MUSIC (to accompany demsetz): THE MAMAS & THE PAPAS 16 of Their Greatest Hits (1965-68) Lunch Today Meet on Brix @ 12:25 Bajaj * Berris * Miro Proctor * Weinberg Weiss * Zornes OXYGEN: Written Manning Brief Due Tomorrow @ 3 pm (Sign-Up for Review Times by 3:30 Today) ALL: Instructions for Weasel Argument Assignment Posted (Read forTomorrow)

STATE v. SHAW What Case Says/Does BRIEF: ME on Holdings (& Result) (cont’d) DQ1.26 (Krypton): Applying Key Language BRIEF: ME & OXYGEN on Rationales DQ1.27 (Krypton) Sunken Boat Hypo

STATE v. SHAW Brief BROADER HOLDINGS On remand, trial court will have to instruct jury about when net creates property rts in fish. Broader version(s) of holding needed. Possible Rules/Holdings: Any Net is OK? (Raggedy Volleyball Net??) Look to language in case: Two plausible rules (long para. pp.28-29), either of which could be incorporated into broader version of holding.

First Plausible Rule (p.28) STATE v. SHAW Brief First Plausible Rule (p.28) “[T]he pursuer must [i] bring them into his power and control, and … [ii] maintain his control [in a way that shows] that he does not intend to abandon them again to the world at large.”

Second Plausible Rule (pp.28-29) STATE v. SHAW Brief Second Plausible Rule (pp.28-29) The trapper acquires property in wild animals “[w]hen … [i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, In case, net belonged to net-owners, BUT water inside net was part of Lake Erie, so doesn’t mean privately owned. and … [ii] maintains reasonable precautions to prevent escape….” Again, two parts/requirements We’ll mostly focus in class on 1st Plausible Rule; 2d Rule provides slightly different language you can use but only for nets/traps..

STATE v. SHAW Brief Note that my raggedy volleyball net example should fail 2d prong of each plausible rule: Even if raggedy net (improbably) “maintains control” of a fish caught in its weave, probably doesn’t do so in a way that shows other people net-owner’s intent to keep the fish. Raggedy net by itself probably doesn’t constitute “reasonable precautions to prevent escape….”

Interpreting Legal Tests in Context of Cases Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests. E.g., fish caught in nets have been brought within net-owner’s “power and control.” E.g., set up of these nets = “reasonable precautions to prevent escape.” Thus, can use facts of Shaw to help explain what the tests mean going forward.

STATE v. SHAW Brief: One Version of Broad Holding YES. The trial court erred in directing a verdict for the defendant because the owner of a trap or net has property rights in wild animals “[when] [i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, [ii] maintains reasonable precautions to prevent escape….”

STATE v. SHAW Brief: An Even Broader Version of Holding YES. The trial court erred in directing a verdict for the defendant because a person acquires property rights in wild animals if she “[i] bring[s] the fish into [her] power and control, and [ii] so maintain[s] … control as to show that [she does] not intend to abandon the [animals] again to the world at large.” QUESTIONS ON HOLDINGS OR LEGAL TESTS FOUND IN SHAW?

STATE v. SHAW What Case Says/Does BRIEF: ME on Holdings (& Result) DQ1.26 (Krypton): Applying Key Language BRIEF: ME & OXYGEN on Rationales DQ1.27 (Krypton) Sunken Boat Hypo

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” We’ll work with this test and leave other plausible rule & policy arguments from Shaw for you & DF Sessions.

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Pierson Facts

STATE v. SHAW DQ1.26: Krypton “[T]he pursuer must … [i] bring them into his power and control, and [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Apply to Pierson facts

STATE v. SHAW What Case Says/Does BRIEF: ME on Holdings (& Result) DQ1.26 (Krypton) Applying Key Language BRIEF: ME & OXYGEN on Rationales DQ1.27 (Krypton) Sunken Boat Hypo

SHAW Brief Rationales: OXYGEN Doctrinal Rationales from Authorities Cited on pp. 28-29 in Sample Brief (Posted in Sample Brief) Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). MEANS?

SHAW Brief Rationales: OXYGEN Policy Rationales (Hints from Language of Case): Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). Probably refers to difficulty of proof/certainty arguments; Might refer to difficulty of creating escape-proof net Might also refer to failing to reward useful labor because of technicality. Court says possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.29) Significance?

SHAW Brief Rationales: OXYGEN Policy Rationales (Hints from Language): Possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.27) Maybe refers to certainty of capturing fish (as a group) or certainty of identifying owners Maybe goes to sufficiency of Net-owners’ labor OTHER DIFFERENT POLICY CONCERNS?

SHAW Brief Rationales Policy Rationales: Could discuss protecting important industry (subset of labor argument), but need to be clear that court doesn’t reference explicitly. Posted Sample Brief contains fully articulated examples of each of the ideas mentioned here. E-Mail Me if Qs

STATE v. SHAW What Case Says/Does BRIEF: ME on Holdings (& Result) DQ1.26 (Krypton): Applying Key Language BRIEF: ME & OXYGEN on Rationales DQ1.27 (Krypton) Sunken Boat Hypo (slides included with Class #13)

STATE v. SHAW DQ1.27: Krypton NOTE: If Q = “Should the result be the same if we change one fact?” Really asking: “Why might result be different if we change the fact?” SO: Why might result in Shaw be different if people use a sunken boat rather than a net to catch fish (if both are equally effective)?

DQ1.27: Thinking About Sunken Boat as Exam Q Should the result in Shaw be the same if the fishermen used a sunken boat instead of a net to trap the fish? Assume the boat retains the same percentage of fish that enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat) Take My Hypothetical as I Give It to You Not helpful to explain why it couldn’t work. Not helpful to ignore because you don’t like it. I get to make up the rules.

DQ1.27: Thinking About Sunken Boat as Exam Q Should the result in Shaw be the same if the fishermen used a sunken boat instead of a net to trap the fish? Assume the boat retains the same percentage of fish that enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat) Look for Comparisons Relevant to Doctrine Boat could have been stolen (so could net) No way to raise boat (must be or pointless to use it to catch fish)

STATE v. SHAW DQ1.27: Krypton Marking/Notice of Claim to Others is an important recurring policy concern See Shaw test part 2: “so maintain his control as to show that he does not intend to abandon” See Pierson: Mortal wounding + pursuit OK because hunter “thereby manifests an unequivocal intention of appropriating the animal” Could address w sunken boat with clear sign on buoy attached to boat.

STATE v. SHAW DQ1.27: Krypton Marking/Notice of Claim to Others is an important recurring policy concern See Shaw test part 2: “so maintain his control as to show that he does not intend to abandon” See Pierson: Mortal wounding + pursuit OK because hunter “thereby manifests an unequivocal intention of appropriating the animal” NOTE: 1st Possession Cases DO NOT Make Notice to 2d Hunter Pivotal Pierson has notice of Post’s chase, yet wins Wanie may not have notice of Liesners’ claim, but loses.

STATE v. SHAW DQ1.27: Krypton Additional Reason to Treat Sunken Boat Differently May not want to reward trap that is dangerous to humans Net in Shaw is easily visible (28-foot square & top 4 feet above water) Sunken boat may not be visible so may be safety hazard to lake traffic if not very well marked I think always reasonable to believe a court will care about significant threats to human health & safety even if you have no case that raises these concerns in the relevant section of the cours

Transition: Shaw to Escape (including Weasels) “Abandonment” of Property & Technical (Legal) Meanings of Terms

Technical Meaning of Terms When people use a word or phrase in a specialized context, they often intend to employ only the meaning that is most relevant to, or most commonly used in, that context. Might be one of several common meanings. Might be different than meanings used in other contexts. Can call the definition that best fits a specialized context the “technical meaning” of the word or phrase, even when the context is not especially technical or scientific.

Technical Meanings of Terms Three contexts in which people commonly use “technical meanings” of ordinary words/phrases: Sports Reporting Cooking Law. Use of technical meanings so familiar that you probably take it for granted in the contexts of sports reporting and/or cooking. An example …

Technical Meanings of Terms: To “WHIP” Webster’s lists 15+ definitions of this verb including “To strike forcefully with a slender lithe instrument, especially as a punishment” “To move very quickly” (e.g., whip across a highway) “To drive or urge on (as if using a whip) (e.g., whip X into shape) “To stir up or incite” (e.g., whip a crowd into a frenzy) Obviously derived from uses of the object called a “whip” consisting of a handle and a lash.

Terms with Technical Meanings: To “WHIP” Webster’s lists 15+ definitions of this verb BUT When a sports reporter says that “the Ravens whipped the Dolphins,” we know from the context that no actual whips were used. Here, the relevant definition must be: “To overcome or defeat decisively.”

Terms with Technical Meanings: To “WHIP” Webster’s lists 15+ definitions of this verb BUT When a cookbook instructs us “to whip a cup of cream,” we know from the context that we don’t need to go buy a whip. Here, the relevant definition must be: “To beat into a froth using a utensil like a whisk or fork.”

Terms with Technical (Legal) Meanings For your work in law, look out for situations where common words have technical legal meanings (like “duty” in Torts or “consideration” in Contracts) and make sure you memorize those meanings and use them where appropriate. E.g., …

Terms with Technical (Legal) Meanings To “Abandon” Property Webster’s definitions of the verb “abandon” include: “to give up to the control or influence of another person” “to withdraw protection, support, or help from” “to give oneself over unrestrainedly” People commonly use the term very loosely: “He’s abandoned me!” can mean things like “forgotten about” or “ignores” or “favors someone else.”

Terms with Technical (Legal) Meanings To “Abandon” Property Definitions of “abandon” include, “to give up with the intent of never again claiming a right or interest.” Use this definition in Elements, emphasizing Intentional decisions (v. careless or negligent acts); Meant to be permanent (v. temporary or of uncertain duration); and (Ideally) Clearly shown by a specific action or statement.

Why is this a useful exercise? STATE v. SHAW DQ1.28: Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw? Why is this a useful exercise? Explain unreconciled cases In court or legal memo Ideally reconciles cases AND shows that your side wins. BUT hard to examine/critique your rules efficiently if I have to deal immediately with oral responses in class, so …

STATE v. SHAW DQ1.28: Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw? Looking at 2 student submissions from prior classes For substance For clear concise writing I’ll go a little quickly b/c you can review slides in more detail later Note Possible Use on Tests: “It is possible to read the cases together to say …” “Applying this rule here, …”

STATE v. SHAW DQ1.28: STUDENT #1: Property rights to a wild animal occur when a pursuer, who continues to pursue the animal and has no intent of releasing him back into the wild, has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.

Put in normal chronological sequence. STATE v. SHAW DQ1.28: STUDENT #1: Property rights to a wild animal occur when a pursuer, [ii] who continues to pursue the animal and has no intent of releasing him back into the wild, [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances. Put in normal chronological sequence.

Eliminating passive voice. STATE v. SHAW DQ1.28: Property rights to a wild animal occur when a pursuer …  A pursuer acquires property rights to a wild animal when the pursuer… Eliminating passive voice.

A pursuer acquires property rights to a wild animal when the pursuer… STATE v. SHAW DQ1.28: A pursuer acquires property rights to a wild animal when the pursuer… [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.

STATE v. SHAW DQ1.28:  Need both (a) & (b)??  A pursuer acquires property rights to a wild animal when the pursuer… [i] has substantially rid the animal of his natural liberty  Need both (a) & (b)??  (b) as to render escape highly unlikely (c) under normal circumstances.

STATE v. SHAW DQ1.28: has rendered escape highly unlikely A pursuer acquires property rights to a wild animal when the pursuer… [i] has rendered escape highly unlikely (b) under normal circumstances. (Very clever idea)

continues to pursue the animal and STATE v. SHAW DQ1.28: A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal and (b) has no intent of releasing him back into the wild,

STATE v. SHAW DQ1.28: continues to pursue the animal and A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal and (Do you want to require (a) for traps/nets?) (b) has no intent of releasing him back into the wild

STATE v. SHAW DQ1.28: continues to pursue the animal and A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal and (b) has no intent of releasing him [it] back into the wild (Do you want test of pure intent w/o actions?)

Takes care of traps & eliminates test based on pure intent. STATE v. SHAW DQ1.28: A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly unlikely under normal circumstances; and [ii] continues to pursue the animal or otherwise to show he has no intent of releasing it. Takes care of traps & eliminates test based on pure intent.

STATE v. SHAW DQ1.28: STUDENT #2: A wild animal is deemed property of a person pursuing it if he through his actions made escape of the animal highly unlikely and through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.

Pronoun ambiguity plus passive voice. STATE v. SHAW DQ1.28: STUDENT #2: A wild animal is deemed property of a person pursuing it if he [i] through his actions made escape of the animal highly unlikely and [ii] through his actions has substantially decreased the likelihood of escape since the outset of the pursuit. Pronoun ambiguity plus passive voice.

How else would you accomplish these tasks? STATE v. SHAW DQ1.28: A wild animal is deemed property of a person pursuing it if he …  A person acquires property rights in a wild animal if the person … through his actions made escape of the animal highly unlikely and through his actions has substantially decreased the likelihood of escape since the outset of the pursuit. How else would you accomplish these tasks?

A person acquires ppty rts in a wild animal if the person … STATE v. SHAW DQ1.28: A person acquires ppty rts in a wild animal if the person … made escape of the animal highly unlikely and has substantially decreased the likelihood of escape since the outset of the pursuit. Interesting idea, BUT Hard to prove Not clear would lead to Pierson result Not clear how would apply to traps/nets

STATE v. SHAW DQ1.28: I’ll do a more extensive write-up of the submissions from this & prior years and put in a future Information Memo. Qs on DQ1.28?

Shaw  Demsetz: Intro to Externalities RADIUM: DQ 1.29 & DQ1.31

STATE v. SHAW DQ1.29(a): RADIUM Assume net-owners have no enforceable rights in fish caught in their nets until they physically remove the fish from the nets. Thomas chooses to take fish from the owners’ nets. Who might be affected by this decision? Which of these effects is Thomas likely to take into account when deciding whether to take the fish?

EXTERNALITIES Costs or benefits external to a decision-making process Must be with reference to particular decision or activity. Helpful to start by identifying decision-maker