ELEMENTS B POWER POINT SLIDES

ELEMENTS B POWER POINT SLIDES Class #21 Monday, October 19, 2015

Music to Accompany Rose Excerpt: Paul WinterCanyon (1985)

LOGISTICS: CLASS #21 • Group Assignments • Review Problems/Exam Qs • Set-Up for Rest of Week

LOGISTICS: CLASS #21Group Assignments • Group Assignment #3: • Posted on Course Page • I’ll Take Qs in Class Friday • Group Assignment #1: • My Primary Task for Next Four Days • Get as Much Feedback Posted as Possible by Thursday night.

LOGISTICS: CLASS #21Group Assignments General Lessons for Assignment #2 from Assignment #1 • Follow Directions!!! • Accuracy with Facts • Accuracy with Cases • Explain/Defend Conclusions (No IRC) • Address One Thing at a Time • Simplify Your Writing

LOGISTICS: CLASS #21Group Assignments Group Assignment #2 • Care re Qs to Me & Anonymous Grading • Friday’s Class = Final Opportunity for Qs Questions Now?

LOGISTICS: CLASS #21Review Problems/Exam Qs • On Course Page: Complete Bank of Fact Patterns for Exam Questions I & II. • I will post Comments & Best Student Answers: • For Q1: After Assignment #2 Submitted • For Q2 : After Unit Two Complete

LOGISTICS: CLASS #21Review Problems/Exam Qs • Best Way to Prepare for Exams is to Do Old Exam Qs • Start by Working Through Some Untimed (Alone or in Groups) • Build Up to Doing Timed Under Exam Conditions • Review Problems: • Opportunity to Work Through Old Qs & Get Immediate Feedback • Worth Spending Time on Even Though You’re Very Busy to Get Used to My Qs

LOGISTICS: CLASS #21Review Problems/Exam Qs Schedule for Review Problems This Week • DF Today: Problem 2D • DF Friday/Next Monday; Problem 2E • In-Class Wednesday: Problem 2B • In-Class Friday: Problem 2C

EXAM Q1 (CUSTOM): REVIEW PROBS 2B & 2C XQ1: Dealing w Custom Generally Only Address if Q Explicitly Identifies a Custom Discuss Separately from 1st Possession/Escape Two Sets of Issues Does Activity Described in Q Fall Within Custom? Sometimes Pretty Clear & Can Address Quickly Sometimes Room for Lot of Discussion as in Rev. Prob. 2B Should Court Treat Custom as Binding Law? If I Put in a Custom, Always Room for Lot of Discussion

EXAM Q1 (CUSTOM): REVIEW PROBLEMS 2B & 2C 2B: Does Advertising/Broadcasting Custom Protecting MERE’s Ad Apply to Cane-Ade’s Kerry Grinder Ad? (URANIUM) BB Doing the EG on the Internet? (OXYGEN) 2C: Should the Custom Be Treated as Law (Use Factors from Swift & Ghen)? PRO: KRYPTON CON: RADIUM

EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii) Custom in Question There is a custom in the U.S. advertising and broadcasting industries that advertisements for ordinary commercial products and services cannot closely imitate, or use major components of, ads for charitable organizations. May be helpful to break it down into parts as you would a legal standard from a case or statute.

EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii) Custom in Question (Sample Breakdown) In the U.S. advertising and broadcasting industries ads for ordinary commercial products and services can’t closely imitate; or use major components of ads for charitable organizations. Then apply to problem like a legal standard.

LOGISTICS: CLASS #21More Set-Up for Rest of Week • DQ2.19: Ghen“Bad” Brief (OXYGEN) • DQ2.25: 1st Possession of Oil & Gas: Animals Cases v. Alternatives (URANIUM)

Ghen v. Rich (Oxygen): DQ2.19 “Bad GhenBrief” on Course Page (with other Briefs and Self-Quizzes) • In the brief, try to identify as many substantive mistakes and questionable statements about the case as you can. • Don’t worry that their briefing form is different from ours. • Useful way to organize: Download copy of brief and list any mistakes under relevant headings.

Argument By AnalogyOil & Gas: 1st Possession Set-Up for WED/FRI: DQ2.25 (Uranium) • First, We’ll Identify a List of Several Alternatives • Then Do Pros & Cons Just Looking at: • Westmoreland (Rule of Capture) v. • Distribution of Profits Proportional to Surface Area (w Reasonable Fee to Drillers for Labor and Risks) • Assume Some Large Oil/Gas Fields Under Multiple Surface Lots • Think About, e.g., Ease of Operation, Incentives, Effects on Market, etc.

Swift v. Gifford “First Iron Holds the Whale”URANIUM: Brief & DQ2.12-2.15Continued

Swift v. Gifford: Nature of Dispute (Recap) • Two ships chasing a wild whale. Who gets? • First to harpoon & pursue (Rainbow) –OR— • First to kill (Hercules) • Could decide using common law or custom. • We will look at: • How Swift addresses common law claim (from Brief) • How our ACs resolve without custom (DQ2.12) • How Swift addresses custom (DQ2.13-2.14)

Swift v. GiffordSwift Applying 1st Possession ACs (Recap) • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • If so, Rainbow loses • NOTE: 1872 = Before Liesner and Shaw = Rules now different

Swift v. Gifford (Uranium)Swift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • R Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court says this reading of civil law is not “free from doubt.” • May come from Pierson dissent quoting Barbeyrac (p.6). • Note underlying argument that court might alter common law rule to follow trend in civil law.

Swift v. Gifford (Uranium)Swift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court deals with this claim with reference to disputed fact, apparently assuming “reasonable prospect” = “reasonable probability”

Swift v. Gifford (Uranium)BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.68 end of first para.)

Swift v. Gifford (Uranium)BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.68)  Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? How does court resolve?

Swift v. Gifford (Uranium)BRIEF: Factual Dispute Where on List is “Reasonably Probable”? • Absolute Certainty • High Probability • No More Named Storms This Hurricane Season • Ben Carson Becomes the Republican Pres. Nominee • +

Swift v. Gifford (Uranium)BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? (Very bottom p.68) “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

Swift v. Gifford (Uranium)BRIEF: Factual Dispute Where on List is “A Possibility of Success”? • Absolute Certainty • High Probability • Reasonable Probability • No More Named Storms This Hurricane Season • Ben Carson Becomes the Republican Pres. Nominee • Snowball in Hell

Swift v. Gifford (Uranium)BRIEF: Factual Dispute Levels of Probability • Absolute Certainty • High Probability • Reasonable Probability • No More Named Storms This Hurricane Season • Ben Carson Becomes the Republican Pres. Nominee = A Possibility of Success • Snowball in Hell So how does court resolve disputed fact?

Swift v. Gifford (Uranium)BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? • “Reasonably probable” = “[much] more than a possibility of success.” Factual Finding: NO! “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

Swift v. Gifford (Uranium)BRIEF: Factual Dispute • Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court deals with claim by finding supposed test from civil law not met on these facts, so doesn’t have to decide: • If civil law really has adopted test raised by R • Whether to make test part of common law QUESTIONS?

Swift v. Gifford (Uranium) 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?

Swift v. Gifford (Uranium) 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?

Swift v. Gifford (Uranium) 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?

Swift v. Gifford (Uranium) 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 • Weissman Point: Killing Whales Generally Hard to Do • Finding of Fact was low probability, so maybe no reward • Halperin Point: 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: • Maybe Clearer Rule than 1st Kill • Don’t Have to Decide if Wound is Mortal

Swift v. Gifford (Uranium) 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.

Swift v. Gifford (Uranium) 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

Uranium: 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)

Uranium: 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)

Uranium: 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. DQ2.14. What problems with using custom as law does Swift recognize?

Uranium: 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.

Uranium: 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….”

Uranium: 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.

Uranium: 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.

Uranium: 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? • Relevance in Swift?

Uranium: 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?

Uranium: 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?

Uranium: 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 every one engaged in that trade.” • DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Uranium: 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.

Uranium: 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?

Uranium: 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. • 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.)

Uranium: 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)

ELEMENTS B POWER POINT SLIDES