1. ELEMENTS D2 & D1 POWER POINT SLIDES
Class #25 Friday, October 27, 2017 National Black Cat Day National Frankenstein Day

2. FAJER EXAM TECHNIQUE WORKSHOP (TWO INTERCHANGEABLE PRESENTATIONS)
MUSIC: ISAAC ALBENIZ WORKS FOR PIANO ( ) Alicia de Larrocha, Piano (Recordings1959, 1992)
FAJER EXAM TECHNIQUE WORKSHOP
(TWO INTERCHANGEABLE PRESENTATIONS)
Mon. Nov. 12:30-1:50 pm in Room F109
Thu. Nov. 12:30-1:50 pm in Room E352

3. LAST INPUT FOR GWA#2: Thoughts from GWA#1
Formatting (8/23)
Two Sides (41T-37R)
Accuracy w Facts (Overstatement Unhelpful)
Using Legal Tests
Understand How They Work & Their Original Context
Explain/Defend Your Application
Be Willing to Concede Non-Crucial Points
Stay onTopic (Power & Control ≠ NL)

4. LAST INPUT FOR GWA#2: Available Resources (on CP by early Sunday)
Slides & Briefs on Relevant Cases
Toolboxes re 1st Possession (IM2) & Escape (IM3)
Links re Externalities & Internalization (IM2)
GWA#1 Comments/Student Answers Memo
GWA#1: Comments on 2017 Work (Posted as Completed through Noon on 10/31)
Midterm Comments/Student Answers Memo
Old Exam Q Comments/Student Answers
1st Possession of Island (2007)
Escape of Gesture (2012)

5. Group Written Assignment #2
DUE TUE 9:00 pm
Coordinators: Get Pseudonyms in Advance & Double-Check Formatting Requirements Before Submission
QUESTIONS ?
Today
By Until Sun 11:59 pm

6. 2012 EXAM Q1A (Escape): Human Gestures Note re Mislabelling Online: Take Responsibility!! Under ACs, does L-Bow retain sufficient property rights to the EG to prevent use of EG in marketing campaigns? Arguments re Protecting OO’s Labor/Industry? - Little L-Bow Effort in Doing/Creating EG (But Cass Idea) - Possible Effect on Value of EG for Charity - Significance of L-Bow Investment in Training & B-Ball Skills - Differences between BB Use & Cane-Aid Use?
URANIUM (for L-Bow)
RADIUM (For BB & CA)

7. Applying Three Common Approaches Described in Course Materials:
Argument By Analogy
Applying Three Common Approaches Described in Course Materials:
(DQ2.09) Significance of Factual Similarities (URANIUM: Done) & Differences (RADIUM)
(DQ2.10) Usefulness of Doctrine (URANIUM)
(DQ2.11) Usefulness of Alternatives (RADIUM)
For Each, I’ll Talk A Little About How to Do Generally, Then We’ll Try in This Context

8. Argument By Analogy Other Factual Differences?
RADIUM DQ2.09: Factual Differences?
Last Time
Living v. Dead: Mildly helpful argument that parts of ACs don’t fit well.
Whales = Greater Difficulty of Capture/Size/Value: Might mean want stronger protection of OO rights.
Other Factual Differences?
Can You Construct Relevant Arguments Around Them?

9. Argument By Analogy 2. Usefulness of Doctrine
Qs About Individual Rules or Factors
Can you sensibly apply some or all of the legal tests in the new context?
Are the purposes behind the rules relevant in the new context?

10. Argument By Analogy 2. Usefulness of Doctrine
Overall Q: Is the doctrine targeting the right concerns?
Are there important concerns raised by the precedent that aren’t relevant in the new context?
Are there important concerns raised by the new context that weren’t relevant in the precedent?
Do the factors tend to favor disputants who we think ought to win?
Reasonable to have Two-Sided Discussion re Particular Factors or Legal Tests (Might be helpful b/c …. Might be problematic b/c …. On balance ….)

11. Argument By Analogy DQ2.10: Usefulness of Doctrine
Individual Escape Factors Whose Relevance is Pretty Clear to Disputes re Whale Carcasses
URANIUM?

12. Argument By Analogy DQ2.10: Usefulness of Doctrine
Individual Escape Factors Whose Relevance is Pretty Clear to Disputes re Whale Carcasses (Arguably used in Taber & Bartlett):
Marking/Finder’s Knowledge
Rewarding Labor/Protecting Industry
Abandonment (by Compulsion)/Pursuit
Time/Distance (though time frame may be different than for living animals)

13. Based on Factual Comparisons (2) Based on Usefulness of Doctrine
Argument By Analogy
Arguments
Based on Factual Comparisons
and
(2) Based on Usefulness of Doctrine
Often Overlap:

14. Argument By Analogy
Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap:
(1) Factual Comparison: OO can attach identifying marks to both escaping animals and whale carcasses.
ACs reward OOs who use strong marks that help identify the animal and give notice to Fs of prior claim
For same reasons, good idea to reward OOs of whale carcasses who use strong marks
Thus, this similarity supports using ACs

15. Argument By Analogy
Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap:
(2) Usefulness of Doctrine: ACs factor we called “marking” (Manning; Albers), rewards OOs who use strong marks that help identify the animal and give notice to Fs of prior claim.
OO of whale carcass can attach identifying marks that serve the same purposes.
Thus, it is a good idea to reward OOs of whale carcasses who use strong marks, which makes “marking” a useful factor to use.

16. Argument By Analogy
Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap:
Overlap is logical:
Concerns addressed by the legal tests are made relevant by the factual setting.
Factual comparisons are made relevant by the way the doctrine operates.

17. Argument By Analogy
Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap:
For XQ2, if you see overlapping arguments, you only need to give me one of them
BUT useful to practice approaching analogy question from both directions b/c sometimes you will find it easier to see a useful point looking from one angle than from the other. E.g.,
From (1): Key factual difference that ACs don’t address
From (2): Doctrinal rule that picks the wrong winners

18. Argument By Analogy DQ2.10: Usefulness of Doctrine
Factors Less Clearly Relevant?
Natural Liberty
Maybe NL = carcass is floating free
Pros & Cons: Should Consider:
LANGUAGE: E.g., “Provide for itself” v. “No artifical restraint”
UNDERLYING POLICIES : I did some in Class #20

19. Argument By Analogy DQ2.10: Usefulness of Doctrine
Factors Less Clearly Relevant?
Taming or Intent to Return
Could mean simply anchoring the carcass
Pros & Cons include:
Anchoring similar b/c labor expended to maintain control
Maybe unnecessary b/c can reward anchoring using NL or general policy rewarding useful labor

20. Argument By Analogy 3. Usefulness of Alternatives
Identify alternative approaches that might be used to address the new context
For 1st Possession might include: auction, lottery, state ownership, most deserving, etc.
For Escape might include: F always wins, OO always wins, registration systems, salvage (= alternative, not application of ACs)
For other possibilities, look at old model answers (some available soon)

21. Argument By Analogy 3. Usefulness of Alternatives
Identify alternative approaches that might be used to address the new context
Don’t spend time on alternatives that seem fairly stupid or unlikely or impractical
Could award carcass to oldest whaler, but this would be stupid because …
Could award carcass to finder where internal temperature of carcass had fallen below 45° F, but this would be very difficult to apply in practice because of absence of reliable thermometers and logistics of measuring inside carcass …

22. Argument By Analogy 3. Usefulness of Alternatives
Identify alternative approaches that might be used to address the new context
Discuss the pros and cons of using each possible alternative instead of the proposed analogy
Ideally provide both pros and cons for each
Can consider fairness, cost, ease of administration, incentives created, whether the right Qs are being asked, etc.

23. Argument By Analogy 3. Usefulness of Alternatives
Identify alternative approaches that might be used to address the new context
Discuss the pros and cons of using each possible alternative instead of the proposed analogy
You can identify possible alternatives and common pro/con arguments from class and from model answers. However, only way to get proficient enough to do well under exam conditions is PRACTICE.

24. Argument By Analogy Usefulness of Alternatives
Radium: DQ2.11: One Particular Alternative
Would salvage be a better way to resolve anchored whale cases than using the escaped animal cases? Why or why not?

25. Argument By Analogy Usefulness of Alternatives
RADIUM: DQ2.11: Would salvage be better than using the escaped animal cases? Might Consider:
Splitting Rewards v. One Side Takes All (& Labor?)
Rule Most Likely to Save Most Whale Carcasses
Ease of Application:
ACs = multiple factors = complex
But maybe hard to do salvage where property must be cut up and altered to take on board

26. Argument By Analogy 3. Usefulness of Alternatives
Ease of Administration: Escape
Escaping ACs not bright line rule, so complex to administer (lots of factors)
2 very clear rules always available for Escape
Absolute Ppty Rights (if OO can identify it, OO wins)
Complete loss of ppty rts at escape = Finder’s Keepers
Although Usually Other Problems with These Bright Line Rules
incentives created, whether the right Qs are being asked, etc.

27. Applying Three Common Approaches Described in Course Materials:
Argument By Analogy
Applying Three Common Approaches Described in Course Materials:
Significance of Factual Similarities & Differences (DQ2.09)
Usefulness of Doctrine (DQ2.10)
Usefulness of Alternatives (DQ2.11)
Questions?