ELEMENTS D2 & D1 2017 POWER POINT SLIDES

1. ELEMENTS D2 & D1 2017POWER POINT SLIDES Class #12: Wednesday, September 27 & Thursday September 28

2. MUSIC (to accompany Shaw ):SCOTT JOPLIN: HIS GREATEST HITSRichard Zimmerman, PIANOCOMPOSED 1899-1912; RECORDED 2006 D1 Lunch Thursday Meet on Brix @ 12:05 Melchiorre * Perez A.Rodrigues * Sigman No Office Hours Thursday Friday: Both Sections Together Here 8:15-10:15 a.m. No Assigned Seats

3. DEMSETZ ARTICLE

4. DEMSETZ ARTICLE & DQ1.30 “In the world of Robinson Crusoe property rights play no role.” (p.30) Means?

5. “In the world of Robinson Crusoe property rights play no role.” One definition of Property: “Legal relations between people with regard to things.” Helpful to think of Property not as a noun but as an adjective (like sacred or beautiful). Some animals are Sacred; some are not. Some animals are Property, some are not. In different cultures, different animals defined as Sacred or as Property. E.g., insects (other than bees) rarely seen as Property.

6. In different cultures, different animals get defined as Property. Bombyx Moth treated as Property in China for several thousand years. Why?

7. DEMSETZ ARTICLE IN ELEMENTS D Unit One-A has been about how people acquire Property rights in unowned animals. This is part of a broader issue: How and why do things or intangible interests change from being NOT-Property to Property . Demsetz provides one way to look at this issue that largely revolves around the concept of “internalizing externalities,” to which we’ll return at the end of our discussion of Shaw. Hold Qs until We Work with in Detail Friday

8. DQ1.23Apply Pierson Majority Policiesto Perfect Net Rule & Shaw Facts Policies from Pierson: Rewarding Useful Labor Achieving Certainty

9. Back to DQ1.23-1.25Apply Pierson & Liesner to Perfect Net Rule & to Specific ShawFacts ME: Recap of 1.23 Radium for 1.241.25 in DF

10. DQ1.23 Apply Pierson Majority to ShawFacts & Perfect Net Rule Policies from Pierson: Rewarding Labor (Addressed Indirectly in Class #10) Point of net is to catch fish which have value to society. Net serves this purpose & is valuable even if not perfect Net that retains most of the fish it catches should thus be rewarded If net needs to be perfect to be protected against theft, industry might well shut down. (LABOR  INDUSTRY)

11. DQ1.23 Apply Pierson Majority Policies to Perfect Net Rule Policies from Pierson: Certainty (Addressed Indirectly in Class #10) Perfect Net Rule (like too-absolute versions of rules in Liesner) creates uncertainty b/c too difficult for net-owners to meet test: Virtually impossible to create escape-proof net (by definition, net has %*#*@^&% holes in it!) Even if net initially is escape-proof for fish of certain size, wear-and-tear would change this in time Difficult to show test met, and becomes harder as time goes on

12. DQ1.24 Apply Pierson Dissent to ShawFacts & Perfect Net Rule (Radium) Arguments from Pierson Dissent?

13. DQ1.24 Pierson Dissent/Shaw(Radium) Facts would seem to meet language (p.6): i) Pursuer w/in reach or reasonable prospect of taking + ii) Intent to convert to own use Even imperfect net is more control/certainty than most forms of “hot pursuit” so dissent would likely say it is enough to create property rights. “Perfect Net Rule” could discourage hunting (use of nets) Importance of killing pest that harms chickens (human food) arguably similar to importance of killing fish that are themselves human food (per R.Rodriguez D1) If you look to customs of fisherman, likely to find that fish in nets are considered property of net-owners.

14. DQ1.24: Using Arguments from Dissents If Case in Different Jurisdiction: Majority in other state not Binding on Court in Question Dissent can be Persuasive Authority (“We find the dissent’s position more persuasive because …”) Note that Pierson Dissent position seems inconsistent with rules stated in Liesnerand Shaw as well, which weakens its overall persuasiveness.

15. DQ1.24: Using Arguments from Dissents Where Majority Opinion is Binding: Cannot rely on dissent positions explicitly rejected by Majority. Can Use to Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”) Can Use to Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”

16. DQ1.24: Using Arguments from Dissents QUESTIONS?

17. STATE v. SHAW DQ1.25 Arguments from Liesner: ApplyingVersions of Prevailing Rule to Shaw Facts (& Other Arguments) I’ll Leave to You & DF Sessions This Week Next 3 Slides [not shown in class] have Partial Examples

18. STATE v. SHAW DQ1.25 Applying LiesnerTests to Shaw Facts Substantially permanently deprived of liberty? Can’t say for sure that any particular fish is permanently deprived of liberty Maybe “substantially permanently”, because very high likelihood for particular fish Maybe meet test b/c substantial # of fish permanently deprived

19. STATE v. SHAW DQ1.25 Applying LiesnerTests to Shaw Facts Escape Highly Improbable? Court seems to say so. May depend on frequency of storms or other events outside “ordinary circumstances.” Leave further arguments to you.

20. STATE v. SHAW DQ1.25 Applying LiesnerTests to Shaw Facts Under control so possession is practically inevitable? Fair to describe fish as “under control”? Is possession “practically inevitable”?

21. E-ParticipationFollow-Up on Some Assigned DQs for [Selected] 21st Century Law Students • Used Where: • Work-Product Not Well-Suited to Oral Reporting • E.g., When I’m Asking You to Draft Language • Direct E-Mail Submission to Prof: • Use Your Name (Not Pseudonym) • Generally No Special Format Needed • Students Selected Get Participation Credit for the Submissions and Individual Fedback

22. STATE v. SHAW DQ1.28: Krypton Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw? Why is this a useful exercise? Explain unreconciled cases In court or legal memo Ideally reconciles cases AND shows that your side wins. BUT hard to examine/critique your rules efficiently if I have to deal immediately with oral responses in class, so …

23. DQ1.28 (Krypton): “E-Participation” D1: Greber, Iragorri, Small D2: Bartolini, Levey, Schmitt E-mail to me by 7 p.m. Tonight (Day of Class): A clear statement of the Rule you derived for DQ1.28 (Not your defense of the Rule) Use name, not pseudonym No need for any particular formatting We’ll go over a couple of samples next class and I’ll post other samples with comments. Qs at break, after class, or by e-mail.

24. DEMSETZ DQ1.31 URANIUM Key idea in Demsetz excerpt is “internalizing externalities.” DQ1.31 asks you (Uraniums) to provide examples of this from outside the reading. I will do this in class Friday. However, meaning of “externalities” and of “internalizing” (in this context) have proved elusive for many past Elements students. To take advantage of your collective online search skills…

25. E-PARTICIPATION URANIUM DQ1.31 I’d like the following students each to locate one site online that provides a clear helpful example and/or explanation of the particular concept you are assigned and e-mail the link to that site to me by 5 p.m. on Sunday October 1. I’ll check them out and post the links to those that look helpful. Examples/Explanations of EXTERNALITIES D1: Bente & Perez D2: Hodges & McCroskey Examples/Explanations of INTERNALIZING Externalities D1: Cass & Johnson D2: Shields & Fernández Qs at break, after class, or by e-mail.

26. STATE v. SHAW Context: 1902

27. STATE v. SHAW Context: 1902 International Cuba gains independence from Spain China's Last Empress (Tzu-Hsi) forbids binding of woman's feet Edward VII (60) becomes King of England Victoria reigned 63+ years before her death in 1901 (Elizabeth II surpassed about a year ago) Cf. Prince Charles will turn 68 in November Boer War Ends; Britain annexes Transvaal

28. STATE v. SHAW Context: 1902 United States: Teddy Roosevelt becomes 1st Am. President to ride in an automobile. US buys Virgin Islands from Denmark & right to build Panama Canal from French. Oliver Wendell Holmes, Jr. (Civil War veteran & Justice on Mass. Supr. Ct.) becomes Associate Justice on US Supr. Ct.

29. STATE v. SHAW Context: 1902 Deaths Thomas Nast (cartoonist); Cecil Rhodes (explorer); Elizabeth Cady Stanton (feminist); Emile Zola (novelist) Births Charles Lindbergh (Aviator) & Ansel Adams (Photographer) Meyer Lansky & Carlo Gambino (Both Organized Crime) Richard Daley (Chi. Mayor 1968) & Thomas Dewey (ran for pres. 1948) & Strom Thurmond (ran for pres. 1948, d. 2003) Richard Rodgers, Guy Lombardo, John Steinbeck & Langston Hughes John Houseman (Paper Chase) & Margaret Hamilton (Wicked Witch) Ray Kroc (McDonald’s) & Ayatollah RuhollahMusavi Khomeini (Iran)

30. STATE v. SHAW Context: 1902 Introduced: American Automobile Assn. 1st Automat Restaurant (in Philadelphia) "Bill Bailey Won't You Please Come Home" "The Entertainer" JC Penney 1st Store (in Wyoming) London School of Economics Marlboro 1st Movie Theater Neon Lamps Phi Alpha Delta

31. STATE v. SHAW Context: 1902 Introduced: "Pomp and Circumstance" Radiumisolated by Pierre &Marie Curie Rhodes Scholarships Rose Bowl (1st College Bowl Game; Michigan 49, Stanford 0 ) Smith & Wesson .38 Caliber Special Texaco The Thinker by Rodin Tinker, Evers, and Chance (Chicago Cubs Infielders) US Census Bureau Window Envelopes

32. STATE v. SHAWWhat Case Says/Does • BRIEF: ME on Holdings (& Result) • DQ1.26 (Krypton) Applying Key Language • BRIEF: ME & OXYGEN on Rationales • DQ1.27 (Krypton) Sunken Boat Hypo

33. STATE v. SHAW BriefISSUE (from Last Class): Did the trial court err in directing a verdict for the defendanton the grounds that defendant did not commit grand larceny because net-owners do not have property rights in fish found in their nets where the fish can escape from the nets?

34. STATE v. SHAW BriefNARROW HOLDING YES. The trial court erred in directing a verdict for the defendanton the grounds that defendant did not commit grand larceny because net-owners can have property rights in fish found in their nets even if some fish can escape from the nets.

35. STATE v. SHAW BriefRESULT Reversed & Presumably Remanded for New Trial (Thomas Could Still Prove He Didn’t Commit Crime Even if Fish Belonged to Net-Owners) On remand, trial court will have to instruct jury about when net creates property rights in fish for net-owners Can’t simply say “Net doesn’t have to be perfect.” Broader version(s) of holding needed for this.

36. STATE v. SHAW BriefBROADER HOLDINGS On remand, trial court will have to instruct jury about when net creates property rights in fish. Broader version(s) of holding needed. Possible Rules/Holdings: Any Net is OK? (Raggedy Volleyball Net??) Look to Language in Case

37. STATE v. SHAW BriefFINDING BROADER HOLDINGS Look to Language in Case: 1st Two Paragraphs after “Davis, J.” Discuss Law Quotes in 1st paragraph are authorities apparently rejecting claim that wild fish cannot be property. They say that fish in a tank or net are sufficiently confined that they can be property. Court cites Young at end of long paragraph on 28-29 for the proposition that net-owners have no property rights to fish frightened away before they could enter the nets. In between, court explicitly rejects perfect net rule, but nowhere says that any fish in any net belong to the net-owner. Thus, look to language in long paragraph to help determine when fish in nets are property of net-owners.

38. STATE v. SHAW BriefBROADER HOLDINGS On remand, trial court will have to instruct jury about when net creates property rts in fish. Broader version(s) of holding needed. Possible Rules/Holdings: Any Net is OK? (Raggedy Volleyball Net??) Look to language in case: Two plausible rules (long para. pp.28-29), either of which could be incorporated into broader version of holding.

39. STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

40. STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny [= his property].

41. STATE v. SHAW Brief First Plausible Rule (bottom of p.28) “[T]he pursuer must … [i] bring them into his power and control, and … [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Note two parts/requirements Need to work through 2d requirement carefully

42. STATE v. SHAW Brief “[T]he pursuer must [i] bring them into his power and control, and … [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” In context, doesn’t mean purpose of clause is to “show” necessary intent. Rather should read as…) [ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.”

43. STATE v. SHAW Brief “[T]he pursuer must [i] bring them into his power and control, and … [ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.” = Intent w/o continued control insufficient. Let go + “I intend to keep you 4ever. ♡” Let go + Attach a Tag: “I intend to keep him 4ever. ♡” Don’t let go.

44. STATE v. SHAW Brief Second Plausible Rule (pp.28-29) The trapper acquires property in wild animals “[w]hen … [i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, In case, net belonged to net-owners, BUT water inside net was part of Lake Erie, so not privately owned. and … [ii] maintains reasonable precautions to prevent escape….” Again, two parts/requirements We’ll mostly focus in class on 1st Plausible Rule; 2d Rule provides slightly different language you can use.

45. STATE v. SHAW Brief Note that my raggedy volleyball net example should fail 2d prong of each plausible rule: Even if raggedy net (improbably) “maintains control” of a fish caught in its weave, probably doesn’t do so in a way that shows other people net-owner’s intent to keep the fish. Raggedy net by itself probably doesn’t constitute “reasonable precautions to prevent escape….”

46. Interpreting Legal Tests in Context of Cases Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests. E.g., fish caught in nets have been brought within net-owner’s “power and control.” E.g., set up of these nets = “reasonable precautions to prevent escape.” Thus, can use facts of Shaw to help explain what the tests mean going forward.

47. STATE v. SHAW Brief:OneBroader Version of Holding YES. The trial court erred in directing a verdict for the defendantbecause net-owners have property rights in fish found in their nets if the nets [i] bring the fish into their power and control, and [ii] so maintain their control as to show that they do not intend to abandon the fish again to the world at large. QUESTIONS ON HOLDING OR LEGAL TESTS FOUND IN SHAW?

48. STATE v. SHAWWhat Case Says/Does • BRIEF: ME on Holdings (& Result) • DQ1.26 (Krypton): Applying Key Language • BRIEF: ME & OXYGEN on Rationales • DQ1.27 (Krypton) Sunken Boat Hypo

49. STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” We’ll work with this test and leave other plausible rule & policy arguments from Shaw for you

50. STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Liesner(trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable