ELEMENTS D2 & D1 POWER POINT SLIDES

1. ELEMENTS D2 & D1 POWER POINT SLIDES Class #20 Monday, October 16, 2017 Tuesday, October 17, 2017 .

2. Music to Accompany Kesler: Ethel Waters (1929-1939) Friday 10/20 Both Sections Meet 8:15-10:15 Midterm Review Qs on GWA #2 2007 Exam Q1 Monday No Office Hours Monday/Wednesday DF on General Exam Prep (especially Post-Midterm Qs/Concerns)

3. Group Written Assignment #2:McKinley v. FordThe Case of the Wounded Wolverine

4. 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

5. Skills: Applying Legal AuthorityGroup Written Assignment #2 WideRange of Arguments w 3 Limits • 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 (MustAssume P Acquired a Property Right)

6. Skills: Applying Legal AuthorityGroup Written Assignment #2 WideRange of Arguments w 3 Limits • 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

7. Skills: Applying Legal AuthorityGroup Written Assignment #2 WideRange of Arguments w 3 Limits • Each Team Only Addresses One Issue • Representing One Particular Party • All Arguments Must Support Your Client • Legal Smeagols: Identify Other Side’s Best Arguments, Then Respond to Them

8. Skills: Applying Legal AuthorityGroup Written Assignment #2 WideRange of Arguments w 3 Limits • Each Team Only Addresses One Issue • Representing One Particular Party • Arguments must be “based on the materials in Unit One.” • No arguments based on Whaling Cases on Rose Article from Unit Two • Can include policy arguments we’ve discussed even if not clearly stated in Unit One materials.

9. Skills: Applying Legal AuthorityGroup Written Assignment #2 One “Argument” Means One Subject • E.g., Arguments Made in Assignment #1 • Applying One Legal Test • Comparing Facts of One Case to Hypo • Applying One Relevant Policy Consideration

10. Skills: Applying Legal AuthorityGroup Written Assignment #2 One “Argument” Means One Subject • E.g., Arguments Made in Assignment #1 • E.g., Applying One Relevant Factor • Mortal Wounding • Return to Natural Liberty • Deriving a Rule from Multiple Cases and Applying It • See DQ1.28 (1st Possession Cases) • See DQ1.53 (Manning & Mullett)

11. Skills: Applying Legal AuthorityGroup Written Assignment #2 One “Argument” Means One Subject Some 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 Overlap

12. Skills: Applying Legal AuthorityGroup Written Assignment #2 Working 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 Tuesday Night October 31 @ 9pm • Coordinators Should Try to Start to Work Out Individual Responsibilities and Timing Very Soon • Cooperate to Achieve Best Possible Joint Product

13. Skills: Applying Legal AuthorityGroup Written Assignment #2 General Points • Care re Formatting & Substantive Directions • Review “Common Writing Concerns” • Look at Feedback on Assignment #1 • Comments & Best Answers Memo on Course Page by Friday • Individual Comments on Your Work Will Start Appearing Soon

14. Group Written Assignment #2 QUESTIONS? • Today • In Class Friday, Next Mon-Tues, Next Friday • By E-Mail Until Sun 10/29 @ 11:59 pm

15. UNIT II: EXTENSION BY ANALOGYPart 1: WHALING CASES Part 2: OIL & GAS CASES

16. UNIT II: EXTENSION BY ANALOGY • Continuing Practice Reading & Briefing Cases • Application of Animal Cases (ACs) in New Contexts • 1st Possession • Whales ARE Animals (No Analogy) • Oil & Gas (Minerals Ferae Naturae) • Escape of [Dead] Whales/Stored Natural Gas • Plus: Custom as Binding Law (cf. Pierson) • SKILLS • Continuing Practice Applying ACs • New Skill: Using Legal Tests by Analogy • New Skill: Arguments about When Use by Analogy is Appropriate

17. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES Continuing Practice Reading & Briefing Cases • Begin with Intro to Whaling Cases (61-63) • All are 19th Century Cases  Glossary (64) • All are Trial Court Cases (Written Decisions following Trials)  Special Briefing Form (60-61) I’ll Take Qs on These by E-Mail or Next Class

18. UNIT II: EXTENSION BY ANALOGYPart 1: WHALING CASES MAJOR 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)

19. E.g., Legal Framework of Taber & BartlettESCAPE (by Analogy) Basic Facts of Both Cases: • Crew of 1st ship kills whale, marks and anchors it, leaves • Whale carcass moves some, then found & taken by crew of 2d ship • Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

20. Legal Framework of Taber & BartlettESCAPE (by Analogy) “Kodak Moment” (1913)

21. Legal Framework of Taber & BartlettESCAPE (by Analogy) • Basic facts of both cases: • 1st Crew kills whale, marks, anchors, leaves • Whale found & taken by crew of 2d ship • Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale • Issue Like Escape Cases: • “Did 1st Crew Lose Property Rights by Leaving Whale Behind (given Specific Facts)?” • We’ll Try to Apply Factors from Escaping Animals Cases (See DQ2.01)

22. DQ2.01: Taber under Mullett E.g., Natural Liberty • What might you call the “natural liberty” of a dead whale? • “free from artificial restraint” • “free to follow the bent of its natural inclination” • (obviously can’t “provide for itself”)

23. DQ2.01: Taber under Mullett E.g., Natural Liberty • What might you call the “natural liberty” of a dead whale? • “free from artificial restraint” • “free to follow the bent of natural inclination” • MAYBE: A dead whale adrift = NL • Arguably shows negligence by OO • Arguably F can’t tell there’s an OO

24. DQ2.01: Taber under Mullett E.g., Natural Liberty • What might you call the “natural liberty” of a dead whale? • MAYBE: A dead whale adrift = NL • Arguably fits part of definition • Arguably fits policies behind factor • We’ll see if/when whaling cases say carcass adrift goes to finder.

25. UNIT II: EXTENSION BY ANALOGY • New Skill: Arguments about When Analogy is Appropriate (Lot of Time on This in Unit II) • Very Important Type of Argument, Especially re New Technology • Examples in Reading re Treatment of Internet • Fourth Amdt & New Technology • Often Useful: Can employ any time someone wants to extend a rule to a new situation • Examples of Relevant Inquiries in DQs • “Escaping” Whales: DQ2.09-2.11 • 1st Possession of Oil & Gas: DQ2.23-2.25 • “Escaping” Natural Gas: DQ2.33-2.37

26. BUT FIRST, BACK TO ALBERS & KESLER

27. The Logic of Albers • What The Case Holds • Domesticated or Wild? • Addressing Prior Authority • Critique: DQ1.58-1.59

28. The Logic of Albers: Critique DQ 1.59: ALL (URANIUM) Can you describe what happened in Albers in terms of Demsetz’s first thesis?

29. DEMSETZ FIRST THESIS =DESCRIPTION/EXPLANATION Identify decision/activity at issue Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

30. The Logic of Albers: CritiqueDQ1.59: Demsetz’s 1st Thesis • Decision: Finder’s Choice: Keep found animal or pelt v. Look for OO • Old Rule: Mullett/ Blackstone Rule • Externalities?

31. The Logic of Albers: CritiqueDQ1.59: Demsetz’s 1st Thesis • Decision: F keep found animal v. Look for OO • Old Rule: Mullett/ Blackstone Rule • Externalities? OO Losses (Investment; Affection) • Change in Circumstances?

32. The Logic of Albers: CritiqueDQ1.59: Demsetz’s 1st Thesis • Decision: F keep found animal v. Look for OO • Old Rule: Mullett/ Blackstone Rule • Externalities? OO Losses (Investment; Affection) • Change in Circumstances? Development of Fox Farms [+ Zoos, etc.] • Increase in Externalities?

33. The Logic of Albers: CritiqueDQ1.59: Demsetz’s 1st Thesis • Decision: F keep found animal v. Look for OO • Old Rule: Mullett/ Blackstone Rule • Externalities? OO Losses (Investment; Affection) • Change in Circumstances? Development of Fox Farms • Increase in Externalities? OO losses greater; harm to state economy • Change in Rule?

34. The Logic of Albers: CritiqueDQ1.59: Demsetz’s 1st Thesis • Decision: F keep found animal v. Look for OO • Old Rule: Mullett/ Blackstone Rule • Externalities? OO Losses (Investment; Affection) • Change in Circumstances? Development of Fox Farms • Externalities = OO losses  ; harm to state economy • Change in Rule? Colo. S.Ct. (and Ontario Legislature) alter Mullettrule to protect fox farms. Would Demsetz Like the Result?

35. The Logic of Albers: CritiqueDQ1.59: Demsetz’s 2d Thesis Would Demsetz Like the Result? YES! • Change in Albers creates stronger private property rights & fewer valuable escaped animals returning to commons. • Seems consistent with tendency toward more private property that Demsetz (2d Thesis) sees as good because of reduced externalities over time.

36. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLEBack to Statute re Common Law 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. D must have argued that statute required the court to follow the common law Mullett-Blackstone rule, since not repealed by Colo. Legislature.

37. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLEBack to Statute re Common Law 1861 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.

38. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLEBack to Statute re Common Law 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

39. The Logic of Albers: Critique DQ1.58: LEGISLATIVE v. JUDICIAL ROLEBack to Statute re Common Law • 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?

40. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLE • Court here essentially: a. carved out exception to the Mullett rule b. to meet perceived policy need. 2.Alternative (as in Ontario): a. Court applies existing rule b. Legislature responds by enacting new statute modifying rule to meet policy need.

41. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLE Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)?

42. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLE Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)? • Might look at: • Relative institutional strengths? • Democratic theory? • Certainty/notice? • Relevance of Pending Legislation?

43. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLE Courts v. Legislature: Relative Institutional Strengths Include: • Access to Information: • Legislature has power to hold extensive investigations and likely to hear from most affected constituents. • Courts hear from parties to suit and occasionally from other affected groups through Amicus briefs. • Type of Rule: • Legislature better equipped to develop complex regulations and to resolve difficult line-drawing problems • Courts tend to develop rules that are manageable in judicial setting but may be better at determining individual justice

44. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLE Courts v. Legislature: Relative Institutional Strengths: Example: Moore v. Regents of University of California • Suit about Univ. hospital using valuable spleen cells from patient without patient’s knowledge or permission. Issue of first impression so P raised several legal theories. • Cal. S. Ct. did not rule on whether cells were “property,” probably in part because that would raise complex legal and ethical problems better suited for legislature. • Court resolved case as an issue of medical disclosure, which was easier approach for Court because: • Unlikely to be controversial that doctors & hospital should’ve asked/told. • Already established tort caselaw re standards for medical disclosure.

45. The Logic of Albers: CritiqueDQ1.58: LEGISLATIVE v. JUDICIAL ROLE) Having then neither statute nor applicable common-law rule governing the case, we must so apply general principles in the light of custom, existing facts, and common knowledge, that justice will be done. So the courts of England and the United States have acted from time immemorial, and so the common law itself came into existence. (2d Para. p.49)

46. Kesler v. Jones: UraniumIn-Class Brief

47. Kesler v. Jones BRIEF:Uranium Statement of the Case: • Kesler … and the Davises… ??? • sued Jones … • for [cause of action] • seeking [remedy].

48. Kesler v. Jones BRIEF:Uranium Statement of the Case: • Kesler, the original owner (OO) of an escaped fox, and the Davises, its caretakers … • Fox is “property” of “other appellant”: must be Kesler • Davises probably plaintiffs because they had custody of the fox and would be liable to Kesler for its loss

49. Kesler v. Jones BRIEF:Uranium Statement of the Case: • Kesler, the OO of an escaped fox, and the Davises, its caretakers …, • sued Jones … ??? • for [cause of action] • seeking [remedy].

50. Kesler v. Jones BRIEF:Uranium Statement of the Case: • Kesler, the OO of an escaped fox, and the Davises, its caretakers, • sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, • Need both killing & keeping pelt. • for [cause of action] ??? • seeking [remedy].