elements b power point slides class #17 (extendo-class) friday, october 2, 2015

ELEMENTS B POWER POINT SLIDES

Class #17 (Extendo-Class) Friday, October 2, 2015

The Essential Louis Armstrong: Disc 1 (Recordings 1925-30)

WHALING BRIEFS DUE SATURDAY 10/10 @ 8 pmKRYPTON: KRYPTON: Bartlett v. BuddBartlett v. BuddOXYGEN: OXYGEN: Swift v. GiffordSwift v. Gifford

I’ll Be Around I’ll Be Around for Most of for Most of

Break; E-Mail Break; E-Mail if You’d Like if You’d Like

to Meetto Meet

The Logic of Albers

1.Domesticated or Wild2. Addressing Prior Authority

3.3.What The Case HoldsWhat The Case Holds4. Critique

The Logic of Albers: What The Case Holds

• Mullett rule inapplicable because of changed circumstances (development of fox fur industry)• Instead, court says original owner wins

where … [Manning-like list but even more facts]


(p.49): Original owner wins where fox: “had been held in captivity, semidomesticated, escaped by accident, fled against the will of his owner, and pursuit was abandoned by compulsion. This defendant in fact had, or is charged with, knowledge that the pelt purchased was the product of a vast, legitimate, and generally known industry; that it had a considerable and easily ascertainable value; that it bore the indicia of ownership; that it had been taken in an unusual way; that the seller was not the owner; that no right of innocent purchasers had intervened; and that 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.”


(p.49): 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 ….

* = Doesn’t Seem to Add Much


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 …


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.”


DQ1.57(c): 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)


DQ1.57(d): Articulate Possible Rule in Albers

(I’ll leave for you)

Helpful to Note Dual Focus (on OO & F):1. Acts of OO: investment, protection, animus rev.,

pursuit, taming2. Likely Knowledge of Finder : nat’l liberty, other

evidence F knew of OO 3. Both: marking



Helpful to Note Dual Focus on OO & F

Completing Albers Brief• Like Manning, many possible broad

holdings. – I’ll include more than one in Sample Brief.



Helpful to Note Dual Focus on OO & F

Completing Albers Brief• Rationales – Doctrinal = Difficult because court rejects most prior

authorities.– Policy = Several possibilities; again helpful to note dual

focus– I’ll include examples in Sample Brief.


Qs on Albers Holding or Reasoning?

The Logic of Albers1. Domesticated or Wild2. Addressing Prior Authority3. What The Case Holds

4.4. Critique: DQ1.58-1.59Critique: DQ1.58-1.59OXYGENOXYGEN

(Many Tanks!)(Many Tanks!)

The Logic of Albers: Critique DQ 1.59: OXYGEN

Can you describe what happened in Albers in terms of Demsetz’s first

thesis?

DEMSETZ FIRST THESIS =DESCRIPTION/EXPLANATION

• Identify decision/activity at issue• Identify old rule• Identify neg. externalities under old rule• Identify change in circumstances• Does change increase neg. externalities?• If cost of externalities > cost of change

change in rule

The Logic of Albers: CritiqueOXYGEN DQ1.59: Demsetz’s 1st Thesis

• Decision: Finder’s Choice: Keep found animal or pelt v. Look for OO

• Old Rule: Mullett/ Blackstone Rule• Externalities?


• Decision: F keep found animal v. Look for OO• Old Rule: Mullett/ Blackstone Rule

• Externalities? OO Losses (Investment; Affection)

• Change in Circumstances?


• Decision: F keep found animal v. Look for OO• Old Rule: Mullett/ Blackstone Rule• Externalities? OO Losses (Investment; Affection)

• Change in Circumstances? Development of Fox Farms [+ Zoos, etc.]

• Increase in Externalities?


• Decision: F keep found animal v. Look for OO• Old Rule: Mullett/ Blackstone Rule• Externalities? OO Losses (Investment; Affection)• Change in Circumstances? Development of Fox Farms

• Increase in Externalities? OO losses greater; harm to state economy

• Change in Rule?


• Decision: F keep found animal v. Look for OO• Old Rule: Mullett/ Blackstone Rule• Externalities? OO Losses (Investment; Affection)• Change in Circumstances? Development of Fox Farms • Externalities = OO losses ; harm to state economy

• Change in Rule? Colo. S.Ct. (and Ontario Legislature) alter Mullett rule to protect fox farms.

Would Demsetz Like the Result?

The Logic of Albers: CritiqueOXYGEN DQ1.59: Demsetz’s 2d Thesis

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 (2d Thesis) sees as good because of reduced externalities over time.

The Logic of Albers: CritiqueOXYGEN DQ1.58 (Authority of Colo. 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.


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


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

•Might look at:

– Relative institutional strengths?

– Democratic theory?

– Certainty/notice?


(Not Shown in Class)Courts v. Legislature: Relative Institutional Strengths Include: •Access to Information:– Legislature has power to hold extensive investigations and likely

to hear from most affected constituents.– Courts hear from parties to suit and occasionally from other

affected groups through Amicus briefs.

•Type of Rule:– Legislature better equipped to develop complex regulations and

to resolve difficult line-drawing problems– Courts tend to develop rules that are manageable in judicial

setting but may be better at determining individual justice


(Not Shown in Class)Courts v. Legislature: Relative Institutional Strengths: Example:

Moore v. Regents of University of California•Suit about Univ. hospital using valuable spleen cells from patient without patient’s knowledge or permission. Issue of first impression so P raised several legal theories.•Cal. S. Ct. did not rule on whether cells were “property,” probably in part because that would raise complex legal and ethical problems better suited for legislature.•Court resolved case as an issue of medical disclosure, which was easier approach for Court because:– Unlikely to be controversial that doctors & hospital should’ve asked/told.– Already established tort caselaw re standards for medical disclosure.


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. (2d Para. p.49)

Skills Exam Prep(& Fall Break)

Lot of Info Today

I’ll Go Through Fast Because You’ll Have Slides

E-Mail Me if Qs


Try to Think About Exam PrepTry to Think About Exam Prep

in Terms of Skillsin Terms of SkillsRelevant Skills in Elements Relevant Skills in Elements

Include:Include:I. Applying Legal Authority to New Sets of Facts

II. Determining Appropriate Legal Test for Particular Situation


Exam Prep & Fall BreakExam Prep & Fall Break1. Generally: 1. Generally:

a. Day or two really offa. Day or two really offb. Steady work on individual courses: at least one b. Steady work on individual courses: at least one

solid day eachsolid day each

2. For Elements: 2. For Elements: a. I’ll be around; if you have Qs, e-mail me for a. I’ll be around; if you have Qs, e-mail me for

appointmentappointmentb. Opportunity for Careful Prep on Seven (!!) Cases b. Opportunity for Careful Prep on Seven (!!) Cases

Already Covered Already Covered c. Much less material than other courses c. Much less material than other courses

i) Good News: Can do more in-depthi) Good News: Can do more in-depthii) Bad News: Must do more in-depthii) Bad News: Must do more in-depthiii) Suggestions Throughout Presentationiii) Suggestions Throughout Presentation


Exam Technique GenerallyExam Technique Generally1.1.I’ll Create “Exam Headquarters” at Bottom of I’ll Create “Exam Headquarters” at Bottom of Course PageCourse Page2.2.I’ll Post Soon a Short Memo on General Exam I’ll Post Soon a Short Memo on General Exam TechniqueTechnique3.3.I do Faculty-Perspective Exam Skills Workshops in I do Faculty-Perspective Exam Skills Workshops in November November

a.a. Dates, Times, Locations on Assignment SheetDates, Times, Locations on Assignment Sheetb.b. Worth your time (very well-received)Worth your time (very well-received)c.c. I am world’s leading expert on what I look for I am world’s leading expert on what I look for

in student exam answers to my own tests. in student exam answers to my own tests.


Applying Legal Authority to Applying Legal Authority to New Sets of FactsNew Sets of Facts

• Most Basic Version: Applying Single Case Most Basic Version: Applying Single Case to New Situationto New Situation

–Examples: Group Assignment #1; Unit One DQs–Fall Break Prep 1: Reviewing Individual Cases

• Fix Notes & Briefs by Comparing to Slides & Sample BriefsFix Notes & Briefs by Comparing to Slides & Sample Briefs• Take/Retake Self-QuizzesTake/Retake Self-Quizzes• Look at Comments/Models for Assignment 1 & Write Up of Look at Comments/Models for Assignment 1 & Write Up of

DQ1.48 (Coming)DQ1.48 (Coming)• If in Doubt, Ask Qs or RereadIf in Doubt, Ask Qs or Reread



• Most Basic Version: Applying Single Most Basic Version: Applying Single Case to New SituationCase to New Situation

–Examples: Group Assignment #1; Unit One DQs–Fall Break Prep 1: Reviewing Individual Cases–Fall Break Prep 2: Doing the Task

• Play w Weasel & Squirrel Hypos w Rest of Relevant Cases Play w Weasel & Squirrel Hypos w Rest of Relevant Cases • Posted Shack Hypo As Exam Q (Comments/Models Posted Shack Hypo As Exam Q (Comments/Models

Posted Soon)Posted Soon)• Apply Individual Unit One Cases to Issues in Whaling Apply Individual Unit One Cases to Issues in Whaling

CasesCases



• More Complex: Applying Group of More Complex: Applying Group of Cases to New SituationCases to New Situation

–Examples: Group Assignment #2; DQs 1.28 & DQ1.53

Mullett & Manning: DQ1.53

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

consistent with both Manning & Mullett?

Last 5 slides on DQ1.53 not shown in class. I’ll also give you a longer write-

up later.E-Mail Me if Qs

Mullett & Manning: DQ1.53 (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.

Mullett & Manning: DQ1.53 (Prior Student /Juliannne

Burch) OO loses property rights in an escaped

animal when the animal1. is in its state of natural liberty; and 2. does not show a connection to the OO by

marking or behavior (such as intent to return or other taming).

Mullett & Manning: DQ1.53 (Prior Student /Juliannne Burch)

OO loses property rights in an escaped animal when the animal is in its state of natural liberty; and does not show a connection to the OO by marking or behavior (such as intent to return or other taming).

• CLEVER – Adds to the Mullett factors two factors from Manning

that clearly distinguish the two cases– Treats AR as form of taming (seems right)– Would mean that animals that otherwise would go to F

under Mullett stay with OO if tamed or marked.


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 1st Possession as

basis of escape rule


“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.


“OO retains ownership in an escaped wild animal if [i] he can show a substantial connection between

himself and the wild animal through taming, an intent to return, or any other acts of dominion for a sufficient time of possession; and

[ii] the owner has not abandoned his search once the animal has escaped.”





Mullett: ambiguous phrases might be met, especially if Mullett trained sea lion at all prior

to escape. Might need to modify language.





Manning: Last phrase might be too strict; we don’t know if Mitcherson had continued searching. Might want to

modify language to read, “the OO has not unreasonably abandoned the search,” which would also take into account the kind of situation that occurred in Albers.



• More Complex: Applying Group of More Complex: Applying Group of Cases to New SituationCases to New Situation

–Examples: Group Assignment #2; DQs 1.28 & DQ1.53–Fall Break Prep 1: Working with Group of Related Cases

• Try/Retry DQs 1.28 & 1.53 & Look at Write-UpsTry/Retry DQs 1.28 & 1.53 & Look at Write-Ups• Case ChartingCase Charting

CHARTING AS STUDY TOOLFACTOR MANNING MULLETT ALBERS

MARKING/FINDER’S KNOWLEDGE(FK)

Parted Crest (Man-Made, Not Permanent; Other Bird has)

Treated as Relevant

Refers to Menagerie Animals/Organ Grinder Monkey; could mean FK

Scarring (Likely permanent; probably not clearly man-made)

Not Treated as Relevant

Holds: can be NL w/o being Nat’l Habitat; could be concern about FK, but not explicit

Tattoo w #s in Ears (man-made; permanent; industry custom; i.d.s OO);

F knew of industry & that fox likely from fox farm

Treats both mark and FK as relevant

F can’t take Seal in Millpond; Bear in City; looks like FK

Has Blackstone language re mark only matters if AR

likely permanent


Applying Legal Authority to New Applying Legal Authority to New Sets of FactsSets of Facts

• More Complex: Applying Group of Cases to More Complex: Applying Group of Cases to New SituationNew Situation

–Examples: Group Assignment #2; DQs 1.28 & DQ1.53–Fall Break Prep 1: Working with Group of Related Cases–Fall Break Prep 2: Doing the Task

• Play w Weasel & Squirrel Hypos Arguing from Cases as Group Play w Weasel & Squirrel Hypos Arguing from Cases as Group • Work on Group Assignment #2Work on Group Assignment #2• Take Elements Practice MidtermTake Elements Practice Midterm


Elements Practice MidtermElements Practice Midterm1. Posted on Course Page by Monday1. Posted on Course Page by Mondaya. Practice Midterm Q with Instructions for “Exam a. Practice Midterm Q with Instructions for “Exam

Conditions”Conditions”b. Comments/Best Student Answers Memo from b. Comments/Best Student Answers Memo from

Prior YearsPrior Years

2. For Feedback from Me2. For Feedback from Mea. First Look at Posted Memo on Exam Techniquea. First Look at Posted Memo on Exam Techniqueb. Do Practice Midterm Under “Exam Conditions” b. Do Practice Midterm Under “Exam Conditions”

(as Described in Instructions)(as Described in Instructions)c. Go through Comments /Best Answers Memoc. Go through Comments /Best Answers Memod. Bring me Specific Qs (I can’t go through 76 line-d. Bring me Specific Qs (I can’t go through 76 line-

by-line)by-line)



““A Little Twist”: A Little Twist”: Your Test Will Require You to Your Test Will Require You to

Apply Animals Cases by Apply Animals Cases by Analogy to Situations that Analogy to Situations that Don’t Involve Live AnimalsDon’t Involve Live Animals

E.g., Legal Framework of Taber & Bartlett

Basic Facts of Both Cases: •Crew of 1st ship kills whale, marks and anchors it, leaves •Whale carcass moves some, then found & taken by crew of 2d ship•Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

Legal Framework of Taber & Bartlett

“Kodak Moment” (1913)

Legal Framework of Taber & Bartlett

• Basic facts of both cases: – 1st Crew kills whale, marks, anchors, leaves – Whale found & taken by crew of 2d ship

• Uncontested that Crew of 1st Ship Acquired Property Rights by Killing Whale

• Issue Like Escape Cases: “Did 1st Crew Lose Property Rights by Leaving Whale Behind?” So We’ll Try to Apply Factors from Escaping Animals Cases (See DQ2.01)

DQ2.01: Taber under Mullett

Natural Liberty•What might you call the “natural liberty” of a dead whale? – “free from artificial restraint”– “free to follow the bent of its natural

inclination”– (obviously can’t “provide for itself”)

DQ2.01: Taber under MullettNatural Liberty

•What might you call the “natural liberty” of a dead whale?– “free from artificial restraint”– “free to follow the bent of natural inclination”

•MAYBE: A dead whale adrift = NL–Arguably shows negligence by OO–Arguably F can’t tell there’s an OO


Applying Legal Authority to New Applying Legal Authority to New Sets of FactsSets of Facts

““A Little Twist”: A Little Twist”: Your Test Will Require You to Apply Your Test Will Require You to Apply

Animals Cases to Situations that Don’t Animals Cases to Situations that Don’t Involve Live AnimalsInvolve Live Animals

•Oil & Gas Law: Minerals Oil & Gas Law: Minerals ferae naturaeferae naturae•The Internet, Analogy & the Future of The Internet, Analogy & the Future of LawyeringLawyering

Leads us into Second Type of SkillLeads us into Second Type of Skill

Skills Exam Prep(After Fall Break)

What Should the Law Be: Determining Appropriate Legal

Test for Particular Situation

• When Should We Treat Industry Customs as Binding Law?– Whaling Cases will provide Guidelines

for Analysis

Skills Exam Prep(After Fall Break)

What Should the Law Be: Determining Appropriate Legal Test for Particular

Situation• When Should We Treat Industry Customs as

Binding Law?

• When Should We Use a Set of Existing Rules to Govern a New Area of Law By Analogy

– Ways to Approach in Readings Today & in Unit Two DQs

– Group Assignment 3 Involves These Types of Arguments

FINAL EXAM QUESTIONS 1 & 2

• Single Fact Pattern for Both• Will Involve Type of Property Not

Explicitly Covered in Course• I’ll Post Three Samples Over Break– One Primarily First Possession (& Custom)

(Uninhabited Island)– One Primarily Escape (& Custom) (Gesture

Strongly Associated with Celebrity: L-Bowing)– One All Three (Computer Program)


• XQ1: “Assuming Animals Cases Apply, Discuss Who Should Get Property Rights?”– Basically Issue-Spotter Like Practice Midterm• Same Skills We’ve Been Working On• Same Close Knowledge of Cases Required

– But Need to Be Creative Applying Doctrine• E.g., Whale Carcasses & Natural Liberty


• XQ2: “Discuss Whether Animals Cases Are Good Tools to Use in New Scenario”– Testing Ability to Analyze When/Whether

Analogy is Useful & Assess Value of Rules– Should Utilize Three Approaches We’ll Work

With (EXTENSIVELY) in Unit Two (& Group Assignment #3)

– E.g., Good rule to say if anchored whale returns to NL (floats free), should go to finder?

Back to Work!!

Kesler v. Jones: RadiumRadium

In-Class Brief & DQ1.60-1.62

MARIE CURIE: Discoverer of Radium

Kesler v. Jones BRIEF: Radium

Statement of the Case:• Kesler … and the Davises… ???

• sued Jones …• for [cause of action]• seeking [remedy].


Statement of the Case:• Kesler, the original owner (OO) of an

escaped fox, and the Davises, its caretakers …– Fox is “property” of “other appellant”: must be Kesler– Davises probably plaintiffs because they had custody of

the fox and would be liable to Kesler for its loss


Statement of the Case:• Kesler, the OO of an escaped fox, and the Davises,

its caretakers …,

• sued Jones … ???• for [cause of action]• seeking [remedy].



its caretakers,

• sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, – Need both killing & keeping pelt.

• for [cause of action] ???• seeking [remedy].


Statement of the Case:• Kesler, the owner of an escaped fox, and the Davises, its

caretakers sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, …

• for unlawful killing of the fox and unlawful retention of its pelt

• seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?


Statement of the Case:

• seeking [remedy] ??? Case doesn’t say explicitly. Hint from case?• Court orders new trial to determine “the value of the pelt” seeking damages



its caretakers, sued Jones, who killed the fox to protect a neighbor’s chickens and kept its pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages.

PROCEDURAL POSTURE?


Procedural Posture:

• After a trial, the court found for defendant on both claims. Plaintiffs appealed.

• How do you know there was a trial?


Procedural Posture:• After a trial, the court found for

defendant on both claims. Plaintiffs appealed.

• How you know there was a trial:–“The court was justified … in

concluding from the evidence…”–“the cause remanded for a newnew

trial …”

Kesler v. Jones FACTS• Fox owned and cared for by Ps had escaped and

been recaptured at least once. It escaped again and Ps pursued.

• A short time after the escape and a short distance away, a neighbor found it among her chickens and asked D for help.

• D shot and killed the fox, unaware of its prior captivity or Ps’ ownership.

• Ps requested that D return fox’s pelt. D refused.


How Many RadiumsRadiums Saw That There Were Two Issues in

Case? (Show of Hands)(Uraniums are Radioactive Radioactive for

This Purpose and Must Be Silent and Still!)


How You Know There Are Two Issues In Case:

1.Two different kinds of legal claims addressed– Unlawful killing of fox (Tort Q: Justification for

shooting)– Unlawful retention of pelt (Property Q: Ownership of

escaped animal)

2.Judgment is affirmed in part, reversed in part. Means:– One issue decided in favor of D– One issue decided in favor of Ps


1st Issue (Unlawful Killing): Did trial court err in entering

judgment for defendant because …

• Hard to be precise about relevant facts b/c – Court doesn’t say why Ps thought the killing

was unreasonable–We aren’t studying defenses to intentional torts

here, so don’t have other examples to look at.


1st Issue (Unlawful Killing): Pretty General Version

• (E.g.:) Did trial court err in entering judgment for defendant because a person has no right to kill a fox escaped from captivity when asked to help protect a neighbor’s chickens from the fox?

Probably helpful to also include some language about reasonableness.


1st Narrow Holding (Unlawful Killing):

• (E.g.:) No, trial court did not err in entering judgment for defendant because a person does have the right to kill a fox escaped from captivity when reasonably necessary to help protect a neighbor’s chickens from the fox.

QUESTIONS?

Kesler v. Jones (Radium) DQ1.60: Severability of

Property RightsBoth Albers and Kesler treat the question of

the right to kill the fox as independent of the question of who owns it.

If the plaintiffs owned both foxes, why was it legally acceptable for a 3d party to kill them?


Property RightsCan have some rights with regard to an object without having all possible rights

•Common Examples:– Landlord-Tenant–Ratione Soli


Property RightsCan have some rights with regard to an object without having all possible rights•Your “right” not to have others destroy your property can be lost when your property endangers person or property of others. •Common Example: Necessity –Neighbor can cut down your trees to limit

spread of fire


Property Rights• Can have some rights with regard to an

object without having all possible rights• Common Example: Necessity –Neighbor can cut down your trees to limit

spread of fire–BUT You still own the cut wood.


Property RightsHere, court says OK for Dr. Jones to kill a fox owned by Kesler because •he acted (for Mrs. White) as “a reasonably prudent person” would, •“under reasonably apparent necessity, •in the protection of his own property” (chickens).


Property Rights• Here, court says OK for Dr. Jones to kill a fox

owned by Kesler because – he acted (for Mrs. White) as “a reasonably prudent

person” would, – “under reasonably apparent necessity, – in the protection of his own property” (chickens).

• Looks like standard defense to intentional tort for “defense of property.”

Could fold some of this language into issue/holding.


Property RightsBOTTOM LINE

•Fox owners’ property rights limited to protect property of others (e.g., chickens)•Jones had right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot. •Qs?

Kesler v. Jones (Radium) DQ1.61: Factual Differences

from Albers

Note that Kesler describes Albers as “a case squarely in point ….”

BUT cases not really absolutely identical,so we’ll look at factual differences.


from AlbersImportant Exam Skill:

•Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance– Weakest Answers Tend to Ignore DifferencesWeakest Answers Tend to Ignore Differences– Better Answers See Arguments that New Facts Change Better Answers See Arguments that New Facts Change

ResultResult– Best Answers Discuss Why New Facts Best Answers Discuss Why New Facts Might or Might Might or Might

Not Not Change ResultChange Result


from AlbersImportant Exam Skill:

•Identify Factual Differences Between Hypo and Precedent Cases & Discuss Possible Significance– Explanation of Significance is Key– Part of More General Point: Use Every Fact I Give You

•I’ll give you an exercise later: if change facts in wolverine problem, how might it affect result?


from Albers• Identify Factual Differences Between Kesler and

Albers & Discuss Possible Significance

Start by Creating List of Differences


from AlbersProbably Less Significant Differences (from Prior Years)

1.Semi-Domesticated v. Not (Only Very Mild Help in Albers)

2.Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers)

3.D was F in Kesler; Bought from F in Albers: (Might matter if Q of D being innocent purchaser, but not true in Albers)

4.Caretakers in possession rather than OO (not clear why this would effect result).

Kesler v. Jones (Radium) (Not Shown in Class)

DQ1.61: Factual Differences from AlbersDifferences Possibly Going to Value of Fox Noted in 2015:

Clever ideas, although I’m not sure value of individual fox would matter much (as opposed to average value or existence of industry).

1.Color: – Albers Fox = Black or Silver-Black.– Kesler Fox = “Cross-Bred.” Might be what Albers calls “Cross.”

2.Sex– Albers Fox = Male– Kesler Fox = Female. Maybe worth less b/c can’t mate with multiple

males at same time. However, foxes tend to have only one mate. See Comparison Box #1.


from AlbersProbably Most Significant Differences

1.Kesler caretakers still in pursuit when fox killed.

2.Probably shorter time & distance from escape to kill

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

4.Kesler finder/defendant is not expert.

5.No evidence Kesler fox has tattoo.

6.Kesler takes place in Idaho, not Colorado.


from AlbersHelp OO or F (and Why?)

1.Kesler caretakers still in pursuit when fox killed.

2.Probably shorter time & distance from escape to kill

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

4.Kesler finder/defendant is not expert.

5.No evidence Kesler fox has tattoo.

6.Kesler takes place in Idaho, not Colorado.

Kesler v. Jones (Radium) DQ1.62: Differences in Analysis

from AlbersAlbers assumes F would win under the rule in Mullett, so it carves out an exception to that

rule for valuable wild animals.

How does Kesler deal with the Mullett rule?


from Albers

Kesler holds that the fox never returned to natural liberty because she …

“had formerly escaped and been recaptured; she had been out of her pen but a short time;

her owners were in pursuit [and] she was killed but a short distance from her pen….”


from Albers

Kesler says, “Albers, a case squarely in point, supports the conclusion herein ....”

[i.e., NOT the reasoning.]


from Albers

Albers: Returns pelt to OO by rejecting Mullett rule & creating new rule for

valuable animals v.

Kesler: Returns pelt to OO by applying Mullett rule

Kesler v. Jones

Slides From Here to End Not Shown in Class on October 2. I’ll Go Over Most Important Concepts on Monday After

Break, But These Will Allow You to Mostly Complete Your Work on Kesler.


2d Issue (Escape/Unlawful Retention):

Did trial court err in entering judgment for

defendant because … ???

Helpful to frame in terms of what constitutes return to NL


2d Issue (Escape/Unlawful Retention):

• Did trial court err in entering judgment for defendant because the original owner of a escaped fox with no intention of returning retains property rights because the fox had not returned to natural liberty, where– it had escaped and been recaptured before, – it was killed a short time and distance from its escape,

and – its owners were still pursuing it when it was killed?

Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from

AlbersNote block quote from treatise (p.53):

Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.”

Kesler v. Jones (Radium) DQ1.62: Differences in Analysis from

AlbersCompare block quote (p.53) to Manning

(p.40): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.” v. It “is hardly to be expected … that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion.”

Kesler v. Jones : MAJOR POINTS

• Escaped wild animal Escaped wild animal not returned to natural not returned to natural libertyliberty if closely pursued with good possibility if closely pursued with good possibility of recapture (different approach than of recapture (different approach than AlbersAlbers))• Explicit relevance of pursuit, time, distanceExplicit relevance of pursuit, time, distance• Severability of Property RightsSeverability of Property Rights

QUESTIONS?QUESTIONS?

Pierson and Kesler : First Possession v. Escape

• Same terms can have different significance Same terms can have different significance depending on context.depending on context.


Same terms can have different significance Same terms can have different significance depending on context: depending on context: PursuitPursuit• Unowned AnimalUnowned Animal: Close pursuit : Close pursuit insufficientinsufficient to to

createcreate ownership. ownership.• Escaped AnimalEscaped Animal: Close pursuit : Close pursuit may be may be

sufficientsufficient to to maintainmaintain ownership. ownership.


Same terms can have different significance Same terms can have different significance depending on context: depending on context: Natural LibertyNatural Liberty• Unowned AnimalUnowned Animal: Close pursuit : Close pursuit insufficientinsufficient to to

deprive deprive animal of NLanimal of NL• Escaped AnimalEscaped Animal: Close pursuit : Close pursuit may be may be

sufficientsufficient to to prevent prevent animal from animal from returningreturning to to NL.NL.

elements b power point slides class #17 (extendo-class) friday, october 2, 2015

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