1. ELEMENTS B1 & B2 POWER POINT SLIDES
Class #27 Friday, October 28, 2016 National Chocolate Day!!

2. REVIEW PROBLEM 2C Custom Binding = URANIUM Custom Not Binding = RADIUM
Music to Accompany White: Stan Getz & the Oscar Peterson Trio (Recorded 1957) Stan Getz, Tenor Sax * Oscar Peterson, Piano Herb Ellis, Guitar * Ray Brown, Bass
REVIEW PROBLEM 2C
Custom Binding = URANIUM
B2 = Campo + Evans + Morejon (Alt: Sholes)
B1 = Robins + Wasserman + Zimet (Alt: Zilber)
Custom Not Binding = RADIUM
B2 = Brody + D’Bazo + Dudley (Alt: Gangemi)
B1 = Lecca + W.Pereira + Sainte (Alt: Solis)

3. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2C Should Court Treat Custom in Q as Legally Binding Pro Arguments (Uranium) v. Con Arguments (Radium) Easy Qs/Hard Qs

4. EXAM Q1 (CUSTOM): REVIEW PROBLEM 2C
Should Custom be Treated as Law: Relevant Analysis
Swift Factors:
Affect Outsiders
Used by Whole Industry for Long Time (Pretty Easy Yes)
Easier to Use than Existing Legal Rules (Certainty) (Pretty Easy No)
Reasonableness
Ghen: Necessary for Industry to Operate
Could do as separate factor
Could do as part of Reasonableness analysis

5. REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No
Easy Swift/Ghen Factors
Used by Whole Industry for Long Time (~YES)
Problem says “almost” whole industry has “observed this custom for many years.”
Could try to argue that need everyone to meet this factor, but lots of ad agencies & TV networks, so very hard to get all to adhere w/o gov’t oversight.

6. REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No
Easy Swift/Ghen Factors
Easier to Use than Existing Legal Rules (~ NO)
Custom Itself Can Be Hard to Apply (See 2B)
Almost Certainly Few Limits Absent Custom
Trademark or Copyright Violations
Require Very Close Copying of Protected Material
Apply with or without Custom
Might Have More General Discussion of Certainty

7. REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No
Harder Swift/Ghen Factors
Affect Outsiders (Leave for You)
Necessary for (Which?) Industry to Operate?
Reasonableness of Custom?

8. REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No
Harder Swift/Ghen Factors
Affect Outsiders (Leave for You)
Necessary for (Which?) Industry to Operate?
Trying to Protect Charities
Can Charities Function Successfully w/o Custom?
Reasonableness of Custom?

9. REV. PROB 2C: Treat Custom as Law? URANIUM: Yes v. RADIUM: No
Harder Factors: Some Relevant Considerations
Necessary for (Which?) Industry to Operate?
Trying to Protect Charities
Can Charities Function Successfully w/o Custom?
Reasonableness of Custom: Might Consider:
Good idea to protect charities more than comm’l advertisers?
Free speech concerns?
Whose labor should be protected and to what extent?
OK if it makes it hard to market product (BB’s program)?
Is copying components of ads essentially fraud/deceit? (Bartlett)
Is copying components of ads appropriation/larceny (following language in whaling cases per Wood B2)

10. Argument By Analogy Oil & Gas: 1st Possession
Are Pierson/Liesner/Shaw Good Tools for Determining 1st Possession of Oil & Gas?
Intro then Three Common Approaches
Significance of Factual Similarities & Differences (DQ2.23 = OXYGEN) (B1 Wed.)
Usefulness of Doctrine (DQ2.24 = OXYGEN) (B1 = Wed.)
Usefulness of Alternatives (DQ2.25 = KRYPTON)

11. Argument By Analogy Oil & Gas: 1st Possession (OXYGEN)
DQ2.23. Arguments from Factual Similarities re Usefulness of Pierson/Liesner/Shaw
Could Try, e.g., :
Mobility Across Property Lines
Labor Necessary to Capture

12. Argument By Analogy Oil & Gas: 1st Possession (OXYGEN)
DQ2.23. Arguments re Lack of Usefulness of Pierson/Liesner/Shaw
from Factual Differences
between
Hunting Wild Animals Generally &
Extraction of Oil & Gas

13. Argument By Analogy Oil & Gas: 1st Possession (OXYGEN)
DQ2.23. Arguments from Factual Differences re [Lack of] Usefulness of Pierson/Liesner/Shaw
Could Try, e.g.,
Mineral Movement More Predictable
Value of Oil/Gas Generally Higher

14. Argument By Analogy Oil & Gas: 1st Possession (Oxygen)
DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why)

15. Argument By Analogy Oil & Gas: 1st Possession (Oxygen)
DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Work Fairly Well (and Why)
Could Try
Actual Possession; Power & Control
Escape Practically Impossible

16. Argument By Analogy Oil & Gas: 1st Possession (Oxygen)
DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why)

17. Argument By Analogy Oil & Gas: 1st Possession (Oxygen)
DQ2.24. Pierson/Liesner/Shaw: Rules/Factors that Would Be Hard to Use (and Why)
Could Try
Mortal Wounding; Continued Pursuit

18. Argument By Analogy Oil & Gas: 1st Possession
DQ2.24. Usefulness of Doctrine
On Exam, Can Have Discussion About Whether Particular Factor or Test is Useful or Not (with Arguments Both Ways)

19. Argument By Analogy Oil & Gas: 1st Possession
DQ2.25 (Krypton)
Disputes Most Likely to Occur Among Various Owners of Surface Above Oil & Gas Pools
Westmoreland:
Owning surface gives you only right to “hunt”
No permanent claim on unextracted oil & gas
Only way to get permanent claim is actual possession
POSSIBLE ALTERNATIVES?

20. Argument By Analogy Oil & Gas: 1st Possession (Krypton)
DQ2.25. Some Alternatives
First in Time
First to Extract (Westmoreland)
First to Drill into Pool Gets Whole Pool
First to Provide Relevant Notice (Registration?)
Rights Proportional to Surface Ownership
Pure Proportional Ownership
Proportional Ownership with Fair “Fee” for Labor
State Ownership

21. Argument By Analogy Oil & Gas: 1st Possession (Krypton)
DQ2.25. Pros & Cons
Westmoreland (Rule of Capture) v.
Distribution of Profits Proportional to Surface Area (w Reasonable Fee to Drillers for Labor and Risks)
Assume Some Large Oil/Gas Fields Under Multiple Surface Lots
Think About, e.g., Ease of Operation, Incentives, Effects on Market, etc.
First Some Preliminary Qs to Help See What’s at Stake

22. Argument By Analogy Oil & Gas: 1st Possession (Krypton)
DQ2.25. Pros & Cons: Preliminary Qs
Westmoreland & Incentives
What are people likely to do when they see that a neighbor is producing oil or gas from a well?
What problems might that cause?

23. Argument By Analogy Westmoreland & Incentives: Wichita Falls, TX

24. Argument By Analogy Oil & Gas: 1st Possession (Krypton)
DQ2.25. Pros & Cons: Preliminary Qs
Westmoreland & Incentives
What are people likely to do when they see that a neighbor is producing oil or gas from a well?
What problems might that cause?
Unneeded Wells: Environmental Concerns & Increased Cost of Extraction
Decreased Total Production (Loss of Pressure)

25. Argument By Analogy Oil & Gas: 1st Possession (Krypton)
DQ2.25. Pros & Cons: Preliminary Qs
Westmoreland & Incentives
What are people likely to do when they see that a neighbor is producing oil or gas from a well?
Resulting problems? Readings refer to “Oversupply”
Primarily of concern to industry  low prices, low profits
Good for consumers in short run
Long run, may encourage overuse of petroleum products b/c cheap (cars v. mass transit, etc.)

26. Argument By Analogy Oil & Gas: 1st Possession (Krypton)
DQ2.25. Pros & Cons: Preliminary Qs
Proportional Allocation (w Labor Fees)
How do you determine where the oil or gas field lies in order to determine proportional interests? In 1889? Today?
How do you decide where drilling occurs?

27. Argument By Analogy Oil & Gas: 1st Possession (Krypton)
DQ2.25. Other Pros & Cons?
Westmoreland v.
Proportional Allocation (w Labor Fees)
(I’ll Add Slide w Best Suggestions)

28. Argument By Analogy Oil & Gas: 1st Possession: DQ2.25
Westmoreland Preferable to Proportional
Certainty
Hard to Divy Up w/o Good Geologic Info
Low Administrative Costs
Rewards Labor & Clear Act of Extraction
Proportional Preferable to
Westmoreland
Fairer to Small Landowners
Lower Externalities

29. EXAM Q1 v. EXAM Q2 Apply ACs To Specific Facts of Hypo
Discuss Which Party Should Win (Get/Keep Property Rights)
Role: Counselor (Identify Strongest Points for Each Side)
Assess ACs as Tools
For General Problems of Same Type as Hypo
Discuss What Legal Approach Might Be Best for These Problems
Role: Legislator (Consider Best Way to Address Category of Problems)

30. Demsetz & Rose EXAM Q1 v. EXAM Q2
XQ1 Asks You to Apply Animals Cases (ACs)
Demsetz & Rose are NOT ACs
They should not be primary authority for any XQ1 argument
Can use to support arguments arising from ACs. E.g.,
Assessing strength of mark under Albers/Taber/Bartlett
Assessing reasonableness of custom under Swift/Ghen

31. Demsetz & Rose EXAM Q1 v. EXAM Q2
XQ1 Asks You to Apply Animals Cases (ACs)
Demsetz & Rose are NOT ACs
Not primary authority for any XQ1 argument
Can use to support arguments arising from ACs.
For XQ2, Can Use Demsetz & Rose Freely to Evaluate Strength of ACs and of Alternatives as Tools to Address New Area of Law

32. Group Assignment #3 ≈ EXAM Q2
Qs Today or Over Weekend
Qs in Class:
Mon/Tue 10/31-11/1
Fri 11/4
Additional Qs Through Sunday Night 11/6
Assess ACs as Tools
For General Problems of Same Type as Hypo
Discuss What Legal Approach Might Be Best for These Problems

33. Argument By Analogy: Group Written Assignment #3
Generally
Task Like XQ2 for Sample Exam Q (Never Given)
Helpful first to do XQ1 for Fact Pattern
Comments/Models for Old XQ2s Online Soon
Can look at for ideas
I suggest you try to do yourself first
We’ll Do More Examples in Class

34. Argument By Analogy: Group Written Assignment #3
Structure of Each Sub-Assignment Similar
Doing One of Our Three Approaches
Must Submit (Roughly Speaking)…
Two Arguments in Favor of Using ACs
Two Arguments Against Using ACs
One Tie-Breaker Argument

35. Argument By Analogy: Group Written Assignment #3
Specific Concerns
Not Addressing Specific Dispute between Windsor & Spain, but Sunken Treasure Cases Generally
“Overlap” Instructions: Don’t Choose Topics That Yield Two Very Similar Arguments
Stick to Approach I Give You (See Weasels)
Reread Formatting & Substantive Instructions Before Finalizing