1. MUSIC: Paul Winter Canyon (1985) STATUS OF GRADING: Practice Midterms: Ready for Pick-Up Next: Assignment #1 Target Date: Nov. 6

2. Swift v. Gifford Wrap-Up (Absent Custom) Additional 1 st Possession Animals Case Hard to Resolve Under Prior Cases – Wound + Mark = More than Mere Pursuit – Briefly Had Whale Attached to Ship w Line/Harpoon – BUT Low Probability of Capture Hurts R’s Claim Swift: Actual Possession Needed, so H would win – BUT prior to Liesner & Shaw

3. Swift v. Gifford Wrap-Up (Custom) Swift: Custom at issue treated as law Provides List of relevant considerations 1.Affect outsiders? 2.Used by entire business for long time? 3.Easier to apply than otherwise applicable legal rule? 4.Reasonable?

4. Swift v. Gifford QUESTIONS?

5. Rose Article Recall idea of theory as a way to determine what kinds of facts are relevant to addressing particular problems.

6. Rose Article 2 principles tying possession to ownership 1.Reward useful labor 2.Provide clear act giving notice of ownership. Substantial overlap between the two – Right kind of labor can constitute clear act – Sending clear signals itself is useful labor we might wish to reward

7. Rose Article & DQ 78 (Radium): Rewarding Useful Labor Benefits Clear: – We want people to do useful labor so we reward them – Labor-”Desert” Theory = Deserving What (two) problems does Rose see with labor theory?

8. Rose Article & DQ 78 (Radium): Rewarding Useful Labor Problems with labor theory? Not clear why you own your own labor – e.g., cd be duty to community How much labor must you add to a thing to make the thing yours? – Pouring tomato soup into ocean – Broader Version: What is scope of right that labor creates?

9. Rose Article & DQ78 (Radium): “Clear Act” Benefits flowing from “clear act” Gives notice to people who want to use or purchase property. (similar idea in Demsetz) – Facilitates trade  highest (most valued) uses – Minimizes conflicts

10. Rose Article & DQ78 (Radium): “Clear Act” Benefits flowing from “clear act” Gives notice to people who want to use or purchase property. (similar idea in Demsetz) Note relationship to language in Pierson & Shaw: – Intent to retain animal insufficient – Need act demonstrating that intent

11. Rose Article & DQ 78 (Radium): “Clear Act” Possible problems arising from attempt to provide the “clear act”?

12. Rose Article & DQ 78 (Radium): “Clear Act” Possible problems arising from attempt to provide the “clear act”? 1.Making clear to people who actually use or might want to use 2.Making clear at relevant time 3.Expensive to establish/maintain symbols

13. Rose Article & DQ 78 (Radium): “Clear Act” Expensive to establish/maintain symbols – Registration system is often useful alternative to consider for XQ2, but often expensive – By contrast, first possession systems often relatively cheap to administer

14. Rose Article & DQ 78 (Radium): “Clear Act” “Relevant Audience” Clear act never clear to everybody; needs to be clear to people who need to know (= rel. aud.) Clarity of act can be dependent on culture (aliens buying sunshine)

15. Rose Article & DQ 78 (Radium): “Clear Act” “Relevant Audience” Rose: In our system, acts showing property in land often depend on not conforming to nature (see adverse possession) QUESTIONS?

16. Rose Article & DQ 79 (Radium): Characterize Cases in Rose’s Terms SAMPLES: 1.Westmoreland Adopts Rule of Capture for First Possession of Oil & Gas 2.Mullett Defines Natural Liberty Broadly to Mean More than Natural Habitat

17. Rose Article & DQ 79 (Radium): Characterize Cases in Rose’s Terms Next Class, Radiums do for: Shaw rejecting perfect net rule Albers limiting Mullett rule Swift & Ghen adopting respective customs

18. LOGISTICS CLASS #23 1st Exam Workshop: Wed. 12:30 Room F309 On Course Page: – Unit Three Complete Materials – Essentially Complete Syllabus & Assignment Sheet Friday: 55-Minute Classes Begin Keeping Friday Dean’s Fellow Session @ 1:30

19. Ghen v. Rich (KRYPTON) BRIEF: Statement of the Case Ghen, … ?, sued Rich…, for [cause of action] seeking [remedy].

20. Ghen v. Rich (KRYPTON) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich…, for [cause of action] seeking [remedy].

21. Ghen v. Rich (KRYPTON) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach] ?, sued Rich, who purchased carcass from finder, for [cause of action]?? seeking [remedy].

22. Ghen v. Rich (KRYPTON) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder, presumably for conversion seeking [remedy]. ??

23. Ghen v. Rich (KRYPTON) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder, presumably for conversion seeking damages for the value of the whale.

24. Ghen v. Rich (KRYPTON) BRIEF: FACTS Crucial Fact = Custom on Cape Cod: – Whaler shoots a finback whale with marked lance. Whale dies and sinks. Several days later, it rises to surface. – If whale gets stranded on beach, F notifies owner of lance; receives small payment. Lance owner gets whale. – Note : Custom is variation on salvage

25. Ghen v. Rich (KRYPTON) BRIEF: FACTS Custom on Cape Cod: If finback whale killed with marked lance, lance owner gets whale & finder gets small fee Ghen killed finback whale using a marked lance. The whale floated up and was found by 3d party, who sold it to Rich. 3d party and Rich “knew or could have known” that a professional whaler killed the whale.

26. Ghen v. Rich (KRYPTON) On These Facts Who Gets Whale? What would happen without custom? Case doesn’t fit neatly into prior precedent Did Ghen ever get property rights at all? Killed, but no clear moment of possession and no pursuit. Assuming Ghen owns at moment of death, does he lose property rights when carcass sinks? Should custom apply as law? Let’s Look at Precedent We Have

27. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (a)Did Ghen ever get property rights at all under Shaw’s first possession analysis? 1.Brought whale “into his power and control”? 2.“[S]o maintain[ed] his control as to show that he does not intend to abandon [it] again to the world at large.”?

28. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (b) Assuming Ghen owns at moment of death, does he lose property rights under the escaped animal analysis of Albers? Look at: Marking/Finder’s Knowledge Time/Distance Abandonment/Pursuit Labor/Industry

29. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Marking/Finder’s Knowledge?

30. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Marking/Finder’s Knowledge: Maybe a little Weaker than Albers b/c F not in industry & whales native to area Time/Distance? – Kill to find: 3 days & 17 miles – Find to claim by killer: 3 days

31. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Time/Distance: Pretty Helpful to Killer Abandonment/Pursuit?

32. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? No Pursuit but seems like Abandonment by Compulsion Labor/Industry?

33. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Labor/Industry Very Strong for Killer Killer not negligent re confinement; unclear what else could do Court says industry fails if Fs could take: Overall Albers = pretty strong for killer

34. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett? Similar: Killer did all possible to mark Similar: Fs have reason to know of & can identify killer Different: Killer never had actual control Different: No return/pursuit; rely on others to find Different: Longer time frame Overall Result?

35. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett? Note Ghen reading of Bartlett & Taber (dicta): last para: If fisherman does all he can do to make animal his own, would seem to be sufficient.

36. Ghen v. Rich (1881) Historical Context Taber = 1856; Bartlett = 1868; Swift = 1872 Significant Events Probably Relevant to Timing of Development of Industry & Custom in Ghen: 1.U.S. Civil War: Provides Technology for Bomb-Lances 2.Completion of Transcontinental Railroad Whaling in Pacific from New England no longer profitable Gives New England whalers reason to find ways to make fin- back whaling more possible