1. Music: Uncle Bonsai A Lonely Grain Of Corn (1984) FYI: See Song Called Day Old Whale

2. Oil & Gas: 1 st Possession Westmoreland & Cambria Natural Gas Co. v. DeWitt (Penn. 1889) & DQ2.22: Under Westmoreland, if a pool of gas lies under two adjacent parcels of land and the owner of one parcel drills a well, how much of the joint pool is he entitled to take through his well? How is this result related to the court’s description of gas as a mineral ferae naturae?

3. Ghen v. Rich (Radium) We move from the North Pacific to Cape Cod Massachusetts (and to Cranberry Headings)

4. Ghen v. Rich (1881) DQ2.17: Historical Context: RADIUM Taber = 1856; Bartlett = 1868; Swift = 1872 Two Significant Events Probably Relevant to Timing of Dispute Being Litigated inGhen: 1.U.S. Civil War 2.Completion of Transcontinental Railroad Ideas About Why Relevant?

5. Ghen v. Rich (1881) DQ2.17: Historical Context: RADIUM Taber = 1856; Bartlett = 1868; Swift = 1872 Significant Events Probably Relevant to Timing of Development of Industry & Custom in Ghen: 1.U.S. Civil War: Provides Technology for Bomb-Lances 2.Completion of Transcontinental Railroad Whaling in Pacific from New England no longer profitable Gives New England whalers reason to find ways to make fin- back whaling more possible

6. Ghen v. Rich (Radium): DQ2.19 E-Participation Published Ghen Brief IM41 (in Info Memo #2). In the brief, try to identify as many mistakes and questionable statements about the case as you can. Don’t worry that their briefing form is different from ours. Work-Product = Annotated Copy of Brief

7. Ghen v. Rich (Radium): DQ2.19 Special Assignment E-Mail to Me by Thu Oct 23 @ 2 pm B RADIUMS Bonet, Jay Fraser, Zach Miller, Meghan D RADIUMS Baronoff, Jillian Coplowitz, Beth Dawson, Amber

8. Swift v. Gifford (Continued)

9. Swift v. Gifford (KRYPTON) DQ2.12: Applying 1 st Possession ACs Swift facts under Pierson Majority? Did Rainbow Deprive Whale of NL?

10. Swift v. Gifford (KRYPTON) DQ2.12: Applying 1 st Possession ACs Swift facts under Pierson Majority? Did Rainbow Deprive Whale of NL? Wound + Harpoon + Pursuit Enough?

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

12. Swift v. Gifford (KRYPTON) 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? – Notice to Others? – Certainty?

13. Swift v. Gifford (KRYPTON) DQ2.12: Applying 1 st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson Continued Pursuit Shows No Intent to Abandon – Does this pursuit + harpoon serve purpose? – F unaware of pursuit & harpoon when caught – BUT easy to determine when 2d ship arrives General Policy : Reward Effective Labor – Might look at how likely R was to succeed without H – Finding of Fact was low probability, so maybe no reward Certainty: Maybe Clearer Rule than 1 st Kill – Don’t Have to Decide if Wound is Mortal

14. Swift v. Gifford (KRYPTON) 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 Shaw, Pierson, Liesner

15. OXYGEN: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Custom: 1st iron holds whale if claim made before whale cut. Stronger 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)

16. OXYGEN: 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)

17. OXYGEN: 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?

18. OXYGEN: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems with using custom as law include: Surprise to outsiders – Note references to LOCAL custom and to ABUSES – Problem as commerce becomes more widespread Uncertainty as to what custom is or when it applies – “loose and inconclusive customs” – “liable to great misunderstandings and misinterpretations” Custom may be unreasonable

19. OXYGEN: 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 – Note discussion on p.66 re what laws can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”

20. OXYGEN: 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.

21. OXYGEN: 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 here, use of custom may prevent quarrels 4.Custom is reasonable We’ll describe each and apply to Swift and to hunter’s customs noted in Pierson.

22. OXYGEN: 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.

23. OXYGEN: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders 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.66 DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

24. OXYGEN: 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.

25. OXYGEN: 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) 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?

26. Note on Where We Are See Course Page for Updated Assignments for Wed-Thu & Fri This Week