ELEMENTS B1 & B2 POWER POINT SLIDES

ELEMENTS B1 & B2 POWER POINT SLIDES Class #16 Thursday, September 22, 2016 First Day of Fall & Elephant Appreciation Day

MUSIC: Gilbert & SullivanPIRATES OF PENZANCE (1879)Welsh National Opera Recording: 1993Charles Mackerras, Conductor B2 Lunch Today Meet on Bricks @ 12:30 Campo * Gangemi Masson * McLemore Saldana On Course Page • GWA#1: E-Mail Qs from Last Night & My Answers • Sample Briefs for Shaw & Manning • Detailed Info re In-Class Sequence for Tomorrow (Everyone Up for Something!)

Mining Manning ‘s Meaning:DQ1.47: RADIUM(p.40 last para.) To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY? This is unsupported rhetoric. You need to do better. More explanation = More Persuasive = More Points

Mining Manning ‘s Meaning:DQ1.47: RADIUM To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY? • MAYBE: Unfair to OO; too close in time and distance to lose rights (protect emotional & material investment) • MAYBE: Finder should know that there is prior OO, so shouldn’t keep it • MAYBE BOTH • PLAUSIBLE ADDITIONAL ARGUMENT: Court is concerned that OO not have to over-invest in confinement (Canary Alcatraz) to maintain ownership. Cf. Shaw.

Mining Manning ‘s Meaning:DQ1.47 RADIUM(p.40 last para.) To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion. • Again looks like short time/distance relevant.

Mining Manning ‘s Meaning:DQ1.47: RADIUM (p.40 last para.) To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion. WHAT IS A MENAGERIE?

Mining Manning ‘s Meaning:DQ1.47: RADIUM Animals Referenced in Last Paragraph: • Wild Animals in a Menagerie (= Zoo) • Organ Grinder’s Monkey Why These Animals?

Mining Manning ‘s Meaning:DQ1.47: RADIUM Why Animals Referenced in Last Paragraph: • Wild Animals in a Menagerie (= Zoo) • Organ Grinder’s Monkey • MAYBE: Valuable (but canary much less $$$) • MAYBE: F should know there’s prior owner NOTE: Menagerie animals again inconsistent with simply relying on “tamed”

Mining Manning ‘s Meaning:DQ1.47 & POSSIBLE POLICY RATIONALES Based in Labor/Investment The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie. These analogies suggest that it might be trying to protect the original owner’s investment in training and purchasing the animal. This idea would support returning the canary to the plaintiff in this case. Can Do Similar Based in Notice to Finder (I’ll Add Slide)

Mining Manning ‘s Meaning:DQ1.47 & POSSIBLE POLICY RATIONALES Based in Notice to Finder The court stated that it would be unjust to allow the finder to keep a pet bird that escaped to the street. It compared the case to an escaped organ grinder’s monkey and to wild animals escaping from a menagerie. These analogies suggest that it might believe that the finders of all these animals ought to know that they have a prior owner, and so should return them. This idea would support returning the canary to the plaintiff in this case.

DQ1.48: Articulating Manning Holding For Squirrel Hypo: Nature of the Exercise • Lots of Ways to Articulate Manning Holding • Can Include or Exclude Particular Facts • Can Describe Facts More Specifically or More Generally • Point of Broadening & Narrowing is to Identify Ways to Characterize Case to Help Use It as Precedent • Squirrel Hypo designed to get you to • Play with the holding in the way that litigators do • Find plausible versions helpful to client’s position. • Good Way to Start Exercise • Apply Manning Factors we derived to Hypo • Determine strengths & weaknesses under Manning of each client’s position.

Mining Manning ‘s Meaning:DQ1.48 (Squirrel Hypothetical) (OXYGEN) • Tomorrow In-Class: OXYGENS Apply Manning Factors to Squirrel Hypothetical • E-Participation Due Tomorrow: Selected OXYGENS each submit simply a version of Manning holding helpful to their client (See next slide) • Next Week: I’ll Give You Comments on Some Sample Holdings Articulated to Favor Each Party.

Mining Manning ‘s Meaning:DQ1.48 OXYGENE-ParticipationE-Mail Holding to Me by 8pm FridayI’ll Take Qs at Break/After Class/Tomorrow For Amy: • Akkaya, Filiz • Augustin, Cailey • Beltran, Nathania • Wisnoski, Nevin For Brandon: • Dubberly, Steve • Fernandez, Brian • Robledo, Manuel • Wilson, Heather

Albers v. E.A. Stephens & Co.:Important Case (Start Tomorrow Plus Much of Next Week) • Legal Analysis Most Complex We’ve Done • Colo. S.Ct. addressed lots of arguments rapidly w/o always articulating what it’s responding to • Look at brief introduction in materials • Read carefully • Take time to carefully brief & answer DQs & do Self-Quiz • Compare to Kesler v. Jones (similar facts but different reasoning)

Introduction to Mullett v. Bradley CASE BRIEF: KRYPTON

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett … ??? sued Bradley … for [cause of action] seeking [remedy]

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, original owner of an escaped sea lion, sued Bradley … ??? for [cause of action] seeking [remedy]

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from its finder for [cause of action] … ??? seeking [remedy]

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F for conversion (1st sentence of case) seeking [remedy] … ???

Mullett v. Bradley BRIEF: KRYPTON Statement of the Case: Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F, for conversionseeking damages. (1st sentence of case)

Mullett v. Bradley BRIEF: KRYPTON Procedural Posture: The lower court dismissed the complaint. The plaintiff appealed. After a Trial or on a Dispositive Motion? How do you know?

Mullett v. Bradley BRIEF: KRYPTON Procedural Posture: The lower court dismissed the complaint aftera trial. The plaintiff appealed. • “The complaint was dismissed on the merits.” (Top p.43) • Statements referring to evidence and proof, e.g., “The evidence not only fails to show that there was any animus revertendi on its part, but the inference from the facts provenis quite the contrary.”(Long para. mid-p.43)

Mullett v. Bradley BRIEF: KRYPTON Facts Relevant to Analysis: Court’s analysis makes no mention of capture, transport, blemishes, rejection by buyer, so we can start with … • P placed sea lion he owned on island … • What’s Next ?

Mullett v. Bradley BRIEF: KRYPTON Facts Relevant to Analysis: • P placed sea lion he owned on island. Sea lion escaped. P made no effort to recapture it. • Fisherman found sea lion 2 weeks later, 70+ miles from the island. Fisherman sold it to D. • A year later, plaintiff recognized the sea lion and demanded its return. D refused. ADDITIONAL FACT NOT FOUND IN FACT SECTION OF OPINION?

Mullett v. Bradley BRIEF: KRYPTON Facts Relevant to Analysis: • Sea lions are native to Pacific Ocean; not found in the Atlantic. • P placed sea lion he owned on island in Atlantic. Sea lion escaped. P made no effort to recapture it. • Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles from the island. Fisherman sold it to D. • A year later, plaintiff recognized the sea lion and demanded its return. D refused.

Mullett v. Bradley • “Fish-pound” is submerged net for catching fish (as in Shaw) • Could call this (unnamed) sea lion “Thomas” b/c taking fish out of nets belonging to others.

Mullett v. Bradley DQ1.49: Mullett Facts & Manning Factors (Oxygen) We’ll Do It My Way !!

OXYGEN DQ1.49: Applying Manning ‘s Factors (from Last Class) to Facts of Mullett • Taming (or Other Investment in Animal) • Marking (or F Likely Aware of OO) • Emotional Bond • Short Time/Distance from Escape

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Taming (or Other Investment in Animal) • Evidence Here?

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Taming (or Other Investment in Animal) • Evidence Here • No Evidence of Taming/Training • Probably Significant $$$ Investment (Cross-Country Travel) • Factor Help OO Under Manning?

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Taming (or Other Investment in Animal) • Evidence Here • No Evidence of Taming/Training • Probably Significant $$$ Investment • Factor Help OO Under Manning? • Not Tamed • Unclear How Much $$$ Investment Helps Under Manning (Maybe b/c of Menagerie Animals)

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Marking (or F Likely Aware of OO) • Evidence Here?

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Marking (or F Likely Aware of OO) • Evidence Here • “Blemishes” (Scarsides) • Maybe F Should Know b/c in Atlantic (Save for Discussion of Natural Liberty) • Blemishes as Marks Help OO Under Manning? (Can compare to crest.) • To Identify Animal? • As Notice to Finder of Prior OO?

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Marking = “Blemishes” • As I.D., Probably Better Than Crest • More Permanent • Others Unlikely to Have Exact Same • As Notice to Finder, Probably Weaker • Could Occur Naturally in Wild • Unless Scarring Pattern “Unnatural” (E.g., Imprint of Collar or Net)

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Emotional Bond: No Evidence at All “He stuck me on this stupid island and he doesn’t call, he doesn’t write ….”

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Related: Time of Ownership • Escape “a few days” after returned to OO Cf. Manning: Owned for 2 Years • Not Helpful to OO of Sea Lion • Little Additional Investment • No Emotional Bonding

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Short Time/Distance from Escape • Evidence Here: • Captured by F ~2 Weeks After Escape • Captured by F 70 Miles from “Home” • OO discovers animal about 1 year later

ME DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Short Time/Distance from Escape • Captured ~2 Weeks/70 Miles from “Home” • Cf. Manning: 5 days/Nearby in Same Town • Longer Time & Distance Might Mean: • Less Training or Likelihood of Return • OO Less Likely to Recover • Animal More Likely to Have Returned to Wild • BUT: 70 Miles for Sea Lion Probably Much Less Than for Canary (cf. Seattle  Ventura)

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Short Time/Distance from Escape • Claimed by OO 1 Year After Found • Cf. Manning: 1 Day After Found Significance?

OXYGEN DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Short Time/Distance from Escape • Claimed by OO 1 Year After Found (v. 1 Day) Could Mean • Insufficient Pursuit by OO • Significant Investment by F • Helps F

DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Factors Together: • Taming: No Evidence (But Lot of $$$) • Marking: Good I.D.; Not Strong re Notice • Emotional Bond: No Evidence of • Short Time/Distance from Escape: Worse than Manning, Especially Year to Discover

DQ1.49: Applying Manning ‘s Factors to Facts of Mullett • Factors Together • Taming: No Evidence of (though $$$) • Marking: Good I.D.; Not Strong re Notice • Emotional Bond: No Evidence of • Short Time/Distance: Worse than Manning, Esp. Year Pretty weak case for OO under Manning unless court considers $$$ investment very important.

Mullett v. Bradley DQ1.50: KRYPTON We’ll Now Examine the Three Factors that the Court adopts from the English Common Law

DQ1.50: MullettFactors: KRYPTON • Abandonment: If Abandoned, to Finder • Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO • Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

DQ1.50: MullettFactors: KRYPTON For Each Factor, We’ll: • Define & Discuss How to Prove • Discuss Why It Is Relevant to OO/F Disputes • Discuss Evidence & Outcome in Mullett • Later Discuss How It Would Apply to Facts of Manning and Albers

DQ1.50: MullettFactors: KRYPTONABANDONMENT Define & Discuss How to Prove • No Definition in Case; As We’ve Noted: • Technical Meaning = Intentionally Giving Up Property Rights in Something. • Look for act or statement by OO indicating intent to relinquish ownership. • Negligence in caring for the animal or in maintaining possession is insufficient (again, laptops in library).

DQ1.50: MullettFactors: KRYPTONABANDONMENT Why Relevant to OO/F Disputes? • Typically, we allow people to choose to give up property rights if they want to. • Maybe unfair to return to OO, esp. if F aware of act of abandonment or has invested in animal.

DQ1.50: MullettFactors: KRYPTONABANDONMENT Evidence & Outcome in Mullett • Evidence of Abandonment Here?

DQ1.50: MullettFactors: KRYPTON:ABANDONMENT Evidence & Outcome in Mullett • Evidence of Abandonment Here? • Investment, but low commercial value • Left unenclosed on island • No pursuit • BUT court says reasonable for OO to think he couldn’t find the animal. Why Not? Should it Matter?

DQ1.50: MullettFactors: KRYPTON:ABANDONMENT Evidence & Outcome in Mullett • Evidence of Abandonment Here? • Investment, but low commercial value • Left unenclosed on island • No pursuit • BUT court says reasonable to think couldn’t find. Outcome in Mullett?

ELEMENTS B1 & B2 POWER POINT SLIDES