Briefs Due Before Fall Break : KRYPTON: Albers Brief Due Thu 9/27 @ 9pm

1. MUSIC: ERIK SATIEOEUVRES POUR PIANO (1887-1922)Aldo Ciccolini, Piano (Recordings: 1966-71 Disc 2) Briefs Due Before Fall Break: • KRYPTON: Albers Brief Due Thu 9/27 @ 9pm • URANIUM: KeslerBrief Due Sun 9/30 @ 4pm • RADIUM: Taber Brief Due Sun 9/30 @ 4pm • Use briefing form for trial court cases in Unit Two Materials

2. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) Court Defines NL: • NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” • Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” How Would You Prove?

3. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) Proving NL: • Look at Condition of Animal When Found • Is It Healthy? • Has It Survived for a While? • B2: What Else?

4. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) Proving NL: • Look at Condition of Animal When Found • Is It Healthy? • Has It Survived for a While? • Look at Biology of Animal • Where Does It Usually Live? (Climate/Habitat) • What Does It Eat?

5. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) Court Defines NL: • NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” • Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” Why Relevant to OO/F Disputes?

6. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) Why Relevant to OO/F Disputes? Note that court doesn’t explain this. • Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses. • Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses

7. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) What exactly is at issue in Mullett?

8. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) What exactly is at issue in Mullett? Can animal be in natural liberty even if not natural habitat? Court says yes. Mullett provides definition and result w/o explanation. (Insufficient for you!)

9. DQ47: Mullett Factors: KRYPTON:Return to NATURAL LIBERTY (NL) Court says can be NL even if not natural habitat. Fit w purposes of Rule that, if NL OO? • Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses. • Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses

10. Understanding Mullett Factors: Types of Information Case Might Provide • Definition • General Info on Evidence That Shows if Factor Met • List of Evidence in This Case Relevant to Factor • Decision as to Whether Factor Met in This Case • Indication of Purpose of Factor

11. Understanding Mullett Factors: Types of Information Case Might Provide • Definition:NL • General Info on Evidence That Shows if Factor Met: AR (Usual Custom) • List of Evidence in This Case Relevant to Factor: AR • Whether Factor Met in This Case: AR, NL • Indication of Purpose of Factor: No.

12. Understanding Mullett Factors: Types of Information Case Might Provide • List of Evidence in This Case Relevant to Factor: AR • Because no list for NL or Aband., we can (and have to) speculate as to what facts are relevant. • Because court tells us for AR, must rely on this list for what facts in the case are “relevant” • Have to be careful, e.g., re clever point about scarring as evidence of AR (Revah B2)

13. Mullett v. Bradley BRIEF: KRYPTON ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when …

14. Mullett v. Bradley BRIEF: KRYPTON ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal whenit escapes into the Atlantic with no intent to return, where the Atlantic is not its natural habitat?

15. Mullett v. Bradley BRIEF: KRYPTON NARROW HOLDING: No, the trial court did not err in dismissing plaintiff’s case because the owner of an escaped sea lion does not retain property rights in the animal whenit escapes into the Atlantic with no intent to return, even though the Atlantic is not its natural habitat.

16. Mullett v. Bradley BRIEF: KRYPTON NARROW  BROAD SUBSTANTIVE HOLDING: • The owner of an escaped sea lion does not retain property rights in the animal when it escapes with no intent to return into the Atlantic, even though the Atlantic is not its natural habitat. • Example: The owner of an escaped animal feraenaturae does not retain property rights in the animal when it escapes with no intent to return to a place where it is free of all artificial restraint and can provide for itself.

17. Mullett v. Bradley BRIEF: KRYPTON RATIONALES See Models in Info Memo #4 • Doctrinal Rationales: Can derive from Blackstone and other authorities cited. • Policy Rationales: Court provides no explicit policy rationales for its decision. Can provide speculative versions based on policies we identified as relevant to NL

18. Mullett v. Bradley Qs on Mullett?

19. Albers v. E.A. Stephens & Co.:Important Case (Next 2 Classes) • Every Panel Has Some Responsibility • Krypton: Written Brief Due Thursday Night • Radium: DQ51-52 (Friday) • Oxygen: Brief for Class & DQ53 (Friday) • Uranium: DQ54-56 (Mon/Tue) • Plus Krypton & Uranium responsible for very similar Kesler

20. Albers v. E.A. Stephens & Co.:Important Case (Next 2 Classes) • Every Panel Has Some Responsibility • Legal Analysis Most Complex We’ve Done • Look at brief introduction in materials • Read carefully • Take time to carefully brief & answer DQs

21. Albers v. E.A. Stephens & Co.:Important Case (Next 2 Classes) • Every Panel Has Some Responsibility • Legal Analysis Most Complex We’ve Done • Read, Brief, Answer DQs Carefully • Expectations Higher in Week Six • Good Preparation for Midterms

22. PRACTICE MIDTERMS Theory • You Take Test in One of Your Four Non-L.Comm. Classes & Get Detailed Feedback • You See Tests in Other Three Classes and Get General Information on What We Wanted

23. PRACTICE MIDTERMS Timing • Tuesday 10/2: Late Afternoon We Tell You Which Test You’ll Take • Friday 10/5: Exams Either 2pm or 3:45pm

24. PRACTICE MIDTERMS Preparation: Generally • Take Seriously; Purpose is To Help You Assess Your Studying & Exam Technique • Suggestion: This Weekend Review/Organize 2 Classes You Are Least Sure Of • Some General Exam Tips From Me in Info Memo #4 (Also Could Review “Getting to Maybe”)

25. PRACTICE MIDTERMS Preparation: My Test • Specific Instructions in Info Memo #4 • Extra Office Hours Thu 10/4 • 9:45-10:45 am • 5:00-6:30 pm

26. PRACTICE MIDTERMS Preparation: My Test • Weasel Problem • Comments/Models in Info Memo #4 • Try Applying Other 1st Possession Cases • DQ45 (Squirrel): Apply Other Escape Cases • Written Assignment #2 in Info Memo #4 • Can Try Applying All Cases

27. PRACTICE MIDTERMS My Class: Friday 10/5 • Nobody On-Call; All Lecture & Volunteers • Taber v. Bartlett: 1st Whaling Case • I’ll Go Through Brief • Application of Mullett & Albers to Facts of Taber • Don’t Skip • Sets Up Bartlett & Swift Briefs Due at End of Break • Good Practice Applying Cases to New Facts

28. PRACTICE MIDTERMS Afterward • I’ll Post Midterm on Course Page So Rest of You Can Take During Break • I’ll Post Comments & Models from Past Classes in Info Memo #5 During Break • I’ll Try to Provide Comments to My Test-Takers by End of Week After Break

29. Attendance Sheets • Do Not Sign in For Other Students • Meaning of “Lateness”

30. Mullett & ManningURANIUM: DQ48-50

31. Mullett & ManningURANIUM: DQ50 SUBMIT RULE TO ME BY E-MAIL BY 2pm TODAY B1: Bianchi Fasani; Guerrazzi; Iftikhar B2: Fayne; Valle; Webster-Jones

32. Mullett & ManningURANIUM: DQ48 APPLY MULLETT FACTORS TO FACTS IN MANNING: Common Task on Exams

33. Using Factors or Elements Example: Testing Duty to Disclose • Element of Johnson: Defect Must Not be Readily Observable • Facts of Stambovsky(except 2012) • Google Search of address shows reputation as haunted on first screen • How do you prepare for & approach Q of whether element is met?

34. Using Factors or Elements • Assume Each There for Separate Reason • For Each: • Identify Kinds of Facts that Are Relevant • Look for Explicit Definitions • Look for Explicit & Implicit Policy Justifications We Did This Already for Mullett Factors

35. Using Factors or Elements When Applying to New Facts • Apply One at a Time, Then Look at Whole Picture • If “Elements”, Each Has to Be Satisfied for P to Win • If “Factors”, Consider Strengths & Weaknesses of All • If significant arguments for both parties on any one, try to resolve with: • Use of Definition • Comparisons to Use of Factor/Element in Prior Cases • Purpose of Factor/Element (Policy Justifications)

36. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (ABANDONMENT) Evidence Relevant to Whether (or Not) OO Abandoned Canary?

37. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (ABANDONMENT) Evidence Relevant to Abandonment • Strong emotional bond • Kept confined enough so only 2 escapes • OO pursued/claimed as soon as had info SOLID EVIDENCE OF NO ABANDONMENT

38. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (Intent to Return) Shown by “usual custom of returning.” Evidence Relevant to Whether (or Not) Canary Intended to Return?

39. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (Intent to Return) Evidence Relevant to Intent to Return Shown by “usual custom of returning.” • One prior return • This time away 5 days • In same town; flew into a different house Arguments re This Evidence?

40. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (Intent to Return) • Evidence Relevant to Intent to Return • One prior return • No custom v. 100% • Bird returned despite no relevant training (Mottin-Berger) • Away 5 days; to different house in same town (trying?) • Fit Purposes Behind Factor? • Shows Training? • Shows Emotional Bond? • Shows Reasonable to Allow Animal Out?

41. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (Return to Nat’l Liberty) Definition: “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” We Know: Out for 5 days then flew into B’s kitchen What Else Would You Like to Know?

42. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (Return to Nat’l Liberty) Definition: “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” We Know: Out for 5 days then flew into B’s kitchen Could Find Out: • Condition of Bird when Found • Area Similar to Natural Habitat? • Able to Find Food in Area? • Able to Survive Weather in Area?

43. Application of Mullett Factors to Manning FactsURANIUM: DQ48 (Return to Nat’l Liberty) PURPOSE(S) OF RULE • Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) • Protect Ordinary F Who Can’t Tell if Prior Owner ARGUMENTS HERE RE FITTING PURPOSES?

44. Comparing Mullett to ManningURANIUM: DQ49 Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why?

45. Comparing Mullett to ManningURANIUM: DQ49 Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why? Helpful Qs: • Strongest points for OO in Mullett? • Strongest points for F in Manning?

46. Comparing Mullett to ManningURANIUM: DQ49 • Manning is a better case for the OO on virtually every factor explicitly made relevant by the two cases (maybe excepting $$ investment & strength of mark) • Very unusual. In exam hypos, situation typically better on some factors, worse on others, so you have to discuss which factors outweigh the others and why.