1. The Essential Louis Armstrong: Disc 1 (Recordings 1925-30) B1 LUNCH TUESDAY @ 12:05 1.Guerrazzi 2. Mottin-Berger B2 LUNCH WED. @ 12:05 1. Binko 2. Burns 3. Coupet 4. Fenton 5. Woodby

2. GROUP ASSIGNMENT #2 Standard Exam Task: Apply Authorities Studied to New Hypothetical or “Fact Pattern” Assmt #1 : Structured Sequence of Arguments Assmt #2: Wider Range of Arguments

3. GROUP ASSIGNMENT #2 Wide Range of Arguments w 2 Limits 1.Each Team Only Addresses One Issue: – “First Possession” = Was There a Moment When Wolverine Became Property Of P? – “Escape” = Did P Lose Property Rights When Wolverine “Escaped” to D’s Property (Must Assume P Acquired a Property Right)

4. GROUP ASSIGNMENT #2 Wide Range of Arguments w 2 Limits 1.Each Team Only Addresses One of Two Issues (1 st Possession -OR- Escape) – Stick to Your Issue – Be Very Careful If You Use Authority Focused on Other Issue

5. GROUP ASSIGNMENT #2 Wide Range of Arguments w 2 Limits 1.Each Team Only Addresses One Issue 2.Representing One Particular Party – All Arguments Must Support Your Client – Legal Smeagols: Identify Other Side’s Best Arguments, Then Respond to Them

6. GROUP ASSIGNMENT #2 Some General Points 1.Care re Formatting & Substantive Directions 2.Review “Common Writing Concerns” 3.Working Together: – Due October 21 (Sunday after Break) – Before Break Should Work Out Individual Responsibilities and Timing QUESTIONS?

7. The Logic of Albers 1.Domesticated or Wild? 2.Addressing Prior Authority 3.What The Case Holds 4.Critique

8. The Logic of Albers: Domesticated or Wild? Parties’ Presumption (p.44): 2 Available Rules 1.Rule for Wild Animals (Mullett/Blkstone) under which finder (D) likely wins here (so D supports) 2.Rule for Domestic Animals under which Original Owner (P) clearly wins here (so P supports)

9. The Logic of Albers: Domesticated or Wild? Parties’ Presumption (p.44): 2 Available Rules 1.Rule for Wild Animals (Mullett/Blkstone) under which finder (D) likely wins here (so D supports) 2.Rule for Domestic Animals under which Original Owner (P) clearly wins here (so P supports) Leads to sequence of arguments about whether fox is wild or domestic, 4 of which we’ll look at in detail.

10. The Logic of Albers 1.Domesticated or Wild? 1.Species v. Individual? (DQ53d) 2.Birth in Captivity? 3.Taxation of Fur Foxes? (DQ53c) 4.Black’s’ Definition of “Domestic Animal”

11. The Logic of Albers: Domesticated or Wild? (1) Oxygen: DQ53d (last para. p.45): “Counsel for defendant insists that whether an animal be wild or domestic must be determined from the species, not from the individual.” Why would D argue this?

12. The Logic of Albers: Domesticated or Wild? (1) Oxygen: DQ53d (last para. p.45): “Counsel for defendant insists that whether an animal be wild or domestic must be determined from the species, not from the individual.” D wants Mullett rule, so wants animal to be wild. Argues that all foxes are wild. Court’s Response?

13. The Logic of Albers: Domesticated or Wild? (1) Oxygen: DQ53d (last para. p.45): “Counsel for defendant insists that whether an animal be wild or domestic must be determined from the species, not from the individual.” Court says no; nature of AR indicates that, under the Mullett rule, you look at individual animals.

14. The Logic of Albers 1.Domesticated or Wild? 1.Determine by Individual not Species 2.Birth in Captivity? 3.Taxation of Fur Foxes? (DQ53c) 4.Black’s’ Definition of “Domestic Animal”

15. The Logic of Albers: Domesticated or Wild? (2) End 3d para. p.46 : “Nor has birth in captivity anything to do with the question. A wild cat may be just as wild if born in a cage as if born on a mountainside.” P must have argued that animal is “domesticated” if born in captivity (so fox here is domesticated). Court disagrees in this passage.

16. The Logic of Albers 1.Domesticated or Wild? 1.Determine by Individual not Species 2.Birth in Captivity Irrelevant 3.Taxation of Fur Foxes? (DQ53c) (featuring G.I. Joe) 4.Black’s’ Definition of “Domestic Animal”

17. The Logic of Albers: Domesticated or Wild? (3) OXYGEN: DQ53c (last full para.p.44): Plaintiff argued that “foxes are taxable in this state, hence the common-law rule as to domesticated animals applies….” What does P likely believe is the relevance of taxation here?

18. The Logic of Albers: Domesticated or Wild? (3) OXYGEN: DQ53c: Gist of P’s argument likely is “You are making me pay taxes on foxes as a valuable asset; only fair to treat them as domesticated animals (which are similarly taxed).” (Clever Argument)

19. The Logic of Albers: Domesticated or Wild? (3) OXYGEN: DQ53c: “You are making me pay taxes on foxes as a valuable asset; only fair to treat them as domesticated animals (which are similarly taxed).” Court doesn’t respond directly, but 1.Could again say that relevant doctrine looks at individual animals, not species 2.Taxation likely also true for, e.g., zoo animals, and tax system is separate legal structure not binding here.

20. Characterization of Same Item in Different Legal Contexts Common for a particular type of property or intangible interest to be governed by more than one set of legal rules, each of which applies in a different context. Example: A time-share interest in a resort might be treated –like ownership of part of a building for tax purposes –like a hotel room for purposes of anti-discrimination law –like a share of stock for purposes of securities laws.

21. Characterization of Same Item in Different Legal Contexts Sensible to argue that the legal treatment of the item in one context should be relevant to its treatment in other contexts. BUT be aware that, because different sets of rules have different purposes, there is no requirement that an item has to be treated in a consistent manner by different sets of applicable rules. Characterizations for tax purposes are frequently different than others.

22. Characterization of Same Item in Different Legal Contexts G.I. Joe: I am an “Action Figure” …

23. Characterization of Same Item in Different Legal Contexts G.I. Joe: I am an “Action Figure” even though Customs Regulations call me a “Doll” 

24. The Logic of Albers 1.Domesticated or Wild? 1.Determine by Individual not Species 2.Birth in Captivity Irrelevant 3.Taxation of Fur Foxes Irrelevant 4.Black’s’ Definition of “Domestic Animal”

25. The Logic of Albers: Domesticated or Wild? (4) Top para. p.46: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur- bearing animals held in captivity, wherever born or however wild.”

26. The Logic of Albers: Domesticated or Wild? (4) Top para. p.46: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” Again, P must have argued that, b/c she makes $$$ off of foxes, they are “domestic animals” under this definition. The court rejects the definition as too inclusive, and thus inconsistent with requiring individualized determination of “domestic” v. “wild”.

27. The Logic of Albers: Domesticated or Wild? (4) Top para. p.46: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” “Would include” here is subjunctive form, used to describe hypothetical situations.

28. The Logic of Albers: Domesticated or Wild? (4) Top para. p.46: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.” Sense here is “If we adopted this as the legal definition (which we won’t), all fur-bearing animals in captivity would be characterized as ‘domestic animals’ (which would be wrong).”

29. The Logic of Albers 1.Domesticated or Wild? 1.Determine by Individual 2.Birth in Captivity Irrelevant 3.Taxation of Fur Foxes Irrelevant 4.Black’s’ Definition of “Domestic Animal”: Too Broad Questions?

30. The Logic of Albers 1.Domesticated or Wild 2. Addressing Prior Authority 3.What The Case Holds 4.Critique

31. The Logic of Albers 2. Addressing Prior Authority 1.Tort Liability v. Property Rights 2.Prior Escape Cases a.Manning (DQ52) b.Generally (DQ54) c.Ontario Case (DQ53a) 3.“Wholly Inapplicable” Cases 4.Statute re Common Law (DQ53b)

32. The Logic of Albers: Addressing Prior Authority p.46 (3d para.): Discussion of legal connection between tort liability and property rights: We’ll come back to with Kesler & DQ57

33. The Logic of Albers 2. Addressing Prior Authority 1.Tort Liability v. Property Rights 2.Prior Escape Cases a.Manning (DQ52) b.Generally (DQ54) c.Ontario Case (DQ53a) 3.“Wholly Inapplicable” Cases 4.Statute re Common Law (DQ53b)

34. The Logic of Albers: Addressing Prior Authority RADIUM: DQ52: How does Albers characterize the holding in Manning?

35. The Logic of Albers: Addressing Prior Authority RADIUM: DQ52: How does Albers characterize the holding in Manning? One Escape/Return = Animus Revertendi (Bottom p.45) Is This a Fair Characterization?

36. The Logic of Albers: Addressing Prior Authority Albers characterizes the holding in Manning as “One Escape/Return = AR” BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR So why does court say this?

37. The Logic of Albers: Addressing Prior Authority Albers characterizes the holding in Manning as “One Escape/Return = AR” Court (or treatise authors) might read Manning this way to reconcile result with the Mullett/Blackstone Rule: Court returned bird to OO, so must’ve believed AR. Other ways to reconcile? (RADIUM)

38. The Logic of Albers: Addressing Prior Authority Albers characterizes the holding in Manning as “One Escape/Return = AR” Other ways to reconcile the result with the Mullett/Blackstone Rule? Canary was domesticated not wild. Canary never returned to NL.

39. The Logic of Albers: Addressing Prior Authority Albers characterizes the holding in Manning as “One Escape/Return = AR” Trying to reconcile the result with the Mullett/Blackstone Rule Note that Georgia case and NY case do not have to agree; OK if not reconcilable.

40. The Logic of Albers 2. Addressing Prior Authority 1.Tort Liability v. Property Rights 2.Prior Escape Cases a.Manning b.Generally (DQ54) c.Ontario Case (DQ53a) 3.“Wholly Inapplicable” Cases 4.Statute re Common Law (DQ53b)

41. The Logic of Albers: Addressing Prior Authority Top p.46: Prior authorities on escape “are rather confusing than enlightening….”

42. The Logic of Albers: Addressing Prior Authority Top p.46: Prior authorities “even suggest that one modification of the rule would permit the owner to recover if he could identify his property. “Even” means here?

43. The Logic of Albers: Addressing Prior Authority Top p.46: Prior authorities “even [wrongly/ stupidly go so far as to] suggest that one modification of the rule would permit the owner to recover if he could identify his property. We know of no case so applying it (save those dealing with bees)….”

44. The Logic of Albers: Addressing Prior Authority Top p.46: Prior authorities “even suggest that one modification of the rule would permit the owner to recover if he could identify his property … [T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.” URANIUM DQ54: To whom does court think it’s unjust?

45. The Logic of Albers: Addressing Prior Authority [T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.” Must be unjust to F, since under “modification” OO always wins if can i.d. animal. URANIUM DQ54: Why unjust?

46. The Logic of Albers: Addressing Prior Authority [T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.” Must be unjust to F, since under “modification” OO always wins if can i.d. animal. – Maybe because F has no notice (“ordinary” animals) – Maybe because F might start to invest – Also maybe because OO hasn’t done enough to control

47. The Logic of Albers 2. Addressing Prior Authority 1.Tort Liability v. Property Rights 2.Prior Escape Cases 1.Manning 2.Generally 3.Ontario Case (DQ53a) 3.“Wholly Inapplicable” Cases 4.Statute re Common Law (DQ53b)

48. The Logic of Albers: Addressing Prior Authority OXYGEN: DQ53a: Campbell (Ontario) Who do you think won the case? What is the significance to the logic of Albers of the Ontario statute “correcting” the case?

49. The Logic of Albers: Addressing Prior Authority OXYGEN: DQ53a: Campbell (Ontario) Finder wins case re fur fox under Mullett rule Ontario legislature thinks this is bad result Passes law overruling it to protect industry Sequence of events suggests Mullett rule out-of-date or inappropriate re fur foxes.

50. The Logic of Albers 2. Addressing Prior Authority 1.Tort Liability v. Property Rights 2.Prior Escape Cases 3.“Wholly Inapplicable” Cases 4.Statute re Common Law (DQ53b)

51. The Logic of Albers: Addressing Prior Authority “We take no notice of” cases involving theft from traps & cages and theft of dogs because they are “wholly inapplicable.” (1 st full para. p.46) OO would win all these cases, so P must have raised them. “Wholly inapplicable” because they involve either domestic animals or animals completely within control of owner.

52. The Logic of Albers 2. Addressing Prior Authority 1.Tort Liability v. Property Rights 2.Prior Escape Cases 3.“Wholly Inapplicable” Cases” 4.Statute re Common Law (DQ53b)

53. The Logic of Albers: Addressing Prior Authority DQ53b (OXYGEN): Colo. Statute: The common law of England, so far as the same is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. (Bottom p.46) What argument did D make relying on this?

54. The Logic of Albers: Addressing Prior Authority DQ53b (OXYGEN): Colo. Statute: The common law of England, so far as the same is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. (Bottom p.46) D must have argued that this statute required the court to follow the Mullett Rule. Why did the court reject the argument?

55. The Logic of Albers: Addressing Prior Authority DQ53b (OXYGEN): Colo. Statute: The common law of England, so far as the same is applicable … shall be the rule of decision… Court finds the common law rule “inapplicable” because unsuited to present conditions – Cites an earlier case as rejecting a common law rule for the same reason. – Why unsuited here?

56. The Logic of Albers: Addressing Prior Authority DQ53b (OXYGEN): Court finds the common law rule “inapplicable” because unsuited to present conditions. Why unsuited here? Rule designed under assumption that wild animals had no material value Before development of breeding farms and zoos Need different rule to account for significant value

57. The Logic of Albers 1.Domesticated or Wild 2.Addressing Prior Authority 3.What The Case Holds 4.Critique

58. The Logic of Albers: What The Case Holds Mullett rule inapplicable because of changed circumstances (development of fox fur industry) Instead, court says original owner wins where … [Manning-like list but even more facts]

59. The Logic of Albers: What The Case Holds (p.47): Original owner wins where fox: “had been held in captivity, semidomesticated, escaped by accident, fled against the will of his owner, and pursuit was abandoned by compulsion. This defendant in fact had, or is charged with, knowledge that the pelt purchased was the product of a vast, legitimate, and generally known industry; that it had a considerable and easily ascertainable value; that it bore the indicia of ownership; that it had been taken in an unusual way; that the seller was not the owner; that no right of innocent purchasers had intervened; and that it was from an animal taken in a locality where its kind ferae naturae was unknown and in a state where large numbers were kept in captivity.”

60. The Logic of Albers: What The Case Holds (p.47): Original owner wins where fox: “had been held in captivity, semi-domesticated, escaped by accident*, fled against the will of his owner*, and pursuit was abandoned by compulsion.” PLUS ….

61. The Logic of Albers: What The Case Holds D “had, or is charged with, knowledge that: the pelt purchased was the product of a vast, legitimate, and generally known industry it had a considerable/easily ascertainable value that it bore the indicia of ownership it had been taken in an unusual way; the seller was not the owner; PLUS …

62. The Logic of Albers: What The Case Holds D “had, or is charged with, knowledge that: no right of innocent purchasers had intervened; & it was from an animal taken – in a locality where its kind ferae naturae was unknown; and – in a state where large numbers were kept in captivity.”

63. The Logic of Albers: What The Case Holds URANIUM DQ54: Factors that Albers treats as relevant that are not explicitly part of the analysis in Manning or Mullett?

64. The Logic of Albers: What The Case Holds URANIUM DQ54: Factors that Albers treats as relevant that are not explicitly part of the analysis in Manning or Mullett: Industry/Investment (focus of discussion of why Mullett inapplicable) Finder’s Knowledge (focus of penultimate paragraph: grizzly bear in NY; elephant in cornfield; seal in millpond)

65. The Logic of Albers: What The Case Holds DQ54: Articulate Rule in Albers (I’ll leave for you) Helpful to Note Dual Focus (on OO & F): 1.Acts of OO: investment, protection, animus rev., pursuit, taming 2. Likely Knowledge of Finder : nat’l liberty, other evidence F knew of OO 3.Both: marking

66. The Logic of Albers: What The Case Holds Qs on Albers Holding?

67. The Logic of Albers 1.Domesticated or Wild 2. Addressing Prior Authority 3. What The Case Holds 4. Critique

68. The Logic of Albers: Critique URANIUM DQ56 Can you describe what happened in Albers in terms of Demsetz’s first thesis?

69. DEMSETZ FIRST THESIS = DESCRIPTION/EXPLANATION Identify decision/activity at issue Identify old rule Identify neg. externalities under old rule Identify change in circumstances Does change increase neg. externalities? If cost of externalities > cost of change  change in rule

70. The Logic of Albers: Critique URANIUM DQ56: Demsetz’s 1 st thesis Decision: Finder’s Choice: Keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities?

71. The Logic of Albers: Critique URANIUM DQ56: Demsetz’s 1 st thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances?

72. The Logic of Albers: Critique URANIUM DQ56: Demsetz’s 1 st thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms [+ Zoos, etc.] Increase in Externalities?

73. The Logic of Albers: Critique URANIUM DQ56: Demsetz’s 1 st thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms Increase in Externalities? OO losses greater; harm to state economy Change in Rule?

74. The Logic of Albers: Critique URANIUM DQ56: Demsetz’s 1 st thesis Decision: F keep found animal v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities? OO Losses (Investment; Affection) Change in Circumstances? Development of Fox Farms Externalities  = OO losses  ; harm to state economy Change in Rule? Court alters Mullett rule to protect fox farms Would Demsetz Like the Result?

75. The Logic of Albers: Critique URANIUM DQ56: Demsetz’s 2d thesis Would Demsetz Like the Result? YES! Change in Albers creates stronger private property rights & fewer valuable escaped animals returning to commons. Seems consistent with tendency toward more private property that Demsetz (2d Thesis) sees as good because of reduced externalities over time.

76. The Logic of Albers: Critique DQ55: Authority of Colo. S. Ct. 1.Court here essentially: a. carved out exception to the Mullett rule b. to meet perceived policy need. 2. Alternative (as in Ontario): a. Court applies existing rule b. Legislature responds by enacting new statute modifying rule to meet policy need.

77. The Logic of Albers: Critique DQ55: Authority of Colo. S. Ct.(URANIUM) Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)?