1. The Essential Louis Armstrong: Disc 1 (Recordings 1925-30) §B Lunch Tue Sep 30 Meet at SAC Law Room after Torts Del Rivero * Forzisi Perez * Sanseverino Stermer Wed-Thu I’ll Take Qs on Group Assignment #2 & Argument by Analogy

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

3. 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.

4. The Logic of Albers 1.Domesticated or Wild? i.DQ1.56(d): Species v. Individual? ii.Birth in Captivity? iii.DQ1.56(c): Taxation of Fur Foxes? iv.Black’s’ Definition of “Domestic Animal”

5. The Logic of Albers: Domesticated or Wild? (1) DQ1.56(d) (start of last para. p.47): “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?

6. The Logic of Albers: Domesticated or Wild? (1) DQ1.56(d) (start of last para. p.47): “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?

7. The Logic of Albers: Domesticated or Wild? (1) DQ1.56(d) (start of last para. p.47): “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. Note that this probably is true only for animals that are arguably wild. Court is not suggesting an individualized determination of whether a sheep is wild or domesticated.

8. Albers (Animus Revertendi) Evidence re AR Note: Court says determine AR for individual animal, not by species (bottom p.47) Not binding on other states as to meaning of AR, but you can use to argue individual case.

9. The Logic of Albers 1.Domesticated or Wild? i.Determine by Individual not Species ii.Birth in Captivity? iii.Taxation of Fur Foxes? (DQ1.56(c)) iv.Black’s’ Definition of “Domestic Animal”

10. The Logic of Albers: Domesticated or Wild? (2) End 3d para. p.48 : “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.

11. The Logic of Albers 1.Domesticated or Wild? i.Determine by Individual not Species ii.Birth in Captivity Irrelevant iii.Taxation of Fur Foxes? (DQ1.56(c)) (featuring G.I. Joe!) iv.Black’s’ Definition of “Domestic Animal”

12. The Logic of Albers: Domesticated or Wild? (3) DQ1.56(c) (last full para.p.46): 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?

13. The Logic of Albers: Domesticated or Wild? (3) DQ1.56(c): 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)

14. 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 3.Tax system is separate legal structure not binding here.

15. 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.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 treatedExample: 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.

16. 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. E.g., characterizations for tax purposes are frequently different than others.

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

18. Characterization of Same Item in Different Legal Contexts G.I. Joe: I am an “Action Figure” even though Customs Regulations …

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

20. The Logic of Albers 1.Domesticated or Wild? i.Determine by Individual not Species ii.Birth in Captivity Irrelevant iii.Taxation of Fur Foxes Irrelevant iv.Black’s’ Definition of “Domestic Animal”

21. The Logic of Albers: Domesticated or Wild? (4) Top para. p.48: “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.”

22. The Logic of Albers: Domesticated or Wild? (4) contribute to the support of a family Top para. p.48: “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”.

23. The Logic of Albers: Domesticated or Wild? (4) would include Top para. p.48: “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.

24. The Logic of Albers: Domesticated or Wild? (4) would include Top para. p.48: “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).”

25. The Logic of Albers 1.Domesticated or Wild? i.Determine by Individual ii.Birth in Captivity Irrelevant iii.Taxation of Fur Foxes Irrelevant iv.Black’s’ Definition of “Domestic Animal”: Too Broad Questions?

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

27. The Logic of Albers 2. Addressing Prior Authority i.Tort Liability v. Property Rights ii.Prior Escape Cases A.Manning (DQ1.55): B.Generally (DQ1.57(a)) C.Ontario Case (DQ1.56(a)) iii.“Wholly Inapplicable” Cases iv.Statute re Common Law (DQ1.56(b))

28. The Logic of Albers: Addressing Prior Authority p.48 (3d para.): Discussion of legal connection between tort liability and property rights: We’ll come back to next time with Kesler & DQ1.60

29. The Logic of Albers 2. Addressing Prior Authority i.Tort Liability v. Property Rights ii.Prior Escape Cases A.Manning (DQ1.55): We Did Last Week B.Generally (DQ1.57) C.Ontario Case (DQ1.56(a)) iii.“Wholly Inapplicable” Cases iv.Statute re Common Law (DQ1.56(b))

30. The Logic of Albers 2. Addressing Prior Authority i.Tort Liability v. Property Rights ii.Prior Escape Cases A.Manning B.Generally (DQ1.57(a)) (RADIUM) C.Ontario Case (DQ1.56(a)) iii.“Wholly Inapplicable” Cases iv.Statute re Common Law (DQ1.56(b))

31. The Logic of Albers: Addressing Prior Authority DQ1.57(a): Radium Top p.48: Prior authorities on escape “are rather confusing than enlightening….”

32. The Logic of Albers: Addressing Prior Authority DQ1.57(a): Radium Top p.48: 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?

33. The Logic of Albers: Addressing Prior Authority DQ1.57(a): Radium Top p.48: 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 [merely] could identify his property. We know of no case so applying it (save those dealing with bees)….”

34. The Logic of Albers: Addressing Prior Authority DQ1.57(a): Radium Top p.48: 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.” To whom does court think it’s unjust?

35. The Logic of Albers: Addressing Prior Authority DQ1.57(a): Radium [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.” Under “modification,” OO always wins if can i.d. animal., so must be unjust to F. Possible Reasons Why Unjust?

36. The Logic of Albers: Addressing Prior Authority DQ1.57(a): Radium [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

37. The Logic of Albers 2. Addressing Prior Authority i.Tort Liability v. Property Rights ii.Prior Escape Cases A.Manning B.Generally C.Ontario Case (DQ1.56(a)) (URANIUM) iii.“Wholly Inapplicable” Cases iv.Statute re Common Law (DQ1.56(b))

38. The Logic of Albers: Addressing Prior Authority DQ1.56(a): Uranium Campbell v. Hedley (Ontario 1917) Essentially same facts as Albers. “In an action to recover the value of [the fox] pelt the plaintiff was defeated. That court applied the common-law rule, citing Blackstone and … Mullett….”

39. The Logic of Albers: Addressing Prior Authority DQ1.56(a): Uranium Campbell v. Hedley (Ontario 1917) Essentially same facts as Albers. Finder wins under common law rule. Ontario “corrects” the case by passing “An act for the protection of property in foxes kept in captivity.” What is the significance to the logic of Albers of the Ontario statute “correcting” the case?

40. The Logic of Albers 2. Addressing Prior Authority i.Tort Liability v. Property Rights ii.Prior Escape Cases iii.“Wholly Inapplicable” Cases iv.Statute re Common Law (DQ1.56(b))

41. The Logic of Albers: Addressing Prior Authority (1 st full para. p.48): “We take no notice of” cases involving theft from traps & cages and theft of dogs because they are “wholly inapplicable.” 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.

42. The Logic of Albers 2. Addressing Prior Authority i.Tort Liability v. Property Rights ii.Prior Escape Cases iii.“Wholly Inapplicable” Cases” iv.Statute re Common Law (DQ1.56(b)) (URANIUM)

43. The Logic of Albers: Addressing Prior Authority DQ1.56(b): Uranium 1861 Colo. Statute (Bottom p.48): 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. What argument did D make relying on this statute?

44. The Logic of Albers: Addressing Prior Authority DQ1.56(b): Uranium 1861 Colo. Statute (Bottom p.48): 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. D must have argued that statute required the court to follow the common law Mullett-Blackstone rule, since not repealed by Colo. Legislature. Why did the court reject the argument?

45. The Logic of Albers: Addressing Prior Authority DQ1.56(b): Uranium 1861 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?

46. The Logic of Albers: Addressing Prior Authority DQ1.56(b): Uranium Court finds the common law rule “inapplicable” because unsuited to present conditions. Why unsuited here? Common Law 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

47. The Logic of Albers: Addressing Prior Authority DQ1.56(b): Uranium Court finds the common law rule “inapplicable” because unsuited to present conditions. – Common Law Rule assumed wild animals had no material value – Since that is no longer true, need different rule. Common Type of Legal Argument: Check purpose of old rule to see if it should still apply. Questions?

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

49. 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]

50. The Logic of Albers: What The Case Holds (p.49): 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.”

51. The Logic of Albers: What The Case Holds (p.49): 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 ….

52. 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 …

53. 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.”

54. The Logic of Albers: What The Case Holds DQ1.57(c): (ALL PLAY) Any factors that Albers treats as relevant that are not explicitly part of the analysis in Manning or Mullett?

55. The Logic of Albers: What The Case Holds DQ1.57(c): 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)

56. The Logic of Albers: What The Case Holds DQ1.57(d): Articulate Possible 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

57. The Logic of Albers: What The Case Holds DQ1.57(d): Articulate Possible Rule in Albers Helpful to Note Dual Focus on OO & F Completing Albers Brief Like Manning, many possible broad holdings. – I’ll include more than one in Sample Brief posted later this week.

58. The Logic of Albers: What The Case Holds DQ1.57(d): Articulate Possible Rule in Albers Helpful to Note Dual Focus on OO & F Completing Albers Brief Rationales – Doctrinal = Difficult because court rejects most prior authorities. – Policy = Several possibilities; again helpful to note dual focus – I’ll include examples in Sample Brief posted later this week.

59. The Logic of Albers: What The Case Holds Qs on Albers Holding or Reasoning?

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: Critique DQs 1.59 & 1.58: Radium MARIE CURIE: Discoverer of Radium

62. The Logic of Albers: Critique DQ 1.59: Radium Can you describe what happened in Albers in terms of Demsetz’s first thesis?

63. 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

64. The Logic of Albers: Critique RADIUM DQ1.59: Demsetz’s 1 st Thesis Decision: Finder’s Choice: Keep found animal or pelt v. Look for OO Old Rule: Mullett/ Blackstone Rule Externalities?

65. The Logic of Albers: Critique RADIUM DQ1.59: 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?

66. The Logic of Albers: Critique RADIUM DQ1.59: 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?

67. The Logic of Albers: Critique RADIUM DQ1.59: 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?

68. The Logic of Albers: Critique RADIUM DQ1.59: 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? Colo. S.Ct. (and Ontario Legislature) alter Mullett rule to protect fox farms. Would Demsetz Like the Result?

69. The Logic of Albers: Critique RADIUM DQ1.59: 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.