elements b power point slides class #16 wednesday, september 30, 2015

ELEMENTS B POWER POINT SLIDES

Class #16 Wednesday, September 30, 2015

Pictures at AN ExhibitionMusic (for Piano) by Modest

Moussorsky (1874)Orchestration by Maurice Ravel (1922)

Recording by Cleveland Orchestra (1979)Lorin Maazel, Conductor

RADIUM WRITTEN BRIEF #2: RADIUM WRITTEN BRIEF #2: Taber v. Jenny (64-65)Taber v. Jenny (64-65)

DUE Tomorrow @ 10pmDUE Tomorrow @ 10pm•Use Instructions for Briefing Use Instructions for Briefing Trial Court Decisions (59-60) &Trial Court Decisions (59-60) & for Written Assignments & Case for Written Assignments & Case Briefs (IM21-22)Briefs (IM21-22)•See Introduction to Whaling See Introduction to Whaling Cases & Glossary (60-63)Cases & Glossary (60-63)

Assignment Sheet Updated to Reflect

Where We AreIn-Class Work on Taber Postponed Until After Break

Group Written Assignment #2:

Meyer v. HarbaughThe Case of the Wounded

Wolverine

Skills: Applying Legal AuthorityGroup Written Assignment #2

Important Exam Task/Skill: Apply Authorities Studied to New

Hypothetical or “Fact Pattern”

•Assmt #1 : Structured Sequence of Particular Arguments from a Single Authority

•Assmt #2: Wider Range of Arguments from Multiple Authorities


Wide Range of Arguments w 3 Limits

1.Each Team Only Addresses One Issue: –“First Possession” = Was There a

Moment When Wolverine Became Property of P?–“Escape” = Did P Lose Property Rights

When Wolverine “Escaped” to D’s Property (Must Assume P AcquiredAcquired a Property Right)



1.Each Team Only Addresses One of Two Issues (1st Possession -OR- Escape)–Stick to Your Issue–Be Very Careful to Explain Relevance

If You Use Authority Focused on Other Issue



1.Each Team Only Addresses One Issue

2.Representing One Particular Party– All Arguments Must Support Your

Client–Legal Smeagols: Identify Other

Side’s Best Arguments, Then Respond to Them



1.Each Team Only Addresses One Issue2.Representing One Particular Party

3.Arguments must be “based on the materials in Unit One.” –No arguments based on Whaling Cases –No arguments based on Rose Article– Can include policy arguments we’ve discussed

even if not clearly stated in Unit One materials.


One “Argument” Means One Subject

•E.g., Arguments Made in Assignment #1E.g., Arguments Made in Assignment #1

– Applying One Legal Test

– Comparing Facts of One Case to Hypo

– Applying One Relevant Policy Consideration

Skills: Applying Legal AuthorityGroup Written Assignment #2One “Argument” Means One SubjectOne “Argument” Means One Subject

•E.g., Arguments Made in Assignment #1E.g., Arguments Made in Assignment #1

•E.g., Applying One Relevant Factor E.g., Applying One Relevant Factor

– Mortal Wounding

– Return to Natural Liberty

•Deriving a Rule from Multiple Cases and Deriving a Rule from Multiple Cases and Applying ItApplying It

– See See DQ1.28 (1st Possession Cases)

• See See DQ1.53 (Manning & Mullett)


One “Argument” Means One One “Argument” Means One SubjectSubject

Some Degree of Judgment InvolvedSome Degree of Judgment Involved

•Mortal Wounding (+ Pursuit?)

•Two Similar Tests from Separate Cases?

•Address Counter-Argument in Same Argument or Separately?

When in Doubt, Avoid Substantial When in Doubt, Avoid Substantial OverlapOverlap


Working TogetherWorking Together

•Be Responsible for Submission as a Whole– Covering all Key Arguments You Identify– Addressing Key Counterarguments– Separating Out Different Ideas – Avoiding Substantial Overlap

•Due October 24 (Saturday Two Weeks after Break)– Before Break Should Start to Work Out

Individual Responsibilities and Timing– Cooperate to Achieve Best Possible Joint

Product


General PointsGeneral Points

1.Care re Formatting & Substantive Directions 2.Review “Common Writing Concerns”3.Look at Feedback on Assignment #1– Comments & Best Answers Memo on Course

Page– Individual Comments on Your Work Will Start

Appearing During Break

QUESTIONS?

UNIT II: EXTENSION BY ANALOGY UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASESPart 1: WHALING CASES

QUESTIONS ON: •Instructions for Briefing Trial Court Cases (59-60)•Intro to Whaling Cases (60-62) •Glossary (63)

UNIT II: EXTENSION BY ANALOGY UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASESPart 1: WHALING CASES

MAJOR LEGAL Qs COVEREDMAJOR LEGAL Qs COVERED•Taber v. Jenny: Escape (by Analogy); Custom

•Bartlett v. Budd: Escape (by Analogy); Custom

•Swift v. Gifford: 1st Possession; Custom (Key)

•Ghen v. Rich: Like Wolverine Problem (Both 1st Possession & Escape (by Analogy)); Custom (Key)

Return to Return to Mullett v. Bradley Factors Applied to …

DQ1.51:

Facts of Manning(KRYPTON)

DQ1.54:

Facts of Albers

(RADIUM)

Mullett FactorsIntent to Return (AR)

Types of Evidence Relevant to AR •Blackstone: “Usual Custom of Returning”

•Mullett: Behavior of Animal

Possible Purposes Behind AR as Factor• Shows Training

• Shows Emotional Bond

• Shows Reasonable to Allow Animal Out


DQ1.51: Applied to Manning (KRYPTON)•Evidence in Manning Relevant to AR – One prior return • Not “usual custom” v. cute atty argument (100% return rate)• Bird returned despite no evidence of relevant training

– 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?


DQ1.51: Applied to Manning (KRYPTON)•Evidence in Manning Relevant to AR – One prior return – Away 5 days; to different house in same town (trying?)

•Not Great Fit With Purposes Behind Factor– Actions Consistent w No Training or Emotional Bond– No Real Evidence That Reasonable to Allow Animal Out

RADIUM DQ1.55Albers on Manning

How does Albers characterize the holding

in Manning?


How does Albers characterize the holding in Manning?

One Escape/Return = Animus Revertendi (Bottom p.47)

•BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR

•So why does court say this?


• Albers characterizes the holding in Manning as “One Escape/Return = AR”

• Court (or treatise authors) might read Manning this way to reconcile result with the Mullett-Blackstone Rule: Court returned bird to OO, so must’ve believed AR.

Other ways to reconcile?



• Other ways to reconcile the result with the Mullett-Blackstone Rule?

• Canary was domesticated not wild.• Canary never returned to NL.



• Trying to reconcile the result with the Mullett-Blackstone Rule

Note that Georgia case and NY case do not have to agree; OK if not

reconcilable.


DQ1.54: Applied to Albers (RADIUM)

Types of Evidence Relevant to AR

•Blackstone: “Usual Custom of Returning”

•Mullett: Behavior of Animal

Evidence Here?



Types of Evidence Relevant to AR

•Blackstone: “Usual Custom of Returning”: None

•Mullett: Behavior of Animal• Escaped w/in two weeks from significant enclosure• Had run six miles in about a day

Strong Case for No AR(so no need to look to policy)

Using Factors or ElementsWhen Applying to New Facts

1.Apply One at a Time, Then Look at Whole Picture2.If significant arguments for both parties on any one (HARD CASE), try to resolve with: – Use of Definition (where available)– Comparisons to Use of Factor/Element in Prior Cases– Purpose of Factor/Element (Policy Justifications)

3.Hard Cases/Easy Cases (cf. Adverse Possession):– Did HARD CASE : “Intent to Return” & Single Return in

Manning– Compare EASY CASE: “Intent to Return” & Albers

Mullett FactorsReturn to Natural Liberty

Evidence in Cases re Natural Habitat & NL

Canaries Not Native to Georgia Canaries Not Native to Georgia &Silver-Black Foxes Not Native to Relevant Part of Silver-Black Foxes Not Native to Relevant Part of

Colorado.Colorado.

Not Dispositive Under MullettMust Look to Definition


Mullett Definition (Reminder):•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.”

Mullett FactorsReturn to Natural LibertyDQ1.51: Applied to Manning (KRYPTON)

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?


Evidence Relevant Under Definition of NL•Condition of the Animal

•Similarity of Area to Natural Habitat (Food, Climate, etc.)

Purpose(s) of Rule Consistent w Definition•Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal

•Protect Ordinary F Who Can’t Tell if Prior Owner


•Evidence Relevant Under Definition of NL• Condition of the Animal

• Similarity of Area to Natural Habitat (Food, Climate, etc.)

•No Info in Manning: Especially want to know re• Food Supply

• Canary & Local Georgia Winter (Savannah v. Mountains)


Fit Purpose(s) of Rule? •Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal


Mullett Factors Together

DQ1.51: Applied to Manning (KRYPTON)

1.Abandonment: Strong Evidence Against2.Intent to Return (AR): One Escape & Return3.Return to Natural Liberty (NL): Unclear– Not sure if could survive Georgia winter– Not sure if most finders would know there must be

prior owner



Silver-Black Foxes Not Native to Area (Not Conclusive)

Types of Evidence Relevant Under Definition of NL•Condition of the Animal?

•Similarity of Area to Natural Habitat (Food, Climate, etc.)?



Types of Evidence Relevant Under Definition of NLTypes of Evidence Relevant Under Definition of NL

•Condition of the Animal: No evidence of problems, but not out very long.

•Similarity of Area to Natural Habitat: Not much re habitat of silver-black foxes, but language suggests other foxes are native.



Purpose(s) of Rule Consistent w Definition•Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal


Fit Purpose(s) of Rule?

Albers: Return to NaturalLiberty

The Supreme Court of Colorado must have believed that the fox returned to natural liberty before it was killed and that thus D would win under Mullett.Otherwise, no reason to create excep-tion to Mullett rule to protect industry.

Mullett FactorsTogether


•Abandonment: By compulsion, which (court seems to say) doesn’t count against OO

•AR: No

•Return to NL: Court must have thought “Yes”

QUESTIONS on Factors or on Mullett Generally?

Mullett & Manning Together

RADIUM: DQ1.52-1.53

Comparing Mullett and ManningRADIUM: DQ1.52

Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why?

Comparing Mullett to ManningRADIUM: DQ1.52

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?

Comparing Mullett to ManningRADIUM: 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: – 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?

I’ll Go Through Some Examples Friday

Pictures at AN ExhibitionMusic (for Piano) by Modest

Moussorsky (1874)Orchestration by Maurice Ravel (1922)

Recording by Cleveland Orchestra (1979)Lorin Maazel, Conductor

Ravel Orchestration & Analogy to Albers

The Logic of Albers

1.Domesticated or Wild?

2. Addressing Prior Authority3. What The Case Holds4. Critique

The Logic of Albers: Domesticated or Wild?

Parties’ Presumption (p.46): 2 Available Rules1. Rule for Wild Animals (Mullett/Blkstone)

under which finder (D) likely wins here (so D supports)

2. Rule for Domestic Animals under which Original Owner (P) clearly wins here (so P supports)

Leads to sequence of arguments about whether fox is wild or domestic, 4 of which we’ll look at in detail.

The Logic of Albers

1.Domesticated or Wild?

i.i. DQ1.56(d): Species v. DQ1.56(d): Species v. Individual? Individual?

ii. Birth in Captivity?

iii.DQ1.56(c): Taxation of Fur Foxes?

iv.Black’s’ Definition of “Domestic Animal”

The Logic of Albers: Domesticated or Wild? (1)

DQ1.56(d) (start of last para. p.47): “Counsel for defendant insists that whether an animal be wild or domestic must be determined from the species, not from the individual.”

Why would D argue this?



D wants Mullett rule, so wants animal to be wild. Thus, arguing that all foxes are wild.

Court’s Response?



Court says no; nature of AR indicates that, under the Mullett rule, you look at individual animals.

Note that this probably is true only for animals that are arguably wild. Court is not suggesting an individualized

determination of whether a sheep is wild or domesticated.

Albers (Animus Revertendi)

Evidence re AR•Note: Court says determine AR for individual animal, not by species (bottom p.47)•Not binding on other states as to meaning of AR, but you can use to argue in an individual case.

The Logic of Albers

1.Domesticated or Wild?i. Determine by Individual not

Species

ii.ii. Birth in Captivity?Birth in Captivity?iii. Taxation of Fur Foxes? (DQ1.56(c))iv. Black’s’ Definition of “Domestic

Animal”


End 3d 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 Albers1.Domesticated or Wild?

i. Determine by Individual not Species

ii. Birth in Captivity Irrelevant

iii.iii.Taxation of Fur Foxes? Taxation of Fur Foxes? (DQ1.56(c)) (DQ1.56(c)) (featuring G.I. (featuring G.I. Joe!)Joe!)

iv. Black’s’ Definition of “Domestic Animal”


DQ1.56(c) (last full para.p.46): Plaintiff argued that “foxes are taxable in this state, hence the common-law rule as to domesticated animals applies….”

What does P likely believe is the relevance of taxation here?


DQ1.56(c): 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)


OXYGEN: DQ53c: “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 1. Could again say that relevant doctrine looks at

individual animals, not species

2. Taxation likely also true for, e.g., zoo animals

3. Tax system is separate legal structure not binding here.

Characterization of Same Item in Different Legal Contexts

• Common for a particular type of property Common for a particular type of property or intangible interest to be governed by or intangible interest to be governed by more than one set of legal rules, each of more than one set of legal rules, each of which applies in a different context. which applies in a different context.

• ExampleExample: A time-share interest in a resort : A time-share interest in a resort might be treated might be treated

– like ownership of part of a building for tax like ownership of part of a building for tax purposespurposes

– like a hotel room for purposes of anti-like a hotel room for purposes of anti-discrimination lawdiscrimination law

– like a share of stock for purposes of securities like a share of stock for purposes of securities laws. laws.


• Sensible to argue that the legal Sensible to argue that the legal treatment of the item in one context treatment of the item in one context should be relevant to its treatment in should be relevant to its treatment in other contexts.other contexts.

• BUT be aware that, because different BUT be aware that, because different sets of rules have different purposes, sets of rules have different purposes, there is no requirement that an item there is no requirement that an item has to be treated in a consistent has to be treated in a consistent manner by different sets of applicable manner by different sets of applicable rules. rules.

• E.g., characterizations for tax purposes E.g., characterizations for tax purposes are frequently different than others.are frequently different than others.


G.I. Joe: I am an

“Action Figure” …


G.I. Joe:

I am an “Action

Figure” even

thoughCustoms

Regulations …


G.I. Joe:

I am an “Action Figure”

even though Customs

Regulationscall me a

“Doll”


i. Determine by Individual not Species

ii. Birth in Captivity Irrelevantiii.Taxation of Fur Foxes Irrelevant

iv.iv.Black’s’ Definition of Black’s’ Definition of “Domestic Animal”“Domestic Animal”


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.”


Top para. p.48: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family 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 rejects the definition as too inclusive, and thus inconsistent with requiring individualized determination of “domestic” v. “wild”.


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 would includeinclude all fur-bearing animals held in captivity, wherever born or however wild.”

“Would include” here is conditional form, used to describe hypothetical situations.


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 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).”


i. Determine by Individual ii. Birth in Captivity Irrelevantiii. Taxation of Fur Foxes Irrelevant iv. Black’s’ Definition of “Domestic Animal”:

Too Broad

• Court Must’ve Decided the Fox was Court Must’ve Decided the Fox was WildWild– Otherwise Much Simpler to Conclude P WinsOtherwise Much Simpler to Conclude P Wins– Q Not Part of Issue/Holding b/c Court Adopts Q Not Part of Issue/Holding b/c Court Adopts

D’s Position on This, but P Still Prevails D’s Position on This, but P Still Prevails OverallOverall


i. Determine by Individual ii. Birth in Captivity Irrelevantiii. Taxation of Fur Foxes Irrelevant iv. Black’s’ Def. of “Domestic Animal”: Too

Broad

• Court Must’ve Decided the Fox was WildCourt Must’ve Decided the Fox was Wild– Otherwise Much Simpler to Conclude P WinsOtherwise Much Simpler to Conclude P Wins– Q Not Part of Issue/Holding b/c Court Adopts D’s Q Not Part of Issue/Holding b/c Court Adopts D’s

Position on This, but P Still Prevails OverallPosition on This, but P Still Prevails Overall

Questions?

The Logic of Albers

1.Domesticated or Wild

2. Addressing Prior Addressing Prior AuthorityAuthority

3. What The Case Holds4. Critique

The Logic of Albers2. Addressing Prior Authority

i.i. Tort Liability v. Property Tort Liability v. Property RightsRights

ii. Prior Escape CasesA. Manning (DQ1.55): B. Generally (DQ1.57(a))C. Ontario Case (DQ1.56(a))

iii. “Wholly Inapplicable” Casesiv. Statute re Common Law

(DQ1.56(b))

The Logic of Albers: Addressing Prior Authority

p.48 (3d para.): Discussion of legal connection between tort liability and

property rights: We’ll come back to next time

with Kesler & DQ1.60


i. Tort Liability v. Property Rights

ii.ii. Prior Escape CasesPrior Escape CasesA. Manning (DQ1.55): We Did

EarlierB. Generally (DQ1.57)C. Ontario Case (DQ1.56(a))


(DQ1.56(b))



ii.ii. Prior Escape CasesPrior Escape CasesA. Manning

B. Generally (DQ1.57(a)) (OXYGEN)

C. Ontario Case (DQ1.56(a))


(DQ1.56(b))


DQ1.57(a): OXYGEN

Top p.48: Prior authorities on escape “are rather confusing than enlightening….”


DQ1.57(a): OXYGEN

Top p.48: Prior authorities “even suggest that one modification of the rule would permit the owner to recover if he could identify his property.

“Even” means here?


DQ1.57(a): OXYGEN

Top p.48: Prior authorities “even [wrongly/ stupidly go so far as to] suggest that one modification of the rule would permit the owner to recover if he [merely] could identify his property. We know of no case so applying it (save those dealing with bees)… .”


DQ1.57(a): OXYGEN

Top p.48: Prior authorities “even suggest that one modification of the rule would permit the owner to recover if he could identify his property … [T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.”

To whom does court think it’s unjust?


DQ1.57(a): OXYGEN

[T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.”

•Under “modification,” OO always wins if can i.d. animal., so must be unjust to F.

Possible Reasons Why Unjust?


DQ1.57(a): OXYGEN

[T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.”

•Must be unjust to F, since under “modification” OO always wins if can i.d. animal.– Maybe because F has no notice (“ordinary” animals)– Maybe because F might start to invest– Also maybe because OO hasn’t done enough to control



ii.ii. Prior Escape CasesPrior Escape CasesA. ManningB. Generally

C. Ontario Case (DQ1.56(a)) (OXYGEN)


(DQ1.56(b))


DQ1.56(a): OXYGEN

Campbell v. Hedley (Ontario 1917)

• Essentially same facts as Essentially same facts as AlbersAlbers. .

• “In an action to recover the value of [the fox] pelt the plaintiff was defeated. That court applied the common-law rule, citing Blackstone and … Mullett….”


DQ1.56(a): OXYGEN

Campbell v. Hedley (Ontario 1917)• Essentially same facts as Albers. Finder

wins under common law rule.

• Ontario legislature “corrects” the case by passing “An act for the protection of property in foxes kept in captivity.” [Presumably protecting fox-fur industry][Presumably protecting fox-fur industry]

What is the significance to the logic of Albers of the Ontario statute “correcting” the case?


• Campbell v. Hedley (Ontario 1917): Essentially same facts as Albers. Finder wins under common law rule.

• Ontario legislature “corrects” by passing “An act for the protection of property in foxes kept in captivity.”

• Colo. S.Ct: Colo. S.Ct: – Ontario legislature “found it necessary to correct” Ontario legislature “found it necessary to correct”

the common law rule because it “was so the common law rule because it “was so inapplicable to present-day conditions.” inapplicable to present-day conditions.” (bottom p.48)

– Supports argument that common law rule Supports argument that common law rule shouldn’t be used where there’s a fox-fur industry shouldn’t be used where there’s a fox-fur industry and so is inapplicable.and so is inapplicable.


• Campbell v. Hedley (Ontario 1917): Essentially same facts as Albers. Finder wins under common law rule.

• Ontario legislature “corrects” by passing “An act for the protection of property in foxes kept in captivity.”

• Colo. S.Ct: Ontario legislature “found it necessary to Colo. S.Ct: Ontario legislature “found it necessary to correct” the common law rule because it “was so correct” the common law rule because it “was so inapplicable to present-day conditions.” Supports inapplicable to present-day conditions.” Supports argument that common law rule shouldn’t be used argument that common law rule shouldn’t be used where there’s a fox-fur industry and so is where there’s a fox-fur industry and so is inapplicable.inapplicable.

Questions on Use of Ontario Law?


i. Tort Liability v. Property Rightsii. Prior Escape Cases

iii.iii. ““Wholly Inapplicable” CasesWholly Inapplicable” Casesiv. Statute re Common Law

(DQ1.56(b))


(1st full para. p.48): “We take no notice of” cases involving theft from traps & cages and theft of dogs because they are “wholly inapplicable.”

• OO would win all these cases, so P must have raised them.

• “Wholly inapplicable” because they involve either domestic animals or animals completely within control of owner.


i. Tort Liability v. Property Rightsii. Prior Escape Casesiii. “Wholly Inapplicable” Cases”

iv.iv. Statute re Common Law Statute re Common Law (DQ1.56(b)) (OXYGEN)(DQ1.56(b)) (OXYGEN)


DQ1.56(b): OXYGEN

1861 Colo. Statute (Bottom p.48): The common law of England, so far as the same is

applicable and of a general nature shall be the rule of decision, and shall be considered as of full

force until repealed by legislative authority.

What argument did D make relying on this statute?


DQ1.56(b): OXYGEN1861 Colo. Statute (Bottom p.48): The common law of

England, so far as the same is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.

D must have argued that statute required the court to follow the common law Mullett-Blackstone rule, since not repealed by Colo. Legislature.

Why did the court reject the argument?


DQ1.56(b): OXYGEN1861 Colo. Statute: The common law of England, so far as the

same is applicable … shall be the rule of decision…

• Court finds the common law rule “inapplicable” because unsuited to present conditions – Cites Morris (an earlier Colo. Case) as rejecting a

common law rule for the same reason.

–Why unsuited here?


DQ1.56(b): OXYGEN

Court finds the common law rule “inapplicable” because unsuited to present conditions.

Why unsuited here? •Common Law Rule designed under assumption that wild animals had no material value•Before development of breeding farms and zoos•Need different rule to account for significant value


DQ1.56(b): OXYGEN• Court finds the common law rule “inapplicable” because

unsuited to present conditions. – Common Law Rule assumed wild animals had no material value– Since that is no longer true, need different rule.

• Common Type of Legal Argument: Check purpose of old rule to see if it should still apply.

Questions?

elements b power point slides class #16 wednesday, september 30, 2015

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