pictures at an exhibition music (for piano) by modest moussorsky (1874) orchestration by maurice...

Pictures at AN ExhibitionMusic (for Piano) by Modest

Moussorsky (1874)Orchestration by Maurice Ravel (1922)

Recording by Cleveland Orchestra (1979)Lorin Maazel, Conductor

§D Seating §B§B Lunch Wed Sep 24

Meet on Bricks @ 12:15

Dame* EdwardsFierro * Gordon

Manasseh * Piper

§D Lunch Mon Sep 29Meet on Bricks @ 11:55

Crosby * Foote * FreedVitti * White

Williams * Zwarg

LOGISTICS: CLASS #17GROUP ASSIGNMENTS

• Group Assignment #1: Preliminary Comments & Model Answers Posted

• Group Assignment #2: Instructions & Teams Posted. I’ll Take Qs• By E-Mail Right Away• In-Class Wed/Thu

LOGISTICS: CLASS #17TAKE ADVANTAGE OF AVAILABLE

RESOURCES

Briefs Due Sunday @ 4 pm:•URANIUM BRIEF #1: Kesler •Use standard briefing form (IM18-21) •Kesler Quiz Posted by Saturday am•Posted Manning & Mullett Briefs •Double-Check Formatting Instructions Before Submitting (IM22-23)

UNIT II: EXTENSION BY ANALOGY UNIT II: EXTENSION BY ANALOGY Part 1: WHALING CASESPart 1: WHALING CASES

• Instructions for Briefing Trial Court Cases (56-57)• Intro to Whaling Cases (57-59) • Glossary (60)

LOGISTICS: CLASS #17TAKE ADVANTAGE OF AVAILABLE RESOURCES

Briefs Due Sunday @ 4 pm:•RADIUM BRIEF #2: Taber–Pick-Up & Review Comments on Shaw Briefs–Can’t work with same partners again–Double-Check Formatting Instructions (IM22-23)–Taber Quiz Posted by Saturday am–Special for Whaling Cases

• Use briefing form for trial court cases (56-57)• Look at Intro to Whaling Cases (57-59) & Glossary (60)• May be helpful to read Bartlett v. Budd (63-64)

QUESTIONS?

LOGISTICS: CLASS #17• DF Sessions Today & Tomorrow

@ Usual Times

• I’ll Post As Last Slide(s) For Today Specific Instructions On Where We’ll Pick Up Mon/Tues

• I Get Both Classes Morning After Your Midterms: Panels On Call Gotta Be Prepared

Using Factors or ElementsWhen Applying to New Facts

1.Apply One at a Time, Then Look at Whole Picture2.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 Last Time: “Intent to Return” & Single

Return in Manning– Compare EASY CASE: “intent to Return” & Albers

Mullett FactorsIntent to Return (AR)

DQ1.54: Applied to Albers (KRYPTON)

Types of Evidence Relevant to AR

•Blackstone: “Usual Custom of Returning”

•Mullett: Behavior of Animal

Evidence Here?

Mullett FactorsIntent to Return (AR)


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)

Mullett FactorsReturn 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 Silver-Black Foxes Not Native to Relevant Part of

Colorado.Colorado.

Not Dispositive Under MullettMust Look to Definition


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.”

Mullett FactorsReturn to Natural LibertyDQ1.51: Applied to Manning (OXYGEN)

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?


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


•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)


Fit Purpose(s) of Rule? •Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal


Mullett Factors Together

DQ1.51: Applied to Manning (OXYGEN)

1.Abandonment: Strong Evidence Against2.Intent to Return (AR): One Escape & Return3.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

Mullett FactorsReturn to Natural LibertyDQ1.54: Applied to Albers (KRYPTON)

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.)?


Types of Evidence Relevant Under Definition of NLTypes 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.


Purpose(s) of Rule Consistent w Definition•Punish OO Who Didn’t Sufficiently Control (Confine and/or Pursue) so Unlikely to Recover Animal


Fit Purpose(s) of Rule?

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.

Mullett FactorsTogether


•Abandonment: By compulsion, which (court seems to say) doesn’t count against OO

•AR: No

•Return to NL: Court must have thought “Yes”

QUESTIONS?

Manning v. MitchersonFactors Applied to …

DQ1.48:

Squirrel Hypothetical(B: URANIUM)

DQ1.54:

Facts of Albers

(D: KRYPTON)

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

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

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


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

• Good Way to Start– Apply Manning Factors 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

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.



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 (KRYPTON)

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 (KRYPTON)

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

Result under 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




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)


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

• Apply Manning Factors to Hypo; Determine Strengths & Weaknesses of Client’s Position.

• Try to craft holding that emphasizes strengths and minimizes weaknesses.

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

Mullett & Manning Together

OXYGEN: DQ1.52-1.53

Comparing Mullett and ManningOXYGEN: DQ1.52

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

Comparing Mullett to ManningOXYGEN: DQ1.52

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?

Comparing Mullett to ManningOXYGEN: DQ1.52

• 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)

• Very unusual. In exam hypos, situation typically like squirrel hypo (better on some factors, worse on others), so you have to discuss which factors outweigh the others and why.

Mullett & Manning: DQ1.53

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

Manning & Mullett?

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.


OO loses property rights in an escaped animal when the animal1. has no intent to return; 2. is in its state of natural liberty; and 3. does not show a connection with the OO

through physical marks or taming.


OO loses property rights in an escaped animal when the animal has no intent to return; is in its state of natural liberty; and does not show a connection with the OO through physical marks or taming.

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

that clearly distinguish the two cases– 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.

Pictures at AN ExhibitionMusic (for Piano) by Modest

Moussorsky (1874)Orchestration by Maurice Ravel (1922)

Recording by Cleveland Orchestra (1979)Lorin Maazel, Conductor

Ravel Orchestration & Analogy to Albers

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.]

• After a [second] trial, the court entered judgment for the plaintiff for return of the pelt or payment of its value. Defendant appealed.

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

The Logic of Albers

1.Domesticated or Wild?

2. Addressing Prior Authority3. What The Case Holds4. Critique

The Logic of Albers: Domesticated or Wild?

Parties’ Presumption (p.46): 2 Available Rules1. 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)

The Logic of Albers: Domesticated or Wild?

Parties’ Presumption (p.44): 2 Available Rules1. 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.

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”

REVISED ASSIGNMENT: CLASS #18• Mon & Tue, we’ll spend the whole class on Albers &

put off Kesler & related DQs to Wed/Thu– I will call on Uraniums for DQ1.56(a)&(b)– I will call on Radiums for DQs 1.57(a)&(b), 1.58-1.59

pictures at an exhibition music (for piano) by modest moussorsky (1874) orchestration by maurice...

Documents

albers slide

definition slide

policy slide

mullett factors intent

whaling cases instructions

zwarg slide

prepared slide

class wedthu slide