental Value (if she’s entitled to) More Psychological/Abstract Harm: Unlikely to be aware of presence of gas (but see “The Princess & the Pea”) Maybe need to protect all property rights (“Just bugs me that …”)

Harm to H = Loss of [Abstract] Property Rights & Rental Value Benefits to society if gas was stored underground rather than on surface?

Harm to H = Loss of Abstract Ppty Rts & Rental Value Benefits to society if gas was stored underground rather than aboveground: Safety (See Sylvester Stallone) Aesthetics (Try to Avoid Seeing New Jersey) Cost Savings (No Tanks or Surface Space)  Cheaper Fuel Big Social Benefits > Harms Unless Great Value Given to Abstract Property Rights

Hammonds v. C. Ky. Nat’l Gas Co. DQ2.27: BARGAINING
Likely reasons parties unable to bargain to a satisfactory solution in Hammonds? Ordinary Transaction Costs (see DQ1.29(b)) Unsurprising if big gap between positions: Hammonds has little to lose from holding out CKNG has to worry about similar deals w lots of owners of small surface lots, so unlikely to want to give much

Cf. Trespass & Airline Overflights
Oil & Gas: “Escape” Cf. Trespass & Airline Overflights Airlines want to use empty space technically owned by surface Os High value to airline & passengers Little value to surface Os Bargaining very expensive (every lot from NY LA)

Cf. Trespass & Airline Overflights
Oil & Gas: “Escape” Cf. Trespass & Airline Overflights Airlines want to use empty space technically owned by surface Os Solution is Federal Statute Removing Surface Rights Above X Feet Could Do Something Similar for Reinsertion We’ll Do As Alternative to Escape ACs in DQ2.36 For Practice: Fact Comparisons: Reinsertion v. Airspace

Hammonds v. C. Ky. Nat’l Gas Co. Logic of Case
Hammonds (p.97-98): Statement of “Issue”: “[W]hether the gas, having once been reduced to possession …, was restored to its original wild and natural status, by being replaced in a similar reservoir of nature….” Not Immediately Obvious Why This Q is Relevant to Trespass!!

Natural Gas = Wild Animal If Animal Escapes Back to Wild, OO Loses Property Rights THUS: If Natural Gas “Escapes” Back to Wild, OO Loses Property Rights OO Loses Property Rights = No Trespass b/c Gas on/in H’s Land Unowned (Like Difference between Escaped Dog and Escaped Local Snapping Turtle)

PROBLEMS WITH THIS USE OF ANALOGY Court extends ACs analogy from 1st possession to escape without any defense. No precedent cited for specific legal Q re ownership of reinserted gas (BUT Animals Analogy treated as well-established binding precedent) No policy discussion at all (E.g., no reference to any part of cost/benefit analysis we did in DQ2.26)

PROBLEMS WITH THIS USE OF ANALOGY Court extends ACs analogy from 1st possession to escape without any defense. Deliberate use of reservoir while maintaining control doesn’t look like “escape” (cf. White)

PROBLEMS WITH THIS USE OF ANALOGY Court extends ACs analogy from 1st possession to escape without any defense. Deliberate use of reservoir while maintaining control doesn’t look like “escape” (cf. White) Even under Escape ACs, Gas co. could win Short Distance, F’s Knowledge, Protect Industry, AR Continued Control by G might mean no Return to NL

Specific Analogy Noted by Court: “If one capture a fox in a forest and turn it loose in another [forest], or if he catch a fish and put it back in the stream at another point, has he not done … just what the appellee has done with the gas in this case?”

Specific Analogy Noted by Court: “If one capture a fox in a forest and turn it loose in another [forest], or if he catch a fish and put it back in the stream at another point, has he not done … just what the appellee has done with the gas in this case?” NO. Reinsertion in Hammonds more like: letting fox out into walled enclosure; or letting fox out having trained it to return when you call.

Hammonds v. C. Ky. Nat’l Gas Co. DQ2.29: Upshot of CaSE URANIUM
After the case is over, what new problem does the gas company have? What is likely to happen next? Is this a good result from society’s perspective?

Hammonds v. C. Ky. Nat’l Gas Co. DQ2.29: Upshot of CaSE URANIUM
After the case is over, what new problem does the gas company have? Because they lose ownership of reinserted gas, anyone owning surface above pool can drill & take. What is likely to happen next? Gas Company removes gas and stops reinsertion. Is this a good result from society’s perspective? Public loses extensive benefits of reinsertion.

Hammonds v. C. Ky. Nat’l Gas Co. Miscellaneous Points
Because of cost-benefit analysis, Hammonds isn’t very sympathetic plaintiff, so court may be looking for way for her to lose. Note Kentucky SCt in Hail (1854) describing crude oil, then sold as patent medicine, as "a peculiar liquid not necessary nor indeed suitable for the common use of man“ (p.96) (cf. Animals: Blackstone  Albers) Questions on Hammonds? Note: I don’t want to spend class time on DQ2.28 (Tax Treatise). I’ll add slides innediately following this one explaining & if Qs

Hammonds v. C. Ky. Nat’l Gas Co. DQ2.28:
Long Quote from Willis’s Thornton on Oil & Gas §1264 (pp ): Says reinserted gas resumes its “original character….” Says a neighbor like Hammonds “could take it with impunity through adjacent wells….” Why doesn’t this passage conclusively resolve the case?

Why doesn’t Treatise quote conclusively resolve case? Treatise is not binding authority and does not cite to any cases on point (or court would note). Author of Treatise focused on Tax Q; as we noted re Albers, can characterize differently for tax than for property rts.

Why doesn’t Treatise quote conclusively resolve case? Treatise not binding authority. Can characterize differently for tax than for property rts. Also, in quote, Willis making an argument about how reinserted gas should be taxed. “It … should be taxed with and as a part of the land.” Not telling us how Ky (or any other state) in fact taxes. Supports H’s trespass claim if Gas Co. paying taxes on gas in portion of pool on her lot. Supports court’s decision that Gas Co. no longer owns if H paying taxes on the gas.

White v. N.Y. Gas Co. D2 URANIUM DQ2.30 FAJERIUM DQ

White v. N.Y. Gas Co.: OVERVIEW
P has rights to part of proceeds [Means?] from gas well (O’Donnell Well = OD) operated by Ds OD had not produced much gas for a long time. Ds & others using nearby well for storage of reinsertion gas. Reinsertion gas leaking underground into OD. OD starts producing again Ds discover that gas now coming from OD is reinsertion gas from other well & curtail production of OD Factual Dispute: Was the gas coming out of OD stored gas or local gas?

Factual Dispute: Was the gas coming out of the OD well stored gas or local gas? Findings: By the time of trial all the local gas was gone. Thus, only stored gas was coming out of the OD well.

Claim by P’tiff: (relying on Hammonds & ACs) Once reinserted underground, gas has “escaped”, so belongs to nobody. Hammonds. Thus, what comes out of OD well belongs to “captors” (Os/beneficiaries of OD including P). Ds have contractual duty to continue pumping OD well for benefit of owners of proceeds of OD (as though it was one of several wells doing initial capture in a multi-well field).

White v. N.Y. Gas Co.: DQ2.30 (D2 Uranium)
USE OF ANIMALS ANALOGY IN WHITE: Court says gas has not “escaped” (p.100) The two pools are one “well-defined storage field” Ds control both BUT I think MORE LIKE ESCAPE than in Hammonds. Ds didn’t intend that gas flow into 2d pool Ds lucky they controlled 2d pool as well Different rights to “Proceeds” of the two pools

White v. N.Y. Gas Co.: DQ2.30 (D2 Uranium)
USE OF ANIMALS ANALOGY IN WHITE: Court says gas has not “escaped” (p.100) BUT more like escape case than Hammonds. DQ2.30: If court had treated this as “escape”, arguments that G wins under Escaping ACs? (beyond OO labor & no abandonment)

Labor by OO, No Abandonment, Plus: Return to NL:
White v. N.Y. Gas Co.: DQ2.30 (D2 Uranium) Arguments that G wins even under ACs? Labor by OO, No Abandonment, Plus: Return to NL: Not “Natural Habitat” (but see Mullett ) Like Kesler: relatively short time & distance; quick “pursuit” Marking/F’s Knowledge: Nature of gas shows industry expert that not local Highly unlikely OD well starts producing again w/o leak Court’s zoo elephant in Pittsburgh (p.103) a little Q’able Need to be expert to tell NE from SW gas Maybe more like: Fished-out lake suddenly has fish again

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