1. MUSIC: “Crazy for You” Cast Album (1992); Music & Lyrics by George & Ira Gershwin (1918-37) If you are taking Elements exam Friday: – Look at Info Memo #4 – Office Hours Today 9:45-10:45, 5-6:30

2. The Logic of Albers: Critique DQ55: Authority of Colo. S. Ct.(URANIUM) Pros/cons of allowing courts to alter/develop law (as in Albers) v. legislature (as in Ontario)? – Relative institutional strengths? – Democratic theory? – Certainty/notice?

3. The Logic of Albers: Critique DQ55: Authority of Colo. S. Ct. 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.47)

4. CHARTING AS STUDY TOOL FACTORMANNINGMULLETTALBERS MARKING/ FINDER’S KNOWLEDGE (FK) Parted Crest (Man- Made, Not Permanent; Other Bird has) Treated as Relevant Refers to Menagerie Animals/Organ Grinder Monkey; could mean FK Scarring (Probably not clearly man- made; likely permanent) Not Treated as Relevant Holds: can be NL w/o being Nat’l Habitat; could be concern about FK, but not explicit Tattoo w #s in Ears (man- made; permanent; industry custom; i.d.s OO); F knew of industry & that fox likely from fox farm Treats both mark and FK as relevant F can’t take Seal in Millpond; Bear in City; looks like FK Has Blackstone language re mark only matters if AR

5. §B Mid-Semester Assessment & Expectations for Second Half Collective Strengths: – Application of Tests to New Facts (DQ51) – General Policy Discussions (DQ55) – Positive Energy & Group Cooperation

6. §B Mid-Semester Assessment & Expectations for Second Half Collective Weaknesses: – Getting Sloppy re Preparation & Readiness Need to Have Notes Ready –OR- Be Able to Discuss Without Notes Even more important that panel ready in 2d half: time tighter & others rely on you more –

7. §B Mid-Semester Assessment & Expectations for Second Half Collective Weaknesses: – Reading Carefully Many Submitted Briefs Pretty Weak – Errors on Basic Points – Inability to Discern What Court was Deciding – Lot of Errors re Formatting & Parts of Brief Some Albers DQs

8. Mid-Semester Assessment & Expectations for Second Half Albers Rapidly Addresses Many Arguments Can Be Hard for 1Ls to See Significance: – What the parties had argued – Precise nature of Court’s responses Push yourselves to get as much as possible – For clients: You are their translators and you will not have back-up! – For class: I will expect better going forward.

9. Kesler v. Jones: Krypton(ite)

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

11. Kesler v. Jones BRIEF: Krypton Statement of the Case: Kesler, the owner 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

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

13. Kesler v. Jones BRIEF: Krypton 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 the pelt, for [cause of action] ??? seeking [remedy].

14. Kesler v. Jones BRIEF: Krypton 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 the pelt, for unlawful killing of the fox and unlawful retention of its pelt seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?

15. Kesler v. Jones BRIEF: Krypton 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

16. Kesler v. Jones BRIEF: Krypton 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 the pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages. PROCEDURAL POSTURE?

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

18. Kesler v. Jones BRIEF: Krypton 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…” –“the cause remanded for a new trial …”

19. Kesler v. Jones FACTS 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.

20. Kesler v. Jones BRIEF: Krypton Kryptons How Many Kryptons Saw That There Were Two Issues in Case? (Show of Hands) Radioactive (Uraniums are Radioactive for This Purpose and Must Be Silent and Still!)

21. Kesler v. Jones BRIEF: Krypton How You Know There Are Two Issues In Case: 1.Two different kinds of legal claims addressed – Unlawful killing of fox (Q of justification for shooting) – Unlawful retention of pelt (Q of 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

22. Kesler v. Jones BRIEF: Krypton 1st Issue (Unlawful Killing): Did trial court err in entering judgment for defendant 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, so don’t have other examples to look at:

23. Kesler v. Jones BRIEF: Krypton 1st Issue (Unlawful Killing): Pretty General Version Did trial court err in entering judgment for defendant 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.

24. Kesler v. Jones BRIEF: Krypton 1st Narrow Holding (Unlawful Killing): No, trial court did not err in entering judgment for defendant because a person does have the right to kill a fox escaped from captivity when asked to help protect a neighbor’s chickens from the fox. QUESTIONS?

25. Kesler v. Jones (Krypton) DQ57: 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 the foxes, why is it legally acceptable for a third party to kill them?

26. Kesler v. Jones (Krypton) DQ57: Severability of Property Rights Can have some rights with regard to an object without having all possible rights

27. Kesler v. Jones (Krypton) DQ57: Severability of Property Rights Can have some rights with regard to an object without having all possible rights Common Examples: – Landlord-Tenant – Ratione Soli

28. Kesler v. Jones (Krypton) DQ57: 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

29. Kesler v. Jones (Krypton) DQ57: 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 – You still own the cut wood.

30. Kesler v. Jones (Krypton) DQ57: 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). Could fold some of this language into issue/holding.

31. Kesler v. Jones (Krypton) DQ57: 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.”

32. Kesler v. Jones (Krypton) DQ57: Severability of Property Rights BOTTOM LINE Fox owners’ property rights limited to protect property of others (e.g., chickens) Jones has right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot. Qs?

33. Kesler v. Jones (Krypton) DQ58: Factual Differences from Albers Important Exam Skill: Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance – Weakest Answers Tend to Ignore Differences – Better Answers See Arguments That New Facts Change Result – Best Answers Discuss Why They Might or Might Not Change Result Explanation of Significance is Key Part of More General Point: Use Every Fact I Give You I’ll give you an exercise later: if change facts in wolverine problem, how might it affect result?

34. Kesler v. Jones (Krypton) DQ58: Factual Differences from Albers Identify Factual Differences Between Kesler and Albers & Discuss Possible Significance Start by Creating List of Differences

35. Kesler v. Jones (Krypton) DQ58: Factual Differences from Albers Probably Less Significant Differences 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 innocent purchaser, but not true in either case) 4.Caretakers in possession rather than OO (not clear why this would effect result)

36. Kesler v. Jones (Krypton) DQ58: Factual Differences from Albers Probably Most Significant Differences 1.Kesler c aretakers 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.

37. Kesler v. Jones (Krypton) DQ58: Factual Differences from Albers Help OO or F (and Why?) 1.Kesler c aretakers 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.

38. Kesler v. Jones (Krypton) DQ59: Differences in Analysis from Albers Albers assumes F would win under the rule in Mullett, so it carves out an exception to that rule for valuable wild animals. How does Kesler deal with the Mullett rule?

39. Kesler v. Jones (Krypton) DQ59: Differences in Analysis from Albers Kesler holds that the fox never returned to natural liberty because she … “had formerly escaped and been recaptured; she had been out of her pen but a short time; her owners were in pursuit [and] she was killed but a short distance from her pen….”

40. Kesler v. Jones (Krypton) DQ59: Differences in Analysis from Albers Note what Kesler says about Albers: “Stephens & Co. v. Albers, a case squarely in point, supports the conclusion herein....” [i.e., NOT the reasoning.]

41. Kesler v. Jones (Krypton) DQ59: Differences in Analysis from Albers Albers: Returns pelt to OO by rejecting Mullett rule & creating new rule for valuable animals v. Kesler: Returns pelt to OO by applying Mullett rule

42. Kesler v. Jones BRIEF: Krypton 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

43. Kesler v. Jones BRIEF: Krypton 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?

44. Kesler v. Jones (Krypton) DQ59: Differences in Analysis from Albers Note block quote from treatise (p.50): 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.”

45. Kesler v. Jones (Krypton) DQ59: Differences in Analysis from Albers Compare block quote (p.50) to Manning (p.38): 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.”

46. 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?

47. Pierson and Kesler : First Possession v. Escape Same terms can have different significance depending on context. Same terms can have different significance depending on context.

48. Pierson and Kesler : First Possession v. Escape Same terms can have different significance depending on context: Pursuit Unowned Animal: Close pursuit insufficient to create ownership. Unowned Animal: Close pursuit insufficient to create ownership. Escaped Animal: Close pursuit may be sufficient to maintain ownership. Escaped Animal: Close pursuit may be sufficient to maintain ownership.

49. Pierson and Kesler : First Possession v. Escape Same terms can have different significance depending on context: Natural Liberty Unowned Animal: Close pursuit insufficient to deprive animal of NL Unowned Animal: Close pursuit insufficient to deprive animal of NL Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL. Escaped Animal: Close pursuit may be sufficient to prevent animal from returning to NL.