1. ELEMENTS B POWER POINT SLIDES Class #16 Wednesday, September 30, 2015

2. Pictures at AN Exhibition Music (for Piano) by Modest Moussorsky (1874) Orchestration by Maurice Ravel (1922) Recording by Cleveland Orchestra (1979) Lorin Maazel, Conductor RADIUM WRITTEN BRIEF #2: Taber v. Jenny (64-65) DUE Tomorrow @ 10pm Use Instructions for Briefing Trial Court Decisions (59-60) & for Written Assignments & Case Briefs (IM21-22) Use Instructions for Briefing Trial Court Decisions (59-60) & for Written Assignments & Case Briefs (IM21-22) See Introduction to Whaling Cases & Glossary (60-63) See Introduction to Whaling Cases & Glossary (60-63) Assignment Sheet Updated to Reflect Where We Are In-Class Work on Taber Postponed Until After Break

3. Group Written Assignment #2: Meyer v. Harbaugh The Case of the Wounded Wolverine

4. Skills: Applying Legal Authority Group Written Assignment #2 Important Exam Task/Skill: Apply Authorities Studied to New Hypothetical or “Fact Pattern” Assmt #1 : Structured Sequence of Particular Arguments from a Single Authority Assmt #2: Wider Range of Arguments from Multiple Authorities

5. Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits 1.Each Team Only Addresses One Issue: – “First Possession” = Was There a Moment When Wolverine Became Property of P? Acquired – “Escape” = Did P Lose Property Rights When Wolverine “Escaped” to D’s Property (Must Assume P Acquired a Property Right)

6. Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits 1.Each Team Only Addresses One of Two Issues (1 st Possession -OR- Escape) – Stick to Your Issue – Be Very Careful to Explain Relevance If You Use Authority Focused on Other Issue

7. Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits 1.Each Team Only Addresses One Issue 2.Representing One Particular Party – All Arguments Must Support Your Client – Legal Smeagols: Identify Other Side’s Best Arguments, Then Respond to Them

8. Skills: Applying Legal Authority Group Written Assignment #2 Wide Range of Arguments w 3 Limits 1.Each Team Only Addresses One Issue 2.Representing One Particular Party 3.Arguments must be “based on the materials in Unit One.” – No arguments based on Whaling Cases – No arguments based on Rose Article – Can include policy arguments we’ve discussed even if not clearly stated in Unit One materials.

9. Skills: Applying Legal Authority Group Written Assignment #2 One “Argument” Means One Subject E.g., Arguments Made in Assignment #1 E.g., Arguments Made in Assignment #1 – Applying One Legal Test – Comparing Facts of One Case to Hypo – Applying One Relevant Policy Consideration

10. Skills: Applying Legal Authority Group Written Assignment #2 One “Argument” Means One Subject E.g., Arguments Made in Assignment #1 E.g., Arguments Made in Assignment #1 E.g., Applying One Relevant Factor E.g., Applying One Relevant Factor – Mortal Wounding – Return to Natural Liberty Deriving a Rule from Multiple Cases and Applying It Deriving a Rule from Multiple Cases and Applying It – See – See DQ1.28 (1 st Possession Cases) See See DQ1.53 (Manning & Mullett)

11. Skills: Applying Legal Authority Group Written Assignment #2 One “Argument” Means One Subject Some Degree of Judgment Involved Mortal Wounding (+ Pursuit?) Two Similar Tests from Separate Cases? Address Counter-Argument in Same Argument or Separately? When in Doubt, Avoid Substantial Overlap

12. Skills: Applying Legal Authority Group Written Assignment #2 Working Together Be Responsible for Submission as a Whole – Covering all Key Arguments You Identify – Addressing Key Counterarguments – Separating Out Different Ideas – Avoiding Substantial Overlap Due October 24 (Saturday Two Weeks after Break) – Before Break Should Start to Work Out Individual Responsibilities and Timing – Cooperate to Achieve Best Possible Joint Product

13. Skills: Applying Legal Authority Group Written Assignment #2 General Points 1.Care re Formatting & Substantive Directions 2.Review “Common Writing Concerns” 3.Look at Feedback on Assignment #1 – Comments & Best Answers Memo on Course Page – Individual Comments on Your Work Will Start Appearing During Break QUESTIONS?

14. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES QUESTIONS ON: Instructions for Briefing Trial Court Cases (59-60) Intro to Whaling Cases (60-62) Glossary (63)

15. UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASES MAJOR LEGAL Qs COVERED Taber v. Jenny: Escape (by Analogy); Custom Bartlett v. Budd: Escape (by Analogy); Custom Swift v. Gifford: 1st Possession; Custom (Key) Ghen v. Rich: Like Wolverine Problem (Both 1st Possession & Escape (by Analogy)); Custom (Key)

16. Return to Return to Mullett v. Bradley Factors Applied to … DQ1.51: Facts of Manning (KRYPTON) DQ1.54: Facts of Albers (RADIUM)

17. Mullett Factors Intent to Return ( AR ) Types of Evidence Relevant to AR Blackstone: “Usual Custom of Returning” Mullett: Behavior of Animal Possible Purposes Behind AR as Factor Shows Training Shows Emotional Bond Shows Reasonable to Allow Animal Out

18. Mullett Factors Intent to Return ( AR ) DQ1.51: Applied to Manning (KRYPTON) Evidence in Manning Relevant to AR – One prior return Not “usual custom” v. cute atty argument (100% return rate) Bird returned despite no evidence of relevant training – Away 5 days; to different house in same town (trying?) Fit Purposes Behind Factor? – Shows Training? – Shows Emotional Bond? – Shows Reasonable to Allow Animal Out?

19. Mullett Factors Intent to Return ( AR ) DQ1.51: Applied to Manning (KRYPTON) Evidence in Manning Relevant to AR – One prior return – Away 5 days; to different house in same town (trying?) Not Great Fit With Purposes Behind Factor – Actions Consistent w No Training or Emotional Bond – No Real Evidence That Reasonable to Allow Animal Out

20. RADIUM DQ1.55 Albers on Manning How does Albers characterize the holding in Manning?

21. RADIUM DQ1.55 Albers on Manning How does Albers characterize the holding in Manning? One Escape/Return = Animus Revertendi (Bottom p.47) BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR So why does court say this?

22. RADIUM DQ1.55 Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” Court (or treatise authors) might read Manning this way to reconcile result with the Mullett-Blackstone Rule: Court returned bird to OO, so must’ve believed AR. Other ways to reconcile?

23. RADIUM DQ1.55 Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” Other ways to reconcile the result with the Mullett-Blackstone Rule? Canary was domesticated not wild. Canary never returned to NL.

24. RADIUM DQ1.55 Albers on Manning Albers characterizes the holding in Manning as “One Escape/Return = AR” Trying to reconcile the result with the Mullett-Blackstone Rule Note that Georgia case and NY case do not have to agree; OK if not reconcilable.

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

26. Mullett Factors Intent to Return ( AR ) DQ1.54: Applied to Albers (RADIUM) 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)

27. 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 : “Intent to Return” & Single Return in Manning – Compare EASY CASE: “Intent to Return” & Albers

28. 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

29. 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.”

30. Mullett Factors Return to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) 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?

31. Mullett Factors Return to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) 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?

32. 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

33. Mullett Factors Return to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) 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)

34. Mullett Factors Return to Natural Liberty DQ1.51: Applied to Manning (KRYPTON) 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

35. Mullett Factors T ogether DQ1.51: Applied to Manning (KRYPTON) 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

36. Mullett Factors Return to Natural Liberty DQ1.54: Applied to Albers (RADIUM) 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.)?

37. Mullett Factors Return to Natural Liberty DQ1.54: Applied to Albers (RADIUM) 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.

38. Mullett Factors Return to Natural Liberty DQ1.54: Applied to Albers (RADIUM) 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?

39. 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.

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

41. Mullett & Manning Together RADIUM : DQ 1.52-1.53

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

43. Comparing Mullett to Manning RADIUM : 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?

44. Comparing Mullett to Manning RADIUM : 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) Would be Very Unusual for an Exam Hypo, where situation typically like squirrel hypo in DQ1.48: – Better on some factors, worse on others – You then have to discuss which factors should outweigh the others and why.

45. Mullett & Manning : DQ 1.53 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? I’ll Go Through Some Examples Friday

46. 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

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

48. 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) Leads to sequence of arguments about whether fox is wild or domestic, 4 of which we’ll look at in detail.

49. 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”

50. 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?

51. 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. Thus, arguing that all foxes are wild. Court’s Response?

52. 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.

53. 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 in an individual case.

54. 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”

55. 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 animal is “domesticated” if born in captivity (so fox here is domesticated). Court disagrees in this passage; consistent w focus on individual animal.

56. 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”

57. 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?

58. 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)

59. 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.

60. 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.

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

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

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

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

65. 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”

66. 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.”

67. 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”.

68. 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 conditional form, used to describe hypothetical situations.

69. 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).”

70. 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 Court Must’ve Decided the Fox was Wild Court Must’ve Decided the Fox was Wild – Otherwise Much Simpler to Conclude P Wins – Q Not Part of Issue/Holding b/c Court Adopts D’s Position on This, but P Still Prevails Overall

71. 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’ Def. of “Domestic Animal”: Too Broad Court Must’ve Decided the Fox was Wild Court Must’ve Decided the Fox was Wild – Otherwise Much Simpler to Conclude P Wins – Q Not Part of Issue/Holding b/c Court Adopts D’s Position on This, but P Still Prevails Overall Questions?

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

73. 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))

74. 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

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

76. 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)) (OXYGEN) C.Ontario Case (DQ1.56(a)) iii.“Wholly Inapplicable” Cases iv.Statute re Common Law (DQ1.56(b))

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

78. The Logic of Albers: Addressing Prior Authority DQ1.57(a): OXYGEN 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?

79. The Logic of Albers: Addressing Prior Authority DQ1.57(a): OXYGEN 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)….”

80. The Logic of Albers: Addressing Prior Authority DQ1.57(a): OXYGEN 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?

81. The Logic of Albers: Addressing Prior Authority DQ1.57(a): OXYGEN [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?

82. The Logic of Albers: Addressing Prior Authority DQ1.57(a): OXYGEN [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

83. 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)) (OXYGEN) iii.“Wholly Inapplicable” Cases iv.Statute re Common Law (DQ1.56(b))

84. The Logic of Albers: Addressing Prior Authority DQ1.56(a): OXYGEN Campbell v. Hedley (Ontario 1917) Essentially same facts as Albers. 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….”

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

86. The Logic of Albers: Addressing Prior Authority Campbell v. Hedley (Ontario 1917): Essentially same facts as Albers. Finder wins under common law rule. Ontario legislature “corrects” by passing “An act for the protection of property in foxes kept in captivity.” Colo. S.Ct: Colo. S.Ct: – Ontario legislature “found it necessary to correct” the common law rule because it “was so inapplicable to present- day conditions.” – Ontario legislature “found it necessary to correct” the common law rule because it “was so inapplicable to present- day conditions.” (bottom p.48) – Supports argument that common law rule shouldn’t be used where there’s a fox-fur industry and so is inapplicable.

87. The Logic of Albers: Addressing Prior Authority Campbell v. Hedley (Ontario 1917): Essentially same facts as Albers. Finder wins under common law rule. Ontario legislature “corrects” by passing “An act for the protection of property in foxes kept in captivity.” Colo. S.Ct: Ontario legislature “found it necessary to correct” the common law rule because it “was so inapplicable to present-day conditions.” Supports argument that common law rule shouldn’t be used where there’s a fox-fur industry and so is inapplicable. Colo. S.Ct: Ontario legislature “found it necessary to correct” the common law rule because it “was so inapplicable to present-day conditions.” Supports argument that common law rule shouldn’t be used where there’s a fox-fur industry and so is inapplicable. Questions on Use of Ontario Law?

88. 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))

89. 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.

90. 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)) (OXYGEN)

91. The Logic of Albers: Addressing Prior Authority DQ1.56(b): OXYGEN 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?

92. The Logic of Albers: Addressing Prior Authority DQ1.56(b): OXYGEN 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?

93. The Logic of Albers: Addressing Prior Authority DQ1.56(b): OXYGEN 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 Morris (an earlier Colo. Case) as rejecting a common law rule for the same reason. – Why unsuited here?

94. The Logic of Albers: Addressing Prior Authority DQ1.56(b): OXYGEN 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

95. The Logic of Albers: Addressing Prior Authority DQ1.56(b): OXYGEN 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?