T.G.I. FRIDAY OCTOBER 9

1. MUSIC: Max Bruch Violin Concerto #1 (1868) Scottish Fantasy (1880) RECORDING (1972): Royal Philharmonic Orchestra Rudolf Kempe, Conductor Kyung Wa Chung, Violin LUNCH TODAY @12:25 Cappell Daley Daniel Joyner Stevenson Tuchman T.G.I. FRIDAY OCTOBER 9

2. DQ59: Taber under Albers From Discussion Wednesday • Marking? Strong (Man-Made; Owner I.D.) • F’s Knowledge? Knew Claim & Likely Return • Protecting Labor/Industry? • Labor: Killing & Careful Marking/Securing + Abandonment Only by Compulsion • Industry: Protect whaler that did best job they could under circs + don’t encourage unnecessary risk-taking to keep carcass

3. DQ59: Taber under Albers • Marking? Strong (Man-Made; Owner I.D.) • F’s Knowledge? Knew Claim & Likely Return • Protecting Labor/Industry? Both • Time • Ownership  Escape: Very short • Escape  F Capture: <12 Hours • F Capture  OO Reclaim: <24 hours Last two very quick, so good for OO if we don’t care about emotional connection

4. DQ59: Taber under Albers • Marking? Strong (Man-Made; Owner I.D.) • F’s Knowledge? Knew Claim & Likely Return • Protecting Labor/Industry? Both • Time? Short • Distance?= How far has property in Q moved since out of control of OO = Very Little Note cases don’t seem concerned with how far OO has moved around.

5. DQ59: Taber under Albers • Marking? Strong (Man-Made; Owner I.D.) • F’s Knowledge? Knew Claim & Likely Return • Protecting Labor/Industry? Both • Time/Distance? Relatively Short; Very Little Bottom Line Under Albers: Strong Case for 1st Ship (OO)

6. PHOSPHORUSDQ62: In Taber, what is the significance of the participation in the dispute of the Captain of the Massachusetts?

7. PHOSPHORUSDQ62: Significance of the participation of the Captain of the Massachusetts? tends to show that 2d ship acting out of normal way to go; could see as knowledgeable bad finder as in Albers

8. NEONDQ60: Bartlett:Factual Differences from Taber Preliminary Question “Anchor Not Holding” Means …? • Two Possiblilities

9. NEONDQ60: Bartlett:Factual Differences from Taber “Anchor Not Holding” Means …? • Anchor no longer attached to whale –OR- • Anchor attached to whale but not to sea bottom Evidence from the Case?

10. NeonDQ60: Bartlett:Factual Differences from Taber “Anchor Not Holding” Means …? “[T]he right to this whale appears to stand on the same footing as the right to the anchor attached to it, which was very properly restored to its owner” Anchor was still attached to whale but not to the sea bottom.

11. NeonDQ60: Bartlett:Factual Differences from Taber “Anchor Not Holding” meansanchor was still attached to whale but not to the sea bottom. Gotta Read Carefully

12. NeonDQ60: Bartlett:Factual Differences from Taber? • Marker Gone From Carcass. Significance?

13. NeonDQ60: Bartlett:Factual Differences from Taber? • Marker Gone =Marking/Notice Less Strong, But Anchor Still Attached • Whale Adrift: Significance?

14. NeonDQ60: Bartlett:Factual Differences from Taber? • Whale Adrift: • Maybe natural liberty • increase in distance • less likely OO will find • less effective labor by OO • Longer Time (few hours v. next morning): Significance?

15. NeonDQ60: Bartlett:Factual Differences from Taber? • Longer Time (few hours v. next morning): • Time itself a factor in some escape cases • Less likely owner will return (which finder may be able to determine) • Maybe less effective labor by OO

16. Taber & Bartlett: Issue • No procedural element because not an appeal (no court below so no error by court below to identify)

17. Taber & Bartlett: Issue • Does killer of whale lose property rights in the carcass by leaving the carcass in the ocean where …?

18. E.g., Taber: Issue • Does killer of whale lose property rights in the carcass by leavingthe carcass in the ocean where … • Killer anchors carcass leaving marks indicating killer’s identity • Killer returns as soon as practicable to collect carcass • Carcass is still anchored when found and finder sees identifying marks and knows whale is less than 12 hours dead?

19. Taber & Bartlett: Issue Cases suggest three ways to resolve: • Law of Salvage • Whaling Customs • Common Law of Property

20. DQ63: LAW OF SALVAGE • Party finds property belonging to another (OO) adrift on open seas • Finder recovers property & returns to OO • Finder receives standard “salvage” fee from OO • Begins as custom, but is established as law by the time of these cases

21. DQ63: LAW OF SALVAGE • Party finds property belonging to another (OO) adrift on open seas • Finder recovers property & returns to OO • Finder receives standard “salvage” fee from OO • PHOSPHORUS: Why not employed in Taber?

22. DQ63: LAW OF SALVAGE • Why not employed in Taber? • Zone owners never claimed salvage rights • Zone didn’t behave like salvor (= return found goods and ask for $) • Rule: if try to adopt salvage property for own use, can forfeit salvage rights • Note: Salvage is usually for goods found adrift, so not clear should apply here

23. DQ63: LAW OF SALVAGE Taber uses a comparison with the law of salvage to support its result: Doctrinal Rationale: Law says if property found adrift at sea, finder entitled to fee for salvage but not to property itself. Owner of property that is not adrift has an even stronger interest, so does not lose rights to finder.

24. Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

25. Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Relevance to Taber: From Monday • Doesn’t apply because whale not adrift.

26. Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” • Recall fact dispute/finding in Taber: • Was there a custom in whaling industry that if an anchored whale dragged its anchor, ownership can be lost? • No evidence of such a custom.

27. Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” ZINC: How dealt with in Bartlett?

28. Custom Discussed in Taber & Bartlett If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Relevance to Bartlett? • Factual Finding: Custom only applies if no anchor attached, so not applicable here. • Recall: Anchor is different from harpoons because it is proof of actual possession.

29. Bartlett: Finds as fact: no custom giving adrift dead whale to finder if anchor still attached “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

30. ZINC DQ65: MEANING OF … “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

31. ZINC DQ65: MEANING OF … “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

32. Bartlett: Policy Rationale: A rule that treated whales that had recently gone adrift differently from anchored whales would be imprudent because it would take property rights from the OO in a very short period and would encourage finders to lie about what they found or to fraudulently set the whale adrift.

33. DQ65: MEANING OF … “And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” Bartlett provides arguments for refusing to treat particular customs as law

34. What do Taber & Bartlett decide? • Salvage Inapplicable • No Relevant Custom • Anchored Whale Remains Property of OO • Forever? Taber & Bartlett = Short Time Frame • Result unclear if longer time frame; policy against wasting resource might change result • I’ll give you more detail on rationales & significance of Taber/Bartlett in Info Memo

35. Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? We’ve seen that we could use the escape cases to resolve cases like Taber and Bartlett, but should we? In other words, use of the analogy is possible, but is it a good idea?

36. Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: 1)Applicability of the Doctrine 2) Factual Comparison 3) Comparison with Alternative Schemes

37. Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: • Applicability of the Doctrine • 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?

38. Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: 2) Factual Comparison • Are there factual similarities between the two contexts that suggest similar treatment • Are there factual differences between the two contexts that suggest different treatment

39. Argument By Analogy: When Should We Use Legal Rules Developed in One Context to Decide Cases Arising in a Different Context? Three Common Approaches: 3) Comparison with Alternative Schemes • What alternative approaches plausibly might be used to address the new context? • What are the pros and cons of using any of these alternatives instead of the proposed analogy?

40. DQ66: FACTUAL COMPARISON • Identify Similarity or Difference Between the Two Contexts (Factual not Legal) • Explain Why the Similarity (or Difference) You Identified Suggests that the Legal Treatment of the Two Contexts Should be the Same (or Different)

41. DQ66: FACTUAL COMPARISON Sample #1: Similarity • Mobility: Both contexts involve property that can move (w/o human intervention) away from where the owner left it. • Escaping ACs good for Taber context b/c specifically designed to decide when to return mobile property. They address relevant questions like extent of OO’s investment, OO’s labor to control or retrieve property and whether finder would have reason to believe another person has a strong claim. [Can then argue re relative importance.]

42. DQ66: FACTUAL COMPARISON Sample #2: Difference • Living/Dead: Land animals are alive when they “escape”; whale carcasses are not. • Some concepts from Escaping ACs (“provide for itself” & “intent to return”) assume property was alive at escape; these will not work well in Taber context. [Can then argue re relative importance; doesn’t have to be 100% suitability to be reasonable option.]