1. LOGISTICS: CLASS #9 Group Assignment #1 – Instructions in IM#3 posted by Noon Tuesday – I’ll take Qs on during class Wed/Thurs – Can start on right away – Due Mon Sept 24 @ 9pm Next Set of Course Materials – Posted by Noon Wednesday – A Few Pages of Additional Reading for Friday – A Few DQs (Uranium)

2. STATE v. SHAW SIGNIFICANT FACTS Third parties put nets in public waters to catch fish. Some fish that got into the nets could escape, but “under ordinary circumstances, few, if any, fish escape.” (p.27) Thomas and others (Ds) removed fish from the nets.

3. DQ22: Apply Pierson Majority to Shaw Facts & Perfect Net Rule Language from Pierson “[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”

4. DQ22: Apply Pierson Majority to Shaw Facts & Perfect Net Rule Language from Pierson Passage about traps seems to require that they “render escape impossible,” supporting Perfect Net Rule. Ways Around?

5. DQ22: Apply Pierson Majority to Shaw Facts & Perfect Net Rule Language from Pierson: Ways around “render escape impossible”? Distinguish traps for individual animals from traps for groups of animals (like fish nets). Might just refer to “otherwise intercepting” and not to “nets and toils” Dicta (traps not part of original case) and inconsistent with explicit concerns with certainty and labor

6. DQ22: Apply Pierson Majority to Shaw Facts & Perfect Net Rule Language from Pierson “[M]ortal wounding … by one not abandoning his pursuit, may … be deemed possession of [the animal]; since, thereby, the pursuer [i] manifests an unequivocal intention of appropriating the animal to his individual use, [ii] has deprived him of his natural liberty, and [iii] brought him within his certain control.

7. DQ22: Apply Pierson Majority to Shaw Facts & Perfect Net Rule Language from Pierson: Property where claimant… [i] manifests an unequivocal intention of appropriating the animal to his individual use, Big constructed nets at issue surely do this [ii] has deprived him of his natural liberty, and Can argue about this; probably true temporarily; [iii] brought him within his certain control. Not true of any one fish; true of fish as a group

8. DQ22: Apply Pierson Majority to Shaw Facts & Perfect Net Rule Policies from Pierson: Certainty Perfect Net Rule (like too-absolute versions of rules in Liesner) creates uncertainty b/c too difficult for net-owners to meet test: Virtually impossible to create escape-proof net Even if net initially is escape-proof, wear-and-tear would quickly change this (nice Sader point!) Difficult to show test met, and becomes harder as time goes on

9. DQ22: Apply Pierson Majority to Shaw Facts & Perfect Net Rule Policies from Pierson: Rewarding Labor Point of net is to catch fish which have value to society. Net serves this purpose & is valuable even if not perfect Net that retains most of the fish it catches should thus be rewarded If net needs to be perfect to be protected against theft, industry might well shut down.

10. DQ23: Apply Pierson Dissent to Shaw Facts Even imperfect net is more control/certainty than “hot pursuit” so dissent would likely say it is enough to create property rights. Would seem to meet language (p.6): i) Pursuer w/in reach or reasonable prospect of taking + ii) Intent to convert to own use

11. STATE v. SHAW FACTS & DQ22-23: I’ll Include at the Beginning of this Set of Slides: Slide with Edited Version of Shaw Facts Quick Point re “How Many Facts?” Slides on Coverage of DQ 22-23 from Last Time

12. STATE v. SHAW DQ23: Krypton Ways to Use Arguments from Dissents: If Majority not Binding on Court in Question, then Dissent can be Persuasive Authority (“We find the dissent’s position more persuasive because …”) Note that Pierson Dissent position seems inconsistent with rules stated in Liesner and Shaw as well, which weakens its persuasiveness

13. STATE v. SHAW DQ23: Krypton Ways to Use Arguments from Dissents (Even if Majority Opinion is Binding Precedent): Can Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”) Can Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”

14. STATE v. SHAW DQ23: Krypton Ways to Use Arguments from Dissents QUESTIONS?

15. STATE v. SHAW DQ24: Krypton Applying Liesner Tests to Shaw Facts Substantially permanently deprived fish of liberty? B2: Did last time. B1: Try now!

16. STATE v. SHAW DQ24: Krypton Applying Liesner Tests to Shaw Facts Substantially permanently deprived of liberty? Can’t say for sure that any particular fish is permanently deprived of liberty Maybe “substantially permanently”, because very high likelihood for particular fish Maybe meet test b/c substantial # of fish permanently deprived

17. STATE v. SHAW DQ24: Krypton Applying Liesner Tests to Shaw Facts Under control so possession is practically inevitable? Fair to describe fish as “under control”? Is possession “practically inevitable”?

18. STATE v. SHAW DQ24: Krypton Applying Liesner Tests to Shaw Facts Escape Highly Improbable? Court seems to say so. May depend on frequency of storms or other events outside “ordinary circumstances.” Leave further arguments to you.

19. STATE v. SHAW Context 1902

20. STATE v. SHAW Context: 1902 International China's Empress Tzu-hsi forbids binding of woman's feet Cuba gains independence from Spain Edward VII (60) becomes King of England (Victoria had reigned 63+ years before her death in 1901) Boer War Ends; Britain annexes Transvaal United States: Teddy Roosevelt: 1st Am. President to ride in an automobile US buys Virgin Islands from Denmark & right to build Panama Canal from French Oliver Wendell Holmes, Jr. (Civil War veteran & Justice on Mass. Supr. Ct.) becomes Associate Justice on US Supreme Court

21. STATE v. SHAW Context: 1902 Deaths Thomas Nast (cartoonist); Cecil Rhodes (explorer); Elizabeth Cady Stanton (feminist); Emile Zola (novelist) Births Charles Lindbergh (Aviator) & Ansel Adams (Photographer) Meyer Lansky & Carlo Gambino (Both Organized Crime) Richard Daley (Chi. Mayor 1968) & Thomas Dewey (ran for pres. 1948) & Strom Thurmond (ran for pres. 1948, d. 2003) Richard Rodgers, Guy Lombardo, John Steinbeck & Langston Hughes John Houseman (Paper Chase) & Margaret Hamilton (Wicked Witch) Ray Kroc (McDonald’s) & Ayatollah Ruhollah Musavi Khomeini (Iran)

22. STATE v. SHAW Context: 1902 Introduced: American Automobile Assn 1 st Automat Restaurant in Philadelphia "Bill Bailey Won't You Please Come Home" "The Entertainer" JC Penney 1 st Store (in Wyoming) London School of Economics Marlboro 1 st Movie Theater Neon Lamps Phi Alpha Delta

23. STATE v. SHAW Context: 1902 Introduced: "Pomp and Circumstance" Radium isolated by Marie & Pierre Curie Rhodes Scholarships Rose Bowl (1st College Bowl Game; Michigan 49, Stanford 0) Smith & Wesson.38 Caliber Special; Texaco The Thinker by Rodin Tinker, Evers, and Chance (Chicago Cubs Infielders) US Census Bureau Window Envelopes

24. STATE v. SHAW Brief: Krypton ISSUE: 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?

25. STATE v. SHAW Brief: Krypton Narrow 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.

26. STATE v. SHAW Brief: Krypton Result: Reversed What happens now? Is case over?

27. STATE v. SHAW Brief: Krypton Result: Reversed & Remanded What happens now? Back to trial court for new trial. Will State necessarily win?

28. STATE v. SHAW Brief: Krypton Result: Reversed & Remanded What happens now? Back to trial court for new trial. Will State necessarily win? No. Jury could still find that Thomas didn’t do it.

29. STATE v. SHAW Brief: Krypton Result: Reversed & Remanded What happens now? Back to trial court 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.

30. STATE v. SHAW Brief: Krypton 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? (Already Noted Problems with Raggedy Volleyball Net)

31. STATE v. SHAW Brief: Krypton 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. mid-p.27), either of which could be incorporated into broader version of holding.

32. STATE v. SHAW Brief: Krypton Two Plausible Rules (long para. mid-p.27) 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, whether trap, cage, park, net, or whatever it may be, will be larceny.

33. STATE v. SHAW Brief: Krypton First Plausible Rule (long para. mid-p.27) “[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.” 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

34. STATE v. SHAW Brief: Krypton Second Plausible Rule (long para. mid-p.27) 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 1 st Plausible Rule

35. STATE v. SHAW Brief: Krypton Second Plausible Rule (long para. mid-p.27) The trapper acquires property in wild animals “[w]hen [i] he has confined them …, and [ii] maintains reasonable precautions to prevent escape….” NOTE: Can assume in Shaw that court believes net- owners met its tests, e.g., set up of these nets = “reasonable precautions to prevent escape.” Otherwise, court would have affirmed.

36. STATE v. SHAW Brief: Krypton Rationales: Doctrinal Rationales Discussed in IM#3 Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.27). MEANS?

37. STATE v. SHAW Brief: Krypton Rationales: Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.27). Probably refers to difficulty of proof/certainty arguments from last time 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.27) Significance?

38. STATE v. SHAW Brief: Krypton Rationales: 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 goes to certainty of capture or of identifying owners Maybe goes to sufficiency of Net-owners’ labor OTHER DIFFERENT POLICY CONCERNS?

39. STATE v. SHAW Brief: Krypton Rationales: 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.

40. STATE v. SHAW DQ25-28

41. STATE v. SHAW DQ27: Uranium E-MAIL TO ME TODAY BY 6:00 pm THE RULE YOU DERIVED FOR DQ27 (Not your Defense of the Rule) B1: Mottin-Berger; Roberts; Yanes B2: Coupet; VanWart; Woodby WE’LL GO OVER NEXT CLASS

42. STATE v. SHAW DQ25: Uranium “[T]he pursuer must [1] bring [the animal] into his power and control, and [2] so maintain his control as to show that he does not intend to abandon [it] again to the world at large.” Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

43. STATE v. SHAW DQ25: Uranium “[T]he pursuer must [1] bring [the animal] into his power and control, and [2] so maintain his control as to show that he does not intend to abandon [it] again to the world at large.” Apply to Liesner (trial court facts): Mortal Wound + Vigorous Pursuit + Escape Improbable

44. STATE v. SHAW DQ25: Uranium “[T]he pursuer must [1] bring [the animal] into his power and control, and [2] so maintain his control as to show that he does not intend to abandon [it] again to the world at large.” Apply to Pierson facts

45. STATE v. SHAW DQ25: Uranium “[T]he pursuer must [1] bring [the animal] into his power and control, and [2] so maintain his control as to show that he does not intend to abandon [it] again to the world at large.” Apply to Pierson facts

46. STATE v. SHAW DQ25: Uranium “[T]he pursuer must [1] bring them into his power and control, and [2] 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

47. STATE v. SHAW DQ26: Uranium Should the result in Shaw be the same if the fishermen used a 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)

48. STATE v. SHAW DQ26: Uranium NOTE: If Q = “Should the result be the same if we change one fact?” Really asking: “Why might result be different if we change the fact?” So: Why might it make a difference that people use a sunken boat rather than a net to catch fish (if both equally effective)?

49. STATE v. SHAW DQ26: Uranium 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”

50. STATE v. SHAW DQ26: Uranium Nice Additional Policy Reason to Treat Sunken Boat Differently (Griffin-B1) 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

51. STATE v. SHAW DQ28: Uranium DQ28 = Exercise to Set Up Demsetz Reading

52. STATE v. SHAW DQ28: Uranium 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?