ELEMENTS B POWER POINT SLIDES

1. ELEMENTS B POWER POINT SLIDES Class #11 Wednesday, September 16, 2015

2. MUSIC (to accompany demsetz):The BeatlesMAGICAL MYSTERY TOUR (1967) Lunch Today Meet on Bricks @ 11:55 am Chinea* Kurtz * NussbaumPrather* Rashid * Segal Weissman Lunch Tomorrow Meet on Bricks @ 12:25 pm Arnst* Bertschausen* KlotzLemire* Narciso* ReyesStarkey

3. RING STORY (10/78-1/84)

4. Introduction to Escape Generally: Difficult for an Owner to Lose Property Rights Accidentally • Return of the Ring • We Don’t Presume Abandonment from Carelessness (Laptops in Library) • As You’ll See in Property, Hard to Achieve Adverse Possession (Generally Original Owner Must Completely Ignore & Avoid Parcel for 7+ Years)

5. Introduction to Escape Unit IB: When Does Owner of Escaped Wild Animal Lose Property Rights? • Why Different from Ring? • What Facts are Relevant?

6. Introduction to Escape:Recurring Terminology • Original Owner (OO) (can’t just say “owner” b/c unclear who owns animal after escape) • Finder (F) • Does OO loseorretainproperty rights in the escaped animal? (v. Unit IA: Did pursuer acquirepropertyrights to animal)

7. Introduction to Escape:DQ1.41: URANIUM Why should an OO ever lose property rights in an escaped wild animal? Why might we treat an escaped animal differently from a ring? Let’s Get Some Ideas on the Table

8. Introduction to Escape:DQ1.41: URANIUM Can you think of a circumstance where it would be unfair to return an escaped animal to original owner? Focus on right & wrong here & not legal doctrine.

9. Introduction to Escape:DQ1.42: URANIUM Arguments from Prior Authority re Ownership of Escaped Animals • From Language in Cases? • Although clearly nothing directly targeting • Until something on point, look where you can • [I’ll add slide with examples]

10. Introduction to Escape: DQ1.42 Sample Arguments from Language in Prior Case re Ownership of Escaped Animals • Pierson: Mortal wounding by one not abandoning pursuit  Property (suggests property rights can be lost at some point by not following up/pursuing) • Pierson/Liesner: Depriving animal of natural liberty  Property (suggests property rights can be lost if animal returns to natural liberty). • Shaw: Once animals are confined, need to maintain reasonable precautions against escape (suggests that if you take reasonable precautions, might retain ownership even if animal escapes).

11. Introduction to Escape:DQ1.42: URANIUM Arguments from Prior Authority re Ownership of Escaped Animals • From Policies We’ve Discussed? • Rewarding Useful Labor/Investment? • What Labor/Investment by OO Might We Want to Reward/Protect? • What Labor/Investment by F Might We Want to Reward/Protect?

12. Introduction to Escape:DQ1.42: URANIUM Rewarding Useful Labor/Investment? • Labor of OO? • Acquisition: Investment in purchase or capture • While Owned: In confining, maintaining, training • After Escape: In pursuit • Labor of F? • In capturing • In confining, maintaining, training

13. Introduction to Escape:DQ1.42: URANIUM Arguments from Prior Authority re Ownership of Escaped Animals • From Policies We’ve Discussed? • Providing Certainty?

14. Introduction to Escape:DQ1.42: URANIUM Providing Certainty? • Certainty to OO? • No “Perfect Cage Rule”: Don’t have to take ridiculous steps to keep from escaping? • Aware of What is Necessary to Retain O-Ship? • Certainty to Decision-Maker: Rule is Easy to Apply? • Certainty to Finder? (we’ll come back to)

15. Introduction to Escape:DQ1.42: URANIUM Going Forward We’ll Look at What Our Four Escape Cases Really Seem to Care About (as Opposed to These Hypothetical Lists)

16. Introduction to Escape:Mullett & Manning • All Three First Possession Cases (Pierson-Liesner-Shaw) Ask Similar Legal Qs • The First Two Escape Cases Use Very Different Approaches: • Mullett: Applies English Common Law Rule to Escaped Sea Lion • Manning: Fact-Specific Result (Not Referencing English Common Law Rule) for Escaped Canary

17. Introduction to Escape:Mullett & Manning • The First Two Escape Cases Use Very Different Approaches • BUT They are the only two cases in the entire course where the animal isn’t killed. 

18. Finishing UpSTATE v. SHAW Brief(Continued )

19. STATE v. SHAW Brief:Narrow Version of Holding (from Last Time) 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.

20. 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?

21. STATE v. SHAW Brief Rationales: Doctrinal Rationales from Authorities Cited on pp. 28-29 Provided in Sample Brief Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). MEANS?

22. STATE v. SHAW Brief Rationales: Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). Probably refers to difficulty of proof/certainty arguments. Court says possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.29) Significance?

23. STATE v. SHAW Brief Policy Rationales (Hints from Language of Case): Possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.27) Maybe refers to certainty of capturing fish (as a group) or of identifying owners Maybe goes to sufficiency of Net-owners’ labor OTHER DIFFERENT POLICY CONCERNS?

24. STATE v. SHAW Brief Rationales: Policy Rationales: Could discuss protecting important industry (subset of labor argument), but need to be clear that court doesn’t reference explicitly. Posted Brief contains fully articulated examples of each of the ideas mentioned here. E-Mail Me if Qs

25. LOGISTICS: CLASS #11 • THIS FRIDAY (9/18): Extendo-Class • Start with Intro to Manning & DQs 1.43-1.44 (OXYGEN) • Then Try to Finish Demsetz (KRYPTON & RADIUM DQs) • Then Return if Time to Manning Brief & DQ 1.45-1.47 (OXYGEN) • Last FRIDAY Before Break (10/2) • Additional Extendo-Class b/c One Less Class Hour Before Break than Last Year • Need to Introduce Some Concepts You’ll Need for Readings During and Immediately After Break • If no Storms, I’ll Give You the Extra Time Back on Day of Your Grammar Quiz at End of October

26. LOGISTICS: CLASS #11 (Graded Briefs) • OXYGEN: MullettBrief due Sat (9/19) @ 8pm • Look at Instructions for all Written Work and for Written Briefs (IM21-22). E-Mail me if Qs. • Get/Confirm Pseudonyms Before End of Day Friday • Self-Quizzes on both Manning and MullettHelpful. • Double-Check Formatting Instructions Before Finalizing • RADIUM: • I’ve Started Grading Shaw Briefs (Goal = Thu 9/24) • Status of Grading Posted on Course Page • Meanwhile Can Compare to Posted Sample Brief & Can Take Remaining Qs to Dean’s Fellow.

27. LOGISTICS: CLASS #11 (Assignment #1) Assignment Logistics • Submission due Mon (9/21) @ 10pm • Non-Coordinators’ Segments to be Sent to Coordinators by Sunday @ 10am (unless group agrees otherwise) • Coordinators • Get Pseudonyms Before End of School Day Monday • Double-Check Formatting Instructions Before Finalizing • If It Were Me, I’d Want … • 1st meeting no later than end of today • Deadline for circulating 1st drafts no later than Fri. afternoon Purpose/Importance: Practice & Feedback re Key Skill (Applying Legal Authority to New Facts)

28. LOGISTICS: CLASS #11 (Assignment #1) • Common Qs: • Use of Other Cases? (Only Sub-Assmt 1C and with Care) • Length? (Thorough yet Concise) • How Literal? (Very!! Cf. Reality TV Challenges) • I’ll Take Other Questions … • by E-Mail through Thursday Night • In Class on Friday • Not at All After Class Friday (So Double-Check Instructions Before That)

29. DQ1.26-1.27:Krypton Applying State v. Shaw

30. 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 and DF Sessions

31. 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

32. 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

33. 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 Pierson facts.

34. 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 Pierson facts

35. STATE v. SHAW DQ1.27: Krypton Should the result in Shaw be the same if the fishermen used a sunken boat instead of a net to trap the fish? Assume the boat retains the same percentage of fish that enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat)

36. STATE v. SHAW DQ1.27: Krypton Marking/Notice of Claim to Others is an important recurring policy concern SeeShaw test part 2: “maintain his control as to show that he does not intend to abandon” See Pierson: Mortal wounding + pursuit OK because hunter “thereby manifests an unequivocal intention of appropriating the animal”

37. STATE v. SHAW DQ1.27: Krypton Nice Additional Policy Reason to Treat Sunken Boat Differently Net is easily visible (28-foot square & top 4 feet above water) Sunken boat may not be visible so may be safety hazard to lake traffic if not very well marked May not want to reward trap that is dangerous to humans

38. 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