Music: Uncle Bonsai A Lonely Grain Of Corn (1984) FYI: See Song Called “Day Old Whale”

1. Music: Uncle BonsaiA Lonely Grain Of Corn (1984)FYI: See Song Called “Day Old Whale”

2. Argument By Analogy Bottom Line: Not asking if ACs are a perfect tool for the new context, but discussing how good a tool they are.

3. Argument By Analogy Next Week: More Practice • First Possession: DQ81-83 (OXYGEN) • Escape: DQ 90-94 (RADIUM) • Group Assignment #3 Distributed

4. LOGISTICS CLASS #22 • Reminder DF Session Here Today @ 1:30 p.m. • Group Assignment #2 Due Sunday @ 4 pm • Please Reread Directions Before Finalizing • Qs on Assignment? • My Exam Tip Workshops Start Next Week • Try to Attend One: 10/24, 10/30, 11/1 • All from 12:30-1:50 in Room F309

5. Mid-September Crisis

6. Mid-October Crisis

7. Mid-October Crisis:The Upside

8. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes, Even When Unprepared

9. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes • If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later

10. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes • If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later • Eat, Get Sleep, Take Short Breaks

11. Mid-October Crisis:SOME ADVICE • Don’t Miss Classes • If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later • Get Sleep & Take Short Breaks • Plan Catch-Up Work and Outlining for One Course Each Weekend

12. Mid-October Crisis: Like Doing Law School Exam Qs • Can’t do everything as well as you’d like; do the best you can with time you have • Be very careful not to waste time • Identify what work is most important for you and spend time accordingly • Be realistic in your expectations; don’t get upset that you are not superhuman. • This too shall pass!

13. Swift v. Gifford (Uranium)DQ71: Applying 1st Possession ACs Pierson Majority • Mortal Wound + Pursuit Enough • Pursuit Alone Not Enough Swift Facts • Wound + Harpoon + Pursuit Enough under Pierson?

14. Swift v. Gifford (Uranium)DQ71: Applying 1st Possession ACs Wound + Harpoon + Pursuit • Falls into Gap in Literal Language of Pierson • Can resolve with other language like “deprived of NL” • Can resolve w resort to underlying policies

15. Swift v. Gifford (Uranium)DQ71: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson • Continued Pursuit Shows No Intent to Abandon • Does this pursuit + harpoon serve purpose? • F unaware of pursuit & harpoon when caught • BUT easy to determine when 2d ship arrives • General Policy : Reward Effective Labor • Might look at how likely R was to succeed without H • Finding of Fact was low probability, so maybe no reward • Certainty: Clearer Rule than 1st Kill (Ford)

16. Swift v. Gifford (Uranium)DQ71: Applying 1st Possession ACs Overall: Looks Like Testable Hypo • Wound + Mark (iron) probably make this stronger case for 1st Hunter than Pierson • Clearly less good control than Liesner boys or net-owners in Shaw. Leave to you other arguments from Shaw, Pierson, Liesner

17. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? • Custom: 1st iron holds whale if claim made before whale cut. • Stronger for 1st ship than version of custom discussed in Taber & Bartlett • Whale can be still alive/swimming (v. adrift) • 1st ship just has to get harpoon to stick (v. kill)

18. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? • Swift decidesto treat custom here as binding law and provides an important discussion explaining its decision. • v. Pierson (custom ignored) • v. Bartlett (says likely wouldn’t adopt as law)

19. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? Swift decidesto treat custom here as binding law and provides an important discussion explaining its decision. DQ73. What problems with using custom as law does Swift recognize?

20. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? Problems with using custom as law include: • Surprise to outsiders • Note references to LOCAL custom and to ABUSES • Problem as commerce becomes more widespread • Uncertainty as to what custom is or when it applies • “loose and inconclusive customs” • “liable to great misunderstandings and misinterpretations” • Custom may be unreasonable

21. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? Problems with using custom as law include: • Surprise to outsiders • Uncertainty as to what custom is or when it applies • Custom may be unreasonable • See Bartlett • Note discussion on p.64 re what laws can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”

22. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? Problems with using custom as law include: • Surprise to outsiders • Uncertainty as to what custom is or when it applies • Custom may be unreasonable (see Bartlett) With these in mind, court gives us a list of considerations to use when deciding whether to treat custom as law.

23. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? Should Custom = Law: Swift Considerations • Doesn’t affect outsiders • Used by entire business for a long time (equivalent of a contract) • Where legal rule is hard to apply here, use of custom may prevent quarrels • Custom is reasonable We’ll describe each and apply to Swift and to hunter’s customs noted in Pierson.

24. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (1) Doesn’t Affect Outsiders • DQ72: Describe each consideration noted by court and explain how it applied in Swift.

25. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (1) Doesn’t Affect Outsiders • Usage here is “not … open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.” p.64 • DQ73. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

26. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) • DQ72: Describe each consideration noted by court and explain how it applied in Swift.

27. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) • Custom here “embraced an entire business, and had been concurred in for a long time by every one engaged in that trade.” • DQ73. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

28. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (3) Legal rule may be hard to apply, so use of custom prevents quarrels • DQ72: Describe each consideration noted by court and explain how it applied in Swift.

29. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (3) Legal rule may be hard to apply, so use of custom prevents quarrels • May be harder to determine 1st killer than 1st harpoon. • “Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. “ (p.64) • DQ73. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

30. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (4) Custom is Reasonable • DQ72: Describe each consideration noted by court and explain how it applied in Swift.

31. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (4) Custom is Reasonable • Contrasts custom proposed inBartlettwith custom at issue in Swift. • Why is Judge Lowell especially authoritative on meaning of Bartlett?

32. Swift v. Gifford (Uranium)DQ72-73: When Should Custom Become Law? (4) Custom is Reasonable • He wrote it: “I there intimated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances.” • Leave for you arguments about reasonableness of hunters’ customs in Pierson.

33. Swift v. Gifford (Uranium)DQ74: Unpublished Opinions In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties. Problems with doing this?

34. Swift v. Gifford (Uranium) DQ74: Unpublished Opinions Problems with relying on unpublished opinion • Lack of notice to other party (paid costs here). • Lack of notice to others affected. • Unpublished may mean court doesn’t want it used as precedent. Problems sufficient to justify blanket rule against doing this?

35. Swift v. Gifford (Uranium) DQ74: Unpublished Opinions Problems relying on unpublished opinion include: • Lack of notice to other party. • Lack of notice to others affected. • Unpublished may mean court doesn’t want it used as precedent. Note that if opinion unpublished b/c easy application of existing law, problems don’t arise (can just rely on that existing law)

36. Swift v. Gifford (Uranium) QUESTIONS?

37. You Are Now Swift-BoatVeterans

38. Ghen v. Rich (KRYPTON) We move from the North Pacific to Cape Cod Massachusetts (and to Cranberry Headings)

39. Ghen v. Rich (1881) Historical Context: Next Class For All Taber = 1856; Bartlett = 1868; Swift = 1872 Two Significant Events Probably Relevant to Timing of Dispute Being Litigated inGhen: • U.S. Civil War • Completion of Transcontinental Railroad Ideas About Why Relevant?

40. Ghen v. Rich (KRYPTON): DQ77Special Assignment PublishedGhenBrief now on Course Page. • In the brief, try to identify as many mistakes and questionable statements about the case as you can. • Don’t worry that their briefing form is different from ours. • Work-Product = Annotated Copy of Brief

41. Ghen v. Rich (KRYPTON): DQ77Special AssignmentE-Mail to Me by Tue Oct 23 @ 9 pm B1 KRYPTONS B2 KRYPTONS Briggs, Brandon Ercolani, Brianna Newingham, Alison • Garcia, Raul • Mena, Lexi • Shannon, Kerry