MUSIC: “Crazy for You” Cast Album (1992) Music & Lyrics by G eorge & Ira Gershwin (1918-37)

1. MUSIC: “Crazy for You” Cast Album (1992) Music & Lyrics by George & Ira Gershwin (1918-37) §B Lunch Wed Oct 1 Meet on Bricks @ 12:15 Bautz * Fierro Golden* Jones Prado (§B: Very Last Lunch) §D Lunch Thu Oct 2 Meet on Bricks @ 11:55 Centofanti * George * Leveille Miller-Ciempela * Seiglie Stockman * Witkiewitz (§D: Typed Characters Welcome)

2. The Logic of Albers: CritiqueRADIUM 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.

3. The Logic of Albers: CritiqueRADIUM 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?

4. The Logic of Albers: CritiqueRADIUM 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)

5. Logistics: Skills, Assignments, Exam Prep, Fall Break Lot of Info Today I’ll Go Through Fast Because You’ll Have Slides E-Mail Me if Qs

6. Logistics: Skills, Assignments, Exam Prep, Fall Break Try to Think About Assignments & Exams in Terms of Skills Relevant Skills in Elements Include: I. Reading Comprehension II. Applying Legal Authority to New Sets of Facts III. Determining Appropriate Legal Test for Particular Situation

7. Skills: Reading ComprehensionAssignments: Briefs A. Reading Comprehension Sub-Skills: 1. Reading Legal Materials (& Other Relevant Authorities) 2. Following Directions B. Relevant Assignments: Submitted Briefs (Radiums Done) • Krypton #2: Bartlett v. Budd (Due Sun @ End of Break • Oxygen #2: Swift v. Gifford (Due Sun @ End of Break) • Uranium #2: Ghen v. Rich (Due Sun 1 week after Break)

8. Skills: Reading ComprehensionAssignments: Briefs B. Relevant Assignments: Submitted Briefs For Prep: Prior Briefs • Check status of grading on bottom of course page • Oxygen Brief #1 & Krypton Brief #1: Available by Friday • If not picked up by Fri mid-afternoon, we’ll e-mail you PDF • Uranium Brief #1: Available by Friday of Fall Break • When available, we’ll e-mail you PDF

9. Skills: Reading ComprehensionAssignments: Briefs B. Relevant Assignments: Submitted Briefs For Prep: Other Materials • Class Notes/Slides from Fri on Taber • Posted by Thursday of Fall Break • Sample Taber Brief • Quizzes on Bartlett/Swift • Posted by Friday after Fall Break • Sample Bartlett/Swift Briefs • GhenQuiz

10. Skills: Applying Legal Authority to New Sets of Facts A. Applying Legal Authority: Sub-Skills 1. Applying Language (Rules, Factors, Elements) 2. Comparing Facts 3. Applying Relevant Policies

11. Skills: Applying Legal Authority to New Sets of FactsExam Prep: Final Exam Q1 (XQ1) B.XQ1: Apply “Animals Cases” to New Fact Pattern • Animals Cases = Cases in Unit One plus Whaling Cases • Three Types of Issues a. First Possession b. Escape c. Custom

12. Skills: Applying Legal Authority to New Sets of FactsExam Prep: Final Exam Q1 (XQ1) B.XQ1: Apply “Animals Cases” to New Fact Pattern 2. Three Types of Issues a. First Possession i) Pierson, Liesner, Shaw, ii) Swift iii) Written Asssignment I & Weasel Hypo b. Escape c. Custom

13. Skills: Applying Legal Authority to New Sets of FactsExam Prep: Final Exam Q1 (XQ1) B.XQ1: Apply “Animals Cases” to New Fact Pattern 2. Three Types of Issues a. First Possession b. Escape i) Manning, Mullett, Albers, Kesler ii) Taber, Bartlett iii) Squirrel hypothetical (DQ1.48) c. Custom

14. Skills: Applying Legal Authority to New Sets of FactsExam Prep: Final Exam Q1 (XQ1) B.XQ1: Apply “Animals Cases” to New Fact Pattern 2. Three Types of Issues a. First Possession b. Escape a + b. Border Line: First Possession + Escape i) Written Assignment #2 & Wolverine Hypo ii) Ghen c. Custom

15. Skills: Applying Legal Authority to New Sets of FactsExam Prep: Final Exam Q1 (XQ1) B.XQ1: Apply “Animals Cases” to New Fact Pattern 2. Three Types of Issues a. First Possession b. Escape c. Custom: We’ll Do in Detail After Fall Break i) Pierson ii) All 4 Whaling Cases

16. Skills: Applying Legal AuthorityExam Prep & Final Exam Q1 C. Exam Prep & Fall Break 1. Generally: a. Day or two really off b. Steady work on indiv courses: at least one solid day each 2. For Elements: a. I’ll be around; if you have Qs, e-mail me for appointment b. Opportunity for Careful Prep on both 1st Possession & Escape c. Much less material than other courses  i) Good News: Can do more in-depth ii) Bad News: Must do more in-depth

17. Skills: Applying Legal AuthorityExam Prep & Final Exam Q1 C. Exam Prep & Fall Break 2. For Elements: a. I’ll be around; if you have Qs, e-mail me for appointment b. Opportunity for Careful Prep on both 1st Possession & Escape c. Much less material than other courses  Do More In-Depth • can reread cases • double-check quizzes + sample briefs (Albers & Kesler posted) • do weasel & squirrel hypos w other cases • charting

18. Skills: Applying Legal AuthorityExam Prep & Final Exam Q1 C. Exam Prep & Fall Break 2. For Elements: a. I’ll be around; if you have Qs, e-mail me for appointment b. Opportunity for Careful Prep on both 1st Possession & Escape c. Much less material than other courses  Do More In-Depth • Can reread cases • Go thru quizzes + sample briefs (Albers & Kesler posted) • Do weasel & squirrel hypos w other cases • Charting

19. CHARTING AS STUDY TOOL likely permanent

20. Skills: Applying Legal AuthorityExam Prep & Final Exam Q1 D. Practice Midterm & Exam Skills 1. Posted on Course Page by Monday a. Preliminary Note on Exam Technique (in new Info Memo) b. Practice Midterm Q with Instructions for “Exam Conditions” c. Comments/Best Student Answers Memo from Prior Years 2. For Feedback from Me a. Do Under “Exam Conditions” b. Go through Comments /Best Answers Memo c. Bring me Specific Qs (I can’t go through 114 line-by-line)

21. Skills: Applying Legal AuthorityExam Prep & Final Exam Q1 D. Practice Midterm & Exam Skills 1. Practice Midterm Posted on Course Page by Monday 2. For Feedback from Me: Bring me Specific Qs 3. More Generally: • I do Faculty-Perspective Exam Skills Workshops in November • Worth your time (very well-received) • I am world’s leading expert on what I look for in student exam answers to my own tests. 

22. 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 Arguments • Assmt #2: Wider Range of Arguments

23. 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)

24. 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

25. 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

26. 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

27. Skills: Applying Legal AuthorityGroup Written Assignment #2 Preparation • Do Work Suggested Above for Fall Break Reviewing Materials on Both Issues • Look at Feedback on Assignment #1 • Comments & Best Answers Memo Now on Course Page & Updated by End of Break • Individual Comments on Your Work Available Thursday after Break

28. Skills: Applying Legal AuthorityGroup Written Assignment #2 General Points • Care re Formatting & Substantive Directions • Review “Common Writing Concerns” • Working Together: • Due October 19 (Sunday after Break) • Before Break Should Work Out Individual Responsibilities and Timing QUESTIONS?

29. Skills: Determining Appropriate Legal Test for Particular Situation A. Determining Legal Test: Sub-Skills 1. Using Relevant Policies • As Seen in Pierson; Albers; Shaw • Policy Arguments from Demsetz 2. When to Apply Existing Tests to New Situations • Argument by Analogy • E.g, Applying Animals Cases (1stPoss & Escape) to • Whaling Cases • Oil & Natural Gas

30. Skills: Determining Appropriate Legal Test for Particular Situation B. A Little Twist • Concern re Importance of Animals Cases (ACs) • Very Rare to Litigate These Fact Patterns • BUT Ideas from ACs re 1st Possession & Escape Show Up in Many Different Places 2. So Whales/Wolverines will be Last Animals You See

31. FINAL EXAM QUESTIONS 1 & 2 • Single Fact Pattern for Both • Will Involve Type of Property Not Explicitly Covered in Course • I’ll 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)

32. FINAL EXAM QUESTIONS 1 & 2 • XQ1: “Assuming Animals Cases Apply, Discuss Who Should Get Property Rights?” • Basically Issue-Spotter Like Practice Midterm • Same Skills We’ve Been Working On • Same Close Knowledge of Cases Required • But Need to Be Creative Applying Doctrine • E.g., Whale Carcasses & Natural Liberty

33. 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 We’ll 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?

34. Back to Work!!

35. Kesler v. Jones: TYPO PAGE 53 Last Sentence of Block Quote: “remained” should be “regained”

36. Kesler v. Jones: OxygenIn-Class Brief & DQ1.60-1.62 M A N Y T A N K S!!

37. Kesler v. Jones BRIEF:Oxygen Statement of the Case: • Kesler … and the Davises… ??? • sued Jones … • for [cause of action] • seeking [remedy].

38. Kesler v. Jones BRIEF:Oxygen 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

39. Kesler v. Jones BRIEF:Oxygen Statement of the Case: • Kesler, the OO of an escaped fox, and the Davises, its caretakers …, • sued Jones … ??? • for [cause of action] • seeking [remedy].

40. Kesler v. Jones BRIEF:Oxygen 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 neighbor’s chickens and kept its pelt, • Need both killing & keeping pelt. • for [cause of action] ??? • seeking [remedy].

41. Kesler v. Jones BRIEF:Oxygen 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 neighbor’s chickens and kept its pelt, … • for unlawful killing of the fox and unlawful retention of its pelt • seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?

42. Kesler v. Jones BRIEF:Oxygen Statement of the Case: • seeking [remedy] ??? Case doesn’t say explicitly. Hint from case? • Court orders new trial to determine “the value of the pelt”  seeking damages

43. Kesler v. Jones BRIEF:Oxygen 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 neighbor’s chickens and kept its pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages. PROCEDURAL POSTURE?

44. Kesler v. Jones BRIEF:Oxygen Procedural Posture: • After a trial, the court found for defendant on both claims. Plaintiffs appealed. • How do you know there was a trial?

45. Kesler v. Jones BRIEF:Oxygen 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 newtrial …”

46. 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 fox’s pelt. D refused.

47. Kesler v. Jones BRIEF:Oxygen How Many OxygensSaw That There Were Two Issues in Case? (Show of Hands) (Uraniums are Radioactivefor This Purpose and Must Be Silent and Still!)

48. Kesler v. Jones BRIEF:Oxygen 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

49. Kesler v. Jones BRIEF:Oxygen 1st Issue (Unlawful Killing): Did trial court err in entering judgment for defendant because … • Hard to be precise about relevant facts b/c • Court doesn’t say why Ps thought the killing was unreasonable • We aren’t studying defenses to intentional torts here, so don’t have other examples to look at.

50. Kesler v. Jones BRIEF:Oxygen 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 neighbor’s chickens from the fox? Probably helpful to also include some language about reasonableness.