MUSIC: ISAAC ALBENIZ WORKS FOR PIANO (1880-99) Alicia de Larrocha , Piano (Recordings1959, 1992)

1. MUSIC: ISAAC ALBENIZWORKS FOR PIANO (1880-99)Alicia de Larrocha, Piano (Recordings1959, 1992) Correct Me if I Call on Wrong Panel by Mistake! ALL: Written Assmt. #2: Due Sunday @ 4 pm CHANGE: URANIUM: GhenBrief: Due Thursday @ 11 pm

2. Argument By Analogy Bottom Line: Not asking if ACs are a perfect tool for the new context, but discussing how good a tool they are.

3. Argument By AnalogySample Factual Difference: Living/Dead • Land animals are alive when they “escape”; whale carcasses are not. • Some concepts from ACs will not work well in Taber context b/c they assume property was alive at escape. • E.g., “provide for itself” & “intent to return” • Can then argue re relative importance of these factors. Note ACs don’t have to fit 100% to be reasonable option.

4. Argument By Analogy OXYGEN DQ68: Additional Arguments from Factual Differences?

5. Argument By Analogy2. Usefulness of Doctrine Qs About Individual Rules or Factors • Can you sensibly apply some or all of the legal tests in the new context? • Are the purposes behind the rules relevant in the new context?

6. Argument By Analogy2. Usefulness of Doctrine • Overall Q: Is the doctrine targeting the right concerns? • Are there important concerns raised by the precedent that aren’t relevant in the new context? • Are there important concerns raised by the new context that weren’t relevant in the precedent?

7. Argument By AnalogyDQ69: Usefulness of Doctrine Individual Escape Factors Whose Relevance is Pretty Clear (Arguably used in Taber & Bartlett) • Marking/Finder’s Knowledge • Rewarding Labor/Protecting Industry • Abandonment (by Compulsion)/Pursuit • Time/Distance (though time frame may be different)

8. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: (1) OO can attach identifying marks to both escaping animals and whale carcasses. • ACs reward OOs who use strong marks that help identify the animal and give notice to Fs of prior claim • For same reasons, good idea to reward OOs of whale carcasses who use strong marks • Thus, this similarity supports using ACs

9. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: (2) ACs factor we called “marking” (Manning; Albers), rewards OOs who use strong marks that help identify the animal and give notice to Fs of prior claim • OO of whale carcass can attach identifying marks that serve the same purposes. • Thus, it is a good idea to reward OOs of whale carcasses who use strong marks, which makes “marking” a useful factor to use.

10. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: • Overlap is logical: • Concerns addressed by the legal tests are made relevant by the factual setting. • Factual comparisons are made relevant by the way the doctrine operates.

11. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2)Based on Usefulness of Doctrine Often Overlap: • For XQ2, if you see overlapping arguments, you only need to give me one of them • BUT useful to practice approaching analogy question from both directions b/c sometimes you will find it easier to see a useful point looking from one angle than from the other.

12. Argument By AnalogyDQ69: Usefulness of Doctrine OXYGEN: Factors Less Clearly Relevant? • Natural Liberty • Maybe NL = carcass is floating free • Pros & Cons???

13. Argument By AnalogyDQ69: Usefulness of Doctrine OXYGEN: Factors Less Clearly Relevant? • Natural Liberty • Maybe NL = carcass is floating free • Pros & Cons: Should Consider: • LANGUAGE: E.g., “Provide for itself” v. “No artifical restraint” • UNDERLYING POLICIES : We did some in Class #19

14. Argument By AnalogyDQ69: Usefulness of Doctrine OXYGEN: Factors Less Clearly Relevant? • Taming or Intent to Return • Could mean simply anchoring the carcass • Pros & Cons?

15. Argument By AnalogyDQ69: Usefulness of Doctrine OXYGEN: Factors Less Clearly Relevant? • Taming or Intent to Return • Could mean simply anchoring the carcass • Pros & Cons include: • Anchoring similar b/c labor expended to maintain control • Maybe unnecessary b/c can reward anchoring using NL or general policy rewarding useful labor

16. Argument By Analogy3. Usefulness of Alternatives • Identify alternative approaches that might be used to address the new context • For 1st Possession might include: auction, lottery, state ownership, most deserving, etc. • For Escape might include: salvage, F always wins, OO always wins, registration systems • Don’t spend time on alternatives that seem fairly stupid (could award carcass to oldest whaler…) • Look at old model answers

17. Argument By Analogy3. Usefulness of Alternatives • Identify alternative approaches that might be used to address the new context • Discuss the pros and cons of using each possible alternative instead of the proposed analogy • Ideally provide bothpros and cons for each • Can consider fairness, cost, ease of administration, incentives created, whether the right Qs are being asked, etc.

18. Argument By Analogy3. Usefulness of Alternatives • Identify alternative approaches that might be used to address the new context • Discuss the pros and cons of using each possible alternative instead of the proposed analogy • You can identify possible alternatives and common pro/con arguments from class and from model answers. However, only way to get proficient enough to do well under exam conditions is PRACTICE.

19. Argument By AnalogyUsefulness of Alternatives OXYGEN: DQ70: One Particular Alternative Would salvage be a better way to resolve anchored whale cases than using the escaped animal cases? Why or why not?

20. Argument By AnalogyUsefulness of Alternatives OXYGEN: DQ70: Would salvage be better than using the escaped animal cases? Might Consider: • Pros & Cons of Splitting the Rewards • Rule Most Likely to Save Most Whale Carcasses • Ease of Application: • ACs = multiple factors = complex • But maybe hard to do salvage where property must be cut up and altered to take on board

21. Argument By AnalogyUsefulness of Alternatives QUESTIONS?

22. LOGISTICS CLASS #21 Dean’s Fellow Scheduling • Monday Sessions Cancelled (Nobody Coming) • CL will try adding session on Friday at 1:30 pm after Property DF • Will start this Friday here in your favorite room (F402)

23. LOGISTICS CLASS #21 Starting Oil & Gas Friday • Work Through Technical Readings to Try to Get Sense of How Things Work • Reread after we’ve gone through cases when you have a sense of relevant legal issues • Common task for lawyers: need to acquire expertise in areas important to client (me & accounting & fire sites)

24. LOGISTICS CLASS #21 Starting Oil & Gas Friday • I’ll Lecture Through Westmoreland • Difficult Case to Understand Both re Gas Extraction and Business Transaction • Read Through for Plot; Don’t Try to Brief • Look at in Advance Because Presentation Will Primarily Be at White Board (No Slides)

25. LOGISTICS CLASS #21 Starting Oil & Gas Friday • Westmoreland Adopts Animals Cases to Govern 1st Possession of Natural Gas • Animals Analogy to Facts Not Explicit. My Take: • 1st Gas Co. Gets Permission to Hunt from Landowner • Catches Deer, Ties It to Tree, & Leaves for Lunch • Landowner Refuses to Let 1st Gas Co. Return & Sells Hunting Rights, Including Tied Deer, to 2d Gas Co.

26. Swift v. Gifford Uranium “First Iron Holds the Whale”

27. Swift v. Gifford (Uranium)BRIEF: Statement of the Case • Swift and others … ?, • sued Gifford … , • for [cause of action] • seeking [remedy].

28. Swift v. Gifford (Uranium)BRIEF: Statement of the Case • Swift and others, owners of a ship (H) whose crew killed a whale • sued Gifford … , ??? • for [cause of action] • seeking [remedy].

29. Swift v. Gifford (Uranium)BRIEF: Statement of the Case • Swift et al., owners of ship (H) whose crew killed whale • sued Gifford , managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, • for [cause of action] ??? • seeking [remedy].

30. Swift v. Gifford (Uranium)BRIEF: Statement of the Case • Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford , managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, • presumably for conversion • seeking [remedy]. ???

31. Swift v. Gifford (Uranium)BRIEF: Statement of the Case • Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford , managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, presumably for conversion • Seeking damages for the value of the whale.

32. Swift v. Gifford (Uranium)BRIEF: Procedural Posture Decision after a trial.

33. Swift v. Gifford (Uranium)BRIEF: Facts • Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. • Crew of ship H captured the whale, unaware that ship R was still pursuing it. • Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. What Else Needs to Be Included?

34. Swift v. Gifford (Uranium)BRIEF: Facts • Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. • Crew of ship H captured the whale, unaware that ship R was still pursuing it. • Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. • Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. Parties all understood custom.

35. Swift v. Gifford (Uranium)BRIEF: Facts • Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. Parties all understood custom. • Note: Hercules gave whale up voluntarily honoring custom • Suggests maybe Swift et al. are new players in whaling game: (“You did what??!!)

36. Mini-Comparison Box Boston Chicago White Sox (& Losing Cubs) Pork & Beef (Swift & Armour) Railroads “City of Broad Shoulders” • Red Sox (& Lost Braves) • Cod & Lobster • Shipping • "So this is good old Boston. The home of the bean and the cod. Where the Lowells talk only to Cabots. And the Cabots talk only to God."

37. Swift v. Gifford (Uranium)Nature of Dispute • Escaping wild animals cases only apply to Taber & Bartlettby analogy. • By contrast, Swiftis a 1stpossession wild animal case. Two hunters (ships) chasing a wild whale. Who gets? • First to harpoon & pursue (Rainbow) –OR— • First to kill (Hercules)

38. Swift v. Gifford (Uranium)Nature of Dispute • Two ships chasing a wild whale. Who gets? • First to harpoon & pursue (Rainbow) –OR— • First to kill (Hercules) • Could decide using common law or using custom. • We will • Look at how Swift addresses common law claim • Look at how our ACs resolve without custom • Look at how Swift addresses custom

39. Swift v. Gifford (Uranium)Swift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • If so, Rainbow loses • NOTE: 1872 = Before Liesner and Shaw = Rules now different

40. Swift v. Gifford (Uranium)Swift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • R Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court says this reading of civil law is not “free from doubt” • May come from Pierson dissent quoting Barbeyrac (p.6) • Note underlying argument that court might alter common law rule to follow trend in civil law

41. Swift v. Gifford (Uranium)Swift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court deals with this claim with reference to disputed fact, apparently assuming “reasonable prospect” = “reasonable probability”

42. Swift v. Gifford (Uranium)BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.63)

43. Swift v. Gifford (Uranium)BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.63)  Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? How does court resolve?

44. Swift v. Gifford (Uranium)BRIEF: Factual Dispute Where on List is “Reasonably Probable”? • Absolute Certainty • High Probability • Gov. Romney v. Pres. Obama • Yankees Defeat Tigers in 2012 ALCS • +

45. Swift v. Gifford (Uranium)BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? (p.63) “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

46. Swift v. Gifford (Uranium)BRIEF: Factual Dispute Where on List is “A Possibility of Success”? • Absolute Certainty • High Probability • Reasonable Probability • Gov. Romney v. Pres. Obama • Yankees Defeat Tigers in 2012 ALCS • Snowball in Hell

47. Swift v. Gifford (Uranium)BRIEF: Factual Dispute Levels of Probability • Absolute Certainty • High Probability • Reasonable Probability • Gov. Romney v. Pres. Obama • Yankees Defeat Tigers = “A Possibility of Success” • Snowball in Hell

48. Swift v. Gifford (Uranium)BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? • “Reasonably probable” = “more than a possibility of success.” Factual Finding: NO! “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

49. Swift v. Gifford (Uranium)Swift Applying 1st Possession ACs • Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court deals with claim by finding supposed test from civil not met on these facts, so doesn’t have to decide: • If civil law really has adopted • Whether to make test part of common law QUESTIONS?

50. Swift v. Gifford (Uranium)DQ71: Applying 1st Possession ACs Swift facts under Pierson Majority? Did Rainbow Deprive Whale of NL?