ELEMENTS B1 & B2 POWER POINT SLIDES

1. ELEMENTS B1 & B2 POWER POINT SLIDES Class #24 Wednesday, October 19, 2016 Thursday, October 20, 2016

2. Music to Accompany GhenUncle Bonsai, A Lonely Grain of Corn (1984)featuring “Day Old Whale” Paul Gauguin, The Beach at Dieppe (1885)

3. LOGISTICS CLASS #24 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 & Try to Be in Class Because Presentation Will Primarily Be at White Board (Almost No Slides) Assignment Sheet for Next Week on CP

4. LOGISTICS CLASS #24 Review Problems (Course Materials p.106-07) Examples of Old XQ1 & XQ2 • Start Doing Some in Class Next Week • Cover in DF Sessions: One a Week that We Won’t Do in Class • This Week (Thu/Mon): (Posted) Problem 2D • First Possession of Computer Program • Based on 1997 Exam Q1 (on course page) • DF Coverage Going Forward Posted on Course Page

5. LOGISTICS: CLASS #24Group Assignments • Group Assignment #3: • Posted on Course Page Saturday • I’ll Do Intro & Take Qs in Class Mon/Tue • Group Assignment #1: • My Primary Task for Next Three Days • Get as Much Feedback Posted as Possible by late Friday night

6. LOGISTICS: CLASS #24Group Assignments Group Assignment #2 Most Qs to Date: • Single Topic & Multi-Topic Rules (cf. IRAC) • 1st Possession Cases & Escape Arguments; Escape Cases & First Possession Arguments

7. LOGISTICS: CLASS #24Group Assignments Group Assignment #2 • Might Also Want to Look Through Grading Form for Midterm (Posted Today) • I’ll Take Other E-Mail Qs Through Tonight (Thursday) @ 9:00 p.m. Questions Now?

8. LOGISTICS: CLASS #24Overall Schedule (Yes It’s Time) GWA #2 Due Sunday GWA #3 Due 3 Wks from Yesterday (Wed) Thanksgiving = 5 Weeks from Today Last Class = Mon 11/28 Review Session = Tue 11/29 Elements Exam = 6 Weeks from Friday LOTS OF WORK AHEAD!!

9. Mid-September Crisis

10. Mid-October Crisis

11. Mid-October Crisis:The Upside

12. Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now

13. Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now • Cut Down on Outside Activities (Friday: 6 Weeks to First Exam) • Push Yourself Each Day to Do a Little More Than You Want To • Basic Skills Get Better the More You Practice

14. Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now BUT if/when you can’t get everything done … [some advice]

15. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes, Even When Unprepared

16. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes • If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later

17. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes • If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later • Eat, Get Sleep, Take Short Breaks

18. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes • If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later • Get Sleep & Take Short Breaks • Plan Catch-Up Work and Outlining for One Course Each Weekend

19. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes • If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later • Get Sleep & Take Short Breaks • Plan Catch-Up Work and Outlining for One Course Each Weekend • Thanksgiving • One Day Off; Rest is Work • Go Home Onlyif Family Will Allow Work

20. Mid-October Crisis: Like Doing Law School Exam Qs • Can’t do everything as well as you’d like; do the best you can with time you have • Be very careful not to waste time • Identify what work is most important for you and spend time accordingly • Be realistic in your expectations; don’t get upset that you are not superhuman. • This too shall pass!

21. Swift v. Gifford (1872) “First Iron Holds the Whale”(Continued)KRYPTON: Brief & DQ2.13-2.15OXYGEN: DQ2.12

22. Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Swift facts under Pierson Majority? Pierson Majority • Mortal Wound + Pursuit Enough • Pursuit Alone Not Enough Swift Facts • Wound + Harpoon + Pursuit Enough under Pierson?

23. Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit • Falls into Gap in Literal Language of Pierson • Can resolve with other language. E.g., Did Rainbow Deprive Whale of NL?

24. Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit • Falls into Gap in Literal Language of Pierson • Can resolve with other language like “deprived of NL” • Can resolve w resort to underlying policies. Try: • Reward Effective Labor? • Certainty? • Notice to Others of Claim?

25. Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson • General Policy : Reward Effective Labor • Might look at how likely R was to succeed without H • Killing Whales Generally Hard to Do • Finding of Fact was low probability, so maybe no reward • Could Check if H’s labor dependent on R’s labor • If1st iron seriously wounds whale, might slow down so easy to kill • Might be relatively minor wound • Certainty:?

26. Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson • Certainty: • Maybe Clearer Rule than 1st to Kill • Don’t Have to Decide if Wound is Mortal • In Pierson,Continued Pursuit After Mortal Wound Shows No Intent to Abandon. Here?

27. Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson • In PiersonContinued Pursuit After Mortal Wound Shows No Intent to Abandon. Does this pursuit + harpoon serve purpose? • F unaware of pursuit & harpoon when caught • BUT easy to tell when 2d ship arrives b/c marked iron • Again, may depend on whether 1st iron slows whale noticeably.

28. Swift v. Gifford (Oxygen) DQ2.12: Applying 1st Possession ACs Overall: Looks Like Testable Hypo • Wound + Mark (iron) probably make this stronger case for 1st Hunter than Pierson • Clearly less good control than Liesner boys or net-owners in Shaw. Leave to You: Other Arguments from Pierson Arguments from Shaw & Liesner (DF)

29. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? • Custom: 1st iron holds whale if claim made before whale cut. • Note: Stronger custom for 1st ship than version of custom discussed in Taber & Bartlett • Whale can be still alive/swimming (v. adrift) • 1st ship just has to get harpoon to stick (v. kill)

30. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? • Swift decidesto treat custom here as binding law and provides an important discussion explaining its decision. • v. Pierson (custom ignored) • v. Bartlett (says likely wouldn’t adopt as law)

31. Krypton: Swift v. Gifford When Should Custom Become Law? Swift decidesto treat custom here as binding law and provides an important discussion explaining its decision. DQ2.14. What problems with using custom as law does Swift recognize?

32. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems w using custom as law include: • Surprise to Outsiders • Note references to LOCAL custom and to ABUSES • Problem grows as commerce reaches further • Uncertainty (re what custom is/when it applies) • “loose and inconclusive customs” • “liable to great misunderstandings and misinterpretations” • Custom may be Unreasonable.

33. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems with using custom as law include: • Surprise to outsiders • Uncertainty as to what custom is or when it applies • Custom may be unreasonable • See Bartlett (open to fraud & deceit) • Note discussion on p.69 re what laws can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”

34. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems with using custom as law include: • Surprise to outsiders • Uncertainty as to what custom is or when it applies • Custom may be unreasonable (see Bartlett) With these in mind, court gives us a list of considerations to use when deciding whether to treat custom as law.

35. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Should Custom = Law: Swift Considerations • Doesn’t affect outsiders • Used by entire business for a long time (equivalent of a contract) • Where legal rule is hard to apply on site, use of custom may prevent quarrels • Custom is reasonable We’ll describe each and apply (2.13) to Swift and (2.14) to hunter’s customs noted in Pierson.

36. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. • Concern about outsiders generally (just did). • Relevance in Swift?

37. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders • MEANS: Q here is whether custom is likely to be applied to uninformed outsiders to their surprise/disadvantage. (NOT asking whether industry affects outsiders.) • In Swift: Usage here is “not … open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.” p.69 (Nobody but whalers likely to be involved). DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

38. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. • Meaning of Reference to Contract Generally? • Relevance in Swift?

39. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) • Reference to “Contract”: If all agreed to & relied on, reasonable to treat as legally binding. • Custom here “embraced an entire business, and had been concurred in for a long time by everyone engaged in that trade.” • DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

40. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift.

41. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels • May be harder to determine 1st killer or mortal wound than 1st harpoon. • “Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. “ (p.69) • DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

42. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. • Court explicitly says custom is “reasdonable.” • Note: “Reasonableness” allows you to bring in a variety of concerns that don’t fit neatly in other categories (fairness, benefits to industry, rewarding labor, etc.)

43. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • Contrasts custom proposed inBartlettwith custom at issue in Swift: • Re Bartlett: “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.70)

44. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • Contrasts custom proposed in Bartlett with custom in Swift: • Re Bartlett: “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.70) • Might say that here, • 1f 2d ship hasn’t cut in, not really fully possessed yet. • Custom here reasonable b/c only gets whale if fully possessed.

45. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • Contrasts custom proposed inBartlettwith custom at issue in Swift. • Why is Judge Lowell especially authoritative on meaning of Bartlett?

46. Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • He wrote it: “I there intimated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances.” • Leave for you arguments about reasonableness of hunters’ customs in Pierson (maybe certainty v. safety)

47. Swift v. Gifford (Krypton)DQ2.15: Unpublished Opinions In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties. Possible problems with doing this?

48. Swift v. Gifford (Krypton) DQ2.15: Unpublished Opinions Problems with relying on unpublished opinion • Lack of notice to other party (paid costs here). • Lack of notice to others affected. • Unpublished may mean court doesn’t want it used as precedent. Problems sufficient to justify blanket rule against doing this?

49. Swift v. Gifford (Krypton)DQ2.15: Unpublished Opinions Problems relying on unpublished opinion include: • Lack of notice to other party. • Lack of notice to others affected. • Unpublished may mean court doesn’t want it used as precedent. Note that if (as often true) opinion unpublished b/c easy application of existing law, problems don’t arise: Can just rely on that existing law.

50. Swift v. Gifford Wrap-Up (Absent Custom) Swift = Additional 1st Possession Animals Case • Hard to Resolve Under Prior Cases • Wound + Mark = More than Mere Pursuit • Briefly Had Whale Attached to Ship w Line/Harpoon • BUT Low Probability of Capture Hurts R’s Claim • SwiftSaysNeedActual Possession, so H would win • BUT prior to Liesner & Shaw