“Crazy for You” Cast Album (1992); Music & Lyrics by George & Ira

Gershwin (1918-37)

• Now Online:– Slides from Wednesday

– New Assignment Sheet

• If you are taking my exam Sunday:– Look at Info Memo #3

– Office Hours 2-6 p.m. Tomorrow

UNIT II: EXTENSION BY ANALOGY

§A. WHALING CASES

INTRODUCTION TO WHALING

• Admiralty Actions in Federal Court– Alleged torts took place on navigable

waters

– Fed’l gov’t has exclusive jurisdiction over maritime commerce (need for uniformity)

– D.Mass. = United States District Court for the District of Massachusetts

INTRODUCTION TO WHALING

• Admiralty Actions in Federal Court

• Ships v. Boats

INTRODUCTION TO WHALING

• Admiralty Actions in Federal Court

• Ships v. Boats

• Okhotsk Sea– Spelled differently in different cases

INTRODUCTION TO WHALING

• Admiralty Actions in Federal Court

• Ships v. Boats

• Okhotsk Sea– Spelled differently in different cases

– Trip from New England (Around the Horn)

INTRODUCTION TO WHALING• Admiralty Actions in Federal Court

• Ships v. Boats

• Okhotsk Sea

• Value of Whales (Considerable): – Whale Oil (used as energy source)

– Whalebone (used in corsets)

– Ambergris (used in perfume)

– Meat (for crew)

THE LOGIC OF ALBERS

1. DOMESTICATED OR WILD

2. ADDRESSING PRIOR AUTHORITY

3. WHAT THE CASE HOLDS

4. CRITIQUE

THE LOGIC OF ALBERS: ADDRESSING PRIOR AUTHORITY

DQ52b (ZINC): Colo. Statute: 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is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.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?

THE LOGIC OF ALBERS: ADDRESSING PRIOR AUTHORITY

DQ52b (ZINC): Colo. Statute: 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is applicable and of a general nature shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.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?

Why did the court reject this argument?

THE LOGIC OF ALBERS

1. DOMESTICATED OR WILD

2. ADDRESSING PRIOR AUTHORITY

3. WHAT THE CASE HOLDS

4. CRITIQUE

THE LOGIC OF ALBERS: WHAT THE CASE HOLDS

• Mullett rule inapplicable because of changed circumstances (development of fox fur industry)

THE LOGIC OF ALBERS: WHAT THE CASE HOLDS

• Instead, court says original owner wins where … [Manning-like list but even more facts]

THE LOGIC OF ALBERS: WHAT THE CASE HOLDS

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 ….

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 …

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.”

THE LOGIC OF ALBERS: WHAT THE CASE HOLDS

CALCIUM DQ53: Factors that Albers treats as relevant that are not explicitly part of the analysis in Manning or Mullett?

THE LOGIC OF ALBERS: WHAT THE CASE HOLDS

CALCIUM DQ53: 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)

THE LOGIC OF ALBERS: WHAT THE CASE HOLDS

CALCIUM DQ53: To Articulate Rule in Albers, Helpful to Note Dual Focus:

1. acts of owner: investment, protection, animus rev., pursuit

2. likely knowledge of finder : nat’l liberty

3. both: taming, marking

I’ll Send E-Mail Requests to Some Calciums to Send Me Sample Rules

THE LOGIC OF ALBERS

1. DOMESTICATED OR WILD

2. ADDRESSING PRIOR AUTHORITY

3. WHAT THE CASE HOLDS

4. CRITIQUE

THE LOGIC OF ALBERS: CRITIQUE DQ54 (Calcium): Authority of Col. S. Ct.

1. Court here essentially:

a. carved out exception to the Mullett rule

b. to meet perceived policy need.

2. Alternative (as in Ontario):

a. Court applies existing rule

b. Legislature responds by enacting new statute modifying rule to meet policy need.

THE LOGIC OF ALBERS: CRITIQUE DQ54 (Calcium): Authority of Col. S. Ct.

Pros/cons of allowing courts to alter/develop law (as in Albers) v.

legislature (as in Ontario)?

– Relative institutional strengths?

– Democratic theory?

– Certainty/notice?

THE LOGIC OF ALBERS: CRITIQUE DQ54 (Calcium): Authority of Col. S. Ct.

p.42: 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.

THE LOGIC OF ALBERS: CRITIQUE DQ55 (Calcium): Demsetz 1st Theory

• Decision: Finder’s Choice: Keep found animal v. Look for original owner (OO)

• Old Rule: Mullett/ Blackstone Rule

• Externalities?

THE LOGIC OF ALBERS: CRITIQUE DQ55 (Calcium): Demsetz 1st Theory

• Decision: Finder’s Choice: Keep found animal v. Look for original owner (OO)

• Old Rule: Mullett/ Blackstone Rule

• Externalities? OO Losses (Investment; Affection)

• Change in Circumstances?

THE LOGIC OF ALBERS: CRITIQUE DQ55 (Calcium): Demsetz 1st Theory

• Decision: Finder’s Choice: Keep found animal v. Look for original owner (OO)

• Old Rule: Mullett/ Blackstone Rule• Externalities? OO Losses (Investment; Affection)

• Change in Circumstances? Development of Fox Breeding Farms

• Increase in Externalities?

THE LOGIC OF ALBERS: CRITIQUE DQ55 (Calcium): Demsetz 1st Theory

• Decision: Finder’s Choice: Keep found animal v. Look for original owner (OO)

• Old Rule: Mullett/ Blackstone Rule• Externalities? OO Losses (Investment; Affection)• Change in Circs? Fox Breeding Farms

• Increase in Externalities? OO losses greater; may also affect state economy

• Change in Rule: Albers rejects old rule.

THE LOGIC OF ALBERS: CRITIQUE DQ55 (Calcium): Demsetz 2d Theory

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 sees as positive because of reduced externalities over time.

MERCURY DQ57: Factual Differences between Albers and Kesler: Why Might

They Matter? Help Kesler OO or F?

1. Kesler caretakers still in pursuit when fox killed.

MERCURY DQ57: Factual Differences between Albers and Kesler: Why Might

They Matter? Help Kesler OO or F?

1. Kesler caretakers still in pursuit when fox killed.

2. Fox in Kesler had escaped once before & been recaptured.

MERCURY DQ57: Factual Differences between Albers and Kesler: Why Might

They Matter? Help Kesler OO or F?

1. Kesler caretakers still in pursuit when fox killed.

2. Fox in Kesler had escaped once before & been recaptured.

3. Kesler finder/defendant is not expert.

MERCURY DQ57: Factual Differences between Albers and Kesler: Why Might

They Matter? Help Kesler OO or F?

1. Kesler caretakers still in pursuit when fox killed.

2. Fox in Kesler had escaped once before & been recaptured.

3. Kesler finder/defendant is not expert.

4. Kesler fox has no tattoo.

MERCURY DQ57: Factual Differences between Albers and Kesler: Why Might

They Matter? Help Kesler OO or F?

1. Kesler caretakers still in pursuit when fox killed.

2. Fox in Kesler had escaped once before & been recaptured.

3. Kesler finder/defendant is not expert.

4. Kesler fox has no tattoo.

5. Kesler takes place in Idaho, not Colorado.

MERCURY DQ57: Factual Differences between Albers and Kesler: Why Might

They Matter? Help Kesler OO or F?

1. Kesler caretakers still in pursuit when fox killed.

2. Fox in Kesler had escaped once before & been recaptured.

3. Kesler finder/defendant is not expert.

4. Kesler fox has no tattoo.

5. Kesler takes place in Idaho, not Colorado.

6. Other???