1. The Essential Louis Armstrong: Disc 1 (Recordings 1925-30) LUNCH TODAY @ 12:05 1. Allen 2. Bhimani 3. Chung 4. Massey 5. McGivern 6. Olsen 7. Retenauer LUNCH THURS @ 12:25 1. Barnes 2. Cappell 3. Hearn 4. Joyner 5. Parkins 6. Smittick 7. Tuchman

2. Welcome Back! Today: Mapping the Holding of Manning Compare Mullett and Manning Logistical Update Albers under Mullett and Manning The Logic of Albers (as time allows)

3. MAPPING THE HOLDING OF MANNING

4. Mapping the Holding of MANNING The original owner retains property rights in an escaped animal f.n. [that had been owned for two yrs] [that responded to its name] [that has escaped and returned before] [that had distinctive crest] [that had been missing for only five days] [that owner located day after it was found]

5. Mapping the Holding of MANNING DQ44: Last Time Exact scope of Manning holding unclear Use other language from case to flesh out

6. Mapping the Holding of MANNING The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them. Could mean, “Once tamed, yours forever”, but structure of case suggests more complex rule Could simply mean Mitcherson owned bird prior to escape.

7. Mapping the Holding of MANNING To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. For Sweet, probably not an accident! Probably means owner did not deliberately allow bird to fly free

8. Mapping the Holding of MANNING To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. Likely true here; if so, why relevant?

9. Mapping the Holding of MANNING To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. Likely true here; if so, why relevant? Only a short distance from point of escape? Not returned to natural liberty? (although court doesn’t use this phrase)

10. Mapping the Holding of MANNING The original owner retains property rights in an escaped animal f.n. [that had been owned for two yrs] [that responded to its name] [that has escaped and returned before] [that had distinctive crest] [that had been missing for only five days] [that owner located day after it was found] [that was captured a short distance away]

11. Mapping the Holding of MANNING To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY? (This is rhetoric, not explanation. You need to do better.)

12. Mapping the Holding of MANNING To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY? MAYBE: Unfair to OO; too close in time and distance to lose rights MAYBE: Finder should know that there is prior OO, so shouldn’t keep it MAYBE BOTH

13. Mapping the Holding of MANNING To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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. WHY THESE ANIMALS?

14. Mapping the Holding of MANNING To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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. WHY THESE ANIMALS? MAYBE: Valuable (though canary much less) MAYBE: Finder should know there is prior owner

15. Mapping the Holding of MANNING Wild Animals of a Menagerie Menagerie = Zoo (Not Usually Tamed) Court specifically says “wild animals of a menagerie” Again, inconsistent with simple holding that OO retains any tamed animal

16. Mapping the Holding of MANNING To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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. Again looks like short time/distance relevant.

17. Mapping the Holding of MANNING OO retains ppty rts in an escaped animal f.n.: [that had been owned for two yrs] [that responded to its name] [that has escaped and returned before] [that had distinctive crest] [that had been missing for only five days] [that owner located day after it was found] [that was captured a short distance away] Lots of Broader Variations Possible

18. Mapping the Holding of MANNING: DQ49 Squirrel hypo designed to get you to play with the holding in the way that litigators do, trying to find a plausible version helpful to their client’s position.

19. Mapping the Holding of MANNING: DQ49 Squirrel hypo designed to get you to play with the holding in the way that litigators do, trying to find a plausible version helpful to their client’s position. Start by determining which facts of your current case seem helpful and which seem harmful to your client under Manning.

20. Mapping the Holding of MANNING: DQ49 Helpful to A Owned for 3 Months Responds to Name Comfortable w Humans* Identifying Markings Helpful to B Squirrel Travels “Across Town”* No Prior Return 2 Months Before Found* Markings Not Man- Made (apparently)*

21. Mapping the Holding of MANNING: DQ49 Squirrel hypo designed to get you to play with the holding in the way that litigators do, trying to find a plausible version helpful to their client’s position. Try to craft holding that emphasizes helpful facts and minimizes harmful ones.

22. Mapping the Holding of MANNING: DQ49 Some student responses included broad and narrow versions of the holding. BUT Playing with multiple versions of holding is an exercise we do to see what a case might mean in the future. This exercise was to come up with a single version that is especially helpful to your position in your current case.

23. Mapping the Holding of MANNING: DQ49 Sample for Alaina (narrow version; includes almost all helpful facts): OO retains property rights in an escaped animal f.n. that was previously under the owner’s control, that responded to its name when called, that had distinctive markings, that had been missing for a short period of time and was located by the owner soon after [arguable]. -- Lauterbach

24. Mapping the Holding of MANNING: DQ49 Sample for Alaina (broader versions; focuses on a few key facts): OO retains property rights in an escaped animal f.n. that is… (1)tamed to the extent that it knows its name and remembers its name after a significant period of time -- Beal (2)tamed, trained to answer by name, and marked in such a way as to make identification straightfor- ward – Parkins (similar by Douglas, Lauterbach)

25. Mapping the Holding of MANNING: DQ49 Sample for Alaina (a little too broad): OO retains property rights in an escaped animal f.n. if it accidentally escapes from their immediate possession and comes under the control of another person. Good idea to use language from case BUT: No limit on time and distance No reference to taming or marking Looks like OO always wins; case doesn’t say that.

26. Mapping the Holding of MANNING: DQ49 Sample for Brandon (narrow version; includes almost all helpful facts): OO retains property rights in an escaped animal f.n.: that was previously owned for two years, that had escaped and returned before, that had been missing for only a few days, and that owner located day after it was found. -- Lauterbach

27. Mapping the Holding of MANNING: DQ49 Sample for Brandon: (Focusing on Time as Key Element): OO retains property rights in an escaped animal f.n. that had been possessed by the OO prior to escape for an amount of time substantially greater than the amount of time the animal was at large and substantially greater than the amount of time that the animal was possessed by the finder. --Douglas (with some editing )

28. Mullett v. Manning

29. Mullett v. Manning : Mullett Factors Mullett Abandoned: Maybe Animus Rev. No Ret’d to NL Yes Manning No Maybe

30. Mullett v. Manning : Manning Factors Mullett Tamed: Marked. Time –Owned –Out –Till Found Distance Manning Yes Man-Made 2 Yrs 4 Days 5 Days Same Town

31. Mullett v. Manning : Manning Factors Mullett Tamed: No Info Marked; Blemishes Time –Owned Unclear (Less) –Out 2 Weeks –Till Found 1 Year Distance 70 Miles Manning Yes Man-Made 2 Years 4 Days 5 Days Same Town

32. Mullett v. Manning : Better Case for OO (DQ47) Mullett Abandoned: Maybe Animus Rev. No Ret’d to NLYes Tamed: No Info Marked; Blemishes Time –Owned Unclear (Less) –Out 2 Weeks –Till Found 1 Year Distance 70 Miles Manning No Maybe Yes Man-Made 2 Years 4 Days 5 Days Same Town

33. Mullett v. Manning : Better Case for OO (DQ47) Manning is a better case for the OO on every factor explicitly made relevant by the two cases.

34. Mullett v. Manning : Better Case for OO (DQ47) Manning is a better case for the OO on every factor explicitly made relevant by the two cases. Very unusual. In exam hypos, situation often better on some factors, worse on others, so you have to discuss which factors outweigh the others and why.

35. Mullett v. Manning : Rule That Covers Both (DQ48) Lesorgen Formulation #1 OO loses property rights in an escaped animal when the animal, without an intention to return, can provide for itself and is in its state of natural liberty. Essentially a restatement of Mullett rule, so consistent with Mullett. Consistent with Manning if you assume the canary could not have provided for itself.

36. Mullett v. Manning : Rule That Covers Both (DQ48) Lesorgen Formulation #2 OO retains ownership in an escaped wild animal if he can show a substantial connection between himself and the wild animal through taming, an intent to return, or any other acts of dominion for a sufficient time of possession, and the owner has not abandoned his search once the animal has escaped.

37. Mullett v. Manning : Rule That Covers Both (DQ48) OO retains ownership in an escaped wild animal if he can show a substantial connection between himself and the wild animal through taming, an intent to return, or any other acts of dominion for a sufficient time of possession, and the owner has not abandoned his search once the animal has escaped. Mullett: ambiguous phrases might be met, especially if Mullett trained sea lion prior to escape. Might need to modify language.

38. Mullett v. Manning : Rule That Covers Both (DQ48) OO retains ownership in an escaped wild animal if he can show a substantial connection between himself and the wild animal through taming, an intent to return, or any other acts of dominion for a sufficient time of possession, and the OO has not abandoned his search once the animal has escaped. Manning: Last phrase might be too strict; we don’t know if Mitcherson had continued searching. Might want to modify language to read, “the OO has not unreasonably abandoned his search.”

39. LOGISTICS

40. Info Memo #3 Posted Info for Students Taking My Midterm Exam Tips (For Everyone) Write-up of Mullett/Manning Briefs Write-up of Review Problem #1 Review Problem #2 Briefing Instructions for Trial Court Opinions

41. LOGISTICS Info Memo #3 Posted –Note: Responsible for Info Memo Content Course Materials for Unit Two Posted –We’ll Start Unit Two Next Week –Assignment Sheet Updated After Class Today –Note: Kesler & DQs 56-58: Listed for Friday; May Get Pushed to Monday Should be MERCURY, not NEON I’ll fix on Assmt. Sheet

42. LOGISTICS Info Memo #3 Posted Course Materials for Unit Two Posted Midterm –Take Seriously If You Are Taking It –Office Hours 1:30-4:00 Saturday –I’ll Post Simultaneously on Course Page

43. Albers under Mullett and Manning

44. Albers under Mullett and Manning: DQ50 Mullett Factors (from last time) Abandoned: Only by Compulsion Animus Rev. No Ret’d to NL Probably Yes

45. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Evidence? Fox took food from Hand Court says “Semi-Domesticated” Less than in Manning. Enough? If unsure, check for reason behind rule

46. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Evidence? Fox took food from Hand Court says “Semi-Domesticated” Evidence of Labor or Personal Connection? Not much, so unlikely to be considered tamed.

47. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Less than Manning MARKING: Tattoos in Ears How strong is mark?

48. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Less than Manning MARKING: Tattoos: How Strong?  335 = Clearly Man-Made (Maybe Not 1)  Maybe Hard for Non-Expert to Find?  Unlikely to Disappear  Identifies Owner  Industry Practice Other Facts Giving Notice to Finder?

49. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Less than Manning MARKING: –Tattoos: Quite Strong –Other Facts Giving Notice to Finder?  Type of Fox Unknown in Area  Industry Well-Known in Area

50. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Less than Manning MARKING: –Tattoos: Quite Strong –Other Facts Giving Notice to Finder?  Type of Fox Unknown in Area  Industry Well-Known in Area

51. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Less than Manning MARKING/NOTICE: Better than Manning TIME & DISTANCE Animal Owned 2 Weeks Before Escape Animal Ran 6 Miles Before Being Killed Animal Killed1 Day After Escape Unknown Time Before O Discovered Pelt Significance?

52. Albers under Mullett and Manning: DQ50 Manning Factors TAMING: Less than Manning MARKING/NOTICE: Better than Manning TIME & DISTANCE –Prior to Escape: Less than Manning –After Escape: Similar to Manning Overall result unclear; might argue it’s like escaped menagerie animal, so back to OO

53. The Logic of Albers

54. THE LOGIC OF ALBERS 1.DOMESTICATED OR WILD 2.ADDRESSING PRIOR AUTHORITY 3.WHAT THE CASE HOLDS 4.CRITIQUE

55. THE LOGIC OF ALBERS: DOMESTICATED OR WILD Parties’ Presumption: 2 Available Rules 1.Rule for Wild Animals (Mullett/Blkstone) under which finder (D) wins 2.Rule for Domestic Animals under which Original Owner (P) wins Leads to sequence of arguments about whether fox is wild or domestic

56. THE LOGIC OF ALBERS: DOMESTICATED OR WILD DQ52d p.40: “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 says no; nature of animus rev. indicates that you look at individual animals

57. THE LOGIC OF ALBERS: DOMESTICATED OR WILD p.41: “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.

58. THE LOGIC OF ALBERS: DOMESTICATED OR WILD DQ52c p.39: Plaintiff argued that “foxes are taxable in this state, hence the common-law rule as to domesticated animals applies….” Gist of P’s argument 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). Court doesn’t address directly, but same is likely true for zoo animals, and tax system is separate legal structure not binding here

59. THE LOGIC OF ALBERS: DOMESTICATED OR WILD p.41: “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 raised this definition as including fur foxes. The court rejects the definition as too inclusive, thus inconsistent with requiring individualized determination.

60. THE LOGIC OF ALBERS 1.DOMESTICATED OR WILD 2.ADDRESSING PRIOR AUTHORITY 3.WHAT THE CASE HOLDS 4.CRITIQUE

61. THE LOGIC OF ALBERS: ADDRESSING PRIOR AUTHORITY p.41: Discussion of legal connection between tort liability and property rights: We’ll come back to with Kesler

62. THE LOGIC OF ALBERS: ADDRESSING PRIOR AUTHORITY pp.40-41: These authorities are rather confusing than enlightening, and even 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), and the 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. “Even” means?

63. THE LOGIC OF ALBERS: ADDRESSING PRIOR AUTHORITY pp.40-41: “[O]ne 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.” DQ53: To whom is it unjust? Why?

64. THE LOGIC OF ALBERS: ADDRESSING PRIOR AUTHORITY p.41: “We take no notice of” cases involving theft from traps & cages and theft of dogs because they are “wholly inapplicable.” Orig. Owner 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.

65. THE LOGIC OF ALBERS: ADDRESSING PRIOR AUTHORITY DQ52a: Campbell (Ontario) Who do you think won the case? What is the significance of the Ontario statute “correcting” the case to the logic of Albers?