Briefs Due Before Fall Break : KRYPTON: Albers Brief Due Thu 9/27 @ 9pm

MUSIC: ERIK SATIEOEUVRES POUR PIANO (1887-

1922)Aldo Ciccolini, Piano (Recordings:

1966-71 Disc 2)Briefs Due Before Fall Break:•KRYPTON: Albers Brief Due Thu 9/27 @ 9pm•URANIUM: Kesler Brief Due Sun 9/30 @ 4pm•RADIUM: Taber Brief Due Sun 9/30 @ 4pm– Use briefing form for trial court cases in Unit Two

Materials

DQ47: Mullett Factors : KRYPTON:

Return to NATURAL LIBERTY (NL)Court Defines NL:

•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.”

How Would You Prove?


Return to NATURAL LIBERTY (NL)Proving NL:

•Look at Condition of Animal When Found– Is It Healthy?– Has It Survived for a While?

•B2: What Else?


Return to NATURAL LIBERTY (NL)Proving NL:

•Look at Condition of Animal When Found– Is It Healthy?– Has It Survived for a While?

•Look at Biology of Animal– Where Does It Usually Live? (Climate/Habitat)– What Does It Eat?


Return to NATURAL LIBERTY (NL)Court Defines NL:

•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.”

Why Relevant to OO/F Disputes?


Return to NATURAL LIBERTY (NL)Why Relevant to OO/F Disputes?

Note that court doesn’t explain this.

•Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses.•Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses


Return to NATURAL LIBERTY (NL)

What exactly is at issue in Mullett?


Return to NATURAL LIBERTY (NL)What exactly is at issue in Mullett?

Can animal be in natural liberty even if not natural habitat? Court says yes.

Mullett provides definition and result w/o explanation. (Insufficient for you!)


Return to NATURAL LIBERTY (NL)Court says can be NL even if not natural habitat.

Fit w purposes of Rule that, if NL OO?•Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses.•Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses

Understanding Mullett Factors : Types of Information Case

Might Provide• Definition• General Info on Evidence That Shows if Factor Met• List of Evidence in This Case Relevant to Factor• Decision as to Whether Factor Met in This Case• Indication of Purpose of Factor


Might Provide• Definition: NL• General Info on Evidence That Shows if Factor

Met: AR (Usual Custom)• List of Evidence in This Case Relevant to Factor: AR• Whether Factor Met in This Case: AR, NL• Indication of Purpose of Factor: No.


Might Provide• List of Evidence in This Case Relevant to Factor: AR–Because no list for NL or Aband., we can (and

have to) speculate as to what facts are relevant.–Because court tells us for AR, must rely on this

list for what facts in the case are “relevant” –Have to be careful, e.g., re clever point about

scarring as evidence of AR (Revah B2)

Mullett v. Bradley BRIEF: KRYPTON

ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when …


ISSUE: Did the trial court err in dismissing plaintiff’s case because the owner of an escaped sea lion retains property rights in the animal when it escapes into the Atlantic with no intent to return, where the Atlantic is not its natural habitat?


NARROW HOLDING: No, the trial court did not err in dismissing plaintiff’s case because the owner of an escaped sea lion does not retain property rights in the animal when it escapes into the Atlantic with no intent to return, even though the Atlantic is not its natural habitat.


NARROW BROAD SUBSTANTIVE HOLDING:•The owner of an escaped sea lion does not retain property rights in the animal when it escapes with no intent to return into the Atlantic, even though the Atlantic is not its natural habitat.•Example: The owner of an escaped animal ferae naturae does not retain property rights in the animal when it escapes with no intent to return to a place where it is free of all artificial restraint and can provide for itself.


RATIONALES See Models in Info Memo #4

•Doctrinal Rationales: Can derive from Blackstone and other authorities cited. •Policy Rationales: Court provides no explicit policy rationales for its decision. Can provide speculative versions based on policies we identified as relevant to NL

Mullett v. Bradley

Qs on Mullett?

Albers v. E.A. Stephens & Co.:Important Case (Next 2 Classes)

• Every Panel Has Some Responsibility–Krypton: Written Brief Due Thursday Night–Radium: DQ51-52 (Friday)–Oxygen: Brief for Class & DQ53 (Friday)–Uranium: DQ54-56 (Mon/Tue)– Plus Krypton & Uranium responsible for very

similar Kesler


• Every Panel Has Some Responsibility• Legal Analysis Most Complex We’ve Done– Look at brief introduction in materials– Read carefully– Take time to carefully brief & answer DQs


• Every Panel Has Some Responsibility• Legal Analysis Most Complex We’ve Done• Read, Brief, Answer DQs Carefully– Expectations Higher in Week Six– Good Preparation for Midterms

PRACTICE MIDTERMS

TheoryTheory•You Take Test in One of Your Four Non-L.Comm. You Take Test in One of Your Four Non-L.Comm. Classes & Get Detailed FeedbackClasses & Get Detailed Feedback•You See Tests in Other Three Classes and Get You See Tests in Other Three Classes and Get General Information on What We WantedGeneral Information on What We Wanted

PRACTICE MIDTERMS

TimingTiming•Tuesday 10/2: Late Afternoon We Tell You Tuesday 10/2: Late Afternoon We Tell You Which Test You’ll TakeWhich Test You’ll Take•Friday 10/5: Exams Either 2pm or 3:45pmFriday 10/5: Exams Either 2pm or 3:45pm

PRACTICE MIDTERMSPreparation: GenerallyPreparation: Generally

•Take Seriously; Purpose is To Help You Assess Take Seriously; Purpose is To Help You Assess Your Studying & Exam TechniqueYour Studying & Exam Technique•Suggestion: This Weekend Review/Organize 2 Suggestion: This Weekend Review/Organize 2 Classes You Are Least Sure OfClasses You Are Least Sure Of•Some General Exam Tips From Me in Info Memo Some General Exam Tips From Me in Info Memo #4 (Also Could Review “Getting to Maybe”)#4 (Also Could Review “Getting to Maybe”)

PRACTICE MIDTERMSPreparation: My TestPreparation: My Test

•Specific Instructions in Info Memo #4Specific Instructions in Info Memo #4•Extra Office Hours Thu 10/4 Extra Office Hours Thu 10/4 – 9:45-10:45 am 9:45-10:45 am – 5:00-6:30 pm5:00-6:30 pm

PRACTICE MIDTERMSPreparation: My TestPreparation: My Test

•Weasel ProblemWeasel Problem– Comments/Models in Info Memo #4Comments/Models in Info Memo #4– Try Applying Other 1Try Applying Other 1stst Possession Cases Possession Cases

•DQ45 (Squirrel): Apply Other Escape CasesDQ45 (Squirrel): Apply Other Escape Cases•Written Assignment #2 in Info Memo #4Written Assignment #2 in Info Memo #4– Can Try Applying All CasesCan Try Applying All Cases

PRACTICE MIDTERMSMy Class: Friday 10/5My Class: Friday 10/5

•Nobody On-Call; All Lecture & VolunteersNobody On-Call; All Lecture & Volunteers•Taber v. Bartlett: Taber v. Bartlett: 11stst Whaling Case Whaling Case– I’ll Go Through BriefI’ll Go Through Brief– Application of Application of Mullett & Albers to Mullett & Albers to Facts of Facts of TaberTaber

•Don’t SkipDon’t Skip– Sets Up Sets Up Bartlett & Swift Bartlett & Swift Briefs Due at End of BreakBriefs Due at End of Break– Good Practice Applying Cases to New FactsGood Practice Applying Cases to New Facts

PRACTICE MIDTERMSAfterwardAfterward

•I’ll Post Midterm on Course Page So Rest of You I’ll Post Midterm on Course Page So Rest of You Can Take During BreakCan Take During Break•I’ll Post Comments & Models from Past Classes I’ll Post Comments & Models from Past Classes in Info Memo #5 During Breakin Info Memo #5 During Break•I’ll Try to Provide Comments to My Test-Takers I’ll Try to Provide Comments to My Test-Takers by End of Week After Breakby End of Week After Break

Attendance Sheets

1. Do Not Sign in For Other Students

2. Meaning of “Lateness”

Mullett & ManningURANIUM: DQ48-50

Mullett & ManningURANIUM: DQ50

SUBMIT RULE TO ME BY E-MAIL BY 2pm TODAY

B1: Bianchi Fasani; Guerrazzi; IftikharB2: Fayne; Valle; Webster-Jones

Mullett & ManningURANIUM: DQ48

APPLY MULLETT FACTORS TO FACTS

IN MANNING:Common Task on Exams

Using Factors or ElementsExample: Testing Duty to Disclose•Element of Johnson: Defect Must Not be Readily Observable– Facts of Stambovsky (except 2012)– Google Search of address shows reputation as

haunted on first screen

•How do you prepare for & approach Q of whether element is met?

Using Factors or Elements1. Assume Each There for Separate Reason2. For Each:– Identify Kinds of Facts that Are Relevant– Look for Explicit Definitions– Look for Explicit & Implicit Policy Justifications

We Did This Already for Mullett Factors

Using Factors or ElementsWhen Applying to New Facts

1.Apply One at a Time, Then Look at Whole Picture– If “Elements”, Each Has to Be Satisfied for P to Win– If “Factors”, Consider Strengths & Weaknesses of All

2.If significant arguments for both parties on any one, try to resolve with: – Use of Definition– Comparisons to Use of Factor/Element in Prior Cases– Purpose of Factor/Element (Policy Justifications)

Application of Mullett Factors to Manning Facts

URANIUM: DQ48 (ABANDONMENT)

Evidence Relevant to Whether (or Not) OO Abandoned Canary?


URANIUM: DQ48 (ABANDONMENT)

Evidence Relevant to Abandonment•Strong emotional bond•Kept confined enough so only 2 escapes•OO pursued/claimed as soon as had info

SOLID EVIDENCE OF NO ABANDONMENT


URANIUM: DQ48 (Intent to Return)

Shown by “usual custom of returning.”

Evidence Relevant to Whether (or Not) Canary Intended to Return?


URANIUM: DQ48 (Intent to Return)

Evidence Relevant to Intent to ReturnShown by “usual custom of returning.”

•One prior return •This time away 5 days •In same town; flew into a different house

Arguments re This Evidence?


URANIUM: DQ48 (Intent to Return)• Evidence Relevant to Intent to Return

– One prior return • No custom v. 100%• Bird returned despite no relevant training (Mottin-Berger)

– 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?


URANIUM: DQ48 (Return to Nat’l Liberty)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?


URANIUM: DQ48 (Return to Nat’l Liberty)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

Could Find Out: • Condition of Bird when Found• Area Similar to Natural Habitat?– Able to Find Food in Area?– Able to Survive Weather in Area?


URANIUM: DQ48 (Return to Nat’l Liberty)PURPOSE(S) OF RULE

• Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue)

• Protect Ordinary F Who Can’t Tell if Prior Owner

ARGUMENTS HERE RE FITTING PURPOSES?

Comparing Mullett to ManningURANIUM: DQ49

Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why?


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?


• 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 better on some factors, worse on others, so you have to discuss which factors outweigh the others and why.

Briefs Due Before Fall Break : KRYPTON: Albers Brief Due Thu 9/27 @ 9pm

Documents

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