1. ELEMENTS B POWER POINT SLIDES Class #22 Wednesday, October 21, 2015

2. Music to Accompany Ghen Uncle Bonsai A Lonely Grain Of Corn (1984) Featuring Song Called Day Old Whale FRIDAY’S CLASS BEGINS @ 9:25 a.m. ON COURSE PAGE NOW Unit Three Materials Updated Syllabus Sample Swift Brief Gp Assmt #1: Q1C2 LATER TODAY: Updated Assignment Sheet Sample Ghen Brief Gp Assmt #1: Q1A2

3. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B Does Custom Apply to Ads in Q (i) Cane-Ade KG Ad (Uranium) & (ii) BB Online Ad (Oxygen) Easy Qs/Hard Qs (Degree of Difficulty)

4. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii) Custom in Question (Sample Breakdown) 1.In the U.S. advertising and broadcasting industries 2.ads for ordinary commercial products and services 3.can’t a.closely imitate; or b.use major components of 4.ads for charitable organizations. Apply to problem like a legal standard.

5. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii) MERE Ad in Q MERE is charitable organization that arranges to build extra rooms onto the houses of families who are taking care of multiple foster children. In MERE’s TV and internet, L-Bow stands in front of a house before renovations and does the EG. At the sound when his arms come together, the camera jumps to a view of L-Bow playing with smiling children in front of the renovated house.

6. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii) Custom in Q: Apply Like Legal Standard 1.In the U.S. advertising and broadcasting industries 2.ads for ordinary commercial products and services 3.can’t a.closely imitate; or b.use major components of 4.ads for charitable organizations. YES. (Easy Q!)

7. REV. PROB. 2B (i): Cane-Ade Ad ( URANIUM) Cane-Ade’s Kerry Grinder (KG) Ad KG in college basketball game “complet[ed] a spectacular dunk shot that included a complete 360 degree turn in the air and then doing the EG as she landed.” KG signed a multi-million dollar contract to become a spokesperson for Cane-Ade, a popular sports drink. Cane-Ade ran TV ads that included footage of KG’s famous dunk including the EG. Networks disagree as to whether it violates custom. [Strong hint that I expect two-sided discussion.]

8. REV. PROB. 2B (i): Cane-Ade Ad Uranium: Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1.In the U.S. advertising and broadcasting industries 2.ads for ordinary commercial products and services 3.can’t a.closely imitate; or b.use major components of 4.ads for charitable organizations. YES. (Easy Q!)

9. REV. PROB. 2B (i): Cane-Ade Ad Uranium: Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1.In U.S. advertising/broadcast industries. YES. (Easy Q!) 2.Ad for ordinary commercial product. YES. (Easy Q!) “All the health benefits of Gator-Ade, but it Tastes Good!” 3.can’t a.Closely imitate: Maybe need more info? b.Use major components of: Harder Q: Discuss 4.Ads for charitable organizations. YES. (Easy Q!)

10. REV. PROB. 2B (i): Cane-Ade Ad Uranium: Policy as Tie-Breaker? Custom in Q: Apply Like Legal Standard Can’t a.Closely imitate: Maybe need more info? b.Use major components of: Harder Q: Discuss purpose If unsure, can look to purpose of custom: take advantage of the efforts of charities might suggest to consumers that they are part of the charitable enterprise “Many people in the industry believe that it is unethical when for-profit companies take advantage of the efforts of charities, especially if their ads might suggest to consumers that they are part of the charitable enterprise. Does Cane-Ade Ad Do This? Does Cane-Ade Ad Do This?

11. REV. PROB. 2B (ii): BB Online OXYGEN Online Footage of BB Doing the EG BB developed a diet and exercise program to allow more people to do the EG. After using his own program for several years, BB succeeded in doing the EG. BB began marketing his program for profit on the internet. To demonstrate that the program worked, website provided footage of BB doing the EG himself.

12. REV. PROB. 2B (ii): BB Online Oxygen: Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1.In the U.S. advertising and broadcasting industries 2.ads for ordinary commercial products and services 3.can’t a.closely imitate; or b.Use major components of (Already Done Discussion of EG as Major Component; Cross-Reference) 4.ads for charitable organizations. YES. (Easy Q!)

13. REV. PROB. 2B (ii): BB Online Oxygen: Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1.In U.S. advertising and broadcast industries (Interesting Q: Discuss) 2.ad for ordinary comm’l services. YES. (Easy Q!) 3.can’t a.closely imitate (Interesting Q: Discuss)

14. REV. PROB. 2B (ii): BB Online Oxygen: Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard In U.S. advertising/broadcast industries (Interesting Q) Can’t closely imitate (Interesting Q) purpose If unsure, can look to purpose of custom: take advantage of the efforts of charities might suggest to consumers that they are part of the charitable enterprise “Many people in the industry believe that it is unethical when for-profit companies take advantage of the efforts of charities, especially if their ads might suggest to consumers that they are part of the charitable enterprise. Does Cane-Ade Ad Do This? Does Cane-Ade Ad Do This? Matter that EG Closely Tied to Product Itself? Matter that EG Closely Tied to Product Itself?

15. Ghen v. Rich (1881) RADIUM: BRIEF & DQs 2.17-2.18 KRYPTON: DQ2.16 OXYGEN: DQ2.19 Paul Gauguin, The Beach at Dieppe (1885)

16. Ghen v. Rich (Oxygen): DQ2.19 E-Participation Due Thursday 10/22 @ 8pm Dubins * Monteiro * Rashid * Reyes “Bad Ghen Brief” on Course Page In the brief, try to identify as many substantive mistakes and questionable statements about the case as you can. Don’t worry that their briefing form is different from ours. Work-Product: Annotated copy of brief, listing any mistakes under relevant headings. E-Mail directly to me using real names (No Pseudonyms!)

17. Ghen v. Rich We move from the North Pacific to Cape Cod Massachusetts (and to Cranberry Headings)

18. Ghen v. Rich (1881) DQ2.17: Historical Context: RADIUM Taber = 1856; Bartlett = 1868; Swift = 1872 Two Significant Events Probably Relevant to Timing of Dispute Being Litigated inGhen: 1.U.S. Civil War 2.Completion of Transcontinental Railroad Ideas About Why Relevant?

19. Ghen v. Rich (1881) DQ2.17: Historical Context: RADIUM 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 ports no longer profitable Gives New England whalers reason to find ways to make fin-back whaling more possible

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

21. Ghen v. Rich (Radium) 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].

22. Ghen v. Rich (Radium) 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].

23. Ghen v. Rich (Radium) 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]. ??

24. Ghen v. Rich (Radium) 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.

25. Ghen v. Rich (Radium) BRIEF: FACTS As in Swift, Crucial Fact = Custom 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

26. Ghen v. Rich (Radium) 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 might have known” that a professional whaler killed the whale. – Can’t really translate as “should have known” – Stronger & term of art; can say “could have known”

27. Ghen v. Rich On These Facts Who Gets Whale? (Complex) What would happen without custom? 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? Should custom apply as law? DQ2.16: Let’s Look at Precedent We Have with KRYPTONS

28. Ghen v. Rich (Krypton): DQ2.16: 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.”?

29. Ghen v. Rich (Krypton): DQ2.16: 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

30. Ghen v. Rich (Krypton): DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Marking/Finder’s Knowledge?

31. Ghen v. Rich (Krypton): DQ2.16: 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 (but see Prather point & Slide 39: maybe OK b/c outsiders can’t use product w/o expert help) Time/Distance? – Kill to find: 3 days & 17 miles – Find to claim by killer: 3 days – Helpful to …? Because….?

32. Ghen v. Rich (Krypton): DQ2.16: 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?

33. Ghen v. Rich (Krypton): DQ2.16: 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?

34. Ghen v. Rich (Krypton): DQ2.16: 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 if OK w Finder outside industry

35. Ghen v. Rich (Krypton): DQ2.16: 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? Because …?

36. Ghen v. Rich (Krypton): DQ2.16: 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 in last para p.76): If fisherman does all he can do to make animal his own, would seem to be sufficient. All differences on previous slide seem unavoidable given technology.

37. Ghen v. Rich (Krypton): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? Look at: 1.Doesn’t affect outsiders? 2.Used by entire business for a long time? 3.Legal rule harder to apply than custom? 4.Custom is reasonable?

38. Ghen v. Rich (Krypton): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 1. Doesn’t affect outsiders? Obviously can affect outsiders who find whales (beachcombing tourists). Why might we think this isn’t a big problem?

39. Ghen v. Rich (Krypton): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 1.Doesn’t affect outsiders: Sometimes does, but maybe OK b/c can’t process whale w/o people in industry (have to learn about custom to get value) 2.Used by entire business for a long time? Court says YES. 3.Legal rule harder to apply than custom?

40. Ghen v. Rich (Krypton): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 3. Legal rule harder to apply than custom? Unclear. – Court suggests killer might win under Taber/Bartlett – Would be similar facts over & over, so likely to be pretty certain over time. 4. Custom is reasonable?

41. Ghen v. Rich (Krypton): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 4. Custom is reasonable? – Whalers doing all they can. – Necessary for Continued Operation of Industry – Finder Gets Fee – [Could reference limited harm to outsiders here]. Qs on Ghen?

42. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2C (FRIDAY) Should Custom be Treated as Law: Relevant Analysis Swift Factors: Affect Outsiders Used by Whole Industry for Long Time Easier to Use than Existing Legal Rules (Certainty) Reasonableness Ghen: Necessary for Industry to Operate Could do as separate factor Could do as part of Reasonableness analysis NOTE: Can’t be required b/c not true in Swift (other regions had different customs)

43. DEMSETZ FIRST THESIS We’ll Use on All Unit III Cases 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

44. DEMSETZ FIRST THESIS & DQ2.18 Development of Ghen Custom (RADIUM) Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Ext. = Sometimes whaler lost whale he killed (= investment)  less whaling Identify change in circumstances? Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

45. DEMSETZ FIRST THESIS & DQ2.18 Development of Ghen Custom (RADIUM) Activity = Collecting Whales from Beach Old Rule + Finder’s Keepers Ext. = Sometimes whaler lost whale & investment Change: Killing Finbacks w Marked Bomb- Lances (from causes we’ve discussed + marking to limit disputes) Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

46. DEMSETZ FIRST THESIS & DQ2.18 Development of Ghen Custom (RADIUM) Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Ext. = Sometimes whaler lost whale he killed Change: Killing Finbacks w Marked Bomb-Lances Ext.  Industry arises/more whales & $$$ Cost of externalities > cost of change  change in rule? (Describe)

47. DEMSETZ FIRST THESIS & DQ2.18 Development of Ghen Custom (RADIUM) Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Ext. = Sometimes whaler lost whale he killed Change: Killing Finbacks w Bomb-Lances Ext.  Industry arises/more whales & $$$ Higher Externalities > Social Inertia  Custom Develops

48. DEMSETZ FIRST THESIS & DQ2.18 Development of Ghen Custom (RADIUM) Ext.  Industry arises/more whales & $$$ High Externalities > Social Inertia  Custom Develops NOTE: If some folks on shore don’t follow custom (as in Ghen), externalities remain high, so pressure for further change should lead to litigation or legislation and (perhaps) adoption of custom as law. QUESTIONS?

49. Closing Up Whaling Cases 1.Whaling Cases on property rights & custom = “Animals Cases” for purposes of exam 2.Treat salvage as alternative, not part of ACs 3.Useful exercise: Apply Whaling cases & Rose to wolverine problem. 4.Might do charts of Whaling cases mapping, e.g., Labor; Marking; Applicability of Custom (fact Q); Decision to Treat Custom as Law (legal Q) QUESTIONS?