1. MUSIC: ISAAC ALBENIZ WORKS FOR PIANO (1880-99) Alicia de Larrocha, Piano (Recordings1959, 1992) Dean’s Fellow Sessions This Week: Review Problem 2F (p. 102): First Possession of Uninhabited Island Based on 2007 Exam Q1 (on course page) This Week Only: Joey Kaye Session Thursday 1:00 pm Moved to Room A110 Next Week: Review Problem 2G (p. 102): Escape of Human Gesture Based on 2012 Exam Q1 (on course page)

2. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” DQ2.02: Is this custom consistent with the law of escaped animals?

3. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) Is custom consistent w law of escaped animals? a dead whale is found adrift Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Underlying potential conflict only arises when Underlying potential conflict only arises when – 1 st ship has killed whale & can prove (e.g., w marked harpoons) – 2d ship finds whale dead & afloat

4. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) Is custom consistent w law of escaped animals? a Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Can view from two different angles Can view from two different angles – 1 st ship RETAINS whale carcass if they catch up to it before 2d ship cuts in. (per Linet Suarez §D) – 2d ship ACQUIRES whale carcass (& 1 st ship LOSES it) if 2d ship cuts in before 1 st ship catches up.

5. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) 1 st ship RETAINS whale carcass if they catch up to it before 2d ship cuts in. Consistent w law of escaped animals? Not abandoned. Not abandoned. Marked w harpoons & F’s knowledge from quick claim. Marked w harpoons & F’s knowledge from quick claim. Maybe not NL b/c pursuing & short time & distance. Kesler. Maybe not NL b/c pursuing & short time & distance. Kesler.

6. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) 2d ship ACQUIRES carcass (& 1 st ship LOSES it) if 2d ship cuts in before 1 st ship catches up. Consistent w law of escaped animals? ARGUMENTS YES: If 1 st ship not present, could say returned to NL without sufficient marks or pursuit (more like Mullett than Kesler) Could say by the time F cuts in: F has invested a lot of labor (Again, Be Careful re F’s Labor) Insufficient evidence that OO had or could get control Likely a lot of distance from kill to find

7. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) 2d ship ACQUIRES carcass (& 1 st ship LOSES it) if 2d ship cuts in before 1 st ship catches up. Consistent w law of escaped animals? ARGUMENTS NO: OO spent labor to pursue & mortally wound (Downey §B) Could be pretty short period of time before losing property rights F aware that another whaler had some claim

8. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) 2d ship ACQUIRES carcass (& 1 st ship LOSES it) if 2d ship cuts in before 1 st ship catches up. Consistent w law of escaped animals? POLICY REASONS SUPPORTING CUSTOM (Benefits Industry. Albers.) Strong Policy to have Someone in Industry Recover Valuable Carcass if Possible Any Given Whaler as Likely to be Winner as Loser (Unlike Albers/Kesler)

9. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” DQ2.02: Is this custom consistent with the law of escaped animals? Questions on Analysis?

10. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” DQ2.02: What is the relevance of the custom to the facts of Taber?

11. (KRYPTON) Taber DQ2.02: Customs (KRYPTON) Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Relevance to Taber? Doesn’t apply because whale not adrift.

12. (KRYPTON) Taber DQ2.03 (KRYPTON) Captain Bennett of the Massachusetts : Goes on board Zone with Captain Cook of Hillman to demand bone and oil. Uses “violent and abusive language” to Captain Parker of Zone in Parker’s own cabin (causing Parker to throw Hillman’s anchor overboard!!) Significance? (besides clear need for anger management training)

13. (URANIUM) Bartlett DQ2.07-2.08: Customs (URANIUM) Custom: If dead whale found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” In Taber, custom didn’t apply b/c whale not adrift. In Bartlett, whale was adrift, but court still does not apply it, because of factual finding above: Custom does not apply where anchor still attached.

14. (URANIUM) Bartlett DQ2.07: Customs (URANIUM) Custom: If dead whale found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” anchor In Bartlett, whale was adrift, but court still does not apply it, because custom does not apply where anchor still attached. harpoons Why is anchor different from harpoons? DQ2.07: Custom does apply if harpoons still attached to whale. Why is anchor different from harpoons?

15. (URANIUM) Bartlett DQ2.07: Customs (URANIUM) Custom: If dead whale found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” anchor harpoons DQ2.07: Custom does not apply where anchor still attached to whale, but does apply if harpoons still attached. Why is anchor different from harpoons? Anchor is proof killer had actual possession of whale, and therefore earned property rights (under 1 st Possession animals cases). BUT can lodge harpoons in whale without ever taking actual possession.

16. (URANIUM) Bartlett DQ2.08: Customs (URANIUM) Bartlett determines that there is no custom giving a dead whale found adrift with an anchor attached to the finder. The court then says (top p. 64): “ And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” DQ2.08 This Means…?

17. (URANIUM) Bartlett DQ2.08: Customs (URANIUM) Bartlett determines that there is no custom giving a dead whale found adrift with an anchor attached to the finder. The court then says (top p. 64): “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” DQ2.08 This Means…?

18. (URANIUM) Bartlett DQ2.08: Customs (URANIUM) “[T]here would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” Bartlett (in dicta) provides first example of an argument for refusing to treat a particular industry custom as law (we’ll revisit in Swift & Ghen).

19. Bartlett v. Budd: Possible Policy Rationale The court said that a rule that treated whales that had recently gone adrift differently from anchored whales would be imprudent because it would take property rights from the OO in a very short time period and would encourage finders to lie about what they found or to fraudulently set the whale adrift.

20. Bartlett v. Budd: Possible Policy Rationale The court said that a rule that treated whales that had recently gone adrift differently from anchored whales would be imprudent because it would take property rights from the OO in a very short time period and would encourage finders to lie about what they found or to fraudulently set the whale adrift. Thus, the court held that anchored whales would remain the property of the OO for at least some period of time even when the anchor didn’t hold.

21. “ Escaping” Whale Carcasses: Taber, Bartlett, and the Analogy To Escaping Animals Ferae Naturae I.Introduction & Application of Mullett & Albers II.Custom III.Salvage: DQ2.04 (KRYPTON) IV.Holdings & Significance V.Critiquing the Analogy (Wed-Thu-Fri)

22. (KRYPTON) Taber DQ2.04: Salvage (KRYPTON) Definition: Party finds property belonging to another (OO) adrift on open seas. – Finder recovers property & returns to OO. – Finder then receives standard “salvage” fee from OO. Begins as custom, but is established as law by the time of these cases. Parties that regularly conduct trade on the high seas will periodically lose property to storms and wrecks, so (mostly) willingly participate in system.

23. (KRYPTON) Taber DQ2.04: Salvage (KRYPTON) Party finds property belonging to another (OO) adrift on open seas – Finder recovers property & returns to OO – Finder then receives standard “salvage” fee from OO Why not employed in Taber?

24. (KRYPTON) Taber DQ2.04: Salvage (KRYPTON) Why not employed in Taber? Zone owners never claimed salvage rights – Zone didn’t behave like salvor (= return found goods and ask for $) – Rule: if try to adopt salvage property for own use, can forfeit salvage rights Note: Salvage is usually for goods found adrift, so not clear would apply here anyway

25. (KRYPTON) Taber DQ2.04: Salvage (KRYPTON) Taber uses a comparison with the law of salvage (but not salvage itself) to support its result: Doctrinal Rationale: Law says if property found adrift at sea, finder entitled to fee for salvage but not to property itself. Owner of property that is not adrift has an even stronger interest, so does not lose rights to finder.

26. “ Escaping” Whale Carcasses: Taber, Bartlett, and the Analogy To Escaping Animals Ferae Naturae I.Introduction & Application of Mullett & Albers II.Custom III.Salvage IV.Holdings & Significance V.Critiquing the Analogy

27. Taber v. Jenny BRIEF: HOLDING Court says OO retained property rights – Doesn’t apply custom or salvage. – Rather seems to rely on ordinary (non- animals) rule that you don’t lose property rights simply by losing control of object. – Applies to dead whales at least … where there are “clear marks of appropriation;” and little time passed.

28. Taber v. Jenny BRIEF: Narrow Holding Killer of whale doesn’t lose property rights when it leaves the body of the whale in the ocean where: killer anchors whale leaving marks indicating killer’s identity; killer returns as soon as practicable to collect whale; and finder of whale sees identifying marks and knows whale is less than 12 hours dead

29. Taber v. Jenny BRIEF: Possible Broader Holding Killer of whale doesn’t lose property rights when it leaves the body of the whale in the ocean where killer leaves marks of appropriation and is gone only for a short time.

30. Taber v. Jenny BRIEF: Possible Supporting Policies See Sample Brief for Full Formulations Rule doesn’t reward knowing finder, who had clear info whale belonged to someone else. Rule rewards labor of killer who, in addition to the capture, did all in his power to mark whale and return ASAP. Rule protects industry by not providing incentives for whaling ships to try to “find” other ships’ kills instead of trying to kill more whales of their own.

31. Taber & Bartlett : The “Escaped” Carcass Issue No Relevant Custom Salvage Inapplicable Anchored Whale Remains Property of OO – Forever? Taber & Bartlett = Short Time Frame – Result unclear if longer time frame; policy against wasting resource might change result

32. Taber & Bartlett : The “Escaped” Carcass Issue As “Animals Cases” in XQ1, Treat as Escape Cases w Info About: Marking & Finder’s Knowledge Time/Distance Labor/Industry

33. Taber & Bartlett : The “Escaped” Carcass Issue QUESTIONS?

34. Ratione Soli & Assignment #2 Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel. No help to either party in Assignment #2. No help to either party in Assignment #2.

35. Ratione Soli & Assignment #2 while it remains on the parcel. Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel. No help to either party in Assignment #2. No help to either party in Assignment #2. – Trap-Owner must get stronger form of property rights while the animal is on his land, or he loses claim as soon as animal crosses property line.

36. Ratione Soli & Assignment #2 unowned Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel. No help to either party in Assignment #2. No help to either party in Assignment #2. – Killer cannot claim property rights via Ratione Soli if Trap-Owner owns the wolverine under the First Possession cases when the animal crosses property line. Killer must rely on Escape Cases instead.

37. Ratione Soli & Assignment #2 Ratione Soli: An unowned wild animal that enters privately owned land is considered the property of the landowner while it remains on the parcel. No help to either party in Assignment #2. THINK ABOUT IT & E-MAIL ME IF QUESTIONS

38. Mid-September Crisis

39. Mid-October Crisis

40. Mid-October Crisis: The Upside

41. Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes, Even When Unprepared

42. Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later

43. Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Eat, Get Sleep, Take Short Breaks

44. Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Get Sleep & Take Short Breaks 4.Plan Catch-Up Work and Outlining for One Course Each Weekend

45. Mid-October Crisis: Like Doing Law School Exam Qs Can’t do everything as well as you’d like; do the best you can with time you have Be very careful not to waste time Identify what work is most important for you and spend time accordingly Be realistic in your expectations; don’t get upset that you are not superhuman. This too shall pass!

46. FINAL EXAM QUESTIONS 1 & 2 XQ2: “Discuss Whether Animals Cases Are Good Tools to Use in New Scenario” – Testing Ability to Analyze When/Whether Analogy is Useful – Should Utilize Three Approaches We’ll Work With in Unit Two (& Group Assignment #3) Significance of Factual Similarities/Differences Usefulness of Doctrine Usefulness of Alternatives

47. Argument By Analogy We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as in XQ1), but should we?

48. Argument By Analogy We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as in XQ1), but should we? In other words, use of the analogy is possible, but is it a good idea (XQ2)?

49. Argument By Analogy Three Common Approaches Described in Course Materials: 1.Significance of Factual Similarities & Differences 2.Usefulness of Doctrine 3.Usefulness of Alternatives

50. Argument By Analogy Applying Three Common Approaches Described in Course Materials: (RADIUM) 1.Significance of Factual Similarities & Differences (DQ2.09) (RADIUM) (RADIUM) 2.Usefulness of Doctrine (DQ2.10) (RADIUM) 3.Usefulness of Alternatives (DQ2.11) (OXYGEN) (Friday)

51. Argument By Analogy 1. Factual Similarities/Differences Identify Similarity or Difference Between the Two Contexts – Factual not Legal (Layperson Could See) – Compare Overall Situations, NOT Individual Cases. Compare Escaping Animals to Escaping Whale Carcasses NOT Facts in Bartlett to Facts in Albers

52. Argument By Analogy 1. Factual Similarities/Differences Identify Similarity or Difference Between the Two Contexts Explain Why the Similarity (or Difference) You Identified Suggests that the Legal Treatment of the Two Contexts Should be the Same (or Different)

53. Argument By Analogy Sample Factual Similarity: Mobility Both contexts involve property that can move (w/o human intervention) away from where the owner left it.

54. Argument By Analogy Sample Factual Similarity: Mobility Both contexts involve property that can move (w/o human intervention) Escaping ACs good for escaping whale carcass cases b/c specifically designed to decide when to return mobile property. – Address relevant Qs like extent of OO’s investment, OO’s labor to control or retrieve property, and whether F would have reason to believe another person has a strong claim. – Can then argue re relative importance of these Qs

55. Argument By Analogy RADIUM RADIUM DQ2.09: Additional Factual Similarities? Can You Construct This Kind of Argument Around Them?