ELEMENTS D2 & D1 2017 POWER POINT SLIDES Class #15: Wednesday, October 4 & Thursday October 5

D1 Lunch Thursday Next Week MUSIC (to accompany Manning): Tchaikovsky, Symphony #4 (1880) Recording: Berlin Philharmonic (2003) Conductor: Von Karajan D1 Lunch Thursday Meet on Brix @ 12:05 Greber * Moreiras Portillo * Seals Small * Soares Next Week MON: Both Classes Together TUE/WED: Normal Schedule THU: Both Classes Together FRI: Midterm During Class Times

GROUP WRITTEN ASSIGNMENT #1 Due Tuesday 10/10 @ 9 pm I’ll Take Qs in Class Today & Monday 10/9 (Both Classes Meet Together) I’ll Take Qs By E-Mail until Sunday 10/8 @ 11:59 p.m. In Person until the End of Break on Mon 10/9 QUESTIONS?

Return to MANNING URANIUM: Brief Continued RADIUM: DQ Return to MANNING URANIUM: Brief Continued RADIUM: DQ.146 (From Facts to Relevant Factors)

Manning v. Mitcherson: BRIEF ISSUE  NARROW HOLDING Did the magistrate err in awarding possession of the canary to the original owner because an OO loses [or retains] property rights to an escaping canary where [facts].  The magistrate didn’t err in awarding possession of the canary to the original owner because an OO retains property rights to an escaping animal where [facts]. We’ll Insert List of Facts from p. 40 (2d Paragraph) + Distinctive Crest

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

NARROWING/BROADENING HOLDINGS Narrowest Version of Holding Essentially Includes All Facts of Present Case Broader Versions Address More Future Cases Because Less Specific

NARROWING/BROADENING HOLDINGS Narrowest Version of Holding Essentially Includes All Facts of Present Case Broader Versions Address More Future Cases Broaden Holding by (either or both of): Making Descriptions of Some Facts More General Eliminating Some Facts

NARROWING/BROADENING HOLDINGS Narrowest Version Essentially Includes All Facts of Case Broad Versions Address More Future Cases Different Versions of Broad Holdings Play With to See What Case Might Stand For Going Forward Remember Acceptable Formulations Must be Consistent with Result & Language of Case

Lots of Ways to Articulate Manning Holding DQ1.48: Articulating Manning Holding For Squirrel Hypo: 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. Good Way to Start Exercise Apply Manning Factors we derived to Hypo Determine strengths & weaknesses under Manning of each client’s position.

Mining Manning ‘s Meaning: DQ1.48 (Squirrel Hypothetical) (OXYGEN) Friday In-Class: OXYGENS Apply Manning Factors to Squirrel Hypothetical (& to Mullett Facts (DQ1.49)) E-Participation Due Friday: Selected OXYGENS each submit simply a version of Manning holding helpful to their client (See next slide) Next Week: I’ll Give You Comments on Some Sample Holdings Articulated to Favor Each Party.

Mining Manning ‘s Meaning: DQ1 Mining Manning ‘s Meaning: DQ1.48 OXYGEN E-Participation E-Mail Holding to Me by 8pm Friday I’ll Take Qs at Break/After Class/Friday For Amy: Day, Kelsey Hensch, Jake Marks, Glenn Ranges, Kristen For Brandon: Alvarez, Lauren Fox, Taylor Gonzalez, Jennifer Paez, Jose

Manning v. Mitcherson: BROADENING HOLDING: Example The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that responded to its name] [that had escaped and returned once before] [that had distinctive crest] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson: DQ1.46 Relevant Factors (ME then RADIUM) We’ll discuss the possible significance of each fact, including… How Might You Broaden a Particular Fact to a More General Factor? (to imagine what might be part of broader versions of holding) Why Might that Factor Matter in Determining Rights between OO and Finder? (to clarify purpose/relevance) How Well Does the Particular Fact Further the Purposes of Considering the General Factor ? (to assess the relative importance of the fact and prepare to compare it to facts of future cases/problems)

Manning v. Mitcherson: DQ1.46 Relevant Factors (ME) The original owner retains property rights in an escaped animal ferae naturae … that responded to its name that had escaped and returned once before Possible Significance? Possible more general factor(s)?

Manning v. Mitcherson: DQ1.46 Relevant Factors (ME) The original owner retains property rights in an escaped animal ferae naturae … that responded to its name that had escaped and returned once before Possible Significance? Possible more general factor? Taming or Emotional Bonding Why Might these Factors Matter in Determining Rights between OO and Finder?

Manning v. Mitcherson: DQ1.46 Relevant Factors (ME) Possible Significance of … responded to name + Prior escape/return  tamed or bonded Shows labor by OO (or prior owner) AND/OR May want to protect emotional connection How well do the specific facts achieve these purposes?

Manning v. Mitcherson: FACTS & HOLDING The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had escaped and returned once before] + [that responded to its name]  [that was tamed/had emotional bond to OO] [that had distinctive crest] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM) The original owner retains property rights in an escaped animal ferae naturae … that had distinctive crest … Possible Significance? Possible more general factor? Why might matter to rights of OO/F?

Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM) Possible Significance of … that had distinctive crest  marked May help identify animal May provide notice to F of prior claim [May also further show taming or emotional bond if grooming by OO.] How well does crest here do these things?

Manning v. Mitcherson: FACTS & HOLDING The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had escaped and returned once before] + [that responded to its name]  [that was tamed/had emotional bond to OO] [that had distinctive crest] [that was marked] [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM) The original owner retains property rights in an escaped animal ferae naturae … Note Three Different Measures of Time [that had been owned for two years] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson: DQ1.46 Relevant Factors (ME) Possible Significance of … that had been owned for two years  Taming/Bonding again Maybe stronger than name or escape/return: More labor by OO (2 years maintenance) Emotional connection probably strong (at least on OO’s side!!)

Manning v. Mitcherson: FACTS & HOLDING The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had escaped and returned once before] + [that responded to its name] + [that had been owned for two years] + [maybe groomed by OO]  [that was tamed & emotionally bonded to OO] [that had distinctive crest]  [that was marked] [that had been missing for only five days] [that OO located day after it was found]

Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM) The original owner retains property rights in an escaped animal ferae naturae … that had been missing for only five days that OO located day after it was found Possible Significance? Possible more general factor? Why might matter to rights of OO/F?

Manning v. Mitcherson: DQ1.46 Relevant Factors (RADIUM) Possible Significance of … missing only five days/OO located day after found  Gone very short time Shows pursuit/interest by OO Little time for F to invest or bond How well does time here show these things?

Manning v. Mitcherson: FACTS & HOLDING The original owner retains property rights in an escaped [canary]  [animal ferae naturae] [that had distinctive crest]  [that was marked] [prior escape/return] + [responded to name] + [owned for two years]  [that was tamed & emotionally bonded to OO] [that had been missing for only five days] + [that OO located day after it was found]  [that had been gone for a short time]

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

Manning v. Mitcherson: VERSIONS OF HOLDING Version #1: The original owner retains property rights in an escaped bird that had escaped and returned before, is distinctively marked, had been found only a short time after it escaped, and was located by the owner a short time after being found.

Manning v. Mitcherson: VERSIONS OF HOLDING Version #2: The original owner retains property rights in an escaped animal ferae naturae that is tamed and distinctively marked.

Manning v. Mitcherson: VERSIONS OF HOLDING Version #3: The original owner retains property rights in an escaped animal ferae naturae where the OO is emotionally bonded to the animal and locates the animal after it only is gone for a short time.

Manning v. Mitcherson: MANY VERSIONS OF HOLDING As with Pierson, exact scope of Manning holding necessarily unclear until Ga. S.Ct. clarifies. Use other language from case to help determine best alternatives (DQ1.45 & 1.47). Use squirrel hypothetical to see how different versions might accomplish different results (DQ1.48) QUESTIONS ON FACTORS & HOLDING?

MINING the MEANING of MANNING Relevant Language (DQ1. 45 & DQ1 MINING the MEANING of MANNING Relevant Language (DQ1.45 & DQ1.47 & Rationales) featuring ME, RADIUM & URANIUM

Mining Manning ‘s Meaning: DQ1.45 RADIUM The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. (Top p.40) POSSIBLE SIGNIFICANCE TO COURT’S REASONING?

Mining Manning ‘s Meaning: DQ1.45 The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Could simply go to 1st possession and mean that Mitcherson owned bird prior to escape. Could mean, “Once tamed, yours forever”, BUT structure of opinion suggests otherwise.

Mining Manning ‘s Meaning: Taming Enough? (p.40 2d para): …the bird in controversy was shown to have been tamed. It was also testified that …

Mining Manning ‘s Meaning: Taming Enough? …the bird … was … tamed. It was also testified that it had been in the possession of the plaintiff in the warrant about two years; that it knew its name, and when called by its owner, would answer the call; that it had left its cage on one occasion, and after having been gone a day or two returned; that on the 27th day of December, before the preceding new year's day, it was missing from its cage, and on the latter day it was received and taken possession of by the defendant …

Mining Manning ‘s Meaning: Taming Enough? …the bird … was … tamed. It was also testified that in the possession of the plaintiff about two years; knew & would answer to its name; prior escape & return; Caught and given to defendant 5 days after escape ¶ Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird, to create a property right in the plaintiff.

Mining Manning ‘s Meaning: DQ1.45: RADIUM The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Could mean, “Once tamed, yours forever”, BUT if holding is that simple, court probably would just say so and NOT list all the other evidence.

Mining Manning ‘s Meaning: DQ1.45 To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” Present tense suggests this is not a rule for when you acquire property rights, but a rule about how you maintain property lights in a living wild animal.

Mining Manning ‘s Meaning: DQ1.45 To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” Present tense suggests this is not a rule for when you acquire property rights, but a rule about how you maintain property lights in a living wild animal. D almost certainly argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.”

Mining Manning ‘s Meaning: DQ1.45 To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” D must have argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.” The Court rejected that argument: “Under this evidence, there does not seem to be any question of sufficient possession and dominion over this bird, to create a property right in the plaintiff.

Mining Manning ‘s Meaning: DQ1.45 & Possible Doctrinal Rationale To have property in animals ferae naturae, “one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.” Defendant seems to have argued that P lost her property rights because she no longer had the bird within her “actual possession, custody or control.” However, the court held that the totality of the evidence here showed that she retained “sufficient possession and dominion over [the] bird” to still have property rights.

Mining Manning ‘s Meaning: DQ1.45: RADIUM The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Interesting idea from Fall 2012 that OO retains ownership if sufficient evidence remains of taming, domesticating or confining. Could Finder here tell that bird had been tamed and/or confined?

Mining Manning ‘s Meaning: DQ1.47: RADIUM To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. (p.40 last para.) For Sweet, probably not an accident! Court probably means owner did not deliberately allow bird to fly free.

Mining Manning ‘s Meaning: DQ1.47: RADIUM To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. Likely true here; if so, why relevant?

Mining Manning ‘s Meaning: DQ1.47: RADIUM To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. Possible Relevance of Street/Neighbor House: Only a short distance from point of escape? Not returned to natural habitat/liberty? (although court doesn’t use this language) Finders might be aware of prior claim OO might be able to recapture easily

Manning v. Mitcherson: Might add Distance to HOLDING: The original owner retains property rights in an escaped [animal ferae naturae] [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] [that only traveled a short distance after escape]