the essential louis armstrong: disc 1 (recordings 1925-30)

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

LUNCH TODAY @ 12:05

1. Allen 2. Bhimani 3. Chung 4. Massey 5. McGivern 6. Olsen7. Retenauer

LUNCH THURS @ 12:25

1. Barnes2. Cappell 3. Hearn 4. Joyner 5. Parkins 6. Smittick7. Tuchman

Welcome Back! Today:

• Mapping the Holding of Manning

• Compare Mullett and Manning

• Logistical Update

• Albers under Mullett and Manning

• The Logic of Albers (as time allows)

MAPPING THE HOLDING OF MANNING

Mapping the Holding of MANNING

The original owner retains property rights in an escaped animal f.n.

[that had been owned for two yrs]

[that responded to its name]

[that has escaped and returned before]

[that had distinctive crest]

[that had been missing for only five days]

[that owner located day after it was found]


DQ44: Last Time • Exact scope of Manning holding

unclear

• Use other language from case to flesh out


The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.

• Could mean, “Once tamed, yours forever”, but structure of case suggests more complex rule

• Could simply mean Mitcherson owned bird prior to escape.


To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice.

For Sweet, probably not an accident!

Probably means owner did not deliberately allow bird to fly free



Likely true here; if so, why relevant?



Likely true here; if so, why relevant?

• Only a short distance from point of escape?

• Not returned to natural liberty? (although court doesn’t use this phrase)


The original owner retains property rights in an escaped animal f.n.







[that was captured a short distance away]


To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY?

(This is rhetoric, not explanation. You need to do better.)


To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. WHY?

• MAYBE: Unfair to OO; too close in time and distance to lose rights

• MAYBE: Finder should know that there is prior OO, so shouldn’t keep it

• MAYBE BOTH


To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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.

WHY THESE ANIMALS?


To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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. WHY THESE ANIMALS?

• MAYBE: Valuable (though canary much less)

• MAYBE: Finder should know there is prior owner


Wild Animals of a Menagerie

• Menagerie = Zoo (Not Usually Tamed)

• Court specifically says “wild animals of a menagerie”

Again, inconsistent with simple holding that OO retains any tamed animal


To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or 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.

• Again looks like short time/distance relevant.


OO retains ppty rts in an escaped animal f.n.:







[that was captured a short distance away]

Lots of Broader Variations Possible

Mapping the Holding of MANNING: DQ49

Squirrel hypo designed to get you to play with the holding in the way that litigators do, trying to find a plausible version helpful to their

client’s position.


Squirrel hypo designed to get you to play with the holding in the way that litigators

do, trying to find a plausible version helpful to their client’s position.

Start by determining which facts of your current case seem helpful and which seem harmful to your client

under Manning.


Helpful to A• Owned for 3 Months• Responds to Name• Comfortable w

Humans*• Identifying Markings

Helpful to B• Squirrel Travels

“Across Town”*• No Prior Return• 2 Months Before

Found*• Markings Not Man-

Made (apparently)*


Squirrel hypo designed to get you to play with the holding in the way that litigators

do, trying to find a plausible version helpful to their client’s position.

Try to craft holding that emphasizes helpful facts and minimizes

harmful ones.


• Some student responses included broad and narrow versions of the holding. BUT

• Playing with multiple versions of holding is an exercise we do to see what a case might mean in the future.

• This exercise was to come up with a single version that is especially helpful to your position in your current case.


Sample for Alaina (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]. -- Lauterbach


Sample for Alaina (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 -- Beal

(2) tamed, trained to answer by name, and marked in such a way as to make identification straightfor-ward – Parkins (similar by Douglas, Lauterbach)


Sample for Alaina (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; case doesn’t say

that.


Sample for Brandon (narrow version; includes almost all helpful facts):

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. -- Lauterbach


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.--Douglas (with some editing )

Mullett

v.

Manning

Mullett v. Manning :Mullett Factors

Mullett

• Abandoned: Maybe

• Animus Rev. No

• Ret’d to NL Yes

Manning

No

Maybe

Maybe

Mullett v. Manning :Manning Factors

Mullett • Tamed:• Marked. • Time

– Owned– Out– Till Found

• Distance

ManningYes

Man-Made

2 Yrs4 Days5 Days

Same Town

Mullett v. Manning :Manning Factors

Mullett

• Tamed: No Info

• Marked; Blemishes

• Time– Owned Unclear (Less)– Out 2 Weeks– Till Found 1 Year

• Distance 70 Miles

Manning

Yes

Man-Made

2 Years

4 Days

5 Days

Same Town

Mullett v. Manning :Better Case for OO (DQ47)

Mullett • Abandoned: Maybe• Animus Rev. No• Ret’d to NL Yes• Tamed: No Info• Marked; Blemishes • Time

– Owned Unclear (Less)– Out 2 Weeks– Till Found 1 Year

• Distance 70 Miles

Manning

No

Maybe

Maybe

Yes

Man-Made

2 Years

4 Days

5 Days

Same Town


• Manning is a better case for the OO on every factor explicitly made relevant by the two cases.


• Manning is a better case for the OO on every factor explicitly made relevant by the two cases.

• Very unusual. In exam hypos, situation often better on some factors, worse on others, so you have to discuss which factors outweigh the others and why.

Mullett v. Manning :Rule That Covers Both (DQ48)

Lesorgen Formulation #1

OO loses property rights in an escaped animal when the animal, without an intention to return, can provide for itself and is in its state of natural liberty.

• Essentially a restatement of Mullett rule, so consistent with Mullett.

• Consistent with Manning if you assume the canary could not have provided for itself.


Lesorgen Formulation #2

OO retains ownership in an escaped wild animal if 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 the owner has not abandoned his search once the animal has escaped.


OO retains ownership in an escaped wild animal if 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 the owner has not abandoned his search once the animal has escaped.

• Mullett: ambiguous phrases might be met, especially if Mullett trained sea lion prior to escape. Might need to modify language.


OO retains ownership in an escaped wild animal if 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 the OO has not abandoned his search once the animal has escaped.

• 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 his search.”

LOGISTICS

LOGISTICS

Info Memo #3 Posted• Info for Students Taking My Midterm

• Exam Tips (For Everyone)

• Write-up of Mullett/Manning Briefs

• Write-up of Review Problem #1

• Review Problem #2

• Briefing Instructions for Trial Court Opinions

LOGISTICS• Info Memo #3 Posted

– Note: Responsible for Info Memo Content

• Course Materials for Unit Two Posted– We’ll Start Unit Two Next Week– Assignment Sheet Updated After Class Today– Note: Kesler & DQs 56-58:

• Listed for Friday; May Get Pushed to Monday• Should be MERCURY, not NEON• I’ll fix on Assmt. Sheet

LOGISTICS• Info Memo #3 Posted

• Course Materials for Unit Two Posted

• Midterm– Take Seriously If You Are Taking It– Office Hours 1:30-4:00 Saturday– I’ll Post Simultaneously on Course Page

Albers under

Mullett and Manning

Albers under Mullett and Manning:

DQ50 Mullett Factors (from last time)• Abandoned: Only by Compulsion

• Animus Rev. No

• Ret’d to NL Probably Yes


DQ50 Manning Factors• TAMING: Evidence?

• Fox took food from Hand• Court says “Semi-Domesticated”

Less than in Manning. Enough?

If unsure, check for reason behind rule


DQ50 Manning Factors• TAMING: Evidence?

• Fox took food from Hand• Court says “Semi-Domesticated”

Evidence of Labor or Personal Connection?

Not much, so unlikely to be considered tamed.


DQ50 Manning Factors• TAMING: Less than Manning

• MARKING: Tattoos in Ears

How strong is mark?



• MARKING: Tattoos: How Strong? 335 = Clearly Man-Made (Maybe Not 1) Maybe Hard for Non-Expert to Find? Unlikely to Disappear Identifies Owner Industry Practice

Other Facts Giving Notice to Finder?



• MARKING: – Tattoos: Quite Strong

– Other Facts Giving Notice to Finder? Type of Fox Unknown in Area Industry Well-Known in Area



• MARKING/NOTICE: Better than Manning

• TIME & DISTANCE• Animal Owned 2 Weeks Before Escape

• Animal Ran 6 Miles Before Being Killed

• Animal Killed1 Day After Escape

• Unknown Time Before O Discovered Pelt

Significance?



• MARKING/NOTICE: Better than Manning

• TIME & DISTANCE– Prior to Escape: Less than Manning– After Escape: Similar to Manning

Overall result unclear; might argue it’s like escaped menagerie animal, so

back to OO

The Logic of Albers

THE LOGIC OF ALBERS

1. DOMESTICATED OR WILD

2. ADDRESSING PRIOR AUTHORITY

3. WHAT THE CASE HOLDS

4. CRITIQUE

THE LOGIC OF ALBERS: DOMESTICATED OR WILD

Parties’ Presumption: 2 Available Rules1. Rule for Wild Animals (Mullett/Blkstone)

under which finder (D) wins

2. Rule for Domestic Animals under which Original Owner (P) wins

Leads to sequence of arguments about whether fox is wild or domestic


DQ52d p.40: “Counsel for defendant insists that whether an animal be wild or domestic must be determined from the species, not from the individual.”

D wants Mullett rule, so wants animal to be wild. Argues that all foxes are wild.

Court says no; nature of animus rev. indicates that you look at individual animals


p.41: “Nor has birth in captivity anything to do with the question. A wild cat may be just as wild if born in a cage as if born on a mountainside.”

P must have argued that animal is “domesticated” if born in captivity (so fox here is domesticated).

Court disagrees in this passage.


DQ52c p.39: Plaintiff argued that “foxes are taxable in this state, hence the common-law rule as to domesticated animals applies….”

Gist of P’s argument is “You are making me pay taxes on foxes as a valuable asset; only fair to treat them as domesticated animals (which are similarly taxed).

Court doesn’t address directly, but same is likely true for zoo animals, and tax system is separate legal structure not binding here


p.41: “Mr. Black's definition of domestic animals as ‘such as contribute to the support of a family or the wealth of a community’ would include all fur-bearing animals held in captivity, wherever born or however wild.”

Again, P must have raised this definition as including fur foxes. The court rejects the definition as too inclusive, thus inconsistent with requiring individualized determination.

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

p.41: Discussion of legal connection between tort liability and property rights:

We’ll come back to with Kesler


pp.40-41: These authorities are rather confusing than enlightening, and even suggest that one modification of the rule would permit the owner to recover if he could identify his property. We know of no case so applying it (save those dealing with bees), and the injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent. “Even” means?


pp.40-41: “[O]ne modification of the rule would permit the owner to recover if he could identify his property. … [T]he injustice of its application to one who captures or kills ordinary wild animals which have escaped from restraint and returned to their natural habitat is apparent.”

DQ53: To whom is it unjust? Why?


p.41: “We take no notice of” cases involving theft from traps & cages and theft of dogs because they are “wholly inapplicable.”

Orig. Owner would win all these cases, so P must have raised them.

“Wholly inapplicable” because they involve either domestic animals or animals completely within control of owner.


DQ52a: Campbell (Ontario)

Who do you think won the case?

What is the significance of the Ontario statute “correcting” the case to the logic of Albers?

the essential louis armstrong: disc 1 (recordings 1925-30)

Documents

canary bird

mocking bird

holding of manningto

holding of manningmapping

holding of manningdq44

mean mitcherson owned

neighboring house

views of right