Transcript Document

MUSIC: MAX BRUCH
Violin Concerto #1 (1868)
Scottish Fantasy (1880)
Royal Philharmonic Orchestra (Recording 1972)
Rudolf Kempe, Conductor * Kyung Wa Chung, Violin
Status 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. Salvage
3. 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 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.” 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 Customs
Custom 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 Customs
Custom 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 Customs
Custom 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 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.”
Relevance to Taber?
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.”
Relevance to Taber?
Doesn’t apply because whale not adrift.
Taber DQ62
Captain 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 Salvage
Why 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 Salvage
Taber 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 Facts
DQ 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 Adrift
o
o
o
o
Maybe Natural Liberty
Increase in distance
Less likely OO will find
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 1 st
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.