Analysis of Ownership Rights for Escaped Wild Animals

1. MUSIC (to accompany Shaw ):Mahler, Symphony #5 (1901-02)Vienna Philharmonic (1988) Leonard Bernstein: Conductor OXYGEN: Written Manning Brief Due Fri 9/13 @ 3:00 p.m. URANIUM: Written Mullett Brief Due Thu 9/19 @ 9:00 p.m KRYPTON: Written Albers Brief Due Mon 9/23 @ 9:00 p.m ALL: Written Weasel Argument Assignment Due Thu 10/3 @ 9:00 p.m (I’ll Introduce Friday)

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

3. Introduction to Escape Generally: Difficult for an Owner to Lose Property Rights Accidentally • E.g., Return of the Ring • We Don’t Presume Abandonment of Property from Carelessness • Laptops in Library • We’ll Address Technical Definition of “Abandonment” in Detail Later This Week

4. Introduction to Escape Key Qs for Unit IB: When Does Owner of Escaped Wild Animal Lose Property Rights? • Why Different from Ring or Watch? • What Facts are Relevant (& Why)?

5. Introduction to Escape: Terminology • Original Owner (OO) (can’t just say “owner” b/c unclear who owns animal after escape) • Finder (F) • Does OO loseorretainproperty rights in the escaped animal? (v. Unit IA: Did pursuer acquirepropertyrights to animal?)

6. Intro to Escape: DQ1.41: URANIUM Why 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

7. Intro to Escape: DQ1.41: URANIUM Can you think of a circumstance where it would be unfair to return an escaped animal to original owner? I’m asking here re layperson’s sense of right & wrong/fairness (not legal doctrine).

8. Intro to Escape: DQ1.42: URANIUM Arguments from Prior Authority (Pierson-Liesner-Shaw) re Ownership of Escaped Animals • From Language in Cases? • Although clearly nothing directly targeting this situation. • If no authorities directly .on point, look where you can. • Two slides following (not shown in class) with examples provide examples

9. Introduction to Escape: Sample Arguments from Language in Prior Case re Ownership of Escaped Animals • Shaw: • Once animals are confined, need to maintain reasonable precautions against escape. Might suggest that if you take reasonable precautions, might retain ownership even if animal escapes • Requirement that you maintain control in a way that shows no intent to abandon might mean you can retain property in escaped animals if evidence of no intent to abandon • BUT Thrust of case seems to assume that once fish escape from net, net-owner loses property rights.

10. 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).

11. Intro to Escape: DQ1.42: URANIUM Arguments from Prior Authority re Ownership of Escaped Animals • From Policies We’ve Discussed? • Rewarding Useful Labor/Investment? • What Labor/Investment Might We Want to Reward/Protect … • By Original Owner? • By Finder?

12. Intro to Escape: DQ1.42: URANIUM Rewarding Useful Labor/Investment? Labor of OO? Labor of F? Acquisition: In capturing While Owned: In confining, maintaining, training • Acquisition: Investment in purchase or capture • While Owned: In confining, maintaining, training • After Escape: In pursuit

13. Intro to Escape: DQ1.42: URANIUM Arguments from Prior Authority re Ownership of Escaped Animals • From Policies We’ve Discussed? • From Wanting to Provide Certainty?

14. Intro to Escape: DQ1.42: URANIUM :Wanting to Provide Certainty? • Certainty to OO? • No “Perfect Cage Rule”: Don’t have to take ridiculous steps to keep from escaping? • OO’s aware of what is necessary to retain O-Ship? • Certainty to Decision-Maker: Rule is Easy to Apply? • Very Easy: You win if you can prove you are OO • Very Easy: F always wins (“Finders Keepers”) • Certainty to Finder? (we’ll come back to) • Includes certainty to F re existence of prior claim to found animal

15. Introduction to Escape Going Forward We’ll Look at What Our Four Escape Cases Really Seem to Care About (as Opposed to These Hypothetical Lists)

16. Intro to Escape: Mullett & Manning • Our First Possession Cases (Pierson-Liesner-Shaw) All Ask Similar Legal Qs • First 2 Escape Cases Very Different from Each Other: • Mullett: Applies English Common Law Rule (with Three Factors) to Escaped Sea Lion • Manning: Fact-Specific Result (Not Referencing English Common Law Rule) for Escaped Canary

17. Intro to Escape: Mullett & Manning • The First Two Escape Cases Use Very Different Approaches • BUT they are the only two cases in the entire course where the animals aren’t killed. 

18. ALL: EXERCISE FOR CLASS #12 Which of These Things Is Not Like the Others (and Why)? LIONFISH BULL FOX

19. EXERCISE: Which of These Things Is Not Like the Others (and Why)? (2017 Lists)

20. EXERCISE TO SET UP DEMSETZ READING How to Decide Which Differences Matter? THEORY!!

21. DEMSETZ ARTICLE

22. DEMSETZ ARTICLE & DQ1.30 “In the world of Robinson Crusoe property rights play no role.” (p.30) Means?

23. “In the world of Robinson Crusoe property rights play no role.” One definition of Property: “Legal relations between people with regard to things.” Helpful to think of Property not as a noun but as an adjective (like sacred or beautiful). Some animals are Sacred; some are not. Some animals are Property, some are not. In different cultures, different animals defined as Sacred or as Property. E.g., insects (other than bees) rarely seen as Property.

24. In different cultures, different animals get defined as Property. Bombyx Moth treated as Property in China for several thousand years. Why?

25. DEMSETZ ARTICLE IN ELEMENTS D Unit One-A has been about how people acquire Property rights in unowned animals. This is part of a broader issue: How and why do things or intangible interests change from being NOT-Property to Property . Demsetz provides one way to look at this issue that largely revolves around the concept of “internalizing externalities,” to which we’ll return at the end of our discussion of Shaw. Hold Qs until We Work with in Detail Later in the Week

26. Back to DQ1.24-1.25Apply Pierson & Liesner to Perfect Net Rule & to Specific ShawFacts Radium for 1.241.25 in DF

27. DQ1.24 Apply Pierson Dissent to ShawFacts & Perfect Net Rule (Radium) Arguments from Pierson Dissent?

28. DQ1.24 Pierson Dissent/Shaw(Radium) Facts would seem to meet language (p.6): i) Pursuer w/in reach or reasonable prospect of taking + ii) Intent to convert to own use Even imperfect net is more control/certainty than most forms of “hot pursuit” so dissent would likely say it is enough to create property rights. “Perfect Net Rule” could discourage hunting (use of nets) Importance of killing pest that harms chickens (human food) arguably similar to importance of killing fish that are themselves human food If you look to customs of fisherman, likely to find that fish in nets are considered property of net-owners.

29. DQ1.24: Using Arguments from Dissents If Case in Different Jurisdiction: Majority in other state not Binding on Court in Question Dissent can be Persuasive Authority (“We find the dissent’s position more persuasive because …”) Note that Pierson Dissent position seems inconsistent with rules stated in Liesnerand Shaw as well, which weakens its overall persuasiveness.

30. DQ1.24: Using Arguments from Dissents Where Majority Opinion is Binding: Cannot rely on dissent positions explicitly rejected by Majority. Can Use to Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”) Can Use to Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”

31. DQ1.24: Using Arguments from Dissents QUESTIONS?

32. STATE v. SHAW DQ1.25 Arguments from Liesner: ApplyingVersions of Prevailing Rule to Shaw Facts (& Other Arguments) I’ll Leave to You & Do/Continue DF Sessions This Week Next 3 Slides [not shown in class] have Partial Examples (forthcoming)

33. STATE v. SHAW BriefFINDING BROADER HOLDINGS Look to Language in Case: 1st Two Paragraphs after “Davis, J.” Discuss Law Quotes in 1st paragraph are authorities apparently rejecting claim that wild fish cannot be property. They say that fish in a tank or net are sufficiently confined that they can be property. Court cites Young at end of long paragraph on 28-29 for the proposition that net-owners have no property rights to fish frightened away before they could enter the nets. In between, court explicitly rejects perfect net rule, but nowhere says that any fish in any net belong to the net-owner. Thus, look to language in long paragraph to help determine when fish in nets are property of net-owners.

34. STATE v. SHAW BriefBROADER HOLDINGS On remand, trial court will have to instruct jury about when net creates property rts in fish. Broader version(s) of holding needed. Possible Rules/Holdings: Any Net is OK? (Raggedy Volleyball Net??) Look to language in case: Two plausible rules (long para. pp.28-29), either of which could be incorporated into broader version of holding.

35. STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

36. STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny [= his property].

37. STATE v. SHAW Brief First Plausible Rule (bottom of p.28) “[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.” Note two parts/requirements Need to work through 2d requirement carefully

38. STATE v. SHAW Brief “[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.” In context, doesn’t mean purpose of clause is to “show” necessary intent. Rather should read as…) [ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.”

39. STATE v. SHAW Brief “[T]he pursuer must [i] bring them into his power and control, and … [ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.” = Intent w/o continued control insufficient. Let go + “I intend to keep you 4ever. ♡” Let go + Attach a Tag: “I intend to keep him 4ever. ♡” Don’t let go.