1. MUSIC: Paul Winter Canyon (1985)

2. LOGISTICS Lessons from Assignment #1 Follow Directions!!! Accuracy with Facts Accuracy with Cases Explain/Defend Conclusions (No IRC) One Thing at a Time Simplify Your Writing

3. LOGISTICS Qs on Assignment #2? Look for Weekend Update

4. Swift v. Gifford (Continued) DQ2.13-2.15 : OXYGEN

5. 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.

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

7. OXYGEN: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply, so use of custom prevents quarrels May be harder to determine 1 st killer 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.66) DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

8. OXYGEN: 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.

9. OXYGEN: 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?

10. OXYGEN: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable 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)

11. Swift v. Gifford (Oxygen) DQ2.15: Unpublished Opinions In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties.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?

12. Swift v. Gifford (Oxygen) DQ2.15: Unpublished Opinions Problems with relying on unpublished opinion Lack of notice to other party (paid costs here).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?

13. Swift v. Gifford (Oxygen) 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)

14. Swift v. Gifford Wrap-Up (Absent Custom) 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

15. 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 than otherwise applicable legal rule? 4.Reasonable?

16. Swift v. Gifford QUESTIONS? Now We Will Go Ghen

17. Ghen v. Rich (1881) (Radium) BRIEF & DQs 2.16-2.18 Paul Gauguin, The Beach at Dieppe (1885)

18. Ghen v. Rich (Radium) BRIEF: Statement of the Case Ghen, … ?, sued Rich…, for [cause of action] seeking [remedy].

19. Ghen v. Rich (Radium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich…, for [cause of action] seeking [remedy].

20. Ghen v. Rich (Radium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach] ?, sued Rich, who purchased carcass from finder, for [cause of action]?? seeking [remedy].

21. Ghen v. Rich (Radium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder, presumably for conversion seeking [remedy]. ??

22. Ghen v. Rich (Radium) BRIEF: Statement of the Case Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder, presumably for conversion seeking damages for the value of the whale.

23. Ghen v. Rich (Radium) BRIEF: FACTS Crucial Fact = Custom on Cape Cod: – Whaler shoots a finback whale with marked lance. Whale dies and sinks. Several days later, it rises to surface. – If whale gets stranded on beach, F notifies owner of lance; receives small payment. Lance owner gets whale. – Note : Custom is variation on salvage

24. Ghen v. Rich (Radium) BRIEF: FACTS Custom on Cape Cod: If finback whale killed with marked lance, lance owner gets whale & finder gets small fee Ghen killed finback whale using a marked lance. The whale floated up and was found by 3d party, who sold it to Rich. 3d party and Rich “knew or could have known” that a professional whaler killed the whale.

25. Ghen v. Rich (Radium) On These Facts Who Gets Whale? What would happen without custom? Case doesn’t fit neatly into prior precedent Did Ghen ever get property rights at all? Killed, but no clear moment of possession and no pursuit. Assuming Ghen owns at moment of death, does he lose property rights when carcass sinks? Should custom apply as law? Let’s Look at Precedent We Have

26. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (a)Did Ghen ever get property rights at all under Shaw’s first possession analysis? 1.Brought whale “into his power and control”? 2.“[S]o maintain[ed] his control as to show that he does not intend to abandon [it] again to the world at large.”?

27. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (b) Assuming Ghen owns at moment of death, does he lose property rights under the escaped animal analysis of Albers? Look at: Marking/Finder’s Knowledge Time/Distance Abandonment/Pursuit Labor/Industry

28. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Marking/Finder’s Knowledge?

29. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Marking/Finder’s Knowledge: Maybe a little Weaker than Albers b/c F not in industry & whales native to area Time/Distance? – Kill to find: 3 days & 17 miles – Find to claim by killer: 3 days

30. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Time/Distance: Pretty Helpful to Killer Abandonment/Pursuit?

31. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? No Pursuit but seems like Abandonment by Compulsion Labor/Industry?

32. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (b) Does Ghen lose property rights under the escaped animal analysis of Albers? Labor/Industry Very Strong for Killer Killer not negligent re confinement; unclear what else could do Court says industry fails if Fs could take: Overall Albers = pretty strong for killer if OK w Finder outside industry

33. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett? Similar: Killer did all possible to mark Similar: Fs have reason to know of & can identify killer Different: Killer never had actual control Different: No return/pursuit; rely on others to find Different: Longer time frame Overall Result?

34. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (c) Assuming Ghen owns at moment of death, does he lose rights under Taber & Bartlett? Note Ghen reading of Bartlett & Taber (dicta in last para p.72): If fisherman does all he can do to make animal his own, would seem to be sufficient.

35. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 1.Doesn’t affect outsiders? 2.Used by entire business for a long time? 3.Legal rule harder to apply than custom? 4.Custom is reasonable?

36. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 1.Doesn’t affect outsiders? Obviously can affect outsiders who find whales (beachcombing tourists). Why might we think this isn’t a big problem?

37. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 1.Doesn’t affect outsiders: Sometimes does, but maybe OK b/c can’t process whale w/o people in industry 2.Used by entire business for a long time? Court says YES. 3.Legal rule harder to apply than custom?

38. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 3.Legal rule harder to apply than custom? Unclear. – Court suggests killer might win under Taber/Bartlett – Would be similar facts over & over, so likely to be pretty certain over time. 4. Custom is reasonable?

39. Ghen v. Rich (Radium): DQ2.16: Application of Prior Cases (d) Should the custom in Ghen be treated as law under the analysis of Swift? 4.Custom is reasonable? – Whalers doing all they can. – Necessary for Continued Operation of Industry – Finder Gets Fee Qs on Ghen?

40. Rose Article & DQ 2.21 (Uranium): 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.

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

42. Argument By Analogy Oil & Gas: 1 st Possession Are Pierson/Liesner/Shaw Good Tools for Determining 1 st Possession of Oil & Gas? Three Common Approaches 1.Significance of Factual Similarities & Differences (DQ2.23 = OXYGEN) 2.Usefulness of Doctrine (DQ2.24 = KRYPTON) 3.Usefulness of Alternatives (DQ2.25 = URANIUM)

43. Argument By Analogy Oil & Gas: 1 st Possession Set-Up for MON/TUES: DQ2.25 (Uranium) First, We’ll Create a List of Alternatives to Westmoreland Approach for Allocating Initial Rights to Oil & Gas

44. Argument By Analogy Oil & Gas: 1 st Possession Set-Up for MON/TUES: DQ2.25 (Uranium) Then Limited Discussion of 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.