1. ELEMENTS D2 & D1 POWER POINT SLIDES
Class #20 Monday, October 16, 2017 Tuesday, October 17,

2. Music to Accompany Kesler: Ethel Waters (1929-1939)
Friday 10/20 Both Sections Meet 8:15-10:15 Midterm Review Qs on GWA # Exam Q1
Monday
No Office Hours
Monday/Wednesday
DF on General Exam Prep (especially Post-Midterm Qs/Concerns)

3. Group Written Assignment #2: McKinley v
Group Written Assignment #2: McKinley v. Ford The Case of the Wounded Wolverine

4. Skills: Applying Legal Authority Group Written Assignment #2
Important Exam Task/Skill: Apply Authorities Studied to New Hypothetical or “Fact Pattern”
Assmt #1 : Structured Sequence of Particular Arguments from a Single Authority
Assmt #2: Wider Range of Arguments from Multiple Authorities

5. Skills: Applying Legal Authority Group Written Assignment #2
Wide Range of Arguments w 3 Limits
Each Team Only Addresses One Issue:
“First Possession” = Was There a Moment When Wolverine Became Property of P?
“Escape” = Did P Lose Property Rights When Wolverine “Escaped” to D’s Property (Must Assume P Acquired a Property Right)

6. Skills: Applying Legal Authority Group Written Assignment #2
Wide Range of Arguments w 3 Limits
Each Team Only Addresses One of Two Issues (1st Possession -OR- Escape)
Stick to Your Issue
Be Very Careful to Explain Relevance If You Use Authority Focused on Other Issue

7. Skills: Applying Legal Authority Group Written Assignment #2
Wide Range of Arguments w 3 Limits
Each Team Only Addresses One Issue
Representing One Particular Party
All Arguments Must Support Your Client
Legal Smeagols: Identify Other Side’s Best Arguments, Then Respond to Them

8. Skills: Applying Legal Authority Group Written Assignment #2
Wide Range of Arguments w 3 Limits
Each Team Only Addresses One Issue
Representing One Particular Party
Arguments must be “based on the materials in Unit One.”
No arguments based on Whaling Cases on Rose Article from Unit Two
Can include policy arguments we’ve discussed even if not clearly stated in Unit One materials.

9. Skills: Applying Legal Authority Group Written Assignment #2
One “Argument” Means One Subject
E.g., Arguments Made in Assignment #1
Applying One Legal Test
Comparing Facts of One Case to Hypo
Applying One Relevant Policy Consideration

10. Skills: Applying Legal Authority Group Written Assignment #2
One “Argument” Means One Subject
E.g., Arguments Made in Assignment #1
E.g., Applying One Relevant Factor
Mortal Wounding
Return to Natural Liberty
Deriving a Rule from Multiple Cases and Applying It
See DQ1.28 (1st Possession Cases)
See DQ1.53 (Manning & Mullett)

11. Skills: Applying Legal Authority Group Written Assignment #2
One “Argument” Means One Subject
Some Degree of Judgment Involved
Mortal Wounding (+ Pursuit?)
Two Similar Tests from Separate Cases?
Address Counter-Argument in Same Argument or Separately?
When in Doubt, Avoid Substantial Overlap

12. Skills: Applying Legal Authority Group Written Assignment #2
Working Together
Be Responsible for Submission as a Whole
Covering all Key Arguments You Identify
Addressing Key Counterarguments
Separating Out Different Ideas
Avoiding Substantial Overlap
Due Tuesday Night October 9pm
Coordinators Should Try to Start to Work Out Individual Responsibilities and Timing Very Soon
Cooperate to Achieve Best Possible Joint Product

13. Skills: Applying Legal Authority Group Written Assignment #2
General Points
Care re Formatting & Substantive Directions
Review “Common Writing Concerns”
Look at Feedback on Assignment #1
Comments & Best Answers Memo on Course Page by Friday
Individual Comments on Your Work Will Start Appearing Soon

14. Group Written Assignment #2
QUESTIONS?
Today
In Class Friday, Next Mon-Tues, Next Friday
By Until Sun 11:59 pm

15. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES
Part 2: OIL & GAS CASES

16. UNIT II: EXTENSION BY ANALOGY
Continuing Practice Reading & Briefing Cases
Application of Animal Cases (ACs) in New Contexts
1st Possession
Whales ARE Animals (No Analogy)
Oil & Gas (Minerals Ferae Naturae)
Escape of [Dead] Whales/Stored Natural Gas
Plus: Custom as Binding Law (cf. Pierson)
SKILLS
Continuing Practice Applying ACs
New Skill: Using Legal Tests by Analogy
New Skill: Arguments about When Use by Analogy is Appropriate

17. UNIT II: EXTENSION BY ANALOGY
Part 1: WHALING CASES
Continuing Practice Reading & Briefing Cases
Begin with Intro to Whaling Cases (61-63)
All are 19th Century Cases  Glossary (64)
All are Trial Court Cases (Written Decisions following Trials)  Special Briefing Form (60-61)
I’ll Take Qs on These by or Next Class

18. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES
MAJOR LEGAL Qs COVERED
Taber v. Jenny: Escape (by Analogy); Custom
Bartlett v. Budd: Escape (by Analogy); Custom
Swift v. Gifford: 1st Possession; Custom (Key)
Ghen v. Rich: Like Wolverine Problem (Both 1st Possession & Escape (by Analogy)); Custom (Key)

19. E.g., Legal Framework of Taber & Bartlett ESCAPE (by Analogy)
Basic Facts of Both Cases:
Crew of 1st ship kills whale, marks and anchors it, leaves
Whale carcass moves some, then found & taken by crew of 2d ship
Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

20. Legal Framework of Taber & Bartlett ESCAPE (by Analogy)
“Kodak Moment” (1913)

21. Legal Framework of Taber & Bartlett ESCAPE (by Analogy)
Basic facts of both cases:
1st Crew kills whale, marks, anchors, leaves
Whale found & taken by crew of 2d ship
Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale
Issue Like Escape Cases:
“Did 1st Crew Lose Property Rights by Leaving Whale Behind (given Specific Facts)?”
We’ll Try to Apply Factors from Escaping Animals Cases (See DQ2.01)

22. DQ2.01: Taber under Mullett
E.g., Natural Liberty
What might you call the “natural liberty” of a dead whale?
“free from artificial restraint”
“free to follow the bent of its natural inclination”
(obviously can’t “provide for itself”)

23. DQ2.01: Taber under Mullett
E.g., Natural Liberty
What might you call the “natural liberty” of a dead whale?
“free from artificial restraint”
“free to follow the bent of natural inclination”
MAYBE: A dead whale adrift = NL
Arguably shows negligence by OO
Arguably F can’t tell there’s an OO

24. DQ2.01: Taber under Mullett
E.g., Natural Liberty
What might you call the “natural liberty” of a dead whale?
MAYBE: A dead whale adrift = NL
Arguably fits part of definition
Arguably fits policies behind factor
We’ll see if/when whaling cases say carcass adrift goes to finder.

25. UNIT II: EXTENSION BY ANALOGY
New Skill: Arguments about When Analogy is Appropriate (Lot of Time on This in Unit II)
Very Important Type of Argument, Especially re New Technology
Examples in Reading re Treatment of Internet
Fourth Amdt & New Technology
Often Useful: Can employ any time someone wants to extend a rule to a new situation
Examples of Relevant Inquiries in DQs
“Escaping” Whales: DQ
1st Possession of Oil & Gas: DQ
“Escaping” Natural Gas: DQ

26. BUT FIRST, BACK TO ALBERS & KESLER

27. The Logic of Albers Critique: DQ1.58-1.59 What The Case Holds
Domesticated or Wild?
Addressing Prior Authority
Critique: DQ

28. The Logic of Albers: Critique DQ 1.59: ALL (URANIUM)
Can you describe what happened in Albers in terms of Demsetz’s first thesis?

29. DEMSETZ FIRST THESIS = DESCRIPTION/EXPLANATION
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

30. The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis
Decision: Finder’s Choice: Keep found animal or pelt v. Look for OO
Old Rule: Mullett/ Blackstone Rule
Externalities?

31. The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis
Decision: F keep found animal v. Look for OO
Old Rule: Mullett/ Blackstone Rule
Externalities? OO Losses (Investment; Affection)
Change in Circumstances?

32. The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis
Decision: F keep found animal v. Look for OO
Old Rule: Mullett/ Blackstone Rule
Externalities? OO Losses (Investment; Affection)
Change in Circumstances? Development of Fox Farms [+ Zoos, etc.]
Increase in Externalities?

33. The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis
Decision: F keep found animal v. Look for OO
Old Rule: Mullett/ Blackstone Rule
Externalities? OO Losses (Investment; Affection)
Change in Circumstances? Development of Fox Farms
Increase in Externalities? OO losses greater; harm to state economy
Change in Rule?

34. The Logic of Albers: Critique DQ1.59: Demsetz’s 1st Thesis
Decision: F keep found animal v. Look for OO
Old Rule: Mullett/ Blackstone Rule
Externalities? OO Losses (Investment; Affection)
Change in Circumstances? Development of Fox Farms
Externalities = OO losses  ; harm to state economy
Change in Rule? Colo. S.Ct. (and Ontario Legislature) alter Mullett rule to protect fox farms.
Would Demsetz Like the Result?

35. The Logic of Albers: Critique DQ1.59: Demsetz’s 2d Thesis
Would Demsetz Like the Result? YES!
Change in Albers creates stronger private property rights & fewer valuable escaped animals returning to commons.
Seems consistent with tendency toward more private property that Demsetz (2d Thesis) sees as good because of reduced externalities over time.

36. The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v
The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law
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.

37. The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v
The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law
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.

38. The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v
The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law
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

39. The Logic of Albers: Critique DQ1. 58: LEGISLATIVE v
The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE Back to Statute re Common Law
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?

40. The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE
Court here essentially:
a. carved out exception to the Mullett rule
b. to meet perceived policy need.
2. Alternative (as in Ontario):
a. Court applies existing rule
b. Legislature responds by enacting new statute modifying rule to meet policy need.

41. The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE
Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)?

42. The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE
Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)?
Might look at:
Relative institutional strengths?
Democratic theory?
Certainty/notice?
Relevance of Pending Legislation?

43. The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE
Courts v. Legislature: Relative Institutional Strengths Include:
Access to Information:
Legislature has power to hold extensive investigations and likely to hear from most affected constituents.
Courts hear from parties to suit and occasionally from other affected groups through Amicus briefs.
Type of Rule:
Legislature better equipped to develop complex regulations and to resolve difficult line-drawing problems
Courts tend to develop rules that are manageable in judicial setting but may be better at determining individual justice

44. The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE
Courts v. Legislature: Relative Institutional Strengths: Example:
Moore v. Regents of University of California
Suit about Univ. hospital using valuable spleen cells from patient without patient’s knowledge or permission. Issue of first impression so P raised several legal theories.
Cal. S. Ct. did not rule on whether cells were “property,” probably in part because that would raise complex legal and ethical problems better suited for legislature.
Court resolved case as an issue of medical disclosure, which was easier approach for Court because:
Unlikely to be controversial that doctors & hospital should’ve asked/told.
Already established tort caselaw re standards for medical disclosure.

45. The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLE)
Having then neither statute nor applicable common-law rule governing the case, we must so apply general principles in the light of custom, existing facts, and common knowledge, that justice will be done. So the courts of England and the United States have acted from time immemorial, and so the common law itself came into existence. (2d Para. p.49)

46. Kesler v. Jones: Uranium In-Class Brief

47. Kesler v. Jones BRIEF: Uranium
Statement of the Case:
Kesler … and the Davises… ???
sued Jones …
for [cause of action]
seeking [remedy].

48. Kesler v. Jones BRIEF: Uranium
Statement of the Case:
Kesler, the original owner (OO) of an escaped fox, and the Davises, its caretakers …
Fox is “property” of “other appellant”: must be Kesler
Davises probably plaintiffs because they had custody of the fox and would be liable to Kesler for its loss

49. Kesler v. Jones BRIEF: Uranium
Statement of the Case:
Kesler, the OO of an escaped fox, and the Davises, its caretakers …,
sued Jones … ???
for [cause of action]
seeking [remedy].

50. Kesler v. Jones BRIEF: Uranium
Statement of the Case:
Kesler, the OO of an escaped fox, and the Davises, its caretakers,
sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt,
Need both killing & keeping pelt.
for [cause of action] ???
seeking [remedy].

51. Kesler v. Jones BRIEF: Uranium
Statement of the Case:
Kesler, the owner of an escaped fox, and the Davises, its caretakers sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, …
for unlawful killing of the fox and unlawful retention of its pelt
seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?

52. Kesler v. Jones BRIEF: Uranium
Statement of the Case:
seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?
Court orders new trial to determine “the value of the pelt”  seeking damages

53. Kesler v. Jones BRIEF: Uranium
Statement of the Case:
Kesler, the OO of an escaped fox, and the Davises, its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages.
PROCEDURAL POSTURE?

54. Kesler v. Jones BRIEF: Uranium
Procedural Posture:
After a trial, the court found for defendant on both claims. Plaintiffs appealed.
How do you know there was a trial?

55. Kesler v. Jones BRIEF: Uranium
Procedural Posture:
After a trial, the court found for defendant on both claims. Plaintiffs appealed.
How you know there was a trial:
“The court was justified … in concluding from the evidence…”
“the cause remanded for a new trial …”

56. Kesler v. Jones FACTS
Fox owned and cared for by Ps had escaped and been recaptured at least once. It escaped again and Ps pursued.
A short time after the escape and a short distance away, a neighbor found it among her chickens and asked D for help.
D shot and killed the fox, unaware of its prior captivity or Ps’ ownership.
Ps requested that D return fox’s pelt. D refused.

57. Kesler v. Jones BRIEF
How Many People Saw That There Were Two Issues in Case? (Show of Hands) Evidence That There Are Two Issues In Case?

58. Kesler v. Jones BRIEF: Uranium
How You Know There Are Two Issues In Case:
Two different kinds of legal claims addressed
Unlawful killing of fox (Tort Q: Justification for shooting) (We’ll come back to at end w DQ1.62)
Unlawful retention of pelt (Property Q: Ownership of escaped animal)
Judgment is affirmed in part, reversed in part. Means:
One issue decided in favor of D
One issue decided in favor of Ps

59. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers
Note that Kesler describes Albers as “a case squarely in point ….” BUT cases not really absolutely identical, so we’ll look at factual differences.

60. Kesler v. Jones DQ1.60: Factual Differences from Albers
Important Exam Skill:
Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance (GWA#1 Arg4)
Weakest Answers Tend to Ignore Differences
Better Answers Argue that New Facts Change Result
Best Answers Discuss Why New Facts Might or Might Not Change Result

61. Kesler v. Jones DQ1.60: Factual Differences from Albers
Important Exam Skill:
Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance
Explanation of Significance is Key
Part of More General Point: Use Every Fact I Give You
I’ll give you an exercise later: if change facts in wolverine problem, how might it affect result?

62. Kesler v. Jones (Uranium) DQ1.60: Factual Differences from Albers
Identify Factual Differences Between Kesler and Albers & Discuss Possible Significance
Start by Creating List of Differences