MUSIC: MAX BRUCHViolin Concerto #1 (1868)Scottish Fantasy (1880)

Royal Philharmonic Orchestra (Recording 1972)

Rudolf Kempe, Conductor * Kyung Wa Chung, ViolinStatus of Grading

•Kesler Briefs (Uranium): Available •Midterms: • 1st Read & Quantity Review: Complete• 2d Read & Comments: 2.5/21

•Next Up: Assignment #1

WHERE ARE WE?

WHERE ARE WE?UNIT ONE COMPLETE

•General Introduction to Legal System, Case Reading & Legal Analysis/Argument

WHERE ARE WE?UNIT ONE COMPLETE

Doctrine & Policy for Two Situations:

1.First Possession: How to Acquire Property Rights in an Unowned Resource

2.Escape: How the Owner of a Resource Can Lose Property Rights by Losing Control or Possession of the Resource

WHERE ARE WE?STARTING UNIT TWO

•More Practice Applying Unit One Materials in New Situations (Whaling; Oil & Gas)•Addition of Doctrine & Policy for a New Situation: Claims That Courts Should Treat Industry Custom as Legally Binding•Addition of Approaches for Arguing Whether an Existing Set of Doctrine Should Be Extended to a New Area by Analogy

WHERE ARE WE?Last Time: Intro to Whaling “Escape”

Cases•Basic Facts of Both Taber & Bartlett: – Crew of 1st ship 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?

WHERE ARE WE?Last Time: Started Work on

Taber•Applied Analysis from Mullett and Albers to Facts of Taber (DQ60)•Taber Parties/Court Suggested Three Possible Ways to Resolve Legal Issue:

1. Custom (where we left off)2. Salvage3. Common Law of Property

Taber DQ61: Whaling Customs

• Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

Taber DQ61: Whaling CustomsCustom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” From Last Time: Why did custom develop?•Whales often escape mortally wounded by harpoons •Don’t want to waste value of whale (DKNPacific)•If killer doesn’t arrive in time necessary for finder to capture, arrange and cut, – probably too far away to find whale anyway– F has put in signif. labor

Taber DQ61: Whaling CustomsCustom consistent with law of escaped animals?

•Could say returned to NL without sufficient marks or pursuit (more like Mullett than Kesler)

•Could say by the time F cuts in:• F has invested a lot of labor

• Insufficient evidence that OO had or could get control

• Likely a lot of distance from kill to find

Taber DQ61: Whaling CustomsCustom consistent with law of escaped animals?

•Maybe returned to NL without sufficient marks or pursuit (more like Mullett than Kesler)

•When F cuts in, F labor & OO claim unlikely

•BUT • Could be pretty short period of time

before losing property rights

• F Aware that Another Whaler Had Some Claim

Taber DQ61: Whaling CustomsCustom consistent with law of escaped animals?

•Maybe Problematic Because • Pretty short period of time before losing

property rights

• F Aware that Another Whaler Had Some Claim

•Might Justify b/c • Strong Policy to have Someone in

Industry Recover Valuable Carcass if Possible

• Any Given Whaler as Likely to be Winner as Loser (Unlike Albers/Kesler)

Taber DQ61: Whaling CustomsCustom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

Relevance to Taber?

Taber DQ61: Whaling CustomsCustom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

Relevance to Taber?Doesn’t apply because whale not adrift.

Taber DQ62Captain Bennett of the Massachusetts:•Goes on board Zone with Captain Cook of Hillman to demand bone and oil.

•Uses “violent and abusive language” to Captain Parker of Zone in Parker’s own cabin (causing Parker to throw Hillman’s anchor overboard!!)

Significance?

Taber v. Jenny BRIEF: ISSUE

Parties/Case suggest several ways to resolve issue: –Whaling Customs (DQ61)

–Law of Salvage (DQ63)–Common Law of Property

Taber DQ63: Law of Salvage• Party finds property belonging to another (OO)

adrift on open seas– Finder recovers property & returns to OO– Finder then receives standard “salvage” fee from OO

• Begins as custom, but is established as law by the time of these cases

• Parties that regularly conduct trade on the high seas will periodically lose property to storms and wrecks, so (mostly) willingly participate in system.

Taber DQ63: Law of Salvage• Party finds property belonging to another (OO)

adrift on open seas– Finder recovers property & returns to OO– Finder then receives standard “salvage” fee from OO

Why not employed in Taber?

Taber DQ63: Law of SalvageWhy not employed in Taber?

•Zone owners never claimed salvage rights– Zone didn’t behave like salvor (= return found goods

and ask for $)– Rule: if try to adopt salvage property for own use, can

forfeit salvage rights

•Note: Salvage is usually for goods found adrift, so not clear should apply here anyway

Taber DQ63: Law of SalvageTaber uses a comparison with the law of salvage

(but not salvage itself) to support its result:Doctrinal Rationale: Law says if property found

adrift at sea, finder entitled to fee for salvage but not to property itself. Owner of property that is not adrift has an even stronger interest, so does not lose rights to finder.

Taber v. Jenny BRIEF: ISSUE

Parties/Case suggest several ways to resolve issue: –Whaling Customs (DQ61)–Law of Salvage (DQ63)

–Common Law of Property

Taber v. Jenny BRIEF: HOLDING• Court says OO retained property rights– Doesn’t apply custom or salvage.– Rather seems to rely on ordinary (non-

animals) rule that you don’t lose property rights simply by losing control of object.

– Applies to dead whales at least • where there are “clear marks of

appropriation” and • little time passed.

Taber v. Jenny BRIEF: Narrow Holding

• Killer of whale doesn’t lose property rights when it leaves the body of the whale in the ocean where: • killer anchors whale leaving marks

indicating killer’s identity; • killer returns as soon as practicable to

collect whale; and • finder of whale sees identifying marks

and knows whale is less than 12 hours dead

Taber v. Jenny BRIEF: Broader Holding

• Killer of whale doesn’t lose property rights when it leaves the body of the whale in the ocean where killer leaves marks of appropriation and is gone only for a short time.

Taber v. Jenny BRIEF: Possible Supporting Policies

• Rule doesn’t reward knowing finder, who had clear info whale belonged to someone else.

• Rule rewards killer who did all in his power to mark whale and return ASAP [and thus helps protect the industry].

Taber v. Jenny

QUESTIONS?

LOGISTICS: CLASS #20• Ghen Briefs (Uranium): Due Thu 10/18 @ 9 p.m.– Look at:• Instructions for Briefing Trial Court Cases• Intro to Whaling Cases & Glossary• Taber Brief in Class 19 Slides & Info Memo #5

– Don’t finalize until we’ve looked at Swift (Wed-Thu)

• Group Assignment #2: Due Sun 10/21 @ 4 pm– Qs re Assignment #2?

LOGISTICS: CLASS #20

FROM NOW ON, I’LL TAKE ATTENDANCE FROM THE PODIUM & YOU WILL BE

COUNTED AS LATE IF NOT HERE WHEN CLASS STARTS

Bartlett v. Budd BRIEF: Statement of the Case

• Bartlett and others, owners of a ship (CP) whose crew killed and anchored a whale

• sued Budd and others, owners of a ship (E) whose crew found and took the whale

• for conversion (see last sentence of case)• seeking damages for the value of the whale.

Bartlett v. Budd BRIEF: Procedural Posture

Decision after a trial.(See Briefing Instructions for Trial

Court Cases)

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 64: Crew of E found “the whale adrift, the anchor not holding…”

Might mean either:a.The rope or chain connecting the anchor to the whale has broken, so the anchor is no longer attached to the whale; (OR)b.The anchor is still attached to the whale but is no longer lodged in the seabed.

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 64: Crew of E found “the whale adrift, the anchor not holding…” Might mean

either:a.The rope or chain connecting the anchor to the whale has broken, so the anchor is no longer attached to the whale; (OR)b.The anchor is still attached to the whale but is no longer lodged in the seabed.

Which of these is true in Bartlett? How do you know?

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 64: Anchor Not Holding” Means …?

“[T]he right to this whale appears to stand on the same footing as the right to the anchor attached to it, which was very properly restored to its owner” (3d para.)

Anchor was still attached to whale but not to the sea bottom.

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 65: Key Factual Differences from Taber

(When Whale Carcass Found)

• Waif & Irons Gone from Carcass• Whale Adrift• Longer Time Before Whale Found (Few

Hours v. Next Morning)

OTHERS?

Bartlett v. Budd FactsDQ 65: Other Factual Differences from

Taber

• Whale in Bay, Not Open Ocean (Gonzalez)– CP argued matters b/c custom doesn’t

apply• Court doesn’t need to resolve • Finds custom doesn’t apply anyway b/c of

anchor

– Maybe Limits Where Whale Can Drift (Helps OO)• Could say not NL b/c some restraint• Could say like AR b/c prevents carcass from

getting too far away

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 65: Significance of Differences Under Animals Escape Cases?

•Waif & Irons Gone from Carcass?

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 65: Significance of Differences Under Animals Escape Cases?

•Waif & Irons Gone from Carcass– Marking/Notice Less Strong– BUT Anchor Still Attached

•Whale Adrift?

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 65: Significance of Differences Under Animals Escape Cases?

•Whale Adrifto Maybe Natural Libertyo Increase in distanceo Less likely OO will findo Less effective labor by OO

•Longer Time Before Whale Found (Few Hours v. Next Morning)?

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 65: Significance of Differences Under Animals Escape Cases?

•Longer Time Before Whale Found (Few Hours v. Next Morning)?• Time itself a factor in some escape cases• Less likely OO will return (which F may be able

to determine)• Maybe less effective labor by OO (slower

return)

Bartlett v. Budd Facts: DQs 64-65 (RADIUM)

DQ 65: Significance of Differences Under Animals Escape

Cases?•All Differences Make Case Stronger for Finder•Thus, Key Q in Bartlett is Whether Differences are Sufficient to Change Taber Result•Court Decides They Aren’t & Follows Taber

Bartlett v. Budd & Whaling Custom: DQs 66-67 (RADIUM)

Custom: If dead whale found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

•In Taber, custom didn’t apply b/c whale not adrift.

•In Bartlett, whale was adrift, so why didn’t court use custom?

Bartlett v. Budd & Whaling Custom: DQs 66-67 (RADIUM)

Custom: If dead whale found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

• In Bartlett, whale was adrift, BUT factual finding: Custom only applies if no anchor attached (so not applicable here).

•DQ66: Custom does apply if harpoons in whale. Why is anchor different from harpoons?

Bartlett v. Budd & Whaling Custom: DQs 66-67 (RADIUM)

Custom: If dead whale found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.”

• DQ66: Custom only applies if no anchor attached. Custom does apply if harpoons in whale. Why is anchor different from harpoons?

• Anchor is proof killer had actual possession of whale, and therefore earned property rights (under 1st Possession animals cases).

Bartlett v. Budd & Whaling Custom: DQs 66-67 (RADIUM)

Bartlett determines that there is no custom giving a dead whale found adrift with an anchor attached to the finder. The court then says (top p. 62):

“And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

DQ67: This Means…?

Bartlett v. Budd & Whaling Custom: DQs 66-67 (RADIUM)

“And if it were not so, there would be great difficulty in upholding a custom that should take the property of A and give it to B under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.”

Bartlett provides first example of arguments for refusing to treat particular industry custom as law

(we’ll revisit in Swift & Ghen)

Bartlett v. Budd: Possible Policy Rationale

The court said that a rule that treated whales that had recently gone adrift differently from anchored whales would be imprudent because it would take property rights from the OO in a very short time period and would encourage finders to lie about what they found or to fraudulently set the whale adrift. Thus, the court held that anchored whales would remain the property of the OO for some period of time even when the anchor didn’t hold.

Taber & Bartlett :The “Escaped” Carcass Issue

• No Relevant Custom• Salvage Inapplicable• Anchored Whale Remains Property

of OO– Forever? Taber & Bartlett = Short Time

Frame– Result unclear if longer time frame;

policy against wasting resource might change result

Taber & Bartlett :The “Escaped” Carcass Issue

Treat as Escape Cases w Info About:

•Marking & Finder’s Knowledge•Time/Distance•Labor/Industry

Taber & Bartlett :The “Escaped” Carcass Issue

QUESTIONS?

FINAL EXAM QUESTIONS 1 & 2

• Single Fact Pattern for Both• Will Involve Type of Property Not

Explicitly Covered in Course• Samples from All Prior Exams Available

Now on Course Page (My Comments & Best Student Answers Posted Soon)

FINAL EXAM QUESTIONS 1 & 2

• XQ1: “Assuming Animals Cases Apply, Discuss Who Should Get Property Rights?”– “Animals Cases” = Unit One + Whaling

Cases– Basically Issue-Spotter Like Midterm, But

Need to Be Creative Applying Doctrine– Tests One or More of Three Major Categories:• First Possession• Escape• Custom (Never Alone)

FINAL EXAM QUESTIONS 1 & 2

• XQ2: “Discuss Whether Animals Cases Are Good Tools to Use in New Scenario”– Testing Ability to Analyze When/Whether

Analogy is Useful– Should Utilize Three Approaches We’ll Work

With in Unit Two (& Group Assignment #3)• Significance of Factual Similarities/Differences• Usefulness of Doctrine• Usefulness of Alternatives

FINAL EXAM QUESTIONS 1 & 2

• To Do Under Exam Conditions:– Closed Book Except for Syllabus– Hard to Do XQ2 if You Haven’t Done XQ1

First– For Each Q Alone: • 20 Minutes to Read & Outline• 50 Minutes to Write

– To Do XQ1 & XQ2 Together• 40 Minutes to Read & Outline• 100 Minutes to Write (1 hour 40 Minutes)

Argument By Analogy

We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as in

XQ1), but should we?

Argument By Analogy

We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as

in XQ1), but should we?

In other words, use of the analogy is possible, but is it a

good idea (XQ2)?

Argument By Analogy

Three Common Approaches Described in Course Materials:

1.Significance of Factual Similarities & Differences

2.Usefulness of Doctrine 3.Usefulness of Alternatives

Argument By Analogy

Applying Three Common Approaches Described in Course Materials (OXYGEN):

1.Significance of Factual Similarities & Differences (DQ68)

2.Usefulness of Doctrine (DQ69)3.Usefulness of Alternatives (DQ70)

Argument By Analogy

1. Factual Similarities/Differences• Identify Similarity or Difference Between the Two Contexts – Factual not Legal (Layperson Could See)– Compare Overall Situations (v. Individual

Cases)• Escaping Animals v. Escaping Whale Carcasses• NOT Facts in Bartlett v. Facts in Albers

Argument By Analogy

1. Factual Similarities/Differences• Identify Similarity or Difference Between the Two Contexts

• Explain Why the Similarity (or Difference) You Identified Suggests that the Legal Treatment of the Two Contexts Should be the Same (or Different)

Argument By Analogy

Sample Factual Similarity: Mobility• Both contexts involve property

that can move (w/o human intervention) away from where the owner left it.

Argument By Analogy

Sample Factual Similarity: Mobility• Both contexts involve property that can

move (w/o human intervention)• Escaping ACs good for Taber context b/c

specifically designed to decide when to return mobile property. – Address relevant Qs like extent of OO’s

investment, OO’s labor to control or retrieve property, and whether F would have reason to believe another person has a strong claim.

– Can then argue re relative importance of these Qs

Argument By Analogy

OXYGEN DQ68: Additional Arguments from

Factual Similarities?

Argument By Analogy

Sample Factual Difference: Living/Dead• Land animals are alive when

they “escape”; whale carcasses are not.

Argument By Analogy

Sample Factual Difference: Living/Dead• Land animals are alive when they

“escape”; whale carcasses are not.• Some concepts from ACs will not work well

in Taber context b/c they assume property was alive at escape. – E.g., “provide for itself” & “intent to return”– Can then argue re relative importance of these

factors. Note ACs don’t have to fit 100% to be reasonable option.

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.