ELEMENTS B POWER POINT SLIDES Class #15 Monday, September 28, 2015.

ELEMENTS B POWER POINT SLIDES

Class #15 Monday, September 28, 2015

MUSIC: Gilbert & SullivanPIRATES OF PENZANCE

(1879)Welsh National Opera

Charles Mackerras, ConductorRecording: 1993

Lunch TodayMeet on Bricks @ 11:55

Brummond * CardenasCourtney * Harris

Simon * SnodgrassSonenblum

Lunch TomorrowMeet on Bricks @ 12:25

Calles Smith * GrayLemire * Osceola

Manning v. Mitchersonas Precedent

1. Using Individual Cases as Precedent Generallya) First Possession Casesb) Using Factors & Elementsc) Broad & Narrow Holdings

2. Manning Applieda) Quick Aside: Intro to Albers (URANIUM)b) Application of Manning Factors to:

i. Squirrel Hypothetical (URANIUM)ii. Facts of Albers (RADIUM)

c) DQ1.48 & Broad Holdings

Using an Individual Case as Precedent

• We’ve Said Can Make We’ve Said Can Make Arguments from:Arguments from:

1.1. Specific LanguageSpecific Language

2.2. Comparing FactsComparing Facts

3.3. Relevant PoliciesRelevant Policies


• We’ve Said Can Make Arguments from:We’ve Said Can Make Arguments from:1.1. Specific LanguageSpecific Language

2.2. Comparing FactsComparing Facts

3.3. Relevant PoliciesRelevant Policies

• First Possession Cases: Relatively ClearFirst Possession Cases: Relatively Clear

– Limited Relevant Facts in Limited Relevant Facts in Pierson & Pierson & ShawShaw

– Rules Clearly Identifiable in Rules Clearly Identifiable in Liesner & Liesner & ShawShaw


• Can Make Arguments from Specific Can Make Arguments from Specific Language, Comparing Facts, Relevant Language, Comparing Facts, Relevant PoliciesPolicies

• Escape Cases Different from 1Escape Cases Different from 1stst PossessionPossession

– Mullett: Mullett: 3 Explicit FACTORS from English 3 Explicit FACTORS from English Common LawCommon Law

– Manning : Manning : Long List of Relevant Facts & Long List of Relevant Facts & ResultResult• No Clearly Articulated RuleNo Clearly Articulated Rule

• We Identified a List of [Implicit] FACTORSWe Identified a List of [Implicit] FACTORS

Using Factors or Elements Generally

1.Crucial Set of Skills for Lawyering & for Exams

2.We’ll Continue at Length Today

3.Again in DQs for Taber, Then Throughout Unit Two

4.4. Plus Torts, Adverse Plus Torts, Adverse Possession, etc.Possession, etc.

Using Factors or Using Factors or ElementsElements

1. Assume Each There for Separate Reason2. For Each:– Identify Kinds of Facts that Are Relevant– Look for Explicit Definitions (none in Manning)– Look for Explicit & Implicit Policy Justifications

We did this some already for Factors fromboth Manning & Mullett

Using Factors or Using Factors or ElementsElements

When Applying to New Facts1.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 (where available)– Comparisons to Use of Factor/Element in Prior Cases– Purpose of Factor/Element (Policy Justifications)


• Can Make Arguments from Specific Can Make Arguments from Specific Language, Comparing Facts, Language, Comparing Facts, Relevant PoliciesRelevant Policies

• Escape Cases Different from 1Escape Cases Different from 1stst PossessionPossession

– Manning : Manning : Long List of Relevant Facts Long List of Relevant Facts & Result& Result• No Clearly Articulated RuleNo Clearly Articulated Rule

• We Play with Broader/Narrower Versions of We Play with Broader/Narrower Versions of Holding to Identify Possible Rules & Implicit Holding to Identify Possible Rules & Implicit FactorsFactors

Manning v. Mitcherson:FACTS & HOLDING

The original owner retains property rights in an escaped [canary] …

[that had distinctive crest] [that responded to its name] [that had escaped and returned once before] [that had been owned for two years][that had been missing for only five days][that OO located day after it was found]MAYBE: [that was found in same town]

DQ1.48: 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– Point of Broadening & Narrowing is to Identify Ways to Point of Broadening & Narrowing is to Identify Ways to

Characterize Case to Help Use It as PrecedentCharacterize Case to Help Use It as Precedent

• Squirrel Hypo designed to get you to – Play with the holding in the way that litigators do– Find plausible versions helpful to client’s position.

• Requested Work-Product was Simply a Version of Manning Holding (Helpful to Assigned Client)

DQ1.48: 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 plausible versions helpful to client’s position.

• Good Way to Start– Apply Manning Factors we derived 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, then do Sample Holdings for each side for DQ1.48

• FIRST: A Brief Introduction to Albers

Albers v. E.A. Stephens & Co.:

Intro to the BRIEF

URANIUM

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]


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]


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]



sued E.A. Stephens & Co, which purchased the pelt of the fox

presumably for conversion…seeking [remedy] ???



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.


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.]

• Then …?

Albers v. E.A. Stephens & Co.:BRIEF: URANIUMURANIUM

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.

• NOTE: $$ amount of value of the pelt doesn’t seem relevant to analysis.


Issue: Did the trial court err by entering judgment for the plaintiff because …

Beginning of substantive part?


Issue: Did the trial court err by entering judgment for the plaintiff because …

the OO of an escaped fox that was killed retains property rights in its pelt where …

[Like Manning: Long list of possibly relevant facts, which all need to go into fact section & narrow version of issue.]

Summary of facts follows.

Albers v. E.A. Stephens & Co.:STORYLINE (Same as Kesler)

1. OO breeds foxes for fur/profit

2. Fox with cool name escapes; threatens local chickens

3. Fox killed to protect chickens

4. Killer either keeps fox pelt or sells to 3d party.

5. OO demands return of pelt

Manning v. MitchersonFactors Applied to …

DQ1.48:

Squirrel Hypothetical(URANIUM)

DQ1.54:

Facts of Albers

(RADIUM)

Manning v. MitchersonRelevant Factors

• Taming (or Other Investment in Animal)

• Emotional Bond

• Marking (or F Likely Aware of OO)

• Short Time/Distance from Escape

Manning Factors:Taming (or other Investment)

Emotional Bond

DQ1.48: Squirrel Hypo DQ1.48: Squirrel Hypo (URANIUM)(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)?

Manning v. MitchersonRelevant Factors

Emotional Bond (Going Forward)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.


DQ1.54: Applied to Albers (RADIUM)

Evidence re Taming: • Animal owned for two weeks before escape• Fox took food from keeper’s hand

Big Deal? How Does Court Describe?



Evidence re Taming: • Fox took food from keeper’s hand (over 2 weeks)• Court: “Semi-Domesticated”“Semi-Domesticated” (= Trained Enough to

Drive a Tractor-Trailer??)

• Enough for “Tamed”?



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?



Evidence re Taming: • Pretty weak on purposes weak case for taming. • As with Mullett, could say even if animal not

tamed, should protect $$$ investment.

Manning Factors:Marking

(or F Likely Aware of OO)DQ1.48: Squirrel Hypo DQ1.48: Squirrel Hypo (URANIUM)(URANIUM)

• Relevant Evidence: • Recognizable from “Markings”

• Enough Comfort with Humans to “Charm” F



(or F Likely Aware of OO)DQ1.54: Applied to Albers (RADIUM)

Evidence re Marking: Tattoos in Ears (1/335)

How Strong are Marks?



Marking = Tattoos in Ears. How Strong? 335 = Clearly Man-Made (Maybe Not 1)Unlikely to DisappearIdentifies Owner Industry PracticeMaybe Hard for Non-Expert to Find? (Check Size)



Marking/Notice to Finder• Tattoos in Ears = Quite Strong Marking• Other Facts Giving Notice to Finder?



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

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).

Manning Factors:Short Time or Distance from

EscapeDQ1.54: Applied to Albers (RADIUM)

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)

Manning Factors:TOGETHER


• 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



• 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?

Manning Factors:Short Time or Distance from

EscapeDQ1.48: Squirrel Hypo DQ1.48: Squirrel Hypo (URANIUM)(URANIUM)

• Relevant Evidence: • Time: Escape to Find: Unclear

• Distance: Escape to Find: “Across Town”

• Time: Find to OO Claim: 2 Months



DQ1.48: Squirrel Hypo DQ1.48: Squirrel Hypo (URANIUM)(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)

DQ1.48 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].


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”


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.


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.


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”


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

I’ll Give You Write-Up with More Examples & Strengths/Weaknesses

LOGISTICS: CLASS #15GROUP ASSIGNMENTS

• Group Assignment #1: • Comments & Good Student Answers Posted• Comments on Your Work Posted as Complete

• Group Assignment #2: • Instructions Posted with Teams. • I’ll Take Qs in Class Wednesday• Coordinators Might Want to Start Arranging

Logistics So You Have a Game Plan by Break

LOGISTICS: CLASS #17FIRST SUBMITTED BRIEFS:

•RADIUM: RADIUM: NowNow Ready for Pick Up from Tina SuttonReady for Pick Up from Tina Sutton

•OXYGEN: OXYGEN: Will be Ready for Pick Up by Friday; Check Course Page for Status

•KRYPTON: KRYPTON: Will be Ready by Wednesday of Break; We’ll PDF Packet with Comments to You

•URANIUM: URANIUM: Will be Ready for Pick-Up by Wed. after Break; Check Course Page for Status

LOGISTICS: CLASS #17SECOND SUBMITTED BRIEFS:

•Formatting/General Instructions– Can’t work with same partners again– Use Same General Instructions (IM21-22)– Use Briefing Form for Trial Court Cases (59-60)

•Use Available Resources– Comments on First Brief– Intro to Whaling Cases (60-62) & Glossary (63)

•Wednesday I’ll Take Qs on New Briefing Form & Whaling Cases Generally

LOGISTICS: CLASS #17• RADIUM BRIEF #2: RADIUM BRIEF #2: Taber v. Jenny (64-Taber v. Jenny (64-

65)65)• Due Thursday @ 10 pm• Use Resources Listed on Prior Slide• Also Helpful to Go Through:• Bartlett v. Budd (66-67)• Self-Quizzes for both Taber and Bartlett

• Check Instructions for Trial Court Briefs and Intro to Whaling Cases by Wednesday & Ask Qs

• NO OFFICE HOURS TODAY

DQ1.53 RADIUMRADIUM E-Participation

Can you develop a rule for determining ownership of escaped animals that is consistent

with both Manning & Mullett?

E-Mail Rule to Me by 7pm Tonight:

Real Names Not PseudonymsBurch, JulianneBurch, JulianneLederman, EvLederman, EvPijls, PatrickPijls, Patrick

Valencia, JamesValencia, James

Mullett v. Bradleyas Precedent

1. More on the Meaning of Mulletta) Information Relevant to Understanding the Factors b) Issue & Holdingsc) Rationales

2. Mullett Factors Applied to:a) Facts of Manning (KRYPTON)b) Facts of Albers (RADIUM)

Understanding the Mullett Factors : Types of Information

a Case 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 Factors: None.None.

Understanding the Mullett Factors : Types of Information

a Case 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 lists evidence for AR, must rely on

this list for what facts in the case are “relevant”• Time & distance from point of escape (Presumably

in addition to “usual custom of returning”)• Have to be careful, e.g., re clever 2014 point about

scarring as evidence of no AR

Mullett v. Bradley BRIEF

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.

Mullett v. Bradley BRIEF: KRYPTON

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.•One 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.

Mullett v. Bradley BRIEF: KRYPTON

RATIONALES See Examples in Sample Brief on Course Page•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 Factors Applied to …

DQ1.51:

Facts of Manning(KRYPTON)

DQ1.54:

Facts of Albers

(RADIUM)

Mullett Factors

1. Abandonment: If Abandoned, to Finder (Very Rare)

2. Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO (Also Very Rare)

3. Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

Mullett FactorsABANDONMENT

Types of Evidence of Abandonment Relevant in Prior Discussions

•Value to OO

•Care in Confinement

•Pursuit


DQ1.51: Applied to Manning (KRYPTON)

Types of Evidence Relevant to Abandonment

• Value to OO?• Care in Confinement

• Pursuit




• Substantial Value to OO (Strong Emotional Bond)

• Care in Confinement?• Pursuit





• Confined Well Enough So Only 2 escapes in 2 Years

• Pursuit?





• Confined Well Enough So Only 2 escapes in 2 Years

• OO pursued/claimed as soon as had info

SOLID EVIDENCE OF NO ABANDONMENT




•Value to OO?

•Care in Confinement

•Pursuit




•Substantial Value to OO (Pelt + Breeding)

•Care in Confinement?•Pursuit



Types of Evidence Relevant to Abandonment •Substantial Value to OO (Pelt + Breeding)

•Substantial Care in Confinement• Investment in special enclosure• Got through “inner gate” + “outer fence”

•Pursuit? – What Did P Do? – How Does Court Describe?



Evidence Relevant to Abandonment

•Pursuit: Followed Until Nightfall•Raises Issues re What OO Has to Do: – Should Abandoning Pursuit = “Abandonment”?– Is “Abandonment by CompulsionAbandonment by Compulsion” OK? (cf.

Mullett: Reasonable to Believe Pursuit Hopeless)



Evidence Relevant to Abandonment

•Pursuit: Followed Until Nightfall•Colorado Supreme Court must believe not abandoned, or would give pelt to Dfdt.

Mullett FactorsIntent 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


DQ1.51: Applied to Manning (KRYPTON)•Types of Evidence Relevant to AR • Blackstone: “Usual Custom of Returning”• Mullett: Behavior of Animal

•Evidence in Manning Relevant to AR • One prior return • This time away 5 days • In same town; flew into a different house

Arguments re This Evidence?


DQ1.51: Applied to Manning (KRYPTON)•Evidence in Manning Relevant to AR – One prior return • No custom v. 100% return rate• Bird returned despite no evidence of relevant training

– Away 5 days; to different house in same town (trying?)

ELEMENTS B POWER POINT SLIDES Class #15 Monday, September 28, 2015.

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Transcript of ELEMENTS B POWER POINT SLIDES Class #15 Monday, September 28, 2015.