ELEMENTS B POWER POINT SLIDES Class #10 Friday, September 11, 2015

MUSIC: Gustav Mahler, Symphony #5 ( ) Vienna Philharmonic (1988) Leonard Bernstein: Conductor Which of These Things Is Not Like the Others (and Why)? Starting With: Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX

COVERAGE: CLASS #10 9:45) 1.Lawyering Exercise & Intro to Demsetz (includes RADIUM: DQ1.30) 2.Intro to Group Assignment #1 & Logistics OXYGEN 3.DQ (OXYGEN) URANIUM 5.End of Shaw Brief (URANIUM)

LAWYERING EXERCISE TO SET UP DEMSETZ READING Which of These Things Is Not Like the Others (and Why)? LION FISH BULL FOX

LAWYERING EXERCISE TO SET UP DEMSETZ READING How to Decide Which Differences Matter? LION (e.g., Maned; Circus Animal) FISH (e.g., Non-Mammal; Aquatic] BULL [e.g., Male, Herbivore] FOX [e.g., Three Letters; One Mate for Life]

LAWYERING EXERCISE TO SET UP DEMSETZ READING How to Decide Which Differences Matter? LION (e.g., Maned; Circus Animal) FISH (e.g., Non-Mammal; Aquatic] BULL[e.g., Male, Herbivore] FOX [e.g., Three Letters; One Mate for Life]THEORY!!

DEMSETZ ARTICLE

RADIUM DEMSETZ ARTICLE DQ1.30: RADIUM “In the world of Robinson Crusoe property rights play no role.” Who is Robinson Crusoe? What does quote mean? Why does Demsetz believe this to be true?

“In the world of Robinson Crusoe property rights play no role.” One definition of Property: “Legal relations between people with regard to things.” Helpful to think of Property not as a noun but as an adjective (like sacred or beautiful). Some animals are Sacred; some are not. Some animals are Property, some are not. In different cultures, different animals get defined as Sacred or as Property. E.g., insects (other than bees) rarely treated as Property

In different cultures, different animals get defined as Property. Why? Bombyx Moth treated as Property in China for several thousand years. Why?

DEMSETZ ARTICLE IN ELEMENTS B Unit One-A has been about how people acquire Property rights in unowned animals. This is part of a broader issue: How and why do things or intangible interests change from being NOT-Property to Property. Demsetz provides one way to look at this issue that largely revolves around the concept of “internalizing externalities,” to which we’ll return at the end of our discussion of Shaw.

COVERAGE: CLASS #10 9:45) 1.Lawyering Exercise & Intro to Demsetz (includes RADIUM: DQ1.30) 2.Intro to Group Assignment #1 & Logistics OXYGEN 3.DQ (OXYGEN) URANIUM 5.End of Shaw Brief (URANIUM)

GROUP ASSIGNMENT #1 Standard Exam Task: Apply Authorities Studied to New Hypothetical or “Fact Pattern” Assmt #1 : Structured Sequence of Arguments Assmt #1 : Structured Sequence of Arguments – Specific arguments for each party from (1A) Facts of Shaw (1B) Specific Language from Shaw (1C) Policy of Rewarding Useful Labor

GROUP ASSIGNMENT #1 Standard Exam Task: Apply Authorities Studied to New Hypothetical or “Fact Pattern” Assmt #1 : Structured Sequence of Arguments Assmt #1 : Structured Sequence of Arguments – Three sets of specific arguments for each party – Not everything you could say about the hypo – But together, good basis for an exam answer

Two Important Skills to Practice GROUP ASSIGNMENT #1 Two Important Skills to Practice 1.Isolation: Focusing on One Narrow Topic at a Time 2.Dialogue: Finding Best Arguments for Each Party

ISOLATION: Focusing on One Narrow Topic at a Time Common Idea in Many Contexts Exercise or Massage Muscle Groups Football Film/Replays Individual Players Cooking Specific Ingredients

Two Important Skills to Practice GROUP ASSIGNMENT #1 Two Important Skills to Practice 1.ISOLATION: Focus on One Narrow Topic at a Time – Read Instructions Carefully & Just Do Your Topic: OR (1A) Facts of Shaw - OR - OR- (1B) Specific Language from Shaw -OR- (1C) Labor Policy – For Examples, Look at Shack Qs/Comments/Models – Doing more than you’re asked earns penalties not extra credit (lot of this last year) Cf. Responding to Judges in Oral Argument Cf. Coverage in Associate Assignments at Law Firm Cf. Limited Scope Short Exam Q

Two Important Skills to Practice GROUP ASSIGNMENT #1 Two Important Skills to Practice 2.DIALOGUE: Finding Best Arguments for Each Party – Built into Structure of Assignment #1 – Until the Highest Court in a Jurisdiction Decides an Open Q No “Right” Answer No “Right” Answer Just Best Available Arguments Just Best Available Arguments – Good Exam Answers Reflect This & Often Sound Like Schizophrenic Monologues

DIALOGUE: Finding Best Arguments for Each Party Legal Smeagols

Some General Points GROUP ASSIGNMENT #1 Some General Points 1.Carefully Follow Formatting & Substantive Directions 2.Special Problems of Tie-Breaker Qs 3.Working Together – Take Advantage of Multiple Perspectives – Keep Each Other on Track – Be Cooperative QUESTIONS?

LOGISTICS: CLASS #10 Monday/Tuesday: – No Class or Office Hours – DF Session at Regular Time Monday Wednesday: We’ll begin with Introduction to Escape & DQs (Uranium) Then pick up with end of Shaw & Demsetz material wherever we leave off today.

“E-Participation” STATE v. SHAW DQ1.28: Krypton “E-Participation” Calles Smith, Castillo, Karlin, Phillips to me today by 7:00 pm: A clear statement of the Rule you derived for DQ1.28 (Not your defense of the Rule) Use name, not pseudonym No need for any particular formatting We’ll go over next class. Qs at break, after class, or by .

STATE v. SHAW SIGNIFICANT FACTS Significant Facts (from Wednesday): Third parties put nets in public waters to catch fish. Some fish that got into the nets could escape, but “under ordinary circumstances, few, if any, fish escape.” (p.29) Thomas and others (Ds) removed fish from the nets. Briefing Notes: Include Info Relevant to Appellate Court’s Discussion (Not Necessarily Same as info Relevant to Trial) Might Include Info Buried in Analysis Section of Opinion Helpful to Lay Out in Chronological Order

Common Sense When Reading Shaw: “[T]he defendant, John Thomas, said that ‘they lifted two pound nets west of the pier and got the fish.’” Did they take the nets?

Common Sense When Reading Shaw: Did Ds take the nets? Logistically Unlikely – Net is 28’ x 28’ x 35’ – They’re in a Sailboat

Common Sense When Reading Shaw: Did Ds take the nets? Logistically Unlikely Inconsistent w Opinion – No Discussion of Value of Net – Whole Opinion About Fish – Easy Larceny Case if they Took Nets

COVERAGE: CLASS #10 9:45) 1.Lawyering Exercise & Intro to Demsetz (includes RADIUM: DQ1.30) 2.Intro to Group Assignment #1 & Logistics 3.DQ (OXYGEN) URANIUM 5.End of Shaw Brief (URANIUM)

Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts Oxygen DQ Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts Oxygen (Like a Breath of Fresh Air)

Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts Like Many Fish, We’ll Start with Fry (Sadly, Some Fish Also End with Fry) DQ : Apply Pierson & Liesner to Perfect Net Rule & to Specific Shaw Facts Like Many Fish, We’ll Start with Fry (Sadly, Some Fish Also End with Fry)

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Language from Pierson State would begin by arguing that Pierson says that “nets and toils [= traps]” create property in animals for those that use “such means” to catch animals. In reply, defendants would point to the specific language of the relevant passage in the majority opinion (see next slide).

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Pierson Language re Traps: render escape impossible “[E]ncompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Language from Pierson Passage about traps seems to require that they “render escape impossible,” supporting Trial Court’s adoption of the Perfect Net Rule. Ways Around?

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Language from Pierson: Ways around “render escape impossible”? Dicta (traps not part of original case) and inconsistent with explicit concerns with certainty and labor (see below). Phrase might refer just to “otherwise intercepting” and not to “nets and toils” (although commas suggest otherwise)

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Pierson Language re Traps (Note Commas):, “[E]ncompassing and securing such animals with nets and toils,, or otherwise intercepting them in such a manner as to deprive them of their natural liberty,, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them.”

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Language from Pierson: Ways around “render escape impossible”? Distinguish traps for individual animals from traps for groups of animals (like fish nets).

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Pierson Language re Mortal Wounding “[M]ortal wounding … by one not abandoning his pursuit, may … be deemed possession of [the animal]; since, thereby, the pursuer [i] manifests an unequivocal intention of appropriating the animal to his individual use, [ii] has deprived him of his natural liberty, and [iii] brought him within his certain control.

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Language from Pierson: Property where claimant… [i] manifests an unequivocal intention of appropriating the animal to his individual use, Big constructed nets at issue surely do this [ii] has deprived him of his natural liberty, and Can argue about this; probably true for most fish so long as they’re in the nets [iii] brought him within his certain control. Not true of any one fish; true of fish as a group

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Policies from Pierson: Rewarding Labor?

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Policies from Pierson: Rewarding Labor Point of net is to catch fish which have value to society. Net serves this purpose & is valuable even if not perfect Net that retains most of the fish it catches should thus be rewarded If net needs to be perfect to be protected against theft, industry might well shut down.

DQ1.23 Apply Pierson Majority to Shaw Facts & Perfect Net Rule (Oxygen) Policies from Pierson: Certainty Perfect Net Rule (like too-absolute versions of rules in Liesner) creates uncertainty b/c too difficult for net-owners to meet test: net has holes in it!) Virtually impossible to create escape-proof net (by definition, net has holes in it!) Even if net initially is escape-proof for fish of certain size, wear-and-tear would change this in time Difficult to show test met, and becomes harder as time goes on

DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule (Oxygen) Arguments from Pierson Dissent?

DQ1.24 Apply Pierson Dissent to Shaw Facts & Perfect Net Rule (Oxygen) Arguments from Pierson Dissent Would seem to meet language (p.6): i) Pursuer w/in reach or reasonable prospect of taking + ii) Intent to convert to own use Even imperfect net is more control/certainty than most forms of “hot pursuit” so dissent would likely say it is enough to create property rights. If you look to customs of fisherman, likely to find that fish in nets are considered property of net-owners. Possible Counter [Pijls; I Need to Think About More]: Want More Generous-to-Hunter Rule to Ensure Elimination of Pest Animal; Certainly Unneeded for Hunting-for-Sport; Maybe Unneeded for Food Animals

DQ1.24: Ways to Use Arguments from Dissents: If Case in Different Jurisdiction: Majority not Binding on Court in Question Dissent can be Persuasive Authority (“We find the dissent’s position more persuasive because …”) Note that Pierson Dissent position seems inconsistent with rules stated in Liesner and Shaw as well, which weakens its overall persuasiveness.

DQ1.24: Ways to Use Arguments from Dissents : (Where Majority Opinion is Binding): Can Help Show Meaning of Majority Opinion: “The majority must have rejected the dissent’s argument that hunter’s customs should be consulted.”) Can Show General Relevance of a Policy Argument: “Judges may be concerned about the effects of their holdings on people’s behavior. See Pierson Dissent (suggesting Majority’s rule will deter useful hunting).”

DQ1.24: Ways to Use Arguments from Dissents: QUESTIONS?

STATE v. SHAW DQ1.25: Oxygen Applying Liesner Tests to Shaw Facts Primarily Leave to You & DF Sessions Next Three Slides (Not Shown in Class) are Partial Examples

STATE v. SHAW DQ1.25 Applying Liesner Tests to Shaw Facts Substantially permanently deprived of liberty? Can’t say for sure that any particular fish is permanently deprived of liberty Maybe “substantially permanently”, because very high likelihood for particular fish Maybe meet test b/c substantial # of fish permanently deprived

STATE v. SHAW DQ1.25 Applying Liesner Tests to Shaw Facts Escape Highly Improbable? Court seems to say so. May depend on frequency of storms or other events outside “ordinary circumstances.” Leave further arguments to you.

STATE v. SHAW DQ1.25 Applying Liesner Tests to Shaw Facts Under control so possession is practically inevitable? Fair to describe fish as “under control”? Is possession “practically inevitable”?

COVERAGE: CLASS #10 9:45) 1.Lawyering Exercise & Intro to Demsetz (includes RADIUM: DQ1.30) 2.Intro to Group Assignment #1 & Logistics OXYGEN 3.DQ (OXYGEN) : Context of Shaw URANIUM 5.End of Shaw Brief (URANIUM)

STATE v. SHAW Context: 1902 International Cuba gains independence from Spain China's Last Empress (Tzu-Hsi) forbids binding of woman's feet Edward VII (60) becomes King of England Victoria reigned 63+ years before her death in 1901 (Elizabeth surpassed this week) Cf. Prince Charles will turn 67 in November Boer War Ends; Britain annexes Transvaal

STATE v. SHAW Context: 1902 United States: Teddy Roosevelt becomes 1st Am. President to ride in an automobile US buys Virgin Islands from Denmark & right to build Panama Canal from French Oliver Wendell Holmes, Jr. (Civil War veteran & Justice on Mass. Supr. Ct.) becomes Associate Justice on US Supr. Ct.

STATE v. SHAW Context: 1902 Deaths Thomas Nast (cartoonist); Cecil Rhodes (explorer); Elizabeth Cady Stanton (feminist); Emile Zola (novelist) Births Charles Lindbergh (Aviator) & Ansel Adams (Photographer) Meyer Lansky & Carlo Gambino (Both Organized Crime) Richard Daley (Chi. Mayor 1968) & Thomas Dewey (ran for pres. 1948) & Strom Thurmond (ran for pres. 1948, d. 2003) Richard Rodgers, Guy Lombardo, John Steinbeck & Langston Hughes John Houseman (Paper Chase) & Margaret Hamilton (Wicked Witch) Ray Kroc (McDonald’s) & Ayatollah Ruhollah Musavi Khomeini (Iran)

STATE v. SHAW Context: 1902 Introduced: American Automobile Assn. 1 st Automat Restaurant in Philadelphia "Bill Bailey Won't You Please Come Home" "The Entertainer" JC Penney 1 st Store (in Wyoming) London School of Economics Marlboro 1 st Movie Theater Neon Lamps Phi Alpha Delta

STATE v. SHAW Context: 1902 Introduced: "Pomp and Circumstance" Radium Radium isolated by Pierre & Marie Curie Rhodes Scholarships Rose Bowl (1st College Bowl Game; Michigan 49, Stanford 0  ) Smith & Wesson.38 Caliber Special Texaco The Thinker by Rodin Tinker, Evers, and Chance (Chicago Cubs Infielders) US Census Bureau Window Envelopes

Finishing Up STATE v. SHAW Brief with Uranium

STATE v. SHAW Brief ISSUE (from Friday): Did the trial court err in directing a verdict for the defendant on the grounds that defendant did not commit grand larceny because net-owners do not have property rights in fish found in their nets where the fish can escape from the nets?

STATE v. SHAW Brief Narrow Holding: YES. The trial court erred in directing a verdict for the defendant on the grounds that defendant did not commit grand larceny because net-owners can have property rights in fish found in their nets even if some fish can escape from the nets.

STATE v. SHAW Brief Result: Reversed & Remanded For New Trial (Thomas Could Still Prove He Didn’t Commit Crime Even if Fish Belonged to Net-Owners) On remand, trial court will have to instruct jury about when net creates property rights in fish for net- owners Can’t simply say “Net doesn’t have to be perfect.” Broader version(s) of holding needed for this.

STATE v. SHAW Brief On remand, trial court will have to instruct jury about when net creates property rights in fish. Broader version(s) of holding needed. Possible Rules/Holdings: 1.Any Net is OK? (Raggedy Volleyball Net??)

STATE v. SHAW Brief On remand, trial court will have to instruct jury about when net creates property rights in fish. Broader version(s) of holding needed. Possible Rules/Holdings? 1.Any Net is OK? 2.Look to language in case: Two plausible rules (long para. pp.28-29), either of which could be incorporated into broader version of holding.

STATE v. SHAW Brief Two Plausible Rules (long para. pp.28-29) 1.To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large. 2.When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny.

STATE v. SHAW Brief First Plausible Rule (bottom of p.28) “[T]he pursuer must … [i] bring them into his power and control, and … [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.” [ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.” Note two parts/requirements Note showing intent is not a separate requirement (and is not sufficient by itself), but instead is part of the requirement of maintaining control

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, and … [ii] maintains reasonable precautions to prevent escape….” Again, two parts/requirements Slightly different language you can use; we’ll mostly focus in class on 1st Plausible Rule

STATE v. SHAW Brief Note on 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.