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MUSICMUSIC::
The BeatlesThe BeatlesMAGICAL MYSTERY TOUR MAGICAL MYSTERY TOUR
(1967)(1967)
§B Lunch Wed Sep 10Meet on Bricks @ 12:15pm
Gil * McLaughlinMartinez * Morales
Pope * Randolph * Rose
§D Lunch Thu Sep 11Meet on Bricks @ 11:55am
Baronoff * Coplowitz Di Mattia * Freitez Arteaga Kleinberg * Novak * Sinner
LOGISTICS: CLASS #11
• Friday: • We’ll begin with Introduction to Escape & DQs 1.41-
1.42 (Radium)• Then pick up with Demsetz material wherever we leave
off today.
• After Friday, I’ll adjust assignment sheet to reflect where we actually leave off.
Finishing UpSTATE v. SHAW
Brief
STATE v. SHAW BriefISSUE (from Friday):
Did the trial court err in directing a verdict for the defendant on the grounds that
defendant did not commit grand larceny because net-owners do not have property rights in fish found in their nets where the
fish can escape from the nets?
STATE v. SHAW BriefNarrow Holding: YES. The trial court erred in directing a verdict for the defendant on
the grounds that defendant did not commit grand larceny because net-
owners can have property rights in fish found in their nets even if some fish can
escape from the nets.
STATE v. SHAW BriefTo Set Up Broader Holding & Rationales,
Let’s Jump Forward
Result?
STATE v. SHAW Brief
Result:Reversed & Remanded for New Trial
Will State necessarily win?
STATE v. SHAW Brief
Result:Reversed & Remanded for New Trial
Will State necessarily win?No. Jury could still find that Thomas
didn’t do it.
STATE v. SHAW BriefResult:
Reversed & Remanded For New Trial
•On remand, trial court will have to instruct jury about when net creates property rights in fish for net-owners• Can’t simply say “Net doesn’t have to be perfect.”• Broader version(s) of holding needed for this.
STATE v. SHAW Brief• On remand, trial court will have to instruct jury
about when net creates property rights in fish. • Broader version(s) of holding needed. Possible
Rules/Holdings:1. Any Net is OK? (Raggedy Volleyball Net??)
STATE v. SHAW Brief• On remand, trial court will have to instruct jury
about when net creates property rights in fish. • Broader version(s) of holding needed. Possible
Rules/Holdings?1. Any Net is OK? 2. Look to language in case: Two plausible rules (long
para. pp.28-29), either of which could be incorporated into broader version of holding.
STATE v. SHAW BriefTwo Plausible Rules (long para. pp.28-29)
1.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.
2.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.
STATE v. SHAW BriefFirst Plausible Rule (bottom of p.28)
““[T]he pursuer must …[T]he pursuer must …
[i] bring them into his power and [i] bring them into his power and controlcontrol, and …, and …
[ii] so maintain his control as to show [ii] so maintain his control as to show that he does not intend to abandon them that he does not intend to abandon them again to the world at large.”again to the world at large.”
•Note two parts/requirements •Note showing intent is not a separate requirement (and is not sufficient by itself), but instead is part of the requirement of maintaining control
STATE v. SHAW BriefSecond Plausible Rule (pp.28-29)
The trapper acquires property in wild animals “[w]hen …
[i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and …
[ii] maintains reasonable precautions to prevent escape….”
•Again, two parts/requirements•Slightly different language you can use; we’ll mostly focus on 1st Plausible Rule
STATE v. SHAW BriefNote on Interpreting Legal Tests in Context of Cases
•Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests.• E.g., fish caught in nets have been brought within net-
owner’s “power and control.”• E.g., set up of these nets = “reasonable precautions to
prevent escape.”
•Thus, can use facts of Shaw to help explain what the tests mean going forward.
STATE v. SHAW BriefOneOne Broader Version of HoldingBroader Version of Holding
YES. The trial court erred in directing a verdict for the defendant because net-owners have property rights in fish found in their nets if the nets [i] bring the bring the fish into their power and controlfish into their power and control, , and [ii] so maintain their control as [ii] so maintain their control as to show that they do not intend to to show that they do not intend to abandon the fish again to the world abandon the fish again to the world at large.at large.
QUESTIONS ON HOLDING OR QUESTIONS ON HOLDING OR TESTS?TESTS?
STATE v. SHAW BriefRationales:
•Doctrinal Rationales from Authorities Cited on pp. 28-29 Provided in Sample Brief•Policy Rationales (Hints from Language of Case):
Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). MEANS?
STATE v. SHAW BriefRationales:
•Policy Rationales (Hints from Language of Case):• Court refers to Perfect Net Rule as “Unnecessarily
Technical” (p.28). Probably refers to difficulty of proof/certainty arguments.
• Court says possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.29) Significance?
STATE v. SHAW Brief• Policy Rationales (Hints from Language of Case):• Possession of fish by net-owners “was so complete and
certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.27)• Maybe refers to certainty of capturing fish (as a
group) or of identifying owners• Maybe goes to sufficiency of Net-owners’ labor
OTHER DIFFERENT POLICY CONCERNS?
STATE v. SHAW BriefRationales:
•Policy Rationales (Hints from Language of Case):• Could discuss protecting important industry (subset of
labor argument), but need to be clear that court doesn’t reference explicitly.
APPLYING STATE v. SHAW DQ1.26-1.27
RADIUMRADIUM
STATE v. SHAW DQ1.26: Radium
“[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.”
We’ll work with this test and leave other plausible rule & policy
arguments from Shaw for you and DFs
STATE v. SHAW DQ1.26: Radium
“[T]he pursuer must …
[i] bring them into his power and [i] bring them into his power and controlcontrol, and
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
Apply to Liesner (trial court facts):Mortal Wound + Vigorous Pursuit +
Escape Improbable
STATE v. SHAW DQ1.26: Radium
“[T]he pursuer must …
[i] bring them into his power and control, and
[ii] so maintain his control as to [ii] so maintain his control as to show that he does not intend to show that he does not intend to abandon them again to the world at abandon them again to the world at large.” large.”
Apply to Liesner (trial court facts):Mortal Wound + Vigorous Pursuit +
Escape Improbable
STATE v. SHAW DQ1.26: Radium
“[T]he pursuer must …
[i] bring them into his power and [i] bring them into his power and controlcontrol, and
[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”
Apply to Pierson facts.
STATE v. SHAW DQ1.26: Radium
“[T]he pursuer must …
[i] bring them into his power and control, and
[ii] so maintain his control as to [ii] so maintain his control as to show that he does not intend to show that he does not intend to abandon them again to the world at abandon them again to the world at large.” large.”
Apply to Pierson facts
STATE v. SHAW DQ1.27: Radium
Should the result in Shaw be the same if the fishermen used a sunken boat sunken boat
instead of a net to trap the fish? Assume the boat retains the same percentage of fish that
enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat)
STATE v. SHAW DQ1.27: Radium
Marking/Notice of Claim to Others is an important recurring policy concern•See Shaw test part 2: “maintain his control as to show that he does not intend to abandon” •See Pierson: Mortal wounding + pursuit OK because hunter “thereby manifests an unequivocal intention of appropriating the animal”
STATE v. SHAW DQ1.27: Radium
Nice Additional Policy Reason to Treat Sunken Boat Differently
(Griffin-Fall ’12 & Kasdin §D)
•Net is easily visible (28-foot square & top 4 feet above water)•Sunken boat may not be visible so may be safety hazard to lake traffic if not very well marked•May not want to reward trap that is dangerous to humans
STATE v. SHAW DQ1.28: Radium
Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw?
Why is this a useful exercise?•Explain unreconciled cases•In court or legal memo•Ideally reconciles cases AND shows that your side wins
STATE v. SHAW DQ1.28: Radium
Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw?
•We’ll look at two student submissions • For substance• For clear concise writing• I’ll go a little quickly b/c you can review
slides in more detail later
STATE v. SHAW DQ1.28: Radium
STUDENT #1: Property rights to a wild animal occur when a pursuer, who continues to pursue the animal and has no intent of releasing him back into the wild, has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.
STATE v. SHAW DQ1.28: Radium
STUDENT #1: Property rights to a wild animal occur when a pursuer, [ii] who continues to pursue the animal and has no intent of releasing him back into the wild, [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.
Note normal chronological sequence.Note normal chronological sequence.
STATE v. SHAW DQ1.28: Radium
Property rights to a wild animal occur when a pursuer …
A pursuer acquires property rights to a wild animal when the pursuer…
Eliminating passive voice.Eliminating passive voice.
STATE v. SHAW DQ1.28: Radium
A pursuer acquires property rights to a wild animal when the pursuer…
[i] has substantially rid the animal of his natural liberty as to render escape highly
unlikely under normal circumstances.
STATE v. SHAW DQ1.28: Radium
A pursuer acquires property rights to a wild animal when the pursuer… [i]
(a)has substantially rid the animal of his natural liberty
Need both (a) & (b)?Need both (a) & (b)? (b) as to render escape highly unlikely (c) under normal circumstances.
STATE v. SHAW DQ1.28: Radium
A pursuer acquires property rights to a wild animal when the pursuer… [i]
(a)has rendered escape highly unlikely (b) under normal circumstances. (Very (Very clever idea)clever idea)
STATE v. SHAW DQ1.28: Radium
A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly
unlikely under normal circumstances; and [ii]
(a) continues to pursue the animal and (b) has no intent of releasing
him back into the wild,
STATE v. SHAW DQ1.28: Radium
A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly
unlikely under normal circumstances; and [ii]
(a)continues to pursue the animal (Do you want to require (a) for traps/nets?)(Do you want to require (a) for traps/nets?)
and (b) has no intent of releasing him back into the wild
STATE v. SHAW DQ1.28: Radium
A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly
unlikely under normal circumstances; and [ii]
(a)continues to pursue the animal and
(b) has no intent of releasing him [it] [it] back into the wild (Do you want test of pure (Do you want test of pure intent w/o actions?)intent w/o actions?)
STATE v. SHAW DQ1.28: Radium
A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered
escape highly unlikely under normal circumstances; and [ii]
continues to pursue the animal or to otherwise show he has no intent of releasing it.
Takes care of traps & eliminates test Takes care of traps & eliminates test based on pure intent. based on pure intent.
STATE v. SHAW DQ1.28: Radium
STUDENT #2: A wild animal is deemed property of a person pursuing it if he through his actions made escape of the animal highly unlikely and through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.
STATE v. SHAW DQ1.28: Radium
STUDENT #2: A wild animal is deemed property of a person pursuing it if he
[i] through his actions made escape of the animal highly unlikely and [ii] through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.
Pronoun problem plus passive voice.Pronoun problem plus passive voice.
STATE v. SHAW DQ1.28: Radium
• A wild animal is deemed property of a person pursuing it if he …
• A person acquires property rights in a wild animal if he …
1. through his actions made escape of the animal highly unlikely and
2. through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.
How else would you accomplish these tasks?How else would you accomplish these tasks?
STATE v. SHAW DQ1.28: Radium
A person acquires property rights in a wild animal if he …
1.made escape of the animal highly unlikely and
2.has substantially decreased the likelihood of escape since the outset of the pursuit.
Interesting idea, BUT Interesting idea, BUT •Hard to proveHard to prove•Not clear would lead to Not clear would lead to Pierson Pierson resultresult•Not clear how would apply to traps/netsNot clear how would apply to traps/nets
STATE v. SHAW DQ1.28: Radium
I’ll do a more extensive write-up of the submissions from this & prior years and
put in a future Information Memo.
Qs on DQ1.28?
DQ1.29-1.31: KryptonDemsetz Excerpt
•DQ1.29(a) & (b) = Exercise re Shaw Facts to Introduce Concepts•DQs 1.30-1.31 on Introductory Paragraphs of Excerpt
STATE v. SHAW DQ1.29(a): Krypton
Assume net-owners have no enforceable rights in fish caught in their nets until they physically remove the fish from the nets. Thomas chooses
to take fish from the owners’ nets.
•Who is affected by this decision?
•Which of these effects is Thomas likely to take into account when deciding whether to take the fish?
STATE v. SHAW DQ1.29(a): Krypton
Thomas Likely to Consider
• Own Exertions/Cost of Equipment, etc.
• Benefits to Dependents• Benefits to Likely
Purchasers
Likely Externalities• Costs to Net-Owners,
Their Dependents, Their Purchasers
• Costs to Net Manufacturers
• Effect on Ecosystem (note might be benefits if “theft” discourages use of big nets)
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