1. ELEMENTS B1 & B2 POWER POINT SLIDES Class #20 Monday, October 10, 2016 Tuesday, October 11, 2016.

2. Music to Accompany Kesler: Ethel Waters (1929-1939) Dean’s Fellow Sessions Resume Thursday See Course Page After Noon Today (Tuesday) for Content Wednesday No B1 Class; No Office Hours Thursday Both Sections Meet 7:55-9:20; Festival Seating; Qs on GWA#2; Intro to Exam Qs I & II

3. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES Part 2: OIL & GAS CASES

4. UNIT II: EXTENSION BY ANALOGY UNIT II: EXTENSION BY ANALOGY Continuing Practice Reading & Briefing Cases Application of Animal Cases (ACs) in New Contexts 1 st Possession Whales ARE Animals (No Analogy) Oil & Gas (Minerals Ferae Naturae) Escape of [Dead] Whales/Stored Natural Gas Plus: Plus: Custom as Binding Law (cf. Pierson) SKILLS Continuing Practice Applying ACs New Skill New Skill: Using Legal Tests by Analogy New Skill New Skill: Arguments about When Use by Analogy is Appropriate

5. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES Continuing Practice Reading & Briefing Cases Begin with Intro to Whaling Cases (60-62) Begin with Intro to Whaling Cases (60-62) All are 19 th Century Cases  Glossary (63) All are 19 th Century Cases  Glossary (63) All are Trial Court Cases (Written Decisions following Trials)  Special Briefing Form (59-60) All are Trial Court Cases (Written Decisions following Trials)  Special Briefing Form (59-60) E-Mail Me if Qs on These

6. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES MAJOR LEGAL Qs COVERED Taber v. Jenny: Escape (by Analogy); Custom Bartlett v. Budd: Escape (by Analogy); Custom Swift v. Gifford: 1st Possession; Custom (Key) Ghen v. Rich: Like Wolverine Problem (Both 1st Possession & Escape (by Analogy)); Custom (Key)

7. E.g., Legal Framework of Taber & Bartlett ESCAPE (by Analogy) Basic Facts of Both Cases: Crew of 1st ship kills whale, marks and anchors it, leaves Whale carcass moves some, then found & taken by crew of 2d ship Uncontested that Crew of 1 st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

8. Legal Framework of Taber & Bartlett ESCAPE (by Analogy) “Kodak Moment” (1913)

9. Legal Framework of Taber & Bartlett ESCAPE (by Analogy) Basic facts of both cases: – 1st Crew kills whale, marks, anchors, leaves – Whale found & taken by crew of 2d ship Uncontested that Crew of 1 st Ship Acquired Property Rights by Killing Whale Issue Like Escape Cases: – “Did 1 st Crew Lose Property Rights by Leaving Whale Behind (given Specific Facts)?” – We’ll Try to Apply Factors from Escaping Animals Cases (See DQ2.01)

10. DQ2.01: Taber under Mullett E.g., Natural Liberty What might you call the “natural liberty” of a dead whale? – “free from artificial restraint” – “free to follow the bent of its natural inclination” – (obviously can’t “provide for itself”)

11. DQ2.01: Taber under Mullett E.g., Natural Liberty What might you call the “natural liberty” of a dead whale? – “free from artificial restraint” – “free to follow the bent of natural inclination” MAYBE: A dead whale adrift = NL – Arguably shows negligence by OO – Arguably F can’t tell there’s an OO

12. DQ2.01: Taber under Mullett E.g., Natural Liberty What might you call the “natural liberty” of a dead whale? – MAYBE: A dead whale adrift = NL – Arguably fits part of definition – Arguably fits policies behind factor – We’ll see if/when whaling cases say carcass adrift goes to finder.

13. UNIT II: EXTENSION BY ANALOGY UNIT II: EXTENSION BY ANALOGY New Skill New Skill: Arguments about When Analogy is Appropriate (Lot of Time on This in Unit II) Very Important Type of Argument, Especially re New Technology Examples in Reading re Treatment of Internet Fourth Amdt & New Technology Often Useful: Can employ any time someone wants to extend a rule to a new situation Examples of Relevant Inquiries in DQs “Escaping” Whales: DQ2.09-2.11 1 st Possession of Oil & Gas: DQ2.23-2.25 “Escaping” Natural Gas: DQ2.33-2.37

14. Closing Up Albers & Kesler

15. The Logic of Albers 1.What The Case Holds 2.Domesticated or Wild? 3.Addressing Prior Authority DQ1.58- 1.59 (oops!) 4.Critique: DQ1.58- 1.59 (oops!)

16. The Logic of Albers: Critique The Logic of Albers: Critique KRYPTON DQ1.58 (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.

17. The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)? Might look at: – Relative institutional strengths? – Democratic theory? – Certainty/notice?

18. The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)? Might look at: – Relative institutional strengths? – Democratic theory? – Certainty/notice? I’ll add slides with range of arguments Useful in particular cases to address whether court should act to change/extend common law v. wait for legislature.

19. The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) (Not Shown in Class) Courts v. Legislature: Relative Institutional Strengths Include: Access to Information: – Legislature has power to hold extensive investigations and likely to hear from most affected constituents. – Courts hear from parties to suit and occasionally from other affected groups through Amicus briefs. Type of Rule: – Legislature better equipped to develop complex regulations and to resolve difficult line-drawing problems – Courts tend to develop rules that are manageable in judicial setting but may be better at determining individual justice

20. The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) Courts v. Legislature (Cont’d): (Not Shown in Class) Speed/Notice: – Court can immediately get result for parties before it (though maybe surprise for loser); – Legisl can take long time to act, but usually prospective only, and legislative process may give wider notice; – Might argue that where more people rely heavily on old rule, fairer to have legislature alter Political Theory: – Political branches should address major Qs in a Democracy (although much easier for legislature to fix court’s mistakes re common law than re Constitution) – Court may be more likely to protect rights of political minorities and less wealthy than majoritarian & $$$-needy legislators. – Courts tend to develop rules that are manageable in judicial setting but may be better at determining individual justice

21. The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) (Not Shown in Class) Courts v. Legislature: Relative Institutional Strengths: Example: Moore v. Regents of University of California Suit about Univ. hospital using valuable spleen cells from patient without patient’s knowledge or permission. Issue of first impression so P raised several legal theories. Cal. S. Ct. did not rule on whether cells were patient’s “property,” probably in part because that would raise complex legal and ethical problems better suited for legislature. Court resolved case as an issue of medical disclosure, which was easier approach for Court because: – Unlikely to be controversial that doctors & hospital should’ve asked/told. – Already established tort caselaw re standards for medical disclosure.

22. The Logic of Albers: Critique KRYPTON DQ1.58 (Authority of Colo. S.Ct.) we must so apply general principles that justice will be done. Having then neither statute nor applicable common-law rule governing the case, we must so apply general principles in the light of custom, existing facts, and common knowledge, that justice will be done. So the courts of England and the United States have acted from time immemorial, and so the common law itself came into existence. (2d Para. p.49)

23. Uranium Kesler v. Jones: Uranium In-Class Brief

24. Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler … and the Davises… ??? sued Jones … for [cause of action] seeking [remedy].

25. Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the original owner (OO) of an escaped fox, and the Davises, its caretakers … – Fox is “property” of “other appellant”: must be Kesler – Davises probably plaintiffs because they had custody of the fox and would be liable to Kesler for its loss

26. Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers …, sued Jones … ??? for [cause of action] seeking [remedy].

27. Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, – Need both killing & keeping pelt. for [cause of action] ??? seeking [remedy].

28. Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the owner of an escaped fox, and the Davises, its caretakers sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, … for unlawful killing of the fox and unlawful retention of its pelt seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?

29. Kesler v. Jones BRIEF: Uranium Statement of the Case: seeking [remedy] ??? Case doesn’t say explicitly. Hint from case? Court orders new trial to determine “the value of the pelt”  seeking damages

30. Kesler v. Jones BRIEF: Uranium Statement of the Case: Kesler, the OO of an escaped fox, and the Davises, its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages. PROCEDURAL POSTURE?

31. Kesler v. Jones BRIEF: Uranium Procedural Posture: After a trial, the court found for defendant on both claims. Plaintiffs appealed. How do you know there was a trial?

32. Kesler v. Jones BRIEF: Uranium Procedural Posture: After a trial, the court found for defendant on both claims. Plaintiffs appealed. How you know there was a trial: –“The court was justified … in concluding from the evidence…” new –“the cause remanded for a new trial …”

33. Kesler v. Jones FACTS (from last time) Fox owned and cared for by Ps had escaped and been recaptured at least once. It escaped again and Ps pursued. A short time after the escape and a short distance away, a neighbor found it among her chickens and asked D for help. D shot and killed the fox, unaware of its prior captivity or Ps’ ownership. Ps requested that D return fox’s pelt. D refused.

34. Kesler v. Jones BRIEF How Many People Saw That There Were Two Issues in Case? (Show of Hands) Evidence That There Are Two Issues In Case?

35. Kesler v. Jones BRIEF: Uranium How You Know There Are Two Issues In Case: 1.Two different kinds of legal claims addressed – Unlawful killing of fox (Tort Q: Justification for shooting) – Unlawful retention of pelt (Property Q: Ownership of escaped animal) 2.Judgment is affirmed in part, reversed in part. Means: – One issue decided in favor of D – One issue decided in favor of Ps

36. Kesler v. Jones BRIEF: Uranium 1st Issue (Unlawful Killing): Did trial court err in entering judgment for defendant [on unlawful killing claim] because … Hard to be precise about relevant facts b/c –Court doesn’t say why Ps thought the killing was unreasonable –We aren’t studying defenses to intentional torts here, so don’t have other examples to look at.

37. Kesler v. Jones BRIEF: Uranium 1st Issue (Unlawful Killing): Pretty General Version (E.g.:) Did trial court err in entering judgment for defendant [on unlawful killing claim] because a person has no right to kill a fox escaped from captivity when asked to help protect a neighbor’s chickens from the fox? Probably helpful to also include some language about reasonableness.

38. Kesler v. Jones BRIEF: Uranium 1st Narrow Holding (Unlawful Killing): (E.g.:) No, trial court did not err in entering judgment for defendant [on unlawful killing claim] because a person does have the right to kill a fox escaped from captivity when reasonably necessary to help protect a neighbor’s chickens from the fox. QUESTIONS?

39. Radium Kesler v. Jones: Radium DQ1.60-1.61 MARIE CURIE: Discoverer of Radium

40. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Both Albers and Kesler treat the question of the right to kill the fox as independent of the question of who owns it. If the plaintiffs owned both foxes, why was it legally acceptable for a 3d party to kill them?

41. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Can have some rights with regard to an object without having all possible rights Common Examples: – Landlord-Tenant – Ratione Soli

42. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Can have some rights with regard to an object without having all possible rights Your “right” not to have others destroy your property can be lost when your property endangers person or property of others. Common Example: Necessity – Neighbor can cut down your trees to limit spread of fire

43. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Can have some rights with regard to an object without having all possible rights Common Example: Necessity – Neighbor can cut down your trees to limit spread of fire – BUT You still own the cut wood.

44. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Here, court says OK for Dr. Jones to kill a fox owned by Kesler because he acted (for Mrs. White) as “a reasonably prudent person” would, “under reasonably apparent necessity, in the protection of his own [or White’s] property” (chickens).

45. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights Here, court says OK for Dr. Jones to kill a fox owned by Kesler because – he acted (for Mrs. White) as “a reasonably prudent person” would, – “under reasonably apparent necessity, – in the protection of his own property” (chickens). Looks like standard defense to intentional tort for “defense of property.” Could fold some of this language into issue/holding.

46. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights BOTTOM LINE Property rights of fox owners limited to protect property of others (e.g., chickens) Jones had right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot. Qs?

47. Kesler v. Jones (Radium) DQ1.60: Severability of Property Rights We’ll Revisit Idea of Severability in Unit III in Cases Where Gov’t Limits Some (But Not All) Rights of Landowners: – Can use urban lot near many residences for anything except (polluting) brickworks. – Can operate train station but not build skyscraper on top of it.

48. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Note that Kesler describes Albers as “a case squarely in point ….” BUT cases not really absolutely identical, so we’ll look at factual differences.

49. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Probably Less Significant Differences (from Prior Years) 1.Semi-Domesticated v. Not (Only Very Mild Help in Albers) 2.Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers) 3.D was F in Kesler; Bought from F in Albers: (Might matter if Q of D being innocent purchaser, but not true in Albers) 4.Caretakers in possession rather than OO ( not clear why this would affect result).

50. Kesler v. Jones (Radium) (Not Shown in Class) DQ1.61: Factual Differences from Albers Differences Possibly Going to Value of Fox (from 2015): Clever ideas, although I’m not sure value of individual fox would matter much (as opposed to average value or existence of industry). 1.Color: – Albers Fox = Black or Silver-Black. – Kesler Fox = “Cross-Bred.” Might be what Albers calls “Cross.” 2.Sex – Albers Fox = Male – Kesler Fox = Female. Maybe worth less b/c can’t mate with multiple males at same time. However, foxes tend to have only one mate (see Comparison Box #1), so may depend on breeding process used (natural v. artificial).

51. Kesler v. Jones (Radium) DQ1.61: Factual Differences from Albers Probably Most Significant Differences: Help OO or F (and Why?) 1.Kesler caretakers still in pursuit when fox killed. 2.Probably shorter time & distance from escape to kill 3.Fox in Kesler had escaped once before & been recaptured. 4.Kesler finder/defendant is not expert. 5.No evidence Kesler fox has tattoo. 6.Kesler takes place in Idaho, not Colorado.

52. Kesler v. Jones BRIEF: Uranium 2d Issue (Escape/Unlawful Retention): Did trial court err in entering judgment for defendant because … ??? Helpful to frame in terms of what constitutes return to NL

53. Kesler v. Jones BRIEF: Uranium 2d Issue (Escape/Unlawful Retention): Did trial court err in entering judgment for defendant because the original owner of a escaped fox with no intention of returning retains property rights because the fox had not returned to natural liberty, where – it had escaped and been recaptured before, – it was killed a short time and distance from its escape, and – its owners were still pursuing it when it was killed?

54. Kesler v. Jones BRIEF: Uranium Sample Brief (Posted after Tuesday’s Class) Will Include Broad/Narrow Holdings & Rationales

55. Kesler v. Jones: Note block quote from treatise (p.53): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.”

56. Kesler v. Jones Compare block quote (p.53) to Manning (p.40): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.” v. It “is hardly to be expected … that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion.”

57. Kesler v. Jones : MAJOR POINTS Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers) Escaped wild animal not returned to natural liberty if closely pursued with good possibility of recapture (different approach than Albers) Explicit relevance of pursuit, time, distance Explicit relevance of pursuit, time, distance Severability of Property Rights Severability of Property RightsQUESTIONS?