1. ELEMENTS B POWER POINT SLIDES Class #15 Monday, September 28, 2015

2. MUSIC: Gilbert & Sullivan PIRATES OF PENZANCE (1879) Welsh National Opera Charles Mackerras, Conductor Recording: 1993 Lunch Today Meet on Bricks @ 11:55 Brummond * Cardenas Courtney * Harris Simon * Snodgrass Sonenblum Lunch Tomorrow Meet on Bricks @ 12:25 Calles Smith * Gray Lemire * Osceola

3. Manning v. Mitcherson as Precedent 1.Using Individual Cases as Precedent Generally a)First Possession Cases b)Using Factors & Elements c)Broad & Narrow Holdings 2.Manning Applied a)Quick Aside: Intro to Albers (URANIUM) b)Application of Manning Factors to: i.Squirrel Hypothetical (URANIUM) ii.Facts of Albers (RADIUM) c)DQ1.48 & Broad Holdings

4. Using an Individual Case as Precedent We’ve Said Can Make Arguments from: We’ve Said Can Make Arguments from: 1.Specific Language 2.Comparing Facts 3.Relevant Policies

5. Using an Individual Case as Precedent We’ve Said Can Make Arguments from: We’ve Said Can Make Arguments from: 1.Specific Language 2.Comparing Facts 3.Relevant Policies First Possession Cases: Relatively Clear First Possession Cases: Relatively Clear – Limited Relevant Facts in Pierson & Shaw – Rules Clearly Identifiable in Liesner & Shaw

6. Using an Individual Case as Precedent Can Make Arguments from Specific Language, Comparing Facts, Relevant Policies Can Make Arguments from Specific Language, Comparing Facts, Relevant Policies Escape Cases Different from 1 st Possession Escape Cases Different from 1 st Possession – Mullett: 3 Explicit FACTORS from English Common Law – Manning : Long List of Relevant Facts & Result No Clearly Articulated Rule No Clearly Articulated Rule We Identified a List of [Implicit] FACTORS We Identified a List of [Implicit] FACTORS

7. Using Factors or Elements Generally 1.Crucial Set of Skills for Lawyering & for Exams 2.We’ll Continue at Length Today 3.Again in DQs for Taber, Then Throughout Unit Two 4.Plus Torts, Adverse Possession, etc.

8. Using Factors or Elements 1.Assume Each There for Separate Reason 2.For Each: – Identify Kinds of Facts that Are Relevant – Look for Explicit Definitions (none in Manning) – Look for Explicit & Implicit Policy Justifications We did this some already for Factors from both Manning & Mullett

9. Using Factors or Elements When Applying to New Facts 1.Apply One at a Time, Then Look at Whole Picture – If “Elements”, Each Has to Be Satisfied for P to Win – If “Factors”, Consider Strengths & Weaknesses of All 2.If significant arguments for both parties on any one, try to resolve with: – Use of Definition (where available) – Comparisons to Use of Factor/Element in Prior Cases – Purpose of Factor/Element (Policy Justifications)

10. Using an Individual Case as Precedent Can Make Arguments from Specific Language, Comparing Facts, Relevant Policies Can Make Arguments from Specific Language, Comparing Facts, Relevant Policies Escape Cases Different from 1 st Possession Escape Cases Different from 1 st Possession – Manning : Long List of Relevant Facts & Result No Clearly Articulated Rule No Clearly Articulated Rule We Play with Broader/Narrower Versions of Holding to Identify Possible Rules & Implicit Factors We Play with Broader/Narrower Versions of Holding to Identify Possible Rules & Implicit Factors

11. Manning v. Mitcherson : FACTS & HOLDING The original owner retains property rights in an escaped [canary] … [that had distinctive crest] [that responded to its name] [that had escaped and returned once before] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found] MAYBE: [that was found in same town]

12. DQ 1.48: Articulating Manning Holding : Nature of the Exercise Lots of Ways to Articulate Manning Holding – Can Include or Exclude Particular Facts – Can Describe Facts More Specifically or More Generally – Point of Broadening & Narrowing is to Identify Ways to Characterize Case to Help Use It as Precedent Squirrel Hypo designed to get you to – Play with the holding in the way that litigators do – Find plausible versions helpful to client’s position. Requested Work-Product was Simply a Version of Manning Holding (Helpful to Assigned Client)

13. DQ 1.48: Articulating Manning Holding : Nature of the Exercise Squirrel Hypo designed to get you to – Play with the holding in the way that litigators do – Find plausible versions helpful to client’s position. Good Way to Start – Apply Manning Factors we derived to Hypo – Determine strengths & weaknesses under Manning of your client’s position. We’ll Integrate with Application of Manning Factors to Albers to Further Explore How Manning Factors Operate, then do Sample Holdings for each side for DQ1.48 FIRST: A Brief Introduction to Albers

14. Albers v. E.A. Stephens & Co.: Intro to the BRIEF URANIUM

15. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers… ??? sued E.A. Stephens & Co, … for [cause of action] seeking [remedy]

16. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, [fox breeder and] OO of an escaped fox killed by a third party, [as opposed to Mullett where court didn’t seem to care that OO was in business] sued E.A. Stephens & Co, … ??? for [cause of action] seeking [remedy]

17. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, [fox breeder,] which purchased the pelt of the fox for [cause of action] ??? seeking [remedy]

18. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox presumably for conversion… seeking [remedy] ???

19. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox, presumably for conversion seeking … damages (the value of the pelt). Even though 2d trial was replevin for return of the pelt, describe initial lawsuit in Statement.

20. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] Then …?

21. URANIUM Albers v. E.A. Stephens & Co.: BRIEF: URANIUM Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] After a [second] trial, the court entered judgment for the plaintiff for return of the pelt or payment of its value. Defendant appealed. NOTE: $$ amount of value of the pelt doesn’t seem relevant to analysis.

22. URANIUM Albers v. E.A. Stephens & Co.: BRIEF: URANIUM Issue: Did the trial court err by entering judgment for the plaintiff because … Beginning of substantive part?

23. URANIUM Albers v. E.A. Stephens & Co.: BRIEF: URANIUM Issue: Did the trial court err by entering judgment for the plaintiff because … the OO of an escaped fox that was killed retains property rights in its pelt where … [Like Manning: Long list of possibly relevant facts, which all need to go into fact section & narrow version of issue.] Summary of facts follows.

24. Albers v. E.A. Stephens & Co.: STORYLINE (Same as Kesler) 1.OO breeds foxes for fur/profit 2.Fox with cool name escapes; threatens local chickens 3.Fox killed to protect chickens 4.Killer either keeps fox pelt or sells to 3d party. 5.OO demands return of pelt

25. Manning v. Mitcherson Factors Applied to … DQ1.48: Squirrel Hypothetical (URANIUM) DQ1.54: Facts of Albers (RADIUM)

26. Manning v. Mitcherson Relevant Factors Taming (or Other Investment in Animal) Emotional Bond Marking (or F Likely Aware of OO) Short Time/Distance from Escape

27. Manning Factors : Taming ( or other Investment ) Emotional Bond DQ1.48: Squirrel Hypo (URANIUM) Relevant Evidence OO Labor to Capture, but No Purchase $$$ Responded to Name (Trained) OO Owned for Three Months No Prior Escape & Return Comfort with Humans More Helpful to Amy (OO) or Brandon (F)?

28. Emotional Bond (Going Forward) Manning v. Mitcherson Relevant Factors Emotional Bond (Going Forward) Rest of “escape” cases arise in commercial contexts (fur fox farming; whaling) where emotional bond is not very relevant. I’m not going to include emotional bond in applications of Manning in these contexts “Menagerie Animals” suggests not necessary for Manning You can bring it back for other problems we do to the extent you can explain its relevance.

29. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (RADIUM) Evidence re Taming: Animal owned for two weeks before escape Fox took food from keeper’s hand Big Deal? How Does Court Describe?

30. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (RADIUM) Evidence re Taming: Fox took food from keeper’s hand (over 2 weeks) “Semi-Domesticated” Court: “Semi-Domesticated” (= Trained Enough to Drive a Tractor-Trailer??) Enough for “Tamed”?

31. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (RADIUM) Evidence re Taming: Fox took food from keeper’s hand. Enough? If unsure, check for purposes behind rule Taming shows labor and emotional bond. Purposes furthered here?

32. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (RADIUM) Evidence re Taming: Pretty weak on purposes  weak case for taming. As with Mullett, could say even if animal not tamed, should protect $$$ investment.

33. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.48: Squirrel Hypo (URANIUM) Relevant Evidence: Recognizable from “Markings” Enough Comfort with Humans to “Charm” F More Helpful to Amy (OO) or Brandon (F)?

34. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (RADIUM) Evidence re Marking: Tattoos in Ears (1/335) How Strong are Marks?

35. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (RADIUM) Marking = Tattoos in Ears. How Strong?  335 = Clearly Man-Made (Maybe Not 1)  Unlikely to Disappear  Identifies Owner  Industry Practice  Maybe Hard for Non-Expert to Find? (Check Size)

36. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (RADIUM) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder?

37. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (RADIUM) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder?  Type of Fox Unknown in Area  Industry Well-Known in Area  Defendant is Member of Industry/Manager = Expert

38. Albers (Marking/Notice to F’) Significance of Marking Under Mullett-Blackstone Rule Blackstone, quoted in Albers p.47: “[I]f a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure;... the owner's property in him still continues … but otherwise, if the deer has been long absent without returning.” – “and” seems to say mark only matters if intent to return – Last phrase seems to make time relevant as well, maybe to AR (as it’s used in Mullett).

39. Manning Factors : Short Time or Distance from Escape DQ1.54: Applied to Albers (RADIUM) Significance of Evidence re Time/Distance? Animal Ran Six Miles Before Being Killed Animal Killed One Day After Escape Unknown Time Before OO Claimed Pelt (Not Very Long): Escape is Jan/Feb 1926 Colo SCt Opinion is 1927 (after 2 trials & oral argument)

40. Manning Factors : TOGETHER DQ1.54: Applied to Albers (RADIUM) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Overall result unclear (typical for exam Q) Might argue it’s like escaped menagerie animal b/c investment & good notice to F. If so, back to OO

41. Manning Factors : TOGETHER DQ1.54: Applied to Albers (RADIUM) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Questions on Application of Manning to Albers Facts?

42. Manning Factors : Short Time or Distance from Escape DQ1.48: Squirrel Hypo (URANIUM) Relevant Evidence: Time: Escape to Find: Unclear Distance: Escape to Find: “Across Town” Time: Find to OO Claim: 2 Months More Helpful to Amy (OO) or Brandon (F)?

43. DQ1.48: Squirrel Hypo (URANIUM) Manning Factors : TOGETHER DQ1.48: Squirrel Hypo (URANIUM) Helpful to A/OO Owned for 3 Months Responds to Name Comfortable w Humans Identifying Markings Helpful to B/F Squirrel Travels “Across Town” No Prior Return 2 Months Before Found Markings Not Man-Made (apparently)

44. DQ 1.48 Articulating Manning Holding Sample for Amy (narrow version; includes almost all helpful facts): OO retains property rights in an escaped animal f.n. that was previously under the owner’s control, that responded to its name when called, that had distinctive markings, that had been missing for a short period of time and was located by the owner soon after [arguable].

45. DQ 1.48 Articulating Manning Holding Samples for Amy (broader versions; focuses on a few key facts): OO retains property rights in an escaped animal f.n. that is… (1)tamed to the extent that it knows its name and remembers its name after a significant period of time (2)tamed, trained to answer by name, and marked in such a way as to make identification straightforward – Cf. “distinctively marked”

46. DQ 1.48 Articulating Manning Holding Sample for Amy (a little too broad): OO retains property rights in an escaped animal f.n. if it accidentally escapes from their immediate possession and comes under the control of another person. Good idea to use language from case BUT: No limit on time and distance No reference to taming or marking Looks like OO always wins; Manning doesn’t say that.

47. DQ 1.48 Articulating Manning Holding Sample for Brandon (very narrow version; includes almost all facts not helpful to Amy ): OO retains property rights in an escaped animal f.n.: that was previously owned for two years, that had escaped and returned before, that had been missing for only a few days, and that owner located day after it was found.

48. DQ 1.48 Articulating Manning Holding Sample for Brandon: (Focusing on Time as Key Element): OO retains property rights in an escaped animal f.n. that had been possessed by the OO prior to escape for an amount of time substantially greater than the amount of time the animal was at large and substantially greater than the amount of time that the animal was possessed by the finder. Clever, especially if compared to “a short time”

49. DQ 1.48 Articulating Manning Holding Sample for Brandon: (ME: Conceding Taming) OO retains property rights in an escaped animal f.n. that was tamed had a distinctive man-made mark and was claimed shortly after escape I’ll Give You Write-Up with More Examples & Strengths/Weaknesses

50. LOGISTICS: CLASS #15 GROUP ASSIGNMENTS Group Assignment #1: Comments & Good Student Answers Posted Comments on Your Work Posted as Complete Group Assignment #2: Instructions Posted with Teams. I’ll Take Qs in Class Wednesday Coordinators Might Want to Start Arranging Logistics So You Have a Game Plan by Break

51. LOGISTICS: CLASS #17 FIRST SUBMITTED BRIEFS: RADIUM: Now Ready for Pick Up from Tina Sutton RADIUM: Now Ready for Pick Up from Tina Sutton OXYGEN: OXYGEN: Will be Ready for Pick Up by Friday; Check Course Page for Status KRYPTON: KRYPTON: Will be Ready by Wednesday of Break; We’ll PDF Packet with Comments to You URANIUM: URANIUM: Will be Ready for Pick-Up by Wed. after Break; Check Course Page for Status

52. LOGISTICS: CLASS #17 SECOND SUBMITTED BRIEFS: Formatting/General Instructions – Can’t work with same partners again – Use Same General Instructions (IM21-22) – Use Briefing Form for Trial Court Cases (59-60) Use Available Resources – Comments on First Brief – Intro to Whaling Cases (60-62) & Glossary (63) Wednesday I’ll Take Qs on New Briefing Form & Whaling Cases Generally

53. LOGISTICS: CLASS #17 RADIUM BRIEF #2: Taber v. Jenny (64-65) RADIUM BRIEF #2: Taber v. Jenny (64-65) Due Thursday @ 10 pm Use Resources Listed on Prior Slide Also Helpful to Go Through: Bartlett v. Budd (66-67) Self-Quizzes for both Taber and Bartlett Check Instructions for Trial Court Briefs and Intro to Whaling Cases by Wednesday & Ask Qs NO OFFICE HOURS TODAY

54. RADIUM Burch, Julianne Lederman, Ev Pijls, Patrick Valencia, James DQ 1.53 RADIUM E - Participation Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? E - Mail Rule to Me by 7 pm Tonight : Real Names Not Pseudonyms Burch, Julianne Lederman, Ev Pijls, Patrick Valencia, James

55. Mullett v. Bradley as Precedent 1.More on the Meaning of Mullett a)Information Relevant to Understanding the Factors b)Issue & Holdings c)Rationales 2.Mullett Factors Applied to: a)Facts of Manning (KRYPTON) b)Facts of Albers (RADIUM)

56. Understanding the Mullett Factors : Types of Information a Case Might Provide Definition: NL General Info on Evidence That Shows if Factor Met: AR (Usual Custom) List of Evidence in This Case Relevant to Factor: AR Whether Factor Met in This Case: AR, NL None. Indication of Purpose of Factors: None.

57. Understanding the Mullett Factors : Types of Information a Case Might Provide List of Evidence in This Case Relevant to Factor: AR – Because no list for NL or Aband., we can (and have to) speculate as to what facts are relevant. – Because court lists evidence for AR, must rely on this list for what facts in the case are “relevant” Time & distance from point of escape (Presumably in addition to “usual custom of returning”) Have to be careful, e.g., re clever 2014 point about scarring as evidence of no AR

58. Mullett v. Bradley BRIEF ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when …

59. Mullett v. Bradley BRIEF ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when it escapes into the Atlantic with no intent to return, where the Atlantic is not its natural habitat?

60. Mullett v. Bradley BRIEF NARROW HOLDING: No, the trial court did not err in dismissing plaintiff’s case because the owner of an escaped sea lion does not retain property rights in the animal when it escapes into the Atlantic with no intent to return, even though the Atlantic is not its natural habitat.

61. Mullett v. Bradley BRIEF : KRYPTON NARROW  BROAD SUBSTANTIVE HOLDING: The owner of an escaped sea lion does not retain property rights in the animal when it escapes with no intent to return into the Atlantic, even though the Atlantic is not its natural habitat. One Example: The owner of an escaped animal ferae naturae does not retain property rights in the animal when it escapes with no intent to return to a place where it is free of all artificial restraint and can provide for itself.

62. Mullett v. Bradley BRIEF : KRYPTON RATIONALES See Examples in Sample Brief on Course Page Doctrinal Rationales: Can derive from Blackstone and other authorities cited. Policy Rationales: Court provides no explicit policy rationales for its decision. Can provide speculative versions based on policies we identified as relevant to NL

63. Mullett v. Bradley Factors Applied to … DQ1.51: Facts of Manning (KRYPTON) DQ1.54: Facts of Albers (RADIUM)

64. Mullett Factors 1.Abandonment: If Abandoned, to Finder (Very Rare) 2.Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO (Also Very Rare) 3.Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

65. Mullett Factors ABANDONMENT Types of Evidence of Abandonment Relevant in Prior Discussions Value to OO Care in Confinement Pursuit

66. Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (KRYPTON) Types of Evidence Relevant to Abandonment Value to OO? Care in Confinement Pursuit

67. Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (KRYPTON) Types of Evidence Relevant to Abandonment Substantial Value to OO (Strong Emotional Bond) Care in Confinement? Pursuit

68. Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (KRYPTON) Types of Evidence Relevant to Abandonment Substantial Value to OO (Strong Emotional Bond) Confined Well Enough So Only 2 escapes in 2 Years Pursuit?

69. Mullett Factors ABANDONMENT DQ1.51: Applied to Manning (KRYPTON) Types of Evidence Relevant to Abandonment Substantial Value to OO (Strong Emotional Bond) Confined Well Enough So Only 2 escapes in 2 Years OO pursued/claimed as soon as had info SOLID EVIDENCE OF NO ABANDONMENT

70. Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (RADIUM) Types of Evidence Relevant to Abandonment Value to OO? Care in Confinement Pursuit

71. Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (RADIUM) Types of Evidence Relevant to Abandonment Substantial Value to OO (Pelt + Breeding) Care in Confinement? Pursuit

72. Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (RADIUM) Types of Evidence Relevant to Abandonment Substantial Value to OO (Pelt + Breeding) Substantial Care in Confinement Investment in special enclosure Got through “inner gate” + “outer fence” Pursuit? – What Did P Do? – How Does Court Describe?

73. Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (RADIUM) Evidence Relevant to Abandonment Pursuit: Followed Until Nightfall Raises Issues re What OO Has to Do: – Should Abandoning Pursuit = “Abandonment”? Abandonment by Compulsion – Is “Abandonment by Compulsion” OK? (cf. Mullett: Reasonable to Believe Pursuit Hopeless)

74. Mullett Factors ABANDONMENT DQ1.54: Applied to Albers (RADIUM) Evidence Relevant to Abandonment Pursuit: Followed Until Nightfall Colorado Supreme Court must believe not abandoned, or would give pelt to Dfdt.

75. Mullett Factors Intent to Return ( AR ) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Possible Purposes Behind AR as Factor Shows Training Shows Emotional Bond Shows Reasonable to Allow Animal Out

76. Mullett Factors Intent to Return ( AR ) DQ1.51: Applied to Manning (KRYPTON) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Evidence in Manning Relevant to AR One prior return This time away 5 days In same town; flew into a different house Arguments re This Evidence?

77. Mullett Factors Intent to Return ( AR ) DQ1.51: Applied to Manning (KRYPTON) Evidence in Manning Relevant to AR – One prior return No custom v. 100% return rate Bird returned despite no evidence of relevant training – Away 5 days; to different house in same town (trying?)