1. ELEMENTS B POWER POINT SLIDES Class #21 Monday, October 19, 2015

2. Music to Accompany Rose Excerpt: Paul Winter Canyon (1985)

3. LOGISTICS: CLASS #21 Group Assignments Review Problems/Exam Qs Set-Up for Rest of Week

4. Group Assignments LOGISTICS: CLASS #21 Group Assignments Group Assignment #3: – Posted on Course Page – I’ll Take Qs in Class Friday Group Assignment #1: – My Primary Task for Next Four Days – Get as Much Feedback Posted as Possible by Thursday night.

5. Group Assignments LOGISTICS: CLASS #21 Group Assignments General Lessons for Assignment #2 from Assignment #1 Follow Directions!!! Accuracy with Facts Accuracy with Cases Explain/Defend Conclusions (No IRC) Address One Thing at a Time Simplify Your Writing

6. Group Assignments LOGISTICS: CLASS #21 Group Assignments Group Assignment #2 Care re Qs to Me & Anonymous Grading Friday’s Class = Final Opportunity for Qs Questions Now?

7. Review Problems/Exam Qs LOGISTICS: CLASS #21 Review Problems/Exam Qs On Course Page: Complete Bank of Fact Patterns for Exam Questions I & II. I will post Comments & Best Student Answers: – For Q1: After Assignment #2 Submitted – For Q2 : After Unit Two Complete

8. Review Problems/Exam Qs LOGISTICS: CLASS #21 Review Problems/Exam Qs Best Way to Prepare for Exams is to Do Old Exam Qs – Start by Working Through Some Untimed (Alone or in Groups) – Build Up to Doing Timed Under Exam Conditions Review Problems: – Opportunity to Work Through Old Qs & Get Immediate Feedback – Worth Spending Time on Even Though You’re Very Busy to Get Used to My Qs

9. Review Problems/Exam Qs LOGISTICS: CLASS #21 Review Problems/Exam Qs Schedule for Review Problems This Week – DF Today: Problem 2D – DF Friday/Next Monday; Problem 2E – In-Class Wednesday: Problem 2B – In-Class Friday: Problem 2C

10. EXAM Q1 (CUSTOM): REVIEW PROBS 2B & 2C XQ1: Dealing w Custom Generally Only Address if Q Explicitly Identifies a Custom Discuss Separately from 1 st Possession/Escape Two Sets of Issues Does Activity Described in Q Fall Within Custom? Sometimes Pretty Clear & Can Address Quickly Sometimes Room for Lot of Discussion as in Rev. Prob. 2B Should Court Treat Custom as Binding Law? If I Put in a Custom, Always Room for Lot of Discussion

11. EXAM Q1 (CUSTOM): REVIEW PROBLEMS 2B & 2C 2B: Does Advertising/Broadcasting Custom Protecting MERE’s Ad Apply to (i)Cane-Ade’s Kerry Grinder Ad? (URANIUM) (ii)BB Doing the EG on the Internet? (OXYGEN) 2C: Should the Custom Be Treated as Law (Use Factors from Swift & Ghen)? PRO: KRYPTON CON: RADIUM

12. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii) Custom in Question There is a custom in the U.S. advertising and broadcasting industries that advertisements for ordinary commercial products and services cannot closely imitate, or use major components of, ads for charitable organizations. May be helpful to break it down into parts as you would a legal standard from a case or statute.

13. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2B (i) & (ii) Custom in Question (Sample Breakdown) 1.In the U.S. advertising and broadcasting industries 2.ads for ordinary commercial products and services 3.can’t a.closely imitate; or b.use major components of 4.ads for charitable organizations. Then apply to problem like a legal standard.

14. More Set-Up for Rest of Week LOGISTICS: CLASS #21 More Set-Up for Rest of Week – DQ2.19: Ghen “Bad” Brief (OXYGEN) – DQ2.25: 1 st Possession of Oil & Gas: Animals Cases v. Alternatives (URANIUM)

15. Ghen v. Rich (Oxygen): DQ2.19 “Bad Ghen Brief” on Course Page (with other Briefs and Self-Quizzes) In the brief, try to identify as many substantive mistakes and questionable statements about the case as you can. Don’t worry that their briefing form is different from ours. Useful way to organize: Download copy of brief and list any mistakes under relevant headings.

16. Argument By Analogy Oil & Gas: 1 st Possession Set-Up for WED/FRI: DQ2.25 (Uranium) First, We’ll Identify a List of Several Alternatives Then Do Pros & Cons Just Looking at: – Westmoreland (Rule of Capture) v. – Distribution of Profits Proportional to Surface Area (w Reasonable Fee to Drillers for Labor and Risks) Assume Some Large Oil/Gas Fields Under Multiple Surface Lots Think About, e.g., Ease of Operation, Incentives, Effects on Market, etc.

17. URANIUM: Brief & DQ2.12- Swift v. Gifford “First Iron Holds the Whale” URANIUM: Brief & DQ2.12-2.15 Continued

18. Swift v. Gifford: Nature of Dispute (Recap) Two ships chasing a wild whale. Who gets? – First to harpoon & pursue (Rainbow) –OR— – First to kill (Hercules) Could decide using common law or custom. We will look at: 1.How Swift addresses common law claim (from Brief) 2.How our ACs resolve without custom (DQ2.12) 3.How Swift addresses custom (DQ2.13-2.14)

19. Swift v. Gifford Swift Applying 1 st Possession ACs (Recap) Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal – If so, Rainbow loses – NOTE: 1872 = Before Liesner and Shaw = Rules now different

20. Swift v. Gifford (Uranium) Swift Applying 1 st Possession ACs Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal R Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” R Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” – Court says this reading of civil law is not “free from doubt.” – May come from Pierson dissent quoting Barbeyrac (p.6). – Note underlying argument that court might alter common law rule to follow trend in civil law.

21. Swift v. Gifford (Uranium) Swift Applying 1 st Possession ACs Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” Court deals with this claim with reference to disputed fact, apparently assuming “reasonable prospect” = “reasonable probability” Court deals with this claim with reference to disputed fact, apparently assuming “reasonable prospect” = “reasonable probability”

22. Swift v. Gifford (Uranium) BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.68 end of first para.)

23. Swift v. Gifford (Uranium) BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.68)  reasonably probable Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? How does court resolve?

24. Swift v. Gifford (Uranium) BRIEF: Factual Dispute Where on List is “Reasonably Probable”? Absolute Certainty High Probability No More Named Storms This Hurricane Season Ben Carson Becomes the Republican Pres. Nominee +

25. Swift v. Gifford (Uranium) BRIEF: Factual Dispute reasonably probable Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? a possibility of success.” (Very bottom p.68) “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

26. Swift v. Gifford (Uranium) BRIEF: Factual Dispute Where on List is “A Possibility of Success”? Absolute Certainty High Probability Reasonable Probability No More Named Storms This Hurricane Season Ben Carson Becomes the Republican Pres. Nominee Snowball in Hell

27. Swift v. Gifford (Uranium) BRIEF: Factual Dispute Levels of Probability Absolute Certainty High Probability Reasonable Probability Reasonable Probability No More Named Storms This Hurricane Season A Possibility of Success Ben Carson Becomes the Republican Pres. Nominee = A Possibility of Success Snowball in Hell So how does court resolve disputed fact?

28. Swift v. Gifford (Uranium) BRIEF: Factual Dispute reasonably probable Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? “Reasonably probable” = “[much] more than a possibility of success.” more than a possibility of success.” Factual Finding: NO! “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

29. Swift v. Gifford (Uranium) BRIEF: Factual Dispute Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” Court deals with claim by finding supposed test from civil law not met on these facts, so doesn’t have to decide: – If civil law really has adopted test raised by R – Whether to make test part of common law QUESTIONS?

30. Swift v. Gifford (Uranium) DQ2.12: Applying 1 st Possession ACs Swift facts under Pierson Majority? Pierson Majority Mortal Wound + Pursuit Enough Pursuit Alone Not Enough Swift Facts Wound + Harpoon + Pursuit Enough under Pierson?

31. Swift v. Gifford (Uranium) DQ2.12: Applying 1 st Possession ACs Wound + Harpoon + Pursuit Falls into Gap in Literal Language of Pierson Can resolve with other language. E.g., Did Rainbow Deprive Whale of NL?

32. Swift v. Gifford (Uranium) DQ2.12: Applying 1 st 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. Try: – Reward Effective Labor? – Certainty? – Notice to Others of Claim?

33. Swift v. Gifford (Uranium) DQ2.12: Applying 1 st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson General Policy : Reward Effective Labor – Might look at how likely R was to succeed without H Weissman Point: Killing Whales Generally Hard to Do Finding of Fact was low probability, so maybe no reward – Halperin Point: Check if H’s labor dependent on R’s labor If1 st iron seriously wounds whale, might slow down so easy to kill Might be relatively minor wound Certainty: – Maybe Clearer Rule than 1 st Kill – Don’t Have to Decide if Wound is Mortal

34. Swift v. Gifford (Uranium) DQ2.12: Applying 1 st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson In Pierson Continued Pursuit After Mortal Wound Shows No Intent to Abandon – Does this pursuit + harpoon serve purpose? – F unaware of pursuit & harpoon when caught – BUT easy to tell when 2d ship arrives b/c marked iron – Again, may depend on whether 1 st iron slows whale noticeably.

35. Swift v. Gifford (Uranium) DQ2.12: Applying 1 st Possession ACs Overall: Looks Like Testable Hypo Wound + Mark (iron) probably make this stronger case for 1 st Hunter than Pierson Clearly less good control than Liesner boys or net- owners in Shaw. Leave to You: Other Arguments from Pierson Arguments from Shaw & Liesner

36. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Custom: 1st iron holds whale if claim made before whale cut. Note: Stronger custom for 1 st ship than version of custom discussed in Taber & Bartlett – Whale can be still alive/swimming (v. adrift) – 1 st ship just has to get harpoon to stick (v. kill)

37. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Swift decides to 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)

38. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Swift decides to treat custom here as binding law and provides an important discussion explaining its decision. DQ2.14. What problems with using custom as law does Swift recognize?

39. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems w using custom as law include: Surprise Surprise to Outsiders – Note references to LOCAL custom and to ABUSES – Problem grows as commerce reaches further Uncertainty Uncertainty (re what custom is/when it applies) – “loose and inconclusive customs” – “liable to great misunderstandings and misinterpretations” Unreasonable Custom may be Unreasonable.

40. Uranium: Swift v. Gifford & DQ2.13-2.14 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 (open to fraud & deceit) – Note discussion on p.69 re what laws can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”

41. Uranium: Swift v. Gifford & DQ2.13-2.14 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.

42. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Should Custom = Law: Swift Considerations 1.Doesn’t affect outsiders 2.Used by entire business for a long time (equivalent of a contract) 3.Where legal rule is hard to apply on site, use of custom may prevent quarrels 4.Custom is reasonable We’ll describe each and apply (2.13) to Swift and (2.14) to hunter’s customs noted in Pierson.

43. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. – Concern about outsiders generally? – Relevance in Swift?

44. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders MEANS: Q here is whether custom is likely to be applied to uninformed outsiders to their surprise/disadvantage. ( NOT asking whether industry affects outsiders.) In Swift: 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.69 (Nobody but whalers likely to be involved). DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

45. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. Contract – Meaning of Reference to Contract Generally? – Relevance in Swift?

46. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) Reference to “Contract”: If all agreed to & relied on, reasonable to treat as legally binding Custom here “embraced an entire business, and had been concurred in for a long time by every one engaged in that trade.” DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

47. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels DQ2.13: Describe each consideration noted by court and explain how it applied in Swift.

48. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels May be harder to determine 1 st killer or mortal wound than 1 st 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.69) DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

49. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. Note: “Reasonableness” allows you to bring in a variety of concerns that don’t fit neatly in other categories (fairness, benefits to industry, rewarding labor, etc.)

50. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable Contrasts custom proposed in Bartlett with custom at issue in Swift : – Re Bartlett : “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.70)

51. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable Contrasts custom proposed in Bartlett with custom in Swift : had become fully possessedwith a reasonable hope of recovery – Re Bartlett : “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.70) Might say that here, fully possessed – 1f 2d ship hasn’t cut in, not really fully possessed yet. if fully possessed. – Custom here reasonable b/c only gets whale if fully possessed.

52. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable Contrasts custom proposed inBartlett with custom at issue in Swift. Why is Judge Lowell especially authoritative on meaning of Bartlett?

53. Uranium: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable He wrote it: I 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 (maybe certainty v. safety)

54. Swift v. Gifford (Uranium) DQ2.15: Unpublished Opinions In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties. Possible problems with doing this?

55. Swift v. Gifford (Uranium) DQ2.15: 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?

56. Swift v. Gifford (Uranium) DQ2.15: 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)

57. Swift v. Gifford Wrap-Up (Absent Custom) Swift = Additional 1 st Possession Animals Case Hard to Resolve Under Prior Cases – Wound + Mark = More than Mere Pursuit – Briefly Had Whale Attached to Ship w Line/Harpoon – BUT Low Probability of Capture Hurts R’s Claim Swift Says Need Actual Possession, so H would win – BUT prior to Liesner & Shaw

58. Swift v. Gifford Wrap-Up (Custom) Swift: Custom at issue treated as law Provides List of relevant considerations 1.Affect outsiders? 2.Used by entire business for long time? 3.Easier to apply on site than otherwise applicable legal rule? 4.Reasonable?

59. Swift v. Gifford QUESTIONS?

60. Rose Article & DQ2.20 (Krypton) Cf. RANE (~1981)

61. Rose Article (1985) Possession as the Origin of Property Recall idea of theory as a way to determine what kinds of facts are relevant to addressing particular problems.

62. Rose Article (1985) 2 principles tying “Possession” to ownership 1.Reward useful labor 2.Provide “Clear Act” giving notice of ownership. Substantial overlap between the two – Right kind of labor can constitute the “Clear Act” – Sending clear signals itself is useful labor we might wish to reward

63. Rose Article & DQ 2.20 (Krypton): Rewarding Useful Labor Benefits of Rewarding Labor Clear: – Want people to do useful labor so reward them – Labor-“Desert” Theory = Deserving – Cf. Labor-“Dessert” Theory: “If you clean your room, you can have some cake.” What (two) problems does Rose see with labor theory?

64. Rose Article & DQ 2.20 (Krypton): Rewarding Useful Labor Problems with Labor Theory? Not clear why you own your own labor – e.g., could be duty owed to community (like universal military/gov’t service) How much labor must you add to a thing to make the thing yours? – Pouring tomato soup into ocean – Broader Version: What is scope of right that labor creates?

65. Rose Article & DQ 2.20 (Krypton): “Clear Act” Benefits flowing from “Clear Act” Gives notice to people who want to use or purchase property. (Similar idea in Demsetz) – Facilitates trade  highest (most valued) uses – Minimizes conflicts

66. Rose Article & DQ2.20 (Radium): “Clear Act” Benefits flowing from “Clear Act” Gives notice to people who want to use or purchase property. (similar idea in Demsetz). Note relationship to language in Pierson & Shaw: – Intent to retain animal insufficient – Need act demonstrating that intent

67. Rose Article & DQ 2.20 (Krypton): “Clear Act” Possible problems arising from attempt to provide the “Clear Act”?

68. Rose Article & DQ 2.20 (Krypton): “Clear Act” Possible problems arising from attempt to provide the “clear act”? 1.Making clear to people who actually use or might want to use the thing in Q. 2.Making clear at relevant time. 3.Expensive to establish/maintain symbols. Difficulty Marking Some Types of Property

69. Rose Article & DQ 2.20 (Krypton): “Clear Act” Expensive to establish/maintain symbols – Registration system is often useful alternative to consider for XQ2, but often expensive – By contrast, first possession systems often relatively cheap to administer

70. Rose Article & DQ 2.20 (Krypton): “Clear Act” “Relevant Audience” Clear act never clear to everybody; needs to be clear to people who need to know (= rel. aud.) Clarity of act can be dependent on … – culture (aliens buying sunshine) – technology (marks embedded in computer programs)

71. Rose Article & DQ 2.20 (Krypton): “Clear Act” “Relevant Audience” not Rose: In our system, acts showing property in land often depend on not conforming to nature – See Adverse Possession. – Relevant audience of Americans working with land recognizes as signs of possession, e.g., cultivation, improvements, enclosure QUESTIONS?

72. Rose Article & DQ 2.21: Characterize Cases in Rose’s Terms Westmoreland choosing 1st Possession rules for wild animals instead of rules for solid minerals. – Relationship to “Clear Act” For claims to coal/metals, ownership of surface = Clear Act For Minerals fn (oil, gas, water): – Ownership of surface not Clear Act re claims of adjoining surface owners – Extracting = Clear Act to anyone. – Relationship to “Rewarding Useful Labor”: Extracting and containing oil & gas on surface = Useful Labor worth rewarding.

73. Rose Article & DQ 2.21 (Oxygen): Characterize Cases in Rose’s Terms Next Class, Oxygens be ready to do for: Shaw rejecting perfect net rule Mullett broadly defining Natural Liberty Albers limiting Mullett rule Swift & Ghen adopting respective customs