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MUSIC: Paul Winter Canyon (1985)

MUSIC: Paul Winter Canyon (1985). STATUS OF GRADING: Practice Midterms: Ready for Pick-Up Next: Assignment #1 Target Date: Nov. 6. Swift v. Gifford Wrap-Up (Absent Custom). Additional 1 st Possession Animals Case Hard to Resolve Under Prior Cases

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MUSIC: Paul Winter Canyon (1985)

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

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

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

  4. Swift v. Gifford QUESTIONS?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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