ELEMENTS D2 & D1 POWER POINT SLIDES

ELEMENTS D2 & D1 POWER POINT SLIDES Class #19: Thursday, October 12, 2017 National Gumbo Day

The Essential Louis Armstrong: Disc 1 (Recordings 1925-30) OFFICE HOURS: • Today: • 11:15-12:30 • 5:30-7:30 Reasonable Pre-Midterm E-Mail Qs Until 7pm Tonight NEXT WEEK • Normal Schedule: Monday thru Thursday • Friday: Both Classes • 8:15-10:15 • Including Detailed Review of Midterm • Next Set of Materials Posted by Sunday a.m.

KRYPTON BRIEF UPDATE • I will do as much as I can today until 5 • Should be able to do detailed comments on most of brief • Plus at least some general comments on Rationales • Incomplete feedback today primarily to point out mistakes reading and interpreting case so you are clear on Albers for test. • About 5, I’ll get I.D. info from Tina & E-Mail comments • You can ask Qs at office hours or by e-mail this evening • Also Sample Albers Brief on course page now. • I’ll reschedule meetings for Mon-Tues by e-mail • Basically Wed  Mon & Today  Tues • I’ll provide complete comments w stickers & overall ratings • Surgeon General’s Warning re Non-Indication of Final Grade

CLASS #19: OVERVIEW • Some Basics of Exam Technique for Issue-Spotting Questions • Return to Prior DQs for Some More Advanced Exam Technique • DQ1.48: Playing with Scope of Individual Cases • DQ1.52: Comparing Precedent Case to New Set of Facts • DQ1.53: Playing with Reading Two Cases Together • Back to Albers • DQ1.55: Domestic v. Wild (RADIUM) • DQ1.58-1.59: Critiquing Albers (ALL)

Once upon a time, O had an animal ferae naturae, which escaped …

Some Basics of Exam Technique for Issue-Spotting Questions • Generally on Anonymous Grading • Task on Issue-Spotting Q: Show Me … • Not that you’ve done the reading nor that you “know” the material. • That you know how to use the masteriasl to address the problem • Strongest Arguments for Each Party Including Weaknesses of Other Side’s Position • Tie-Breaker(s): Reason(s) That One Side Might Be Stronger Overall (Can do for each side)

Some Basics of Exam Technique for Issue-Spotting Questions 3. Too Much to Do; Too Little Time • Means You Understand the Q • Focus on Most Disputable Issues/Factors (Hard Qs) • NOT squirrel under Mullett (Easy Qs) • Squirrel under Manning (Hard Qs re F’s Knowledge & Distance) • Create “draft” not final product • Don’t try to make writing pretty • Use abbreviations, headings, telegraph English to save time • Concise NOT Conclusory • Definitions • Show all work (Because, because, bedcause))

Some Basics of Exam Technique for Issue-Spotting Questions 4. Tie-Breaking: Resolving Contested Issues or Resolving Problem Overall • Furthering Significant Policies • Compare Facts of Cases (1.52) • Particular Reading of One Case (1.48) • Particular Reading of Two or More Cases Together (1.53) 5. Dealing with Anonymous Grading QUESTIONS?

Manning Factors:TOGETHERDQ1.48: Squirrel Hypo Helpful to A/OO • 3 Months with OO • Responds to Name • Identifying Markings • Comfortable w Humans (if not common for local squirrels) Helpful to B/F • Squirrel Travels “Across Town” • No Prior Return • 2 Months with Finder • Markings Not Man-Made (apparently)

DQ1.48: Articulating Manning Holding • Asked to articulate versions of Manning holding helpful to each party. • I’ve provided some examples & comments on the slides that follow. Submissions from your classmates are in Info Memo #3 and I’ll add comments there soon. • On exam, can state versions of holding and apply to hypo, framing as follows: “One plausible version of Manning’s holding is that an OO retains property rights in an escaped wild animal where …. Here that would mean ….” • Can strengthen this by briefly indicating why your version of the holding is a particularly good one because • Supported by language of Manning or other cases AND/OR • Supported by relevant policy concerns.

DQ1.48: Articulating Manning Holding Asked to articulate versions of Manning holding helpful to each party fpr Squirrel Hypothetical in DQ1.48. Formulations more successful if: • Consistent with Manning (facts, result, examples) • Helpful to your client • Relatively easy to understand & apply • (Plus ideally) Consistent with relevant policy concerns

DQ1.48 Sample Manning Holding (for Amy/OO)Pretty good narrow version; includes almost all helpful facts OO retains property rights in an escaped animal f.n. • that was previously under the owner’s control; • that responded to its name when called; • that had distinctive markings; and • that had been missing for a short period of time and was located by the owner soon after. [This point problematic b/c not clearly true of squirrel].

DQ1.48 Sample Manning Holding (for Amy/OO)Solid broader version; focuses on a few key facts OO retains property rights in an escaped animal f.n. that is… • tamed to the extent that it knows and remembers its name after a significant period of time [italicized phrase is an interesting idea but ba little vague; might replace with, e.g., “when the OO discovers its location”] • and marked in such a way as to make identification straightforward . [Clever way to talk about marking for A that doesn’t turn on telling F there is an OO.]

DQ1.48 Sample Manning Holding (for Amy/OO)Too broad; case doesn’t protect OO this far OOs retain property rights in escaped animals f.n. if they accidentally escape from the OOs’ immediate possession and come under the control of another person. Good idea to use language from case BUT: • No limit on time and distance • No reference to taming or marking • Looks like OO always wins; Manning doesn’t say that.

DQ1.48 Sample Manning Holding (for Brandon/F)Very narrow version; includes almost all facts unhelpful to A OO retains property rights in an escaped animal f.n.: • that was previously owned for two years, • that had escaped and returned before, • that had been missing for only a few days, and • that owner located day after it was found. Although consistent with Manning and helpful to Brandon, might need to defend that it would be sensible for court to focus on this set of [very specific] facts.

DQ1.48 Sample Manning Holding (for Brandon/F)Solid relatively simple version OO retains property rights in an escaped animal f.n. that • was tamed • had a distinctive man-made mark • and was claimed shortly after escape Sensible to include (and concede) factor helpful to A (taming) because balanced by two factors that A cannot meet here. “Shortly” might leave a court with more discretion than you’d want.

DQ1.48 Sample Manning Holding (for Brandon/F)Clever version focused on different measures of time. OO retains property rights in an escaped animal f.n. that OO had possessed prior to escape for an amount of time • substantially greater than the amount of time the animal was at large; and • substantially greater than the amount of time that the F possessed the animal. Many students have submitted samples (like the first one for A and the second one for B above) that use imprecise phrases like “a short time.” Courts and legislatures of course do this sometimes, BUT this student removes some of the uncertainty by forcing the court to compare the two relevant time periods after escape to the length of time the OO had the animal before escape.

Mullett & Manning TogetherDQ1.52-1.53

Comparing Mullett and Manning (DQ1.52) • Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why? • Helpful Exam-Related Exercise; Useful to Compare Relative Strength of Legal Position of Party in Exam Hypo to that of Equivalent Party in Case We Studied • Can Go Through Factor by Factor

Comparing Mullett and Manning (DQ1.52)

Comparing Mullett and Manning (DQ1.52) • 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) • Would be Very Unusual for an Exam Hypo, where situation typically like squirrel hypo in DQ1.48: • Under Manning, better on some factors, worse on others • You then have to discuss which factors should outweigh the others and why.

Mullett & Manning: DQ1.53 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? • Good if • Consistent with Facts/Result of Both Cases • Easy to Understand (& Perhaps Apply) • Better if • Consistent with Language/Examples from Both Cases • Consistent with Relevant Policy Concerns

Mullett & Manning: DQ1.53 (Sample #1) OO loses property rights in an escaped animal when the animal, without an intention to return, can provide for itself and is free to follow its natural inclinations. • Essentially a restatement of Mullett rule, so consistent with Mullett. • Consistent with ManningIF you assume the canary could not have provided for itself.

Mullett & Manning: DQ1.53 (Sample #2) OO loses property rights in an escaped animal when the animal • Has returned to its natural liberty; AND • Does not show a connection to the OO • by marking OR • behavior (such as intent to return or other taming).

Mullett & Manning: DQ1.53 (Sample #2) OO loses property rights in an escaped animal when the animal is in its state of natural liberty; and does not show a connection to the OO by marking or behavior (such as intent to return or other taming). • CLEVER • Adds to the Mullettfactors two factors from Manning that clearly distinguish the two cases • Treats AR as form of taming (seems right) • Would mean that animals that otherwise would go to F under Mullett stay with OO if tamed or marked (seems sensible & generally consistent with thrust of Albers)

Mullett & Manning: DQ1.53 (Sample #3) OO loses property rights in an escaped animal when the OO shows intent to abandon the animal. Interesting Idea: • Puts focus entirely on showing “intent to abandon” • Looks like using 2d part of Shaw rule for 1st Possession as basis of escape rule

Mullett & Manning: DQ1.53 (Sample #3) “OO loses property rights in an escaped animal when the OO shows intent to abandon the animal.” • Puts focus entirely on “intent to abandon” • Use of “shows” might sensibly put emphasis on acts of OO rather than proof of subjective intent (hard to achieve). • Would need to resolve “abandonment” in favor of F in Mullett(which court did not do). Could argue that placing sea lion on island w/o confinement meets test.

The Logic of Albers • What The Case Holds • Addressing Prior Authority • Domesticated or Wild? (DQ1.55 Radium) • Critique

The Logic of Albers: Domesticated or Wild? Parties’ Presumption (p.47): 2 Available Rules • Rule for Wild Animals (Mullett/Blackstone) under which finder (D) likely wins here (so D supports) • Rule for Domestic Animals under which Original Owner (P) clearly wins (so P supports) • Leads to sequence of arguments about whether fox is wild or domestic. • Colorado S.Ct. must’ve decided the fox was wild or case would be much shorter/simpler

The Logic of Albers 3. Domesticated or Wild? • DQ1.55(a): Taxation of Fur Foxes? (featuring G.I. Joe!) • DQ1.55(b): Species v. Individual? • DQ1.55(c) Black’s’ Definition of “Domestic Animal” • DQ1.55(d) Birth in Captivity? • DQ 1.55(e) Significance of H.B. 367?

The Logic of Albers: Domesticated or Wild? (1) • DQ1.55(a) (1st para.p.47): Plaintiff argued that “foxes are taxable in this state, hence the common-law rule as to domesticated animals applies….” Why might P think this taxation is relevant?

The Logic of Albers: Domesticated or Wild? (1) • DQ1.55(a) (1st para.p.47): Plaintiff argued that “foxes are taxable in this state, hence the common-law rule as to domesticated animals applies….” • Gist of P’s argument likely is “You are making me pay taxes on foxes as a valuable asset; only fair to treat them as domesticated animals (which are similarly taxed).” (Clever Argument!)

The Logic of Albers: Domesticated or Wild? (1) • DQ1.55(a) P:“You are making me pay taxes on foxes as a valuable asset; only fair to treat them as domesticated animals (which are similarly taxed).” • Court doesn’t respond directly, but • Could again say that relevant doctrine looks at individual animals, not species • Taxation likely also true for, e.g., zoo animals (pretty clearly wild) • Tax system is separate legal structure with its own definitions & is not binding here.

Characterization of Same Item in Different Legal Contexts • Common for a particular type of property or intangible interest to be governed by more than one set of legal rules, each of which applies in a different context. • Example: A time-share interest in a resort might be treated • like ownership of part of a building for tax purposes • like a hotel room for purposes of anti-discrimination law • like a share of stock for purposes of securities laws.

Characterization of Same Item in Different Legal Contexts • Sensible to argue that legal treatment of the item in one context should be RELEVANT to its treatment in other contexts. • BUT be aware that, because different sets of rules have different purposes, there is no requirement that an item has to be treated in a consistent manner by different sets of applicable rules. • E.g., characterizations for tax purposes are frequently different than others.

Characterization of Same Item in Different Legal Contexts G.I. Joe: I am an “Action Figure” …

Characterization of Same Item in Different Legal Contexts G.I. Joe: I am an “Action Figure” even though Customs Regulations…

Characterization of Same Item in Different Legal Contexts G.I. Joe: I am an “Action Figure” even though Customs Regulations call me a “Doll” 

The Logic of Albers 3. Domesticated or Wild? • DQ1.55(a): Taxation of Fur Foxes? • DQ1.55(b): Species v. Individual? • DQ1.55(c) Black’s’ Definition of “Domestic Animal” • DQ1.55(d) Birth in Captivity? • DQ 1.55(e) Significance of H.B. 367?

The Logic of Albers: Domesticated or Wild? (2) • DQ1.55(b) (start of 1st full para. p.48): “Counsel for D insists that whether an animal be wild or domestic must be determined from the species, not from the individual.” • D wants Mullett rule, so wants animal to be wild. Thus, argues that all foxes are wild. Court’s Response?

The Logic of Albers: Domesticated or Wild? (2) • DQ1.55(b) (1st full para. p.48): “Counsel for D insists that whether an animal be wild or domestic must be determined from the species, not from the individual.” D wants Mullett rule, so wants animal to be wild. Thus, argues that all foxes are wild. • Court says no; don’t look at species. • Nature of AR (checking for “custom” of returning) indicates that, under the Mullett rule, you look at individual animals. • This almost certainly is true only for animals that are arguably wild. Court surely is not suggesting an individualized determination of whether a sheepis wild or domesticated.

The Logic of Albers: Domesticated or Wild? (3) End 1st full para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” Who Raised and Why? Court’s Response?

The Logic of Albers: Domesticated or Wild? (3) Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” Again, P must have argued that, b/c she makes $$$ off of foxes, they are “domestic animals” under this definition. The court in italicized phrase rejects the definition as too inclusive, and thus inconsistent with requiring individualized determination of “domestic” v. “wild”.

The Logic of Albers: Domesticated or Wild? (3) Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would includeall fur-bearing animals held in captivity, wherever born or however wild.” “Would include” here is conditional form, used to describe hypothetical situations.

The Logic of Albers: Domesticated or Wild? (3) Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” Sense here is “If we adopted this as the legal definition (which we won’t), all fur-bearing animals in captivity would be characterized as ‘domestic animals’ (which would be wrong).”

The Logic of Albers: Domesticated or Wild? (4) • End 3d full para. p.48 : “Nor has birth in captivity anything to do with the question. A wild cat may be just as wild if born in a cage as if born on a mountainside.” • P must have argued animal is “domesticated” if born in captivity (so fox here is domesticated). • Court disagrees in this passage; consistent w focus on individual animal.

The Logic of Albers: Domesticated or Wild? (5) Counsel for defendant … calls our attention to the fact that H.B. 367, by the terms of which this fox would be classed as domestic, had passed the lower house of the General Assembly …. This he urges as legislative recognition of the existence of the common law rule in Colorado…. Translation? Sensible Argument?

ELEMENTS D2 & D1 POWER POINT SLIDES