elements b power point slides class #11 wednesday, september 16, 2015

ELEMENTS B POWER POINT SLIDES

Class #11 Wednesday, September 16, 2015

MUSIC (to accompany demsetz)MUSIC (to accompany demsetz)::

The BeatlesThe BeatlesMAGICAL MYSTERY TOUR MAGICAL MYSTERY TOUR

(1967)(1967)

Lunch TodayMeet on Bricks @ 11:55 am

Chinea * Kurtz * Nussbaum Prather * Rashid * Segal

Weissman

Lunch TomorrowMeet on Bricks @ 12:25 pm

Arnst * Bertschausen * Klotz Lemire * Narciso * Reyes

Starkey

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

Introduction to EscapeGenerally: 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)

Introduction to Escape

Unit IB: When Does Owner of Escaped Wild Animal Lose Property Rights?

– Why Different from Ring?

– What Facts are Relevant?

Introduction to Escape:

Recurring Terminology• Original Owner (OO) Original Owner (OO) (can’t just say

“owner” b/c unclear who owns animal after escape)

• Finder (F)Finder (F)

• Does OO loselose or retainretain property rights in the escaped animal? (v. Unit IA: Did pursuer acquireacquire property rights to animal)


DQ1.41: URANIUMURANIUMWhy 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


DQ1.41: URANIUMURANIUMCan 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.


DQ1.42: URANIUMURANIUMArguments 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]

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).


DQ1.42: URANIUMURANIUMArguments 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?


DQ1.42: URANIUMURANIUMRewarding 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


DQ1.42: URANIUMURANIUMArguments from Prior Authority re

Ownership of Escaped Animals •From Policies We’ve Discussed? – Providing Certainty?


DQ1.42: URANIUMProviding 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)


DQ1.42: URANIUMGoing Forward

We’ll Look at What Our Four Escape Cases Really Seem to Care About

(as Opposed to These Hypothetical Lists)


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


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.

Finishing UpSTATE v. SHAW

Brief(Continued )

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

YES. The trial court erred in directing a verdict for the defendant on 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.

STATE v. SHAW Brief:OneOne Broader Version of HoldingBroader Version of Holding

YES. The trial court erred in directing a verdict for the defendant because net-owners have property rights in fish found in their nets if the nets [i] bring the bring the fish into their power and controlfish into their power and control, , and [ii] so maintain their control as [ii] so maintain their control as to show that they do not intend to to show that they do not intend to abandon the fish again to the world abandon the fish again to the world at large.at large.

QUESTIONS ON HOLDING OR LEGAL QUESTIONS ON HOLDING OR LEGAL TESTS FOUND IN TESTS FOUND IN SHAWSHAW??

STATE v. SHAW BriefRationales:

•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?


•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?

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?


•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

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

LOGISTICS: CLASS #11 (Graded Briefs)

• OXYGEN: Mullett Brief 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 Mullett Helpful.– 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.

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)

LOGISTICS: CLASS #11 (Assignment #1)• Common Qs: Common Qs: – Use of Other Cases? Use of Other Cases? (Only Sub-Assmt 1C and

with Care)

– Length? Length? (Thorough yet Concise)

– How Literal? 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)

DQ1.26-1.27: Krypton

Applying State v. Shaw

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



[i] bring them into his power and [i] bring them into his power and controlcontrol, and


Apply to Liesner (trial court facts):Mortal Wound + Vigorous Pursuit +

Escape Improbable




[ii] so maintain his control as to [ii] so maintain his control as to show that he does not intend to show that he does not intend to abandon them again to the world at abandon them again to the world at large.” large.”

Apply to Liesner (trial court facts):Mortal Wound + Vigorous Pursuit +

Escape Improbable



[i] bring them into his power and [i] bring them into his power and controlcontrol, and


Apply to Pierson facts.




[ii] so maintain his control as to [ii] so maintain his control as to show that he does not intend to show that he does not intend to abandon them again to the world at abandon them again to the world at large.” large.”

Apply to Pierson facts


Should the result in Shaw be the same if the fishermen used a sunken boat 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)


Marking/Notice of Claim to Others is an important recurring policy concern•See Shaw 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”


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


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

elements b power point slides class #11 wednesday, september 16, 2015

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