ELEMENTS B POWER POINT SLIDES

1. ELEMENTS B POWER POINT SLIDES Class #16 Wednesday, September 30, 2015

2. Pictures at AN ExhibitionMusic (for Piano) by Modest Moussorsky (1874)Orchestration by Maurice Ravel (1922)Recording by Cleveland Orchestra (1979)Lorin Maazel, Conductor RADIUM WRITTEN BRIEF #2: Taber v. Jenny (64-65) DUE Tomorrow @ 10pm • Use Instructions for Briefing Trial Court Decisions (59-60) &for Written Assignments & Case Briefs (IM21-22) • See Introduction to Whaling Cases & Glossary (60-63) Assignment Sheet Updated to Reflect Where We Are In-Class Work on Taber Postponed Until After Break

3. Group Written Assignment #2:Meyer v. HarbaughThe 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 WideRange 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 D’s Property (Must Assume P Acquired a Property Right)

6. Skills: Applying Legal AuthorityGroup Written Assignment #2 WideRange 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 WideRange 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 Side’s Best Arguments, Then Respond to Them

8. Skills: Applying Legal AuthorityGroup Written Assignment #2 WideRange 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 • No arguments based on Rose Article • Can include policy arguments we’ve 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 24 (Saturday Two Weeks after Break) • Before Break Should 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. 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)

15. 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)

16. Return to Mullett v. Bradley Factors Applied to … DQ1.51: Facts of Manning (KRYPTON) DQ1.54: Facts of Albers (RADIUM)

17. Mullett FactorsIntent to Return (AR) Types of Evidence Relevant to AR • Blackstone: “Usual Custom of Returning” • Mullett: Behavior of Animal Possible Purposes Behind AR as Factor • Shows Training • Shows Emotional Bond • Shows Reasonable to Allow Animal Out

18. Mullett FactorsIntent to Return (AR) DQ1.51: Applied to Manning (KRYPTON) • Evidence in Manning Relevant to AR • One prior return • Not “usual custom” v. cute atty argument (100% return rate) • Bird returned despite no evidence of relevant training • Away 5 days; to different house in same town (trying?) • Fit Purposes Behind Factor? • Shows Training? • Shows Emotional Bond? • Shows Reasonable to Allow Animal Out?

19. Mullett FactorsIntent to Return (AR) DQ1.51: Applied to Manning (KRYPTON) • Evidence in Manning Relevant to AR • One prior return • Away 5 days; to different house in same town (trying?) • Not Great Fit With Purposes Behind Factor • Actions Consistent w No Training or Emotional Bond • No Real Evidence That Reasonable to Allow Animal Out

20. RADIUM DQ1.55Albers on Manning How does Albers characterize the holding in Manning?

21. RADIUM DQ1.55Albers on Manning How does Albers characterize the holding in Manning? One Escape/Return = Animus Revertendi (Bottom p.47) • BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR • So why does court say this?

22. RADIUM DQ1.55Albers on Manning • Albers characterizes the holding in Manningas “One Escape/Return = AR” • Court (or treatise authors) might read Manning this way to reconcile result with the Mullett-Blackstone Rule: Court returned bird to OO, so must’ve believed AR. Other ways to reconcile?

23. RADIUM DQ1.55Albers on Manning • Albers characterizes the holding in Manningas “One Escape/Return = AR” • Other ways to reconcile the result with the Mullett-Blackstone Rule? • Canary was domesticated not wild. • Canary never returned to NL.

24. RADIUM DQ1.55Albers on Manning • Albers characterizes the holding in Manningas “One Escape/Return = AR” • Trying to reconcile the result with the Mullett-Blackstone Rule Note that Georgia case and NY case do not have to agree; OK if not reconcilable.

25. Mullett FactorsIntent to Return (AR) DQ1.54: Applied to Albers (RADIUM) Types of Evidence Relevant to AR • Blackstone: “Usual Custom of Returning” • Mullett: Behavior of Animal Evidence Here?

26. Mullett FactorsIntent to Return (AR) DQ1.54: Applied to Albers (RADIUM) Types of Evidence Relevant to AR • Blackstone: “Usual Custom of Returning”: None • Mullett: Behavior of Animal • Escaped w/in two weeks from significant enclosure • Had run six miles in about a day Strong Case for No AR (so no need to look to policy)

27. Using Factors or Elements When Applying to New Facts • Apply One at a Time, Then Look at Whole Picture • If significant arguments for both parties on any one (HARD CASE), try to resolve with: • Use of Definition (where available) • Comparisons to Use of Factor/Element in Prior Cases • Purpose of Factor/Element (Policy Justifications) • Hard Cases/Easy Cases (cf. Adverse Possession): • Did HARD CASE : “Intent to Return” & Single Return in Manning • Compare EASY CASE: “Intent to Return” & Albers

28. Mullett FactorsReturn to Natural Liberty Evidence in Cases re Natural Habitat & NL Canaries Not Native to Georgia & Silver-Black Foxes Not Native to Relevant Part of Colorado. Not Dispositive Under Mullett Must Look to Definition

29. Mullett FactorsReturn to Natural Liberty MullettDefinition (Reminder): • NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” • Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.”

30. Mullett FactorsReturn to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) Definition: “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” We Know: Out for 5 days then flew into B’s kitchen What Else Would You Like to Know?

31. Mullett FactorsReturn to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) Definition: “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” We Know: Out for 5 days then flew into B’s kitchen What Else Would You Like to Know?

32. Mullett FactorsReturn to Natural Liberty Evidence Relevant Under Definition of NL • Condition of the Animal • Similarity of Area to Natural Habitat (Food, Climate, etc.) Purpose(s) of Rule Consistent w Definition • Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal • Protect Ordinary F Who Can’t Tell if Prior Owner

33. Mullett FactorsReturn to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) • Evidence Relevant Under Definition of NL • Condition of the Animal • Similarity of Area to Natural Habitat (Food, Climate, etc.) • No Info in Manning: Especially want to know re • Food Supply • Canary & Local Georgia Winter (Savannah v. Mountains)

34. Mullett FactorsReturn to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) Fit Purpose(s) of Rule? • Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal • Protect Ordinary F Who Can’t Tell if Prior Owner

35. Mullett Factors Together DQ1.51: Applied to Manning (KRYPTON) • Abandonment:Strong Evidence Against • Intent to Return (AR): One Escape & Return • Return to Natural Liberty (NL): Unclear • Not sure if could survive Georgia winter • Not sure if most finders would know there must be prior owner

36. Mullett FactorsReturn to Natural Liberty DQ1.54: Applied to Albers (RADIUM) Silver-Black Foxes Not Native to Area (Not Conclusive) Types of Evidence Relevant Under Definition of NL • Condition of the Animal? • Similarity of Area to Natural Habitat (Food, Climate, etc.)?

37. Mullett FactorsReturn to Natural Liberty DQ1.54: Applied to Albers (RADIUM) Types of Evidence Relevant Under Definition of NL • Condition of the Animal: No evidence of problems, but not out very long. • Similarity of Area to Natural Habitat: Not much re habitat of silver-black foxes, but language suggests other foxes are native.

38. Mullett FactorsReturn to Natural Liberty DQ1.54: Applied to Albers (RADIUM) Purpose(s) of Rule Consistent w Definition • Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal • Protect Ordinary F Who Can’t Tell if Prior Owner Fit Purpose(s) of Rule?

39. Albers: Return to NaturalLiberty The Supreme Court of Colorado must have believed that the fox returned to natural liberty before it was killed and that thus D would win under Mullett. Otherwise, no reason to create excep-tion to Mullettrule to protect industry.

40. Mullett FactorsTogether DQ1.54: Applied to Albers (RADIUM) • Abandonment: By compulsion, which (court seems to say) doesn’t count against OO • AR: No • Return to NL: Court must have thought “Yes” QUESTIONS on Factors or on MullettGenerally?

41. Mullett & Manning TogetherRADIUM: DQ1.52-1.53

42. Comparing Mullett and ManningRADIUM: DQ1.52 Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why?

43. Comparing Mullett to ManningRADIUM: DQ1.52 Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why? Helpful Qs: • Strongest points for OO in Mullett? • Strongest points for F in Manning?

44. Comparing Mullett to ManningRADIUM: DQ1.52 • Manning is a better case for the OO on virtually every factor explicitly made relevant by the two cases (maybe excepting $$ investment & strength of mark) • Would be Very Unusual for an Exam Hypo, where situation typically like squirrel hypo in DQ1.48: • Better on some factors, worse on others • You then have to discuss which factors should outweigh the others and why.

45. Mullett & Manning: DQ1.53 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? I’ll Go Through Some Examples Friday

46. Pictures at AN ExhibitionMusic (for Piano) by Modest Moussorsky (1874)Orchestration by Maurice Ravel (1922)Recording by Cleveland Orchestra (1979)Lorin Maazel, Conductor Ravel Orchestration & Analogy to Albers

47. The Logic of Albers • Domesticated or Wild? • Addressing Prior Authority • What The Case Holds • Critique

48. The Logic of Albers: Domesticated or Wild? Parties’ Presumption (p.46): 2 Available Rules • Rule for Wild Animals (Mullett/Blkstone) under which finder (D) likely wins here (so D supports) • Rule for Domestic Animals under which Original Owner (P) clearly wins here (so P supports) Leads to sequence of arguments about whether fox is wild or domestic, 4 of which we’ll look at in detail.

49. The Logic of Albers • Domesticated or Wild? • DQ1.56(d): Species v. Individual? • Birth in Captivity? • DQ1.56(c): Taxation of Fur Foxes? • Black’s’ Definition of “Domestic Animal”

50. The Logic of Albers: Domesticated or Wild? (1) DQ1.56(d) (start of last para. p.47): “Counsel for defendant insists that whether an animal be wild or domestic must be determined from the species, not from the individual.” Why would D argue this?