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MUSIC: Ethel Waters Recordings 1929-39

MUSIC: Ethel Waters Recordings 1929-39. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases. (d) Should the custom in Ghen be treated as law under the analysis of Swift? Doesn’t affect outsiders? Used by entire business for a long time?

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MUSIC: Ethel Waters Recordings 1929-39

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  1. MUSIC: Ethel WatersRecordings 1929-39

  2. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (d) Should the custom in Ghenbe treated as law under the analysis of Swift? • Doesn’t affect outsiders? • Used by entire business for a long time? • Legal rule harder to apply than custom? • Custom is reasonable?

  3. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (d) Should the custom in Ghenbe treated as law under the analysis of Swift? 1. Doesn’t affect outsiders?

  4. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (d) Should the custom in Ghenbe treated as law under the analysis of Swift? • Doesn’t affect outsiders: Sometimes does, but maybe can’t process whale w/o people in industry 2. Used by entire business for a long time?

  5. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (d) Should the custom in Ghenbe treated as law under the analysis of Swift? 2. Used by entire business for a long time: YES. 3. Legal rule harder to apply than custom?

  6. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (d) Should the custom in Ghenbe treated as law under the analysis of Swift? 3. Legal rule harder to apply than custom? Unclear. Court suggests killer might win either way. 4. Custom is reasonable?

  7. Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases (d) Should the custom in Ghenbe treated as law under the analysis of Swift? • Custom is reasonable? • Whalers doing all they can. • Necessary for Continued Operation of Industry • Finder Gets Fee Qs on Ghen?

  8. PRACTICE DEMSETZ FIRST THESIS Regular Part of Analysis in Unit III Identify decision/activity at issue Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

  9. DEMSETZ FIRST THESIS DQ76 (Ghen Custom) : KRYPTON Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Ext. = Sometimes whaler lost whale he killed (= investment)  less whaling Identify change in circumstances? Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

  10. DEMSETZ FIRST THESIS DQ76 (Ghen Custom) : KRYPTON Activity = Collecting Whales from Beach Old Rule + Finder’s Keepers Ext. = Sometimes whaler lost whale & investment Change: Killing Finbacks w Bomb-Lances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

  11. DEMSETZ FIRST THESIS DQ76 (Ghen Custom) : KRYPTON Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Ext. = Sometimes whaler lost whale he killed Change: Killing Finbacks w Bomb-Lances Ext.  Industry arises/more whales & $$$ Cost of externalities > cost of change  change in rule? (Describe)

  12. DEMSETZ FIRST THESIS DQ76 (Ghen Custom) : KRYPTON Activity = Collecting Whales from Beach Old Rule = Finder’s Keepers Ext. = Sometimes whaler lost whale he killed Change: Killing Finbacks w Bomb-Lances Ext.  Industry arises/more whales & $$$ High Externalities > Social Inertia  Custom Develops

  13. DEMSETZ FIRST THESIS DQ76 (Ghen Custom) : KRYPTON Ext.  Industry arises/more whales & $$$ High Externalities > Social Inertia  Custom Develops NOTE: If some folks on shore don’t follow custom (as in Ghen), externalities remain high, so pressure for further change should lead to litigation and (perhaps) adoption of custom as law. QUESTIONS?

  14. Closing Up Whaling Cases • Whaling Cases on property rights & custom = “Animals Cases” for purposes of exam • Treat salvage as alternative, not part of ACs • Useful exercise: Apply Whaling cases & Rose to wolverine problem • Might do charts of these cases mapping, e.g., Labor; Marking; Applicability of Custom (fact Q); Decision to Treat Custom as Law (legal Q) QUESTIONS?

  15. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms • Shaw rejecting perfect net rule? • Relationship to “Rewarding Useful Labor” • Relationship to “Clear Act”

  16. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms Shaw rejecting perfect net rule? • Relationship to “Rewarding Useful Labor” • Net useful even if imperfect if gets lots of fish • Relationship to “Clear Act” • Probably most people see fish in net as owned • Net has to be pretty bad to send signal that net-owner doesn’t claim fish (cf. sunken boat)

  17. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms • Ghen adopting custom? • Relationship to “Rewarding Useful Labor”?

  18. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms Ghen adopting custom • Relationship to “Rewarding Useful Labor” • Custom Rewards Labor of Whale Killer. Especially important because: • Whaling Industry Useful b/c Whales Valuable • Custom Necessary to Industry to Give Enough $$$ • Finder Also Gets $$$ for Useful Labor of Reporting • Relationship to “Clear Act”:

  19. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms Ghen adopting custom • Relationship to “Clear Act”: • Mark Seems Very Strong • What About Interaction with Outsiders?

  20. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms Ghen adopting custom • Relationship to “Clear Act”: Q re Outsiders • Maybe OK b/c Mark is Very Strong • Maybe OK b/c Have to Use Insiders to Process • Maybe OK b/c Best You Can Do

  21. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms Swift adopting Custom • Relationship to “Clear Act”: • Accepted by “Relevant Audience” • Relationship to “Rewarding Useful Labor” • Labor Necessary to Get Resource Incomplete • Maybe court assumes that long agreement means industry thinks custom is right balance between labor & notice

  22. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms Albers rejecting Mullettrule? • Relationship to “Rewarding Useful Labor” • Mullettrule insufficient protection for investment in important industry • Tattooing itself is useful labor b/c specifically identifies OO at least to insiders • Relationship to “Clear Act” • Tattoo tells everyone there is OO and specifically identifies OO to insiders • Court leaves open possibility of different result if truly innocent finder

  23. Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms I’ll also include in this set of slides versions for Albers & Swift

  24. LOGISTICS CLASS #24 • My Exam Workshops Today; Tue 10/30; Thu 11/1 • 12:30-1:50 Room F309 • Friday: 55-Minute Classes Begin • On Course Page • Now: Old Exam Q1: Comments & Best Answers • By Noon Thursday: Info Memo #6, Including • Group Written Assignment #3: Instructions & Teams • Group Written Assignment #2: Comments & Models

  25. Oil & Gas: 1st Possession (OXYGEN) DQ80: REMIND US: • Under Westmoreland, if a pool of gas lies under two adjacent parcels of land and the owner of one parcel drills a well, how much of the joint pool is he entitled to take through his well? • How is this result related to the court’s description of gas as a mineral feraenaturae?

  26. Oil & Gas: 1st Possession (OXYGEN) DQ80: See Hammonds p.90: “oil and gas are not the property of any one until reduced to actual possession by extraction, although by virtue of his proprietorship, the owner of the surface, or his grantee of the severed mineral estate, has the exclusive right of seeking to acquire and of appropriating the oil and gas directly beneath. This theory of ownership or, perhaps more accurately speaking, lack of ownership is practically universally recognized. ...”

  27. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) Are Pierson/Liesner/Shaw Good Tools for Determining 1st Possession of Oil & Gas? Three Common Approaches • Significance of Factual Similarities & Differences (DQ81) • Usefulness of Doctrine (DQ82) • Usefulness of Alternatives (DQ83)

  28. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ81. Arguments from Factual Similaritiesre Usefulness of Pierson/Liesner/Shaw

  29. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ81. Arguments from Factual Similaritiesre Usefulness of Pierson/Liesner/Shaw Could try: Mobility Across Property Lines Labor Necessary to Capture

  30. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ81. Arguments from Factual Differences re [Lack of] Usefulness of Pierson/Liesner/Shaw

  31. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ81. Arguments from Factual Differences re [Lack of] Usefulness of Pierson/Liesner/Shaw Could Try Mineral Movement More Predictable Value of Oil/Gas Generally Higher

  32. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ82. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why)

  33. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ82. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why) Could Try Actual Possession; Power & Control Escape Practically Impossible

  34. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ82. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why)

  35. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ82. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why) Could Try Mortal Wounding; Continued Pursuit

  36. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ82. On Exam, Can Have Discussion About Whether Particular Factor is Useful or Not (with Arguments Both Ways)

  37. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) DQ83. Possible Alternative Ways to Allocate Initial Possession of Oil & Gas?

  38. Argument By AnalogyOil & Gas: 1st Possession (OXYGEN) • FRIDAY: DQ83. Pros & Cons • 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.

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