1. ELEMENTS B1 & B2 POWER POINT SLIDES
Class #17: Friday, September 23, 2016 National Great American Pot Pie Day

2. Instructions & Team Assignments Posted Today After Class
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 2 pm
I’ll Post Comments/Best Answers from Prior Classes Monday If/When 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
GWA#2
Instructions & Team Assignments Posted Today After Class
I’ll Take Qs Wed/Thu
Coordinators Might Do Initial Contact
Use Hypo as Study Tool for Midterm

3. DQ1.50: Mullett Factors : KRYPTON Continued
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

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

5. 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?

6. DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL)
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?

7. DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (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?

8. DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL)
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?

9. DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL)
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!)

10. DQ1.50: Mullett Factors : KRYPTON: Return to NATURAL LIBERTY (NL)
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

11. 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

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

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

14. Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
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]

15. Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
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]

16. Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
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] ???

17. Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
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.

18. Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
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 …?

19. Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
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.

20. Albers v. E.A. Stephens & Co.: BRIEF: RADIUM
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.]
Summary of facts follows.

21. 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

22. 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 8pm Tomorrow: Real Names Not Pseudonyms B1 = Goldschmidt; Robins; Wasserman B2 = McLemore; Ricobaldi; Sholes

23. Manning v. Mitcherson as Precedent
Using Factors & Elements Generally
Manning Applied
Application of Manning Factors to:
Squirrel Hypothetical (OXYGEN)
Facts of Albers (URANIUM)
DQ1.48 & Broad Holdings (Write-Up Next Week)

24. Using Factors or Elements
Crucial Set of Skills for Lawyering & for Exams
We’ll Continue at Length Today
Again in DQs Throughout Unit Two
Plus Torts, Criminal Law, etc.

25. Using Factors or Elements
Assume Each There for Separate Reason
For Each:
Identify Kinds of Facts that Are Relevant
Look for Explicit Definitions (none in Manning)
Look for Explicit & Implicit Policy Justifications
We did this some already for Factors from
both Manning & Mullett

26. Using Factors or Elements
When Applying to New Facts
Apply One at a Time, Then Look at Whole Picture
If “Elements”, Each Has to Be Satisfied for P to Win
If “Factors”, Consider Strengths & Weaknesses of All
If significant arguments for both parties on any one, try to resolve with:
Use of Definition (where available)
Comparisons to Use of Factor/Element in Prior Cases
Purpose of Factor/Element (Policy Justifications)

27. Manning v. Mitcherson Factors Applied to …
DQ1.48:
Squirrel
Hypothetical
(OXYGEN)
DQ1.54:
Facts of
Albers
(URANIUM)

28. Manning v. Mitcherson Relevant Factors
Taming (or Other Investment in Animal)
Emotional Bond
Marking (or F Likely Aware of OO)
Short Time/Distance from Escape

29. Manning Factors: Taming (or other Investment) Emotional Bond
DQ1.48: Squirrel Hypo (OXYGEN)
Relevant Evidence
OO Labor to Capture, but No Purchase $$$
Responded to Name (Trained)
OO Owned for Three Months
No Prior Escape & Return
Comfort with Humans
More Helpful to Amy (OO) or Brandon (F)?

30. Manning v. Mitcherson Relevant Factors Emotional Bond (Going Forward)
Rest of “escape” cases arise in commercial contexts (fur fox farming; whaling) where emotional bond is not very relevant.
I’m not going to include emotional bond in applications of Manning in these contexts
“Menagerie Animals” suggests not necessary for Manning
You can bring it back for other problems we do when you can explain its relevance.

31. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (URANIUM)
Evidence re Taming:
Animal owned for two weeks before escape
Fox took food from keeper’s hand
Big Deal?
How Does Court Describe?

32. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (URANIUM)
Evidence re Taming:
Fox took food from keeper’s hand (over 2 weeks)
Court: “Semi-Domesticated” (= Trained Enough to Drive a Tractor-Trailer??)
Enough for “Tamed”?

33. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (URANIUM)
Evidence re Taming:
Fox took food from keeper’s hand. Enough?
If unsure, check for purposes behind rule
Taming shows labor and emotional bond.
Purposes furthered here?

34. Manning Factors: Taming (or other Investment)
DQ1.54: Applied to Albers (URANIUM)
Evidence re Taming:
Pretty weak on purposes  weak case for taming.
As with Mullett, could say even if animal not tamed, should protect $$$ investment.

35. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.48: Squirrel Hypo (OXYGEN)
Relevant Evidence:
Recognizable from “Markings”
Enough Comfort with Humans to “Charm” F
More Helpful to Amy (OO) or Brandon (F)?

36. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (URANIUM)
Relevant Time to Assess F’s Awareness of Prior Owner
(From Useful Qs from Saldana & Zilber)
As we’ll see in Kesler, whether it was reasonable to kill fox is separate Q from who gets property rights in the pelt.
Assume in Albers & Kesler, killers acted reasonably to protect fowl
Then ask whether OO’s retained rights in animal’s pelt.
Thus, assess what F knew or should have known at moment he takers pelt and can examine it, not at earlier moments when he sees it & decides to shoot.

37. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (URANIUM)
Evidence re Marking:
Tattoos in Ears (1/335)
How Strong are Marks?

38. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (URANIUM)
Marking = Tattoos in Ears. How Strong?
335 = Clearly Man-Made (Maybe Not 1)
Unlikely to Disappear
Identifies Owner
Industry Practice
Maybe Hard for Non-Expert to Find? (Check Size)

39. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (URANIUM)
Marking/Notice to Finder
Tattoos in Ears = Quite Strong Marking
Other Facts Giving Notice to Finder?

40. Manning Factors: Marking (or F Likely Aware of OO)
DQ1.54: Applied to Albers (URANIUM)
Marking/Notice to Finder
Tattoos in Ears = Quite Strong Marking
Other Facts Giving Notice to Finder?
Type of Fox Unknown in Area
Industry Well-Known in Area
Defendant is Member of Industry/Manager = Expert

41. Albers (Marking/Notice to F’)
Significance of Marking Under Mullett-Blackstone Rule
Blackstone, quoted in Albers p.47: “[I]f a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure; ... the owner's property in him still continues … but otherwise, if the deer has been long absent without returning.”
“and” seems to say mark only matters if intent to return
Last phrase seems to make time relevant as well, maybe to AR (as it’s used in Mullett).

42. Manning Factors: Short Time or Distance from Escape
DQ1.54: Applied to Albers (URANIUM)
Significance of Evidence re Time/Distance?
Animal Ran Six Miles Before Being Killed
Animal Killed One Day After Escape
Unknown Time Before OO Claimed Pelt (Not Very Long):
Escape is Jan/Feb 1926
Colo SCt Opinion is 1927 (after 2 trials & oral argument)

43. Manning Factors: TOGETHER
DQ1.54: Applied to Albers (URANIUM)
TAMING/$$$: Weak re Taming; More $$$ than Manning
MARKING/NOTICE: Very strong; better than Manning
TIME & DISTANCE
Prior to Escape: Less than Manning
After Escape: Similar to Manning
Overall result unclear (typical for exam Q)
Might argue it’s like escaped menagerie animal b/c investment & good notice to F. If so, back to OO

44. Manning Factors: TOGETHER
DQ1.54: Applied to Albers (URANIUM)
TAMING/$$$: Weak re Taming; More $$$ than Manning
MARKING/NOTICE: Very strong; better than Manning
TIME & DISTANCE
Prior to Escape: Less than Manning
After Escape: Similar to Manning
Questions on Application of Manning
to Albers Facts?

45. Manning Factors: Short Time or Distance from Escape
DQ1.48: Squirrel Hypo (OXYGEN)
Relevant Evidence:
Time: Escape to Find: Unclear
Distance: Escape to Find: “Across Town”
Time: Find to OO Claim: 2 Months
More Helpful to Amy (OO) or Brandon (F)?

46. Manning Factors: TOGETHER DQ1.48: Squirrel Hypo (OXYGEN)
Helpful to A/OO
Owned for 3 Months
Responds to Name
Comfortable w Humans
Identifying Markings
Helpful to B/F
Squirrel Travels “Across Town”
No Prior Return
2 Months Before Found
Markings Not Man-Made (apparently)