1. Pictures at AN Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor §D Seating §B §B Lunch Wed Sep 24 Meet on Bricks @ 12:15 Dame* Edwards Fierro * Gordon Manasseh * Piper §D Lunch Mon Sep 29 Meet on Bricks @ 11:55 Crosby * Foote * Freed Vitti * White Williams * Zwarg

2. LOGISTICS: CLASS #17 GROUP ASSIGNMENTS Group Assignment #1: Preliminary Comments & Model Answers Posted Group Assignment #2: Instructions & Teams Posted. I’ll Take Qs By E-Mail Right Away In-Class Wed/Thu

3. LOGISTICS: CLASS #17 TAKE ADVANTAGE OF AVAILABLE RESOURCES Briefs Due Sunday @ 4 pm: URANIUM BRIEF #1: Kesler Use standard briefing form (IM18-21) Kesler Quiz Posted by Saturday am Posted Manning & Mullett Briefs Double-Check Formatting Instructions Before Submitting (IM22-23)

4. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES Instructions for Briefing Trial Court Cases (56-57) Intro to Whaling Cases (57-59) Glossary (60)

5. LOGISTICS: CLASS #17 TAKE ADVANTAGE OF AVAILABLE RESOURCES Briefs Due Sunday @ 4 pm: RADIUM BRIEF #2: Taber – Pick-Up & Review Comments on Shaw Briefs – Can’t work with same partners again – Double-Check Formatting Instructions (IM22-23) – Taber Quiz Posted by Saturday am – Special for Whaling Cases Use briefing form for trial court cases (56-57) Look at Intro to Whaling Cases (57-59) & Glossary (60) May be helpful to read Bartlett v. Budd (63-64) QUESTIONS?

6. LOGISTICS: CLASS #17 DF Sessions Today & Tomorrow @ Usual Times I’ll Post As Last Slide(s) For Today Specific Instructions On Where We’ll Pick Up Mon/Tues I Get Both Classes Morning After Your Midterms: Panels On Call Gotta Be Prepared

7. Using Factors or Elements When Applying to New Facts 1.Apply One at a Time, Then Look at Whole Picture 2.If significant arguments for both parties on any one (HARD CASE), try to resolve with: – Use of Definition (where available) – Comparisons to Use of Factor/Element in Prior Cases – Purpose of Factor/Element (Policy Justifications) 3.Hard Cases/Easy Cases (cf. Adverse Possession): – Did HARD CASE Last Time: “Intent to Return” & Single Return in Manning – Compare EASY CASE: “intent to Return” & Albers

8. Mullett Factors Intent to Return ( AR ) DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Evidence Here?

9. Mullett Factors Intent to Return ( AR ) DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning”: None Mullett: Behavior of Animal Escaped w/in two weeks from significant enclosure Had run six miles in about a day Strong Case for No AR (so no need to look to policy)

10. Mullett Factors Return to Natural Liberty Evidence in Cases re Natural Habitat & NL Canaries Not Native to Georgia Canaries Not Native to Georgia & Silver-Black Foxes Not Native to Relevant Part of Colorado. Not Dispositive Under Mullett Must Look to Definition

11. Mullett Factors Return to Natural Liberty Mullett Definition (Reminder): NL = “that which the animal formerly enjoyed, namely, to provide for itself, in the broadest sense which the phrase may be used.” Regained NL = “when, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.”

12. Mullett Factors Return to Natural Liberty DQ1.51: Applied to Manning (OXYGEN) Definition : “to provide for itself, in the broadest sense which the phrase may be used. … [W]hen, by its own volition, it has escaped from all artificial restraint and is free to follow the bent of its natural inclination.” We Know: Out for 5 days then flew into B’s kitchen What Else Would You Like to Know?

13. Mullett Factors Return to Natural Liberty Evidence Relevant Under Definition of NL Condition of the Animal Similarity of Area to Natural Habitat (Food, Climate, etc.) Purpose(s) of Rule Consistent w Definition Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal Protect Ordinary F Who Can’t Tell if Prior Owner

14. Mullett Factors Return to Natural Liberty DQ1.51: Applied to Manning (OXYGEN) Evidence Relevant Under Definition of NL Condition of the Animal Similarity of Area to Natural Habitat (Food, Climate, etc.) No Info in Manning: Especially want to know re Food Supply Canary & Local Georgia Winter (Savannah v. Mountains)

15. Mullett Factors Return to Natural Liberty DQ1.51: Applied to Manning (OXYGEN) Fit Purpose(s) of Rule? Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal Protect Ordinary F Who Can’t Tell if Prior Owner

16. Mullett Factors T ogether DQ1.51: Applied to Manning (OXYGEN) 1.Abandonment: Strong Evidence Against 2.Intent to Return (AR): One Escape & Return 3.Return to Natural Liberty (NL): Unclear – Not sure if could survive Georgia winter – Not sure if most finders would know there must be prior owner

17. Mullett Factors Return to Natural Liberty DQ1.54: Applied to Albers (KRYPTON) Silver-Black Foxes Not Native to Area (Not Conclusive) Types of Evidence Relevant Under Definition of NL Condition of the Animal? Similarity of Area to Natural Habitat (Food, Climate, etc.)?

18. Mullett Factors Return to Natural Liberty DQ1.54: Applied to Albers (KRYPTON) Types of Evidence Relevant Under Definition of NL Condition of the Animal: No evidence of problems, but not out very long. Similarity of Area to Natural Habitat : Not much re habitat of silver-black foxes, but language suggests other foxes are native.

19. Mullett Factors Return to Natural Liberty DQ1.54: Applied to Albers (KRYPTON) Purpose(s) of Rule Consistent w Definition Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal Protect Ordinary F Who Can’t Tell if Prior Owner Fit Purpose(s) of Rule?

20. Albers: Return to NaturalLiberty The Supreme Court of Colorado must have believed that the fox returned to natural liberty before it was killed and that thus D would win under Mullett. Otherwise, no reason to create excep- tion to Mullett rule to protect industry.

21. Mullett Factors T ogether DQ1.54: Applied to Albers (KRYPTON) Abandonment: By compulsion, which (court seems to say) doesn’t count against OO AR: No Return to NL: Court must have thought “Yes” QUESTIONS?

22. Manning v. Mitcherson Factors Applied to … DQ1.48: Squirrel Hypothetical (B: URANIUM) DQ1.54: Facts of Albers (D: KRYPTON)

23. DQ 1.48: Articulating Manning Holding : Nature of the Exercise Lots of Ways to Articulate Manning Holding – Can Include or Exclude Particular Facts – Can Describe Facts More Specifically or More Generally Squirrel Hypo designed to get you to – Play with the holding in the way that litigators do – Find one plausible version helpful to client’s position. Requested Work-Product was Simply a Version of Manning Holding (Helpful to Assigned Client)

24. DQ 1.48: Articulating Manning Holding : Nature of the Exercise Squirrel Hypo designed to get you to – Play with the holding in the way that litigators do – Find one plausible version helpful to client’s position. Good Way to Start – Apply Manning Factors to Hypo – Determine strengths & weaknesses under Manning of your client’s position. We’ll Integrate with Application of Manning Factors to Albers to Further Explore How Manning Factors Operate

25. Manning v. Mitcherson Relevant Factors Taming (or Other Investment in Animal) Emotional Bond Marking (or F Likely Aware of OO) Short Time/Distance from Escape

26. Manning Factors : Taming ( or other Investment ) Emotional Bond DQ1.48: Squirrel Hypo (URANIUM) Relevant Evidence OO Labor to Capture, but No Purchase $$$ Responded to Name (Trained) OO Owned for Three Months No Prior Escape & Return Comfort with Humans More Helpful to Amy (OO) or Brandon (F)?

27. Emotional Bond (Going Forward) Manning v. Mitcherson Relevant Factors Emotional Bond (Going Forward) Rest of “escape” cases arise in commercial contexts (fur fox farming; whaling) where emotional bond is not very relevant. I’m not going to include emotional bond in applications of Manning in these contexts “Menagerie Animals” suggests not necessary for Manning You can bring it back for other problems we do to the extent you can explain its relevance.

28. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (KRYPTON) Evidence re Taming: Animal owned for two weeks before escape Fox took food from keeper’s hand Big Deal? How Does Court Describe?

29. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (KRYPTON) Evidence re Taming: Fox took food from keeper’s hand (over 2 weeks) “Semi-Domesticated” Court: “Semi-Domesticated” (= Trained Enough to Drive a Tractor-Trailer??) Enough for “Tamed”?

30. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (KRYPTON) Evidence re Taming: Fox took food from keeper’s hand. Enough? If unsure, check for purposes behind rule Taming shows labor and emotional bond. Purposes furthered here?

31. Manning Factors : Taming ( or other Investment ) DQ1.54: Applied to Albers (KRYPTON) Evidence re Taming: Pretty weak on purposes  weak case for taming. As with Mullett, could say even if animal not tamed, should protect $$$ investment.

32. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.48: Squirrel Hypo (URANIUM) Relevant Evidence: Recognizable from “Markings” Enough Comfort with Humans to “Charm” F More Helpful to Amy (OO) or Brandon (F)?

33. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (KRYPTON) Evidence re Marking: Tattoos in Ears (1/335) How Strong are Marks?

34. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (KRYPTON) Marking = Tattoos in Ears. How Strong?  335 = Clearly Man-Made (Maybe Not 1)  Unlikely to Disappear  Identifies Owner  Industry Practice  Maybe Hard for Non-Expert to Find? (Check Size)

35. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (KRYPTON) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder?

36. Manning Factors : Marking ( or F Likely Aware of OO ) DQ1.54: Applied to Albers (KRYPTON) Marking/Notice to Finder Tattoos in Ears = Quite Strong Marking Other Facts Giving Notice to Finder?  Type of Fox Unknown in Area  Industry Well-Known in Area  Defendant is Member of Industry/Manager = Expert

37. Albers (Marking/Notice to F’) Significance of Marking Under Mullett-Blackstone Rule Blackstone, quoted in Albers p.47: “[I]f a deer, or any wild animal reclaimed, hath a collar or other mark put upon him, and goes and returns at his pleasure;... the owner's property in him still continues … but otherwise, if the deer has been long absent without returning.” – “and” seems to say mark only matters if intent to return – Last phrase seems to make time relevant as well, maybe to AR (as it’s used in Mullett).

38. Manning Factors : Short Time or Distance from Escape DQ1.54: Applied to Albers (KRYPTON) Significance of Evidence re Time/Distance? Animal Ran Six Miles Before Being Killed Animal Killed One Day After Escape Unknown Time Before OO Claimed Pelt (Not Very Long): Escape is Jan/Feb 1926 Colo SCt Opinion is 1927 (after 2 trials & oral argument)

39. Manning Factors : TOGETHER DQ1.54: Applied to Albers (KRYPTON) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Result under Manning?

40. Manning Factors : TOGETHER DQ1.54: Applied to Albers (KRYPTON) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Overall result unclear (typical for exam Q) Might argue it’s like escaped menagerie animal b/c investment & good notice to F. If so, back to OO

41. Manning Factors : TOGETHER DQ1.54: Applied to Albers (KRYPTON) TAMING/$$$: Weak re Taming; More $$$ than Manning MARKING/NOTICE: Very strong; better than Manning TIME & DISTANCE Prior to Escape: Less than Manning After Escape: Similar to Manning Questions on Application of Manning to Albers Facts?

42. Manning Factors : Short Time or Distance from Escape DQ1.48: Squirrel Hypo (URANIUM) Relevant Evidence: Time: Escape to Find: Unclear Distance: Escape to Find: “Across Town” Time: Find to OO Claim: 2 Months More Helpful to Amy (OO) or Brandon (F)?

43. DQ1.48: Squirrel Hypo (URANIUM) Manning Factors : TOGETHER DQ1.48: Squirrel Hypo (URANIUM) Helpful to A/OO Owned for 3 Months Responds to Name Comfortable w Humans Identifying Markings Helpful to B/F Squirrel Travels “Across Town” No Prior Return 2 Months Before Found Markings Not Man-Made (apparently)

44. DQ 1.48: Articulating Manning Holding : Nature of the Exercise Squirrel Hypo designed to get you to – Play with the holding in the way that litigators do – Find a plausible version helpful to client’s position. Apply Manning Factors to Hypo; Determine Strengths & Weaknesses of Client’s Position. Try to craft holding that emphasizes strengths and minimizes weaknesses.

45. DQ 1.48 Articulating Manning Holding Sample for Amy (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].

46. DQ 1.48 Articulating Manning Holding Samples for Amy (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 (2)tamed, trained to answer by name, and marked in such a way as to make identification straightforward – Cf. “distinctively marked”

47. DQ 1.48 Articulating Manning Holding Sample for Amy (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; Manning doesn’t say that.

48. DQ 1.48 Articulating Manning Holding Sample for Brandon (very narrow version; includes almost all facts not helpful to Amy ): 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.

49. DQ 1.48 Articulating Manning Holding 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. Clever, especially if compared to “a short time”

50. DQ 1.48 Articulating Manning Holding Sample for Brandon: (ME: Conceding Taming) OO retains property rights in an escaped animal f.n. that was tamed had a distinctive man-made mark and was claimed shortly after escape

51. Mullett & Manning Together OXYGEN : DQ 1.52-1.53

52. Comparing Mullett and Manning OXYGEN : DQ 1.52 Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why?

53. Comparing Mullett to Manning OXYGEN : DQ 1.52 Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why? Helpful Qs: Strongest points for OO in Mullett? Strongest points for F in Manning?

54. Comparing Mullett to Manning OXYGEN : DQ 1.52 Manning is a better case for the OO on virtually every factor explicitly made relevant by the two cases (maybe excepting $$ investment & strength of mark) Very unusual. In exam hypos, situation typically like squirrel hypo (better on some factors, worse on others), so you have to discuss which factors outweigh the others and why.

55. Mullett & Manning : DQ 1.53 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett?

56. Mullett & Manning : DQ 1.53 ( Prior Student ) OO loses property rights in an escaped animal when the animal, without an intention to return, can provide for itself and is free to follow its natural inclinations. Essentially a restatement of Mullett rule, so consistent with Mullett. Consistent with Manning if you assume the canary could not have provided for itself.

57. Mullett & Manning : DQ 1.53 ( Prior Student ) OO loses property rights in an escaped animal when the animal 1.has no intent to return; 2.is in its state of natural liberty; and 3.does not show a connection with the OO through physical marks or taming.

58. Mullett & Manning : DQ 1.53 ( Prior Student ) OO loses property rights in an escaped animal when the animal has no intent to return; is in its state of natural liberty; and does not show a connection with the OO through physical marks or taming. CLEVER – Adds to the Mullett factors two factors from Manning that clearly distinguish the two cases – Would mean that animals that otherwise would go to F under Mullett stay with OO if tamed or marked.

59. Mullett & Manning : DQ 1.53 ( Prior Student ) OO loses property rights in an escaped animal when the OO shows intent to abandon the animal. Interesting Idea: Puts focus entirely on showing “intent to abandon” Looks like using Shaw rule for 1 st Possession as basis of escape rule

60. Mullett & Manning : DQ 1.53 ( Prior Student ) “OO loses property rights in an escaped animal when the OO shows intent to abandon the animal.” Puts focus entirely on “intent to abandon” Use of “shows” might put emphasis on acts of OO rather than proof of subjective intent. Would need to resolve “abandonment” in favor of F in Mullett (which court did not do). Could argue that placing sea lion on island w/o confinement meets test.

61. Pictures at AN Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor Ravel Orchestration & Analogy to Albers

62. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers… ??? sued E.A. Stephens & Co, … for [cause of action] seeking [remedy]

63. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, [fox breeder and] OO of an escaped fox killed by a third party, [as opposed to Mullett where court didn’t seem to care that OO was in business] sued E.A. Stephens & Co, … ??? for [cause of action] seeking [remedy]

64. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, [fox breeder,] which purchased the pelt of the fox for [cause of action] ??? seeking [remedy]

65. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox presumably for conversion… seeking [remedy] ???

66. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Statement of the Case: Albers, OO of an escaped fox killed by a third party, sued E.A. Stephens & Co, which purchased the pelt of the fox, presumably for conversion seeking … damages (the value of the pelt). Even though 2d trial was replevin for return of the pelt, describe initial lawsuit in Statement.

67. Albers v. E.A. Stephens & Co.: BRIEF: URANIUM (D) Procedural Posture: [After a trial, the court entered judgment for plaintiff for value of pelt. On appeal, the case was retried as a replevin action.] After a [second] trial, the court entered judgment for the plaintiff for return of the pelt or payment of its value. Defendant appealed. $$ amount of value of the pelt doesn’t seem relevant to analysis.

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

69. The Logic of Albers: Domesticated or Wild? Parties’ Presumption (p.46): 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)

70. 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.

71. 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”

72. REVISED ASSIGNMENT: CLASS #18 Mon & Tue, we’ll spend the whole class on Albers & put off Kesler & related DQs to Wed/Thu – I will call on Uraniums for DQ1.56(a)&(b) – I will call on Radiums for DQs 1.57(a)&(b), 1.58-1.59