ELEMENTS%20B1%20

1
ELEMENTS B1 B2 POWER POINT SLIDES

• Class 19
• Wednesday, September 28, 2016
• Thursday, September 29, 2016
• .

2
The Essential Louis Armstrong Disc 1
(Recordings 1925-30)

• Pre-Midterm Office Hours
• Thu 10-11 a.m.
• Thu 330-530 p.m.
• Ill Respond to Reasonable E-Mail Qs Sent by 400
  p.m. Thursday

• Thursday B2 Lunch
• Meet on Bricks _at_ 1230
• Beltran Bernstein Fish
• Fontalvo Ledbetter
• Shevlin Stevenson
• Very Last Lunch!

3
Group Written Assignment 2McKinley v. FordThe
Case of the Wounded Wolverine
4
Skills Applying Legal AuthorityGroup Written
Assignment 2

• Important Exam Task/Skill Apply Authorities
  Studied to New Hypothetical or Fact Pattern
• Assmt 1 Structured Sequence of Particular
  Arguments from a Single Authority
• Assmt 2 Wider Range of Arguments from Multiple
  Authorities

5
Skills Applying Legal AuthorityGroup Written
Assignment 2

• Wide Range of Arguments w 3 Limits
• Each Team Only Addresses One Issue
• First Possession Was There a Moment When
  Wolverine Became Property of P?
• Escape Did P Lose Property Rights When
  Wolverine Escaped to Ds Property (Must Assume
  P Acquired a Property Right)

6
Skills Applying Legal AuthorityGroup Written
Assignment 2

• Wide Range of Arguments w 3 Limits
• Each Team Only Addresses One of Two Issues (1st
  Possession -OR- Escape)
• Stick to Your Issue
• Be Very Careful to Explain Relevance If You Use
  Authority Focused on Other Issue

7
Skills Applying Legal AuthorityGroup Written
Assignment 2

• Wide Range of Arguments w 3 Limits
• Each Team Only Addresses One Issue
• Representing One Particular Party
• All Arguments Must Support Your Client
• Legal Smeagols Identify Other Sides Best
  Arguments, Then Respond to Them

8
Skills Applying Legal AuthorityGroup Written
Assignment 2

• Wide Range of Arguments w 3 Limits
• Each Team Only Addresses One Issue
• Representing One Particular Party
• Arguments must be based on the materials in Unit
  One.
• No arguments based on Whaling Cases on Rose
  Article from Unit Two
• Can include policy arguments weve discussed even
  if not clearly stated in Unit One materials.

9
Skills Applying Legal AuthorityGroup Written
Assignment 2

• One Argument Means One Subject
• E.g., Arguments Made in Assignment 1
• Applying One Legal Test
• Comparing Facts of One Case to Hypo
• Applying One Relevant Policy Consideration

10
Skills Applying Legal AuthorityGroup Written
Assignment 2

• One Argument Means One Subject
• E.g., Arguments Made in Assignment 1
• E.g., Applying One Relevant Factor
• Mortal Wounding
• Return to Natural Liberty
• Deriving a Rule from Multiple Cases and Applying
  It
• See DQ1.28 (1st Possession Cases)
• See DQ1.53 (Manning Mullett)

11
Skills Applying Legal AuthorityGroup Written
Assignment 2

• One Argument Means One Subject
• Some Degree of Judgment Involved
• Mortal Wounding ( Pursuit?)
• Two Similar Tests from Separate Cases?
• Address Counter-Argument in Same Argument or
  Separately?
• When in Doubt, Avoid Substantial Overlap

12
Skills Applying Legal AuthorityGroup Written
Assignment 2

• Working Together
• Be Responsible for Submission as a Whole
• Covering all Key Arguments You Identify
• Addressing Key Counterarguments
• Separating Out Different Ideas
• Avoiding Substantial Overlap
• Due October 23 (Sunday Two Weeks after Break)
• Before Break Coordinator Should Try to Start to
  Work Out Individual Responsibilities and Timing
• Cooperate to Achieve Best Possible Joint Product

13
Skills Applying Legal AuthorityGroup Written
Assignment 2

• General Points
• Care re Formatting Substantive Directions
• Review Common Writing Concerns
• Look at Feedback on Assignment 1
• Comments Best Answers Memo on Course Page
• Individual Comments on Your Work Will Start
  Appearing During Break
• QUESTIONS?

14
Kesler v. JonesHolding Use as Precedent in
Escape Problems

15
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 foxs pelt. D refused.
  

16
Kesler v. JonesDQ1.61 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
• Can do DQ1.61 as Midterm Prep
• Similar exercise on course page if change facts
  in wolverine problem, how might it affect result?

17
Kesler v. JonesDQ1.62 Differences in Analysis
from Albers

• Albers assumes F wins under Mullett rule, so it
  rejects use of that rule for valuable wild
  animals.
• Kesler says, Albers, a case squarely in point,
  supports the conclusion herein .... i.e., NOT
  the reasoning.

18
Kesler DQ1.62 Differences in Analysis from
Albers

• Albers assumes F wins under Mullett rule, so it
  rejects use of that rule for valuable wild
  animals.
• Kesler reaches same result (OO wins) by applying
  Mullett rule, holding that the fox never returned
  to natural liberty

19
Kesler DQ1.62 Differences in Analysis from
Albers

• Albers assumes F wins under Mullett rule, so it
  rejects use of that rule for valuable wild
  animals.
• Kesler reaches same result (OO wins) by applying
  Mullett rule, holding that the fox never returned
  to natural liberty because she
• had formerly escaped and been recaptured NOTE
  Different from escape return by animal
• 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.

20
Kesler MAJOR ESCAPE POINTS

• Escaped wild animal not returned to natural
  liberty if closely pursued with good possibility
  of recapture.
• Unlike Albers, explicitly makes relevant
• Pursuit Helps OO, especially if continues until
  F arrrives
• Short Time Distance Helps OO, at least by
  showing OO hasnt completely lost control.
• Unlike Albers, no reference at all to
• Marking or Fs Knowledge
• Value of Animal, Investment, or Industry
• QUESTIONS?

21
Pierson and Kesler First Possession v. Escape

• Same terms can have different significance
  depending on context.

22
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.
• Escaped Animal Close pursuit may be sufficient
  to maintain ownership.

23
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
• Escaped Animal Close pursuit may be sufficient
  to prevent animal from returning to NL.

24
Manning and Mullett Factors Under Albers
Kesler
FACTOR Albers Kesler
TAMING/ INVESTMT Valuable Animal Industry ? Helps OO (Dont Use Mullett Rule) No Mention
MARKING Marking Other Forms of Fs Knowledge Help OO No Mention
TIME/ DISTANCE Short Time Distance BUT No Mention Short Time/Distance Help OO (Can Show No NL)
ABANDON- MENT Pursuit Seems to Help OO Can Have Abandmt by Compulsion Ongoing Pursuit Helps OO (Can Show No NL)
ANIMUS REV. Individual Not Species Prior Recapture (Relevant to NL not AR)
RETURN TO NL Court Assumes Yes Not in List of Relevant Facts Under New Rule No NL If Close Pursuit Short Time/Distance
25
Fall Break

• 1. Generally
• a. Day or two really off
• b. Steady work on individual courses avoid
  juggling problem by doing at least one solid day
  for each course
• 2. For Elements
• Ill Post Clean-Up Assignment re Albers/Kesler
  for 1st Class Back
• Ill Post Unit Two Materials Assignments Can
  read ahead (Taber/Bartlett/Swift), but dont do
  Ghen until we do the others.
• Use experience of midterm ( posted comments
  models) to guide studying/outlining
• Ill be around most of break if you have Qs, you
  can e-mail me for appointment

26
The Logic of Albers

• 2. Domesticated or Wild?
• Determine by Individual not Species
• Birth in Captivity Irrelevant
• Taxation of Fur Foxes? (DQ1.56(c)) (featuring
  G.I. Joe!) Continued from Class 18
• Blacks Definition of Domestic Animal

27
Characterization of Same Item in Different Legal
Contexts

• Sensible to argue that legal treatment of the
  item in one context should be RELEVANT to its
  treatment in other contexts.
• BUT be aware that, because different sets of
  rules have different purposes, there is no
  requirement that an item has to be treated in a
  consistent manner by different sets of applicable
  rules.
• E.g., characterizations for tax purposes are
  frequently different than others.

28
Characterization of Same Item in Different Legal
Contexts

• G.I. Joe
• I am an Action Figure

29
Characterization of Same Item in Different Legal
Contexts

• G.I. Joe
• I am an Action Figure
• even though
• Customs Regulations

30
Characterization of Same Item in Different Legal
Contexts

• G.I. Joe
• I am an Action Figure
• even though Customs Regulations
• call me a
• Doll ?

31
The Logic of Albers

• 2. Domesticated or Wild?
• Determine by Individual not Species
• Birth in Captivity Irrelevant
• Taxation of Fur Foxes Irrelevant
• Blacks Law Dictionary Definition of Domestic
  Animal

32
The Logic of Albers Domesticated or Wild? (4)

• Top para. p.48 Mr. Black's definition of
  domestic animals as
• such as contribute to the support of a family or
  the wealth of a community
• would include all fur-bearing animals held in
  captivity, wherever born or however wild.

33
The Logic of Albers Domesticated or Wild? (4)

• Top para. p.48 Mr. Black's definition of
  domestic animals as such as contribute to the
  support of a family or the wealth of a community
  would include all fur-bearing animals held in
  captivity, wherever born or however wild.
• Again, P must have argued that, b/c she makes
  off of foxes, they are domestic animals under
  this definition.
• The court in italicized phrase rejects the
  definition as too inclusive, and thus
  inconsistent with requiring individualized
  determination of domestic v. wild.

34
The Logic of Albers Domesticated or Wild? (4)

• Top para. p.48 Mr. Black's definition of
  domestic animals as such as contribute to the
  support of a family or the wealth of a community
  would include all fur-bearing animals held in
  captivity, wherever born or however wild.
• Would include here is conditional form, used to
  describe hypothetical situations.

35
The Logic of Albers Domesticated or Wild? (4)

• Top para. p.48 Mr. Black's definition of
  domestic animals as such as contribute to the
  support of a family or the wealth of a community
  would include all fur-bearing animals held in
  captivity, wherever born or however wild.
• Sense here is If we adopted this as the legal
  definition (which we wont), all fur-bearing
  animals in captivity would be characterized as
  domestic animals (which would be wrong).

36
The Logic of Albers

• 2. Domesticated or Wild?
• Determine by Individual
• Birth in Captivity Irrelevant
• Taxation of Fur Foxes Irrelevant
• Blacks Definition of Domestic Animal Too
  Broad
• As noted, Colorado S.Ct. mustve decided the fox
  was wild or case would be much shorter/simpler
• Questions?

37
The Logic of Albers

• What The Case Holds
• Domesticated or Wild?
• Addressing Prior Authority
• Critique

38
The Logic of Albers

• 3. Addressing Prior Authority
• Tort Liability v. Property Rights
• Prior Escape Cases
• Manning (DQ1.55)
• Generally (DQ1.57(a))
• Ontario Case (DQ1.56(a))
• Wholly Inapplicable Cases
• Statute re Common Law (DQ1.56(b))

39
The Logic of Albers Addressing Prior Authority

• p.48 (3d para.) Discussion of legal connection
  between tort liability and property rights
• Well come back to next time
• with Kesler DQ1.60

40
The Logic of Albers

• 3. Addressing Prior Authority
• Tort Liability v. Property Rights
• Prior Escape Cases
• Manning (DQ1.55) We Did Earlier
• Generally (DQ1.57)
• Ontario Case (DQ1.56(a))
• Wholly Inapplicable Cases
• Statute re Common Law (DQ1.56(b))

41
The Logic of Albers

• 3. Addressing Prior Authority
• Tort Liability v. Property Rights
• Prior Escape Cases
• Manning
• Generally (DQ1.57(a))
• Ontario Case (DQ1.56(a))
• Wholly Inapplicable Cases
• Statute re Common Law (DQ1.56(b))

42
The Logic of Albers Addressing Prior
AuthorityDQ1.57(a)

• Top p.48 Prior authorities on escape are rather
  confusing than enlightening.

43
The Logic of Albers Addressing Prior
AuthorityDQ1.57(a)

• Top p.48 Prior authorities even suggest that
  one modification of the rule would permit the
  owner to recover if he could identify his
  property.
• Even means here?

44
The Logic of Albers Addressing Prior
AuthorityDQ1.57(a)

• Top p.48 Prior authorities even wrongly/
  stupidly go so far as to suggest that one
  modification of the rule would permit the owner
  to recover if he merely could identify his
  property. We know of no case so applying it (save
  those dealing with bees) .

45
The Logic of Albers Addressing Prior
AuthorityDQ1.57(a)

• Top p.48 Prior authorities even suggest that
  one modification of the rule would permit the
  owner to recover if he could identify his
  property The injustice of its application to
  one who captures or kills ordinary wild animals
  which have escaped from restraint and returned to
  their natural habitat is apparent.
• To whom does court think its unjust?

46
The Logic of Albers Addressing Prior
AuthorityDQ1.57(a)

• The injustice of its application to one who
  captures or kills ordinary wild animals which
  have escaped from restraint and returned to their
  natural habitat is apparent.
• Under modification, OO always wins if can i.d.
  animal., so must be unjust to F.
• Possible Reasons Why Unjust?

47
The Logic of Albers Addressing Prior
AuthorityDQ1.57(a)

• The injustice of its application to one who
  captures or kills ordinary wild animals which
  have escaped from restraint and returned to their
  natural habitat is apparent.
• Must be unjust to F, since under modification
  OO always wins if can i.d. animal.
• Maybe because F has no notice (ordinary
  animals)
• Maybe because F might start to invest
• Also maybe because OO hasnt done enough to
  control

48
The Logic of Albers

• 3. Addressing Prior Authority
• Tort Liability v. Property Rights
• Prior Escape Cases
• Manning
• Generally
• Ontario Case (DQ1.56(a))
• Wholly Inapplicable Cases
• Statute re Common Law (DQ1.56(b))

49
The Logic of Albers Addressing Prior
AuthorityDQ1.56(a) KRYPTON

• Campbell v. Hedley (Ontario 1917)
• Essentially same facts as Albers.
• In an action to recover the value of the fox
  pelt the plaintiff was defeated. That court
  applied the common-law rule, citing Blackstone
  and Mullett.

50
The Logic of Albers Addressing Prior
AuthorityDQ1.56(a) KRYPTON

• Campbell v. Hedley (Ontario 1917)
• Essentially same facts as Albers. Finder wins
  under common law rule.
• Ontario legislature corrects the case by
  passing An act for the protection of property in
  foxes kept in captivity. Presumably protecting
  fox-fur industry
• What is the significance to the logic of Albers
  of the Ontario statute correcting the case?

51
The Logic of Albers Addressing Prior Authority

• Campbell v. Hedley (Ontario 1917) Essentially
  same facts as Albers. Finder wins under common
  law rule.
• Ontario legislature corrects by passing An act
  for the protection of property in foxes kept in
  captivity.
• Colo. S.Ct
• Ontario legislature found it necessary to
  correct the common law rule because it was so
  inapplicable to present-day conditions. (bottom
  p.48)
• Supports argument that common law rule shouldnt
  be used where theres a fox-fur industry and so
  is inapplicable.

52
The Logic of Albers Addressing Prior Authority

• Campbell v. Hedley (Ontario 1917) Essentially
  same facts as Albers. Finder wins under common
  law rule.
• Ontario legislature corrects by passing An act
  for the protection of property in foxes kept in
  captivity.
• Colo. S.Ct Ontario legislature found it
  necessary to correct the common law rule because
  it was so inapplicable to present-day
  conditions. Supports argument that common law
  rule shouldnt be used where theres a fox-fur
  industry and so is inapplicable.
• Questions on Use of Ontario Law?

53
The Logic of Albers

• 3. Addressing Prior Authority
• Tort Liability v. Property Rights
• Prior Escape Cases
• Wholly Inapplicable Cases
• Statute re Common Law (DQ1.56(b))

54
The Logic of Albers Addressing Prior Authority

• (1st full para. p.48) We take no notice of
  cases involving theft from traps cages and
  theft of dogs because they are wholly
  inapplicable.
• OO would win all these cases, so P must have
  raised them.
• Wholly inapplicable because they involve either
  domestic animals or animals completely within
  control of owner.

55
The Logic of Albers

• 3. Addressing Prior Authority
• Tort Liability v. Property Rights
• Prior Escape Cases
• Wholly Inapplicable Cases
• Statute re Common Law (DQ1.56(b)) (KRYPTON)

56
The Logic of Albers Addressing Prior
AuthorityDQ1.56(b) KRYPTON

• 1861 Colo. Statute (Bottom p.48)
• The common law of England, so far as the same is
  applicable and of a general nature shall be the
  rule of decision, and shall be considered as of
  full force until repealed by legislative
  authority.
• What argument did D make
• relying on this statute?

57
The Logic of Albers Addressing Prior
AuthorityDQ1.56(b) KRYPTON

• 1861 Colo. Statute (Bottom p.48) The common law
  of England, so far as the same is applicable and
  of a general nature shall be the rule of
  decision, and shall be considered as of full
  force until repealed by legislative authority.
• D must have argued that statute required the
  court to follow the common law Mullett-Blackstone
  rule, since not repealed by Colo. Legislature.
• Why did the court reject the argument?

58
The Logic of Albers Addressing Prior
AuthorityDQ1.56(b) KRYPTON

• 1861 Colo. Statute The common law of England, so
  far as the same is applicable shall be the rule
  of decision
• Court finds the common law rule inapplicable
  because unsuited to present conditions
• Cites Morris (an earlier Colo. Case) as rejecting
  a common law rule for the same reason.
• Why unsuited here?

59
The Logic of Albers Addressing Prior
AuthorityDQ1.56(b) KRYPTON

• Court finds the common law rule inapplicable
  because unsuited to present conditions.
• Why unsuited here?
• Common Law Rule designed under assumption that
  wild animals had no material value
• Before development of breeding farms and zoos
• Need different rule to account for significant
  value

60
The Logic of Albers Addressing Prior
AuthorityDQ1.56(b)

• Court finds the common law rule inapplicable
  because unsuited to present conditions.
• Common Law Rule assumed wild animals had no
  material value
• Since that is no longer true, need different
  rule.
• Common Type of Legal Argument Check purpose of
  old rule to see if it should still apply.
• Questions?

61
The Logic of Albers

• What The Case Holds
• Domesticated or Wild?
• Addressing Prior Authority
• Critique DQ1.58-1.59

62
The Logic of Albers Critique DQ 1.59 KRYPTON

• Can you describe what happened in Albers in terms
  of Demsetzs first thesis?

63
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 gt cost of change ?
  change in rule

64
The Logic of Albers CritiqueKRYPTON DQ1.59
Demsetzs 1st Thesis

• Decision Finders Choice Keep found animal or
  pelt v. Look for OO
• Old Rule Mullett/ Blackstone Rule
• Externalities?

65
The Logic of Albers CritiqueKRYPTON DQ1.59
Demsetzs 1st Thesis

• Decision F keep found animal v. Look for OO
• Old Rule Mullett/ Blackstone Rule
• Externalities? OO Losses (Investment Affection)
• Change in Circumstances?

66
The Logic of Albers CritiqueKRYPTON DQ1.59
Demsetzs 1st 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?

67
The Logic of Albers CritiqueKRYPTON DQ1.59
Demsetzs 1st 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?

68
The Logic of Albers CritiqueKRYPTON DQ1.59
Demsetzs 1st 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?

69
The Logic of Albers CritiqueKRYPTON DQ1.59
Demsetzs 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.

70
The Logic of Albers CritiqueKRYPTON DQ1.58
(Authority of Colo. S.Ct.)

• 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.

71
The Logic of Albers CritiqueKRYPTON DQ1.58
(Authority of Colo. S.Ct.)

• Pros/cons of allowing courts to alter/develop law
  (as in Albers) v. legislature (as in Ontario)?

72
The Logic of Albers CritiqueKRYPTON 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?

73
The Logic of Albers CritiqueKRYPTON 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

74
The Logic of Albers CritiqueKRYPTON 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 patients 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 shouldve asked/told.
• Already established tort caselaw re standards for
  medical disclosure.

75
The Logic of Albers CritiqueKRYPTON 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)

76
Skills Exam Prep( Fall Break)

• Lot of Info Today
• Ill Go Through Fast Because Youll Have Slides
• E-Mail Me if Qs

77
Skills Exam Prep( Fall Break)

• Try to Think About Exam Prep
• 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

78
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. Ill 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

79
Skills Exam Prep( Fall Break)

• Exam Technique Generally
• Ill Create Exam Headquarters at Bottom of
  Course Page
• Ill Post Soon a Short Memo on General Exam
  Technique
• I do Faculty-Perspective Exam Skills Workshops in
  November
• Dates, Times, Locations on Assignment Sheet
• Worth your time (very well-received)
• I am worlds leading expert on what I look for in
  student exam answers to my own tests. ?

80
Skills Exam Prep( Fall Break)

• Applying Legal Authority to New Sets of Facts
• Most 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 Briefs
• Take/Retake Self-Quizzes
• Look at Comments/Models for Assignment 1 Write
  Up of DQ1.48 (Coming)
• If in Doubt, Ask Qs or Reread

81
Skills Exam Prep( Fall Break)

• Applying Legal Authority to New Sets of Facts
• Most 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
  Cases
• Posted Shack Hypo As Exam Q (Comments/Models
  Posted Soon)
• Apply Individual Unit One Cases to Issues in
  Whaling Cases

82
Skills Exam Prep( Fall Break)

• Applying Legal Authority to New Sets of Facts
• More Complex Applying Group of Cases to New
  Situation
• Examples Group Assignment 2 DQs 1.28 DQ1.53

83
Skills Exam Prep( Fall Break)

• Applying Legal Authority to New Sets of Facts
• More 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-Ups
• Case Charting

84
CHARTING AS STUDY TOOL
FACTOR MANNING MULLETT ALBERS
MARKING/ FINDERS 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 Natl 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 cant take Seal in Millpond Bear in City looks like FK Has Blackstone language re mark only matters if AR
likely permanent
85
Skills Exam Prep( Fall Break)

• Applying Legal Authority to New Sets of Facts
• More 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 Group
• Work on Group Assignment 2
• Take Elements Practice Midterm

86
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)
• c. Go through Comments /Best Answers Memo
• d. Bring me Specific Qs (I cant go through 76
  line-by-line)

87
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 Dont Involve Live
  Animals

88
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 1st Ship Acquired
  Property Rights by Killing Whale (Kodak Moment)

89
Legal Framework of Taber Bartlett

• Kodak Moment (1913)

90
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 1st Ship Acquired
  Property Rights by Killing Whale
• Issue Like Escape Cases Did 1st Crew Lose
  Property Rights by Leaving Whale Behind? So
  Well Try to Apply Factors from Escaping Animals
  Cases (See DQ2.01)

91
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 cant provide for itself)

92
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 cant tell theres an OO

93
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 Dont Involve Live Animals
• Oil Gas Law Minerals ferae naturae
• The Internet, Analogy the Future of Lawyering
• Leads us into Second Type of Skill

94
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

95
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

96
FINAL EXAM QUESTIONS 1 2

• Single Fact Pattern for Both
• Will Involve Type of Property Not Explicitly
  Covered in Course
• Ill 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)

97
FINAL EXAM QUESTIONS 1 2

• XQ1 Assuming Animals Cases Apply, Discuss Who
  Should Get Property Rights?
• Basically Issue-Spotter Like Practice Midterm
• Same Skills Weve Been Working On
• Same Close Knowledge of Cases Required
• But Need to Be Creative Applying Doctrine
• E.g., Whale Carcasses Natural Liberty

98
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 Well 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?

99
Back to Work!!
100
Kesler v. Jones RadiumIn-Class Brief
DQ1.60-1.62

• MARIE CURIE Discoverer of Radium

101
Kesler v. Jones BRIEF Radium

• Statement of the Case
• Kesler and the Davises ???
• sued Jones
• for cause of action
• seeking remedy.

102
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

103
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.

104
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
  neighbors chickens and kept its pelt,
• Need both killing keeping pelt.
• for cause of action ???
• seeking remedy.

105
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 neighbors chickens and kept
  its pelt,
• for unlawful killing of the fox and unlawful
  retention of its pelt
• seeking remedy ??? Case doesnt say
  explicitly. Hint from case?

106
Kesler v. Jones BRIEF Radium

• Statement of the Case
• seeking remedy ??? Case doesnt say
  explicitly. Hint from case?
• Court orders new trial to determine the value of
  the pelt ? seeking damages

107
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 neighbors chickens and kept
  its pelt, for unlawful killing of the fox and
  unlawful retention of its pelt presumably
  seeking damages.
• PROCEDURAL POSTURE?

108
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?

109
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
• the cause remanded for a new trial

110
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 foxs pelt. D refused.
  

111
Kesler v. Jones BRIEF Radium

• How Many Radiums Saw That There Were Two Issues
  in Case? (Show of Hands)
• (Uraniums are Radioactive for This Purpose and
  Must Be Silent and Still!)

112
Kesler v. Jones BRIEF Radium

• How You Know There Are Two Issues In Case
• 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)
• Judgment is affirmed in part, reversed in part.
  Means
• One issue decided in favor of D
• One issue decided in favor of Ps

113
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 doesnt say why Ps thought the killing was
  unreasonable
• We arent studying defenses to intentional torts
  here, so dont have other examples to look at.

114
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 neighbors chickens from the fox?
• Probably helpful to also include some language
  about reasonableness.

115
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
  neighbors chickens from the fox.
• QUESTIONS?

116
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?

117
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

118
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

119
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.

120
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).

121
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.

122
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?

123
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 well look at factual differences.

124
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

125
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
• Ill give you an exercise later if change facts
  in wolverine problem, how might it affect result?

126
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

127
Kesler v. Jones (Radium) DQ1.61 Factual
Differences from Albers

• Probably Less Significant Differences (from Prior
  Years)
• Semi-Domesticated v. Not (Only Very Mild Help in
  Albers)
• Level of Security Employed by OO (Doesnt Seem
  Very Significant in Albers)
• D was F in Kesler Bought from F in Albers
  (Might matter if Q of D being innocent purchaser,
  but not true in Albers)
• Caretakers in possession rather than OO (not
  clear why this would effect result).

128
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 Im not sure value of
  individual fox would matter much (as opposed to
  average value or existence of industry).
• Color
• Albers Fox Black or Silver-Black.
• Kesler Fox Cross-Bred. Might be what Albers
  calls Cross.
• Sex
• Albers Fox Male
• Kesler Fox Female. Maybe worth less b/c cant
  mate with multiple males at same time. However,
  foxes tend to have only one mate. See Comparison
  Box 1.

129
Kesler v. Jones (Radium) DQ1.61 Factual
Differences from Albers

• Probably Most Significant Differences
• Kesler caretakers still in pursuit when fox
  killed.
• Probably shorter time distance from escape to
  kill
• Fox in Kesler had escaped once before been
  recaptured.
• Kesler finder/defendant is not expert.
• No evidence Kesler fox has tattoo.
• Kesler takes place in Idaho, not Colorado.

130
Kesler v. Jones (Radium) DQ1.61 Factual
Differences from Albers

• Help OO or F (and Why?)
• Kesler caretakers still in pursuit when fox
  killed.
• Probably shorter time distance from escape to
  kill
• Fox in Kesler had escaped once before been
  recaptured.
• Kesler finder/defendant is not expert.
• No evidence Kesler fox has tattoo.
• Kesler takes place in Idaho, not Colorado.

131
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
• Ill give you an exercise later if change facts
  in wolverine problem, how might it affect result?

132
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 foxs pelt. D refused.
  

133
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?

134
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.

135
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.

136
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

137
Kesler v. Jones

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

138
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

139
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?

140
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.

141
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.

142
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)
• Explicit relevance of pursuit, time, distance
• Severability of Property Rights
• QUESTIONS?

143
Pierson and Kesler First Possession v. Escape

• Same terms can have different significance
  depending on context.

144
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.
• Escaped Animal Close pursuit may be sufficient
  to maintain ownership.

145
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
• Escaped Animal Close pursuit may be sufficient
  to prevent animal from returning to NL.

146
LOGISTICS CLASS 15

• GROUP ASSIGNMENTS
• Group Assignment 1
• Comments Good Student Answers Posted
• Comments on Your Work Posted as Complete
• Group Assignment 2
• Instructions Posted with Teams.
• Ill Take Qs in Class Wednesday
• Coordinators Might Want to Start Arranging
  Logistics So You Have a Game Plan by Break

147
UNIT II EXTENSION BY ANALOGY Part 1 WHALING
CASES

• QUESTIONS ON
• Instructions for Briefing Trial Court Cases
  (59-60)
• Intro to Whaling Cases (60-62)
• Glossary (63)

148
UNIT II EXTENSION BY ANALOGY Part 1 WHALING
CASES

• MAJOR LEGAL Qs COVERED
• Taber v. Jenny Escape (by Analogy) Custom
• Bartlett v. Budd Escape (by Analogy) Custom
• Swift v. Gifford 1st Possession Custom (Key)
• Ghen v. Rich Like Wolverine Problem (Both 1st
  Possession Escape (by Analogy)) Custom (Key)

149
Return to Mullett v. Bradley Factors Applied
to

• DQ1.51
• Facts of
• Manning
• (KRYPTON)

• DQ1.54
• Facts of
• Albers
• (RADIUM)