1. ELEMENTS B POWER POINT SLIDES Class #17 (Extendo-Class) Friday, October 2, 2015

2. The Essential Louis Armstrong: Disc 1 (Recordings 1925-30) WHALING BRIEFS DUE SATURDAY 10/10 @ 8 pm KRYPTON: Bartlett v. Budd OXYGEN: Swift v. Gifford I’ll Be Around for Most of Break; E-Mail if You’d Like to Meet

3. The Logic of Albers 1.Domesticated or Wild 2.Addressing Prior Authority 3.What The Case Holds 4.Critique

4. The Logic of Albers: What The Case Holds Mullett rule inapplicable because of changed circumstances (development of fox fur industry) Instead, court says original owner wins where … [Manning-like list but even more facts]

5. The Logic of Albers: What The Case Holds (p.49): Original owner wins where fox: “had been held in captivity, semidomesticated, escaped by accident, fled against the will of his owner, and pursuit was abandoned by compulsion. This defendant in fact had, or is charged with, knowledge that the pelt purchased was the product of a vast, legitimate, and generally known industry; that it had a considerable and easily ascertainable value; that it bore the indicia of ownership; that it had been taken in an unusual way; that the seller was not the owner; that no right of innocent purchasers had intervened; and that it was from an animal taken in a locality where its kind ferae naturae was unknown and in a state where large numbers were kept in captivity.”

6. The Logic of Albers: What The Case Holds (p.49): Original owner wins where fox: “had been held in captivity, semi-domesticated, escaped by accident*, fled against the will of his owner*, and pursuit was abandoned by compulsion.” PLUS …. * = Doesn’t Seem to Add Much

7. The Logic of Albers: What The Case Holds D “had, or is charged with, knowledge that: the pelt purchased was the product of a vast, legitimate, and generally known industry it had a considerable/easily ascertainable value that it bore the indicia of ownership it had been taken in an unusual way; the seller was not the owner; PLUS …

8. The Logic of Albers: What The Case Holds D “had, or is charged with, knowledge that: no right of innocent purchasers had intervened; & it was from an animal taken – in a locality where its kind ferae naturae was unknown; and – in a state where large numbers were kept in captivity.”

9. The Logic of Albers: What The Case Holds DQ1.57(c): Factors that Albers treats as relevant that are not explicitly part of the analysis in Manning or Mullett: Industry/Investment (focus of discussion of why Mullett inapplicable) Finder’s Knowledge (focus of penultimate paragraph: grizzly bear in NY; elephant in cornfield; seal in millpond)

10. The Logic of Albers: What The Case Holds DQ1.57(d): Articulate Possible Rule in Albers (I’ll leave for you) Helpful to Note Dual Focus (on OO & F): 1.Acts of OO: investment, protection, animus rev., pursuit, taming 2. Likely Knowledge of Finder : nat’l liberty, other evidence F knew of OO 3.Both: marking

11. The Logic of Albers: What The Case Holds DQ1.57(d): Articulate Possible Rule in Albers Helpful to Note Dual Focus on OO & F Completing Albers Brief Like Manning, many possible broad holdings. – I’ll include more than one in Sample Brief.

12. The Logic of Albers: What The Case Holds DQ1.57(d): Articulate Possible Rule in Albers Helpful to Note Dual Focus on OO & F Completing Albers Brief Rationales – Doctrinal = Difficult because court rejects most prior authorities. – Policy = Several possibilities; again helpful to note dual focus – I’ll include examples in Sample Brief.

13. The Logic of Albers: What The Case Holds Qs on Albers Holding or Reasoning?

14. The Logic of Albers 1.Domesticated or Wild 2. Addressing Prior Authority 3. What The Case Holds 4. Critique: DQ1.58-1.59 OXYGEN (Many Tanks!)

15. The Logic of Albers: Critique DQ 1.59: OXYGEN Can you describe what happened in Albers in terms of Demsetz’s first thesis?

16. 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

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

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

19. The Logic of Albers: Critique OXYGEN DQ1.59: Demsetz’s 1 st 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?

20. The Logic of Albers: Critique OXYGEN DQ1.59: Demsetz’s 1 st 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?

21. The Logic of Albers: Critique OXYGEN DQ1.59: Demsetz’s 1 st 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?

22. The Logic of Albers: Critique OXYGEN 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.

23. The Logic of Albers: Critique OXYGEN DQ1.58 (Authority of Colo. S.Ct.) 1.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.

24. The Logic of Albers: Critique OXYGEN DQ1.58 (Authority of Colo. S.Ct.) Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)?

25. The Logic of Albers: Critique OXYGEN DQ1.58 (Authority of Colo. S.Ct.) 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?

26. The Logic of Albers: Critique OXYGEN DQ1.58 (Authority of Colo. S.Ct.) (Not Shown in Class) 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

27. The Logic of Albers: Critique OXYGEN DQ1.58 (Authority of Colo. S.Ct.) (Not Shown in Class) 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.

28. The Logic of Albers: Critique OXYGEN DQ1.58 (Authority of Colo. S.Ct.) 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)

29. Skills Exam Prep (& Fall Break) Lot of Info Today I’ll Go Through Fast Because You’ll Have Slides E-Mail Me if Qs

30. Skills Exam Prep (& Fall Break) Try to Think About Exam Prep in Terms of Skills in Terms of Skills Relevant Skills in Elements Include: I. Applying Legal Authority to New Sets of Facts II. Determining Appropriate Legal Test for Particular Situation

31. Skills Exam Prep (& Fall Break) Exam Prep & Fall Break 1. Generally: a. Day or two really off b. Steady work on individual courses: at least one solid day each 2. For Elements: a. I’ll be around; if you have Qs, e-mail me for appointment b. Opportunity for Careful Prep on Seven (!!) Cases Already Covered c. Much less material than other courses  i) Good News: Can do more in-depth ii) Bad News: Must do more in-depth iii) Suggestions Throughout Presentation

32. Skills Exam Prep (& Fall Break) Exam Technique Generally 1.I’ll Create “Exam Headquarters” at Bottom of Course Page 2.I’ll Post Soon a Short Memo on General Exam Technique 3.I do Faculty-Perspective Exam Skills Workshops in November a.Dates, Times, Locations on Assignment Sheet b.Worth your time (very well-received) c.I am world’s leading expert on what I look for in student exam answers to my own tests. c.I am world’s leading expert on what I look for in student exam answers to my own tests.

33. Skills Exam Prep (& Fall Break) Applying Legal Authority to New Sets of Facts Most Basic Version: Applying Single Case to New SituationMost Basic Version: Applying Single Case to New Situation –Examples: Group Assignment #1; Unit One DQs –Fall Break Prep 1: Reviewing Individual Cases Fix Notes & Briefs by Comparing to Slides & Sample BriefsFix Notes & Briefs by Comparing to Slides & Sample Briefs Take/Retake Self-QuizzesTake/Retake Self-Quizzes Look at Comments/Models for Assignment 1 & Write Up of DQ1.48 (Coming)Look at Comments/Models for Assignment 1 & Write Up of DQ1.48 (Coming) If in Doubt, Ask Qs or RereadIf in Doubt, Ask Qs or Reread

34. Skills Exam Prep (& Fall Break) Applying Legal Authority to New Sets of Facts Most Basic Version: Applying Single Case to New SituationMost Basic Version: Applying Single Case to New Situation –Examples: Group Assignment #1; Unit One DQs –Fall Break Prep 1: Reviewing Individual Cases –Fall Break Prep 2: Doing the Task Play w Weasel & Squirrel Hypos w Rest of Relevant CasesPlay w Weasel & Squirrel Hypos w Rest of Relevant Cases Posted Shack Hypo As Exam Q (Comments/Models Posted Soon)Posted Shack Hypo As Exam Q (Comments/Models Posted Soon) Apply Individual Unit One Cases to Issues in Whaling CasesApply Individual Unit One Cases to Issues in Whaling Cases

35. Skills Exam Prep (& Fall Break) Applying Legal Authority to New Sets of Facts More Complex: Applying Group of Cases to New SituationMore Complex: Applying Group of Cases to New Situation –Examples: Group Assignment #2; DQs 1.28 & DQ1.53

36. Mullett & Manning : DQ 1.53 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? Last 5 slides on DQ1.53 not shown in class. I’ll also give you a longer write- up later. E-Mail Me if Qs

37. Mullett & Manning : DQ 1.53 ( Prior Student ) OO loses property rights in an escaped animal when the animal, without an intention to return, can provide for itself and is free to follow its natural inclinations. Essentially a restatement of Mullett rule, so consistent with Mullett. Consistent with Manning if you assume the canary could not have provided for itself.

38. Mullett & Manning : DQ 1.53 ( Prior Student / Juliannne Burch ) OO loses property rights in an escaped animal when the animal 1.is in its state of natural liberty; and 2.does not show a connection to the OO by marking or behavior (such as intent to return or other taming).

39. Mullett & Manning : DQ 1.53 ( Prior Student / Juliannne Burch ) OO loses property rights in an escaped animal when the animal is in its state of natural liberty; and does not show a connection to the OO by marking or behavior (such as intent to return or other taming). CLEVER – Adds to the Mullett factors two factors from Manning that clearly distinguish the two cases – Treats AR as form of taming (seems right) – Would mean that animals that otherwise would go to F under Mullett stay with OO if tamed or marked.

40. Mullett & Manning : DQ 1.53 ( Prior Student ) OO loses property rights in an escaped animal when the OO shows intent to abandon the animal. Interesting Idea: Puts focus entirely on showing “intent to abandon” Looks like using Shaw rule for 1 st Possession as basis of escape rule

41. Mullett & Manning : DQ 1.53 ( Prior Student ) “OO loses property rights in an escaped animal when the OO shows intent to abandon the animal.” Puts focus entirely on “intent to abandon” Use of “shows” might put emphasis on acts of OO rather than proof of subjective intent. Would need to resolve “abandonment” in favor of F in Mullett (which court did not do). Could argue that placing sea lion on island w/o confinement meets test.

42. Mullett & Manning : DQ 1.53 ( Prior Student ) “OO retains ownership in an escaped wild animal if [i] he can show a substantial connection between himself and the wild animal through taming, an intent to return, or any other acts of dominion for a sufficient time of possession; and [ii] the owner has not abandoned his search once the animal has escaped.”

43. Mullett & Manning : DQ 1.53 ( Prior Student ) “OO retains ownership in an escaped wild animal if [i] he can show a substantial connection between himself and the wild animal through taming, an intent to return, or any other acts of dominion for a sufficient time of possession; and [ii] the owner has not abandoned his search once the animal has escaped.” Mullett: ambiguous phrases might be met, especially if Mullett trained sea lion at all prior to escape. Might need to modify language.

44. Mullett & Manning : DQ 1.53 ( Prior Student ) “OO retains ownership in an escaped wild animal if [i] he can show a substantial connection between himself and the wild animal through taming, an intent to return, or any other acts of dominion for a sufficient time of possession; and [ii] the owner has not abandoned his search once the animal has escaped.” Manning: Last phrase might be too strict; we don’t know if Mitcherson had continued searching. Might want to modify language to read, “the OO has not unreasonably abandoned the search,” which would also take into account the kind of situation that occurred in Albers.

45. Skills Exam Prep (& Fall Break) Applying Legal Authority to New Sets of Facts More Complex: Applying Group of Cases to New SituationMore Complex: Applying Group of Cases to New Situation –Examples: Group Assignment #2; DQs 1.28 & DQ1.53 –Fall Break Prep 1: Working with Group of Related Cases Try/Retry DQs 1.28 & 1.53 & Look at Write-UpsTry/Retry DQs 1.28 & 1.53 & Look at Write-Ups Case ChartingCase Charting

46. CHARTING AS STUDY TOOL FACTORMANNINGMULLETTALBERS MARKING/ FINDER’S KNOWLEDGE (FK) Parted Crest (Man- Made, Not Permanent; Other Bird has) Treated as Relevant Refers to Menagerie Animals/Organ Grinder Monkey; could mean FK Scarring (Likely permanent; probably not clearly man- made) Not Treated as Relevant Holds: can be NL w/o being Nat’l Habitat; could be concern about FK, but not explicit Tattoo w #s in Ears (man- made; permanent; industry custom; i.d.s OO); F knew of industry & that fox likely from fox farm Treats both mark and FK as relevant F can’t take Seal in Millpond; Bear in City; looks like FK Has Blackstone language re mark only matters if AR likely permanent

47. Skills Exam Prep (& Fall Break) Applying Legal Authority to New Sets of Facts More Complex: Applying Group of Cases to New SituationMore Complex: Applying Group of Cases to New Situation –Examples: Group Assignment #2; DQs 1.28 & DQ1.53 –Fall Break Prep 1: Working with Group of Related Cases –Fall Break Prep 2: Doing the Task Play w Weasel & Squirrel Hypos Arguing from Cases as GroupPlay w Weasel & Squirrel Hypos Arguing from Cases as Group Work on Group Assignment #2Work on Group Assignment #2 Take Elements Practice MidtermTake Elements Practice Midterm

48. Skills Exam Prep (& Fall Break) Elements Practice Midterm 1. Posted on Course Page by Monday a. Practice Midterm Q with Instructions for “Exam Conditions” b. Comments/Best Student Answers Memo from Prior Years 2. For Feedback from Me a. First Look at Posted Memo on Exam Technique b. Do Practice Midterm Under “Exam Conditions” (as Described in Instructions) (as Described in Instructions) c. Go through Comments /Best Answers Memo d. Bring me Specific Qs (I can’t go through 76 line-by-line)

49. Skills Exam Prep (& Fall Break) Applying Legal Authority to New Sets of Facts “A Little Twist”: Your Test Will Require You to Apply Animals Cases by Analogy to Situations that Don’t Involve Live Animals

50. E.g., Legal Framework of Taber & Bartlett 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 1 st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

51. Legal Framework of Taber & Bartlett “Kodak Moment” (1913)

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

53. DQ2.01: Taber under Mullett 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”)

54. DQ2.01: Taber under Mullett 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

55. Skills Exam Prep (& Fall Break) Applying Legal Authority to New Sets of Facts “A Little Twist”: Your Test Will Require You to Apply Animals Cases to Situations that Don’t Involve Live Animals Oil & Gas Law: Minerals ferae naturaeOil & Gas Law: Minerals ferae naturae The Internet, Analogy & the Future of LawyeringThe Internet, Analogy & the Future of Lawyering Leads us into Second Type of Skill

56. Skills Exam Prep (After Fall Break) What Should the Law Be: Determining Appropriate Legal Test for Particular Situation When Should We Treat Industry Customs as Binding Law? –Whaling Cases will provide Guidelines for Analysis

57. Skills Exam Prep (After Fall Break) What Should the Law Be: Determining Appropriate Legal Test for Particular Situation When Should We Treat Industry Customs as Binding Law? When Should We Use a Set of Existing Rules to Govern a New Area of Law By Analogy –Ways to Approach in Readings Today & in Unit Two DQs –Group Assignment 3 Involves These Types of Arguments

58. FINAL EXAM QUESTIONS 1 & 2 Single Fact Pattern for Both Will Involve Type of Property Not Explicitly Covered in Course I’ll Post Three Samples Over Break – One Primarily First Possession (& Custom) (Uninhabited Island) – One Primarily Escape (& Custom) (Gesture Strongly Associated with Celebrity: L-Bowing) – One All Three (Computer Program)

59. FINAL EXAM QUESTIONS 1 & 2 XQ1: “Assuming Animals Cases Apply, Discuss Who Should Get Property Rights?” – Basically Issue-Spotter Like Practice Midterm Same Skills We’ve Been Working On Same Close Knowledge of Cases Required – But Need to Be Creative Applying Doctrine E.g., Whale Carcasses & Natural Liberty

60. 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 & Assess Value of Rules – Should Utilize Three Approaches We’ll Work With (EXTENSIVELY) in Unit Two (& Group Assignment #3) – E.g., Good rule to say if anchored whale returns to NL (floats free), should go to finder?

61. Back to Work!!

62. Radium Kesler v. Jones: Radium In-Class Brief & DQ1.60-1.62 MARIE CURIE: Discoverer of Radium

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

64. Kesler v. Jones BRIEF: Radium 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

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

66. Kesler v. Jones BRIEF: Radium 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].

67. Kesler v. Jones BRIEF: Radium 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?

68. Kesler v. Jones BRIEF: Radium 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

69. Kesler v. Jones BRIEF: Radium 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?

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

71. Kesler v. Jones BRIEF: Radium 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…” new –“the cause remanded for a new trial …”

72. 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.

73. Kesler v. Jones BRIEF: Radium Radiums How Many Radiums Saw That There Were Two Issues in Case? (Show of Hands) Radioactive (Uraniums are Radioactive for This Purpose and Must Be Silent and Still!)

74. Kesler v. Jones BRIEF: Radium How You Know There Are Two Issues In Case: 1.Two different kinds of legal claims addressed – Unlawful killing of fox (Tort Q: Justification for shooting) – Unlawful retention of pelt (Property Q: Ownership of escaped animal) 2.Judgment is affirmed in part, reversed in part. Means: – One issue decided in favor of D – One issue decided in favor of Ps

75. Kesler v. Jones BRIEF: Radium 1st Issue (Unlawful Killing): Did trial court err in entering judgment for defendant because … Hard to be precise about relevant facts b/c –Court doesn’t say why Ps thought the killing was unreasonable –We aren’t studying defenses to intentional torts here, so don’t have other examples to look at.

76. Kesler v. Jones BRIEF: Radium 1st Issue (Unlawful Killing): Pretty General Version (E.g.:) Did trial court err in entering judgment for defendant because a person has no right to kill a fox escaped from captivity when asked to help protect a neighbor’s chickens from the fox? Probably helpful to also include some language about reasonableness.

77. Kesler v. Jones BRIEF: Radium 1st Narrow Holding (Unlawful Killing): (E.g.:) No, trial court did not err in entering judgment for defendant because a person does have the right to kill a fox escaped from captivity when reasonably necessary to help protect a neighbor’s chickens from the fox. QUESTIONS?

78. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Both Albers and Kesler treat the question of the right to kill the fox as independent of the question of who owns it. If the plaintiffs owned both foxes, why was it legally acceptable for a 3d party to kill them?

79. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Can have some rights with regard to an object without having all possible rights Common Examples: – Landlord-Tenant – Ratione Soli

80. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Can have some rights with regard to an object without having all possible rights Your “right” not to have others destroy your property can be lost when your property endangers person or property of others. Common Example: Necessity – Neighbor can cut down your trees to limit spread of fire

81. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Can have some rights with regard to an object without having all possible rights Common Example: Necessity – Neighbor can cut down your trees to limit spread of fire – BUT You still own the cut wood.

82. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Here, court says OK for Dr. Jones to kill a fox owned by Kesler because he acted (for Mrs. White) as “a reasonably prudent person” would, “under reasonably apparent necessity, in the protection of his own property” (chickens).

83. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Here, court says OK for Dr. Jones to kill a fox owned by Kesler because – he acted (for Mrs. White) as “a reasonably prudent person” would, – “under reasonably apparent necessity, – in the protection of his own property” (chickens). Looks like standard defense to intentional tort for “defense of property.” Could fold some of this language into issue/holding.

84. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights BOTTOM LINE Fox owners’ property rights limited to protect property of others (e.g., chickens) Jones had right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot. Qs?

85. Kesler v. Jones (Radium) DQ1.61: 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.

86. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance – Weakest Answers Tend to Ignore Differences – Better Answers See Arguments that New Facts Change Result – Best Answers Discuss Why New Facts Might or Might Not Change Result

87. Kesler v. Jones (Radium) DQ1.61: 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?

88. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Identify Factual Differences Between Kesler and Albers & Discuss Possible Significance Start by Creating List of Differences

89. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Probably Less Significant Differences (from Prior Years) 1.Semi-Domesticated v. Not (Only Very Mild Help in Albers) 2.Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers) 3.D was F in Kesler; Bought from F in Albers: (Might matter if Q of D being innocent purchaser, but not true in Albers) 4.Caretakers in possession rather than OO ( not clear why this would effect result).

90. Kesler v. Jones (Radium) (Not Shown in Class) DQ1.61: Factual Differences from Albers Differences Possibly Going to Value of Fox Noted in 2015: Clever ideas, although I’m not sure value of individual fox would matter much (as opposed to average value or existence of industry). 1.Color: – Albers Fox = Black or Silver-Black. – Kesler Fox = “Cross-Bred.” Might be what Albers calls “Cross.” 2.Sex – Albers Fox = Male – Kesler Fox = Female. Maybe worth less b/c can’t mate with multiple males at same time. However, foxes tend to have only one mate. See Comparison Box #1.

91. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Probably Most Significant Differences 1.Kesler caretakers still in pursuit when fox killed. 2.Probably shorter time & distance from escape to kill 3.Fox in Kesler had escaped once before & been recaptured. 4.Kesler finder/defendant is not expert. 5.No evidence Kesler fox has tattoo. 6.Kesler takes place in Idaho, not Colorado.

92. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Help OO or F (and Why?) 1.Kesler c aretakers still in pursuit when fox killed. 2.Probably shorter time & distance from escape to kill 3.Fox in Kesler had escaped once before & been recaptured. 4.Kesler finder/defendant is not expert. 5.No evidence Kesler fox has tattoo. 6.Kesler takes place in Idaho, not Colorado.

93. Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from Albers Albers assumes F would win under the rule in Mullett, so it carves out an exception to that rule for valuable wild animals. How does Kesler deal with the Mullett rule?

94. Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from Albers Kesler holds that the fox never returned to natural liberty because she … “had formerly escaped and been recaptured; she had been out of her pen but a short time; her owners were in pursuit [and] she was killed but a short distance from her pen….”

95. Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from Albers Kesler says, “Albers, a case squarely in point, supports the conclusion herein....” [i.e., NOT the reasoning.]

96. Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from Albers Albers: Returns pelt to OO by rejecting Mullett rule & creating new rule for valuable animals v. Kesler: Returns pelt to OO by applying Mullett rule

97. Kesler v. Jones Slides From Here to End Not Shown in Class on October 2. I’ll Go Over Most Important Concepts on Monday After Break, But These Will Allow You to Mostly Complete Your Work on Kesler.

98. Kesler v. Jones BRIEF: Radium 2d Issue (Escape/Unlawful Retention): Did trial court err in entering judgment for defendant because … ??? Helpful to frame in terms of what constitutes return to NL

99. Kesler v. Jones BRIEF: Radium 2d Issue (Escape/Unlawful Retention): Did trial court err in entering judgment for defendant because the original owner of a escaped fox with no intention of returning retains property rights because the fox had not returned to natural liberty, where – it had escaped and been recaptured before, – it was killed a short time and distance from its escape, and – its owners were still pursuing it when it was killed?

100. Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from Albers Note block quote from treatise (p.53): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.”

101. Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from Albers Compare block quote (p.53) to Manning (p.40): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.” v. It “is hardly to be expected … that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion.”

102. Kesler v. Jones : MAJOR POINTS Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers) Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers) Explicit relevance of pursuit, time, distance Explicit relevance of pursuit, time, distance Severability of Property Rights Severability of Property RightsQUESTIONS?

103. Pierson and Kesler : First Possession v. Escape Same terms can have different significance depending on context. Same terms can have different significance depending on context.

104. Pierson and Kesler : First Possession v. Escape Same terms can have different significance depending on context: Pursuit Unowned Animal: Close pursuit insufficient to create ownership. Unowned Animal: Close pursuit insufficient to create ownership. Escaped Animal: Close pursuit may be sufficient to maintain ownership. Escaped Animal: Close pursuit may be sufficient to maintain ownership.

105. Pierson and Kesler : First Possession v. Escape Same terms can have different significance depending on context: Natural Liberty Unowned Animal: Close pursuit insufficient to deprive animal of NL Unowned Animal: Close pursuit insufficient to deprive animal of NL Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL. Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL.