1. Music: Schumann, Piano Concerto in A Minor (1949) Grieg, Piano Concerto in A Minor (1872) Bavarian Radio Symphony Orchestra (2004) Conductor: Sir Colin Davis Pianist: Murray Perahia Kesler Briefs (Uranium) E-Mailed PDF Late Saturday On Course Page by Noon Sunday: Ghen Quiz Rose Quiz Bartlett Sample Brief Rest of Old XQ1/XQ2

2. 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. Swiss Army Knives & Barbie’s Eye Shadow

3. Argument By Analogy Sample Factual Difference: Living/Dead Land animals are alive when they “escape”; whale carcasses are not.

4. 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.

5. Argument By Analogy Sample Factual Difference: Living/Dead 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. Again, ACs don’t have to fit 100% to be reasonable option.

6. Argument By Analogy RADIUM RADIUM DQ2.09: Additional Factual Differences? Can You Construct This Kind of Argument Around Them?

7. Argument By Analogy 2. Usefulness of Doctrine Qs About Individual Rules or Factors Can you sensibly apply some or all of the legal tests in the new context? Are the purposes behind the rules relevant in the new context?

8. Argument By Analogy 2. Usefulness of Doctrine Overall Q: Is the doctrine targeting the right concerns? Are there important concerns raised by the precedent that aren’t relevant in the new context? Are there important concerns raised by the new context that weren’t relevant in the precedent?

9. Argument By Analogy DQ2.10: Usefulness of Doctrine Individual Escape Factors Whose Relevance is Pretty Clear to Disputes re Whale Carcasses (Arguably used in Taber & Bartlett): Marking/Finder’s Knowledge Rewarding Labor/Protecting Industry Abandonment (by Compulsion)/Pursuit Time/Distance (though time frame may be different than for living animals)

10. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: (1) Factual Comparison: OO can attach identifying marks to both escaping animals and whale carcasses. – ACs reward OOs who use strong marks that help identify the animal and give notice to Fs of prior claim – For same reasons, good idea to reward OOs of whale carcasses who use strong marks – Thus, this similarity supports using ACs

11. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: (2) Usefulness of Doctrine: ACs factor we called “marking” (Manning; Albers), rewards OOs who use strong marks that help identify the animal and give notice to Fs of prior claim. – OO of whale carcass can attach identifying marks that serve the same purposes. – Thus, it is a good idea to reward OOs of whale carcasses who use strong marks, which makes “marking” a useful factor to use.

12. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: – Overlap is logical: Concerns addressed by the legal tests are made relevant by the factual setting. Factual comparisons are made relevant by the way the doctrine operates.

13. Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: – For XQ2, if you see overlapping arguments, you only need to give me one of them – BUT useful to practice approaching analogy question from both directions b/c sometimes you will find it easier to see a useful point looking from one angle than from the other.

14. Argument By Analogy DQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? Natural Liberty – Maybe NL = carcass is floating free – Pros & Cons: Should Consider: LANGUAGE: E.g., “Provide for itself” v. “No artifical restraint” UNDERLYING POLICIES : I did some in Class #19

15. Argument By Analogy DQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? Taming or Intent to Return – Could mean simply anchoring the carcass – Pros & Cons include: Anchoring similar b/c labor expended to maintain control Maybe unnecessary b/c can reward anchoring using NL or general policy rewarding useful labor

16. Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context – For 1st Possession might include: auction, lottery, state ownership, most deserving, etc. – For Escape might include: salvage, F always wins, OO always wins, registration systems – Don’t spend time on alternatives that seem fairly stupid (could award carcass to oldest whaler…) – Look at old model answers

17. Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context Discuss the pros and cons of using each possible alternative instead of the proposed analogy – Ideally provide both pros and cons for each – Can consider fairness, cost, ease of administration, incentives created, whether the right Qs are being asked, etc.

18. Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context Discuss the pros and cons of using each possible alternative instead of the proposed analogy You can identify possible alternatives and common pro/con arguments from class and from model answers. However, only way to get proficient enough to do well under exam conditions is PRACTICE.

19. Argument By Analogy Usefulness of Alternatives OXYGEN: DQ2.11: One Particular Alternative Would salvage be a better way to resolve anchored whale cases than using the escaped animal cases? Why or why not?

20. Argument By Analogy Usefulness of Alternatives OXYGEN: DQ2.11: Would salvage be better than using the escaped animal cases? Might Consider: Splitting Rewards v. One Side Takes All (& Labor?) Rule Most Likely to Save Most Whale Carcasses Ease of Application: – ACs = multiple factors = complex – But maybe hard to do salvage where property must be cut up and altered to take on board

21. 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.

22. Argument By Analogy Next Week: More Practice First Possession/Oil & Gas: – DQ2.23: Facts (OXYGEN) – DQ2.24: Factors (KRYPTON) – DQ2.25: Alternatives (URANIUM) Group Assignment #3 Distributed

23. LOGISTICS CLASS #23 Starting Oil & Gas Monday-Tuesday Work Through Technical Readings to Try to Get Sense of How Things Work – Reread after we’ve gone through cases when you have a sense of relevant legal issues – Common task for lawyers: need to acquire expertise in areas important to client (me & accounting & fire sites)

24. LOGISTICS CLASS #23 Starting Oil & Gas Monday-Tuesday I’ll Lecture Through Westmoreland – Difficult Case to Understand Both re Gas Extraction and Business Transaction – Read Through for Plot; Don’t Try to Brief – Look at in Advance Because Presentation Will Primarily Be at White Board (Few Slides)

25. LOGISTICS CLASS #23 Starting Oil & Gas Monday-Tuesday Westmoreland Adopts Animals Cases to Govern 1 st Possession of Natural Gas Case Does Not Make Explicit Animals Analogy to Specific Facts. My Take: – 1 st Gas Co. Gets Permission to Hunt from Landowner – Catches Deer, Ties It to Tree, & Leaves for Lunch – Landowner Refuses to Let 1 st Gas Co. Return & Sells Hunting Rights, Including Tied Deer, to 2d Gas Co.

26. KRYPTON: Brief & DQ2.12 Swift v. Gifford “First Iron Holds the Whale” KRYPTON: Brief & DQ2.12 OXYGEN: DQ2.13-2.15

27. Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others … ?, sued Gifford …, for [cause of action] seeking [remedy].

28. Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford …, ??? for [cause of action] seeking [remedy].

29. Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift et al., owners of ship (H) whose crew killed whale sued Gifford, managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, for [cause of action] ??? seeking [remedy].

30. Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford, managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, presumably for conversion seeking [remedy]. ???

31. Swift v. Gifford (Krypton) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford, managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, presumably for conversion Seeking damages for the value of the whale.

32. Swift v. Gifford (Krypton) BRIEF: Procedural Posture Decision after a trial.

33. Swift v. Gifford (Krypton) BRIEF: Facts Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. Crew of ship H captured the whale, unaware that ship R was still pursuing it. Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. What Else Needs to Be Included?

34. Swift v. Gifford (Uranium) BRIEF: Facts Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. Crew of ship H captured the whale, unaware that ship R was still pursuing it. Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. Parties all understood custom.

35. Swift v. Gifford (Uranium) BRIEF: Facts Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. (Parties all understood.). – Note: Hercules gave whale up voluntarily honoring custom (cf. Taber: reaction of Captain of Massachusetts to Zone) – Suggests maybe Swift et al. are new players in whaling game: Hercules gets home & reports to Owners Swift: “You did what??!!” – Swift = famous business family in Chicago, so …

36. Mini-Comparison Box Boston Red Sox (& Lost Braves) Cod & Lobster Shipping "So this is good old Boston. The home of the bean and the cod. Where the Lowells talk only to Cabots. And the Cabots talk only to God." Chicago White Sox (& Losing Cubs) Pork & Beef (Swift/Armour) Railroads “City of Broad Shoulders” & “Not for Breeding Purposes.”

37. Swift v. Gifford Nature of Dispute Escaping wild animals cases only apply to Taber & Bartlett by analogy. By contrast, Swift is a 1 st possession wild animal case. Two hunters (ships) chasing a wild whale. Who gets? – First to harpoon & pursue (Rainbow) –OR— – First to kill (Hercules)

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

39. Swift v. Gifford Swift Applying 1 st Possession ACs 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

40. Swift v. Gifford (KRYPTON) 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.” – 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

41. Swift v. Gifford (KRYPTON) 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”

42. Swift v. Gifford (KRYPTON) 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.63)

43. Swift v. Gifford (KRYPTON) 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.65)  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?

44. Swift v. Gifford (KRYPTON) BRIEF: Factual Dispute Where on List is “Reasonably Probable”? Absolute Certainty High Probability Democrats Retain Control of the Senate Jameis Winston has no Further Incidents this Season +

45. Swift v. Gifford (KRYPTON) 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? (Very bottom p.65) “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

46. Swift v. Gifford (KRYPTON) BRIEF: Factual Dispute Where on List is “A Possibility of Success”? Absolute Certainty High Probability Reasonable Probability Democrats Retain Control of the Senate Jameis Winston has no Further Incidents this Season Snowball in Hell

47. Swift v. Gifford (KRYPTON) BRIEF: Factual Dispute Levels of Probability Absolute Certainty High Probability Reasonable Probability Democrats Retain Control of the Senate Jameis Winston has no Further Incidents this Season = “A Possibility of Success” Snowball in Hell So how does court resolve disputed fact?

48. Swift v. Gifford (KRYPTON) 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” = “more than a possibility of success.” more than a possibility 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.”

49. Swift v. Gifford (KRYPTON) 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 – Whether to make test part of common law QUESTIONS?