music: “crazy for you” cast album (1992) music & lyrics by g eorge & ira gershwin...

MUSIC: “Crazy for You” MUSIC: “Crazy for You” Cast Album (1992) Cast Album (1992)

Music & Lyrics by Music & Lyrics by George & Ira Gershwin (1918-37)George & Ira Gershwin (1918-37)

§B Lunch Wed Oct 1Meet on Bricks @ 12:15

Bautz * FierroGolden* Jones

Prado

(§B: Very Last Lunch)

§D Lunch Thu Oct 2Meet on Bricks @ 11:55

Centofanti * George * Leveille Miller-Ciempela * Seiglie

Stockman * Witkiewitz

(§D: Typed Characters Welcome)

The Logic of Albers: CritiqueRADIUM 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)?

•Might look at:

– Relative institutional strengths?

– Democratic theory?

– Certainty/notice?


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)

Logistics: Skills, Assignments, Exam Prep,

Fall Break

Lot of Info Today

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

E-Mail Me if Qs

Logistics: Skills, Assignments, Exam Prep,

Fall BreakTry to Think About Assignments Try to Think About Assignments

& Exams in Terms of Skills& Exams in Terms of SkillsRelevant Skills in Elements Include:Relevant Skills in Elements Include:I. Reading Comprehension

II. Applying Legal Authority to New Sets of Facts

III. Determining Appropriate Legal Test for Particular Situation

Skills: Reading Comprehension Assignments: Briefs

A. Reading Comprehension Sub-Skills: A. Reading Comprehension Sub-Skills: 1. Reading Legal Materials (& Other Relevant 1. Reading Legal Materials (& Other Relevant

Authorities)Authorities)

2. Following Directions2. Following Directions

B. Relevant Assignments: Submitted Briefs B. Relevant Assignments: Submitted Briefs (Radiums Done)(Radiums Done)

– Krypton #2: Krypton #2: Bartlett v. Budd Bartlett v. Budd (Due Sun @ End (Due Sun @ End of Breakof Break

– Oxygen #2: Oxygen #2: Swift v. Gifford Swift v. Gifford (Due Sun @ End (Due Sun @ End of Break)of Break)

– Uranium #2: Uranium #2: Ghen v. RichGhen v. Rich (Due Sun 1 week (Due Sun 1 week after Break)after Break)


B. Relevant Assignments: Submitted B. Relevant Assignments: Submitted Briefs Briefs

For Prep: Prior BriefsFor Prep: Prior Briefs•Check status of grading on bottom of course page Check status of grading on bottom of course page •Oxygen Brief #1 & Krypton Brief #1: Available by Oxygen Brief #1 & Krypton Brief #1: Available by FridayFriday–If not picked up by Fri mid-afternoon, we’ll e-mail you If not picked up by Fri mid-afternoon, we’ll e-mail you PDFPDF

•Uranium Brief #1: Available by Friday of Fall Uranium Brief #1: Available by Friday of Fall BreakBreak–When available, we’ll e-mail you PDFWhen available, we’ll e-mail you PDF


B. Relevant Assignments: B. Relevant Assignments: Submitted Briefs Submitted Briefs

For Prep: Other MaterialsFor Prep: Other Materials•Class Notes/Slides from Fri on Class Notes/Slides from Fri on TaberTaber•Posted by Thursday of Fall BreakPosted by Thursday of Fall Break–Sample Sample TaberTaber Brief Brief –Quizzes on Quizzes on Bartlett/SwiftBartlett/Swift

•Posted by Friday after Fall BreakPosted by Friday after Fall Break–Sample Sample Bartlett/Swift Bartlett/Swift Briefs Briefs –GhenGhen Quiz Quiz

Skills: Applying Legal Authority to New Sets of Facts

A. Applying Legal Authority: A. Applying Legal Authority: Sub-Skills Sub-Skills

11. Applying Language (Rules, . Applying Language (Rules, Factors, Elements)Factors, Elements)

2. Comparing Facts2. Comparing Facts

3. Applying Relevant Policies3. Applying Relevant Policies


Exam Prep: Final Exam Q1 (XQ1)

B.B. XQ1: Apply “Animals Cases” to New XQ1: Apply “Animals Cases” to New Fact PatternFact Pattern

1.1. Animals Cases = Animals Cases = Cases in Unit One Cases in Unit One plusplus Whaling CasesWhaling Cases

2.2. Three Types of IssuesThree Types of Issues

a. First Possessiona. First Possession

bb. Escape. Escape

c. Customc. Custom



B.B. XQ1: Apply “Animals Cases” to New Fact XQ1: Apply “Animals Cases” to New Fact PatternPattern

2. Three Types of Issues2. Three Types of Issues

a. First Possessiona. First Possessioni) i) Pierson, Liesner, Shaw, Pierson, Liesner, Shaw,

ii) ii) SwiftSwift

iii) Written Asssignment I & Weasel Hypoiii) Written Asssignment I & Weasel Hypo

bb. Escape. Escape

c. Customc. Custom






bb. Escape. Escapei) i) Manning, Mullett, Albers, KeslerManning, Mullett, Albers, Kesler

ii) ii) Taber, BartlettTaber, Bartlett

iii) Squirrel hypothetical (DQ1.48)iii) Squirrel hypothetical (DQ1.48)

c. Customc. Custom






bb. Escape. Escape

a + b. Border Line: First Possession + Escapea + b. Border Line: First Possession + Escape

i) Written Assignment #2 & Wolverine Hypoi) Written Assignment #2 & Wolverine Hypo

ii) ii) GhenGhen

c. Customc. Custom



B.B. XQ1: Apply “Animals Cases” to New XQ1: Apply “Animals Cases” to New Fact PatternFact Pattern



bb. Escape. Escape

c. Custom: We’ll Do in Detail After Fall c. Custom: We’ll Do in Detail After Fall BreakBreak

i) i) PiersonPierson

ii) All 4 Whaling Casesii) All 4 Whaling Cases

Skills: Applying Legal AuthorityExam Prep & Final Exam Q1

C. Exam Prep & Fall BreakC. Exam Prep & Fall Break1. Generally: 1. Generally:

a. Day or two really offa. Day or two really offb. Steady work on indiv courses: at least one b. Steady work on indiv 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 both 1st b. Opportunity for Careful Prep on both 1st

Possession & EscapePossession & Escapec. 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-depth


C. Exam Prep & Fall BreakC. Exam Prep & Fall Break2. 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


Possession & EscapePossession & Escapec. Much less material than other courses c. Much less material than other courses Do Do

More In-DepthMore In-Depth- can reread cases can reread cases - double-check quizzes + sample briefs (Albers double-check quizzes + sample briefs (Albers

& Kesler posted)& Kesler posted)- do weasel & squirrel hypos w other casesdo weasel & squirrel hypos w other cases- chartingcharting


C. Exam Prep & Fall BreakC. Exam Prep & Fall Break2. 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


Possession & EscapePossession & Escapec. Much less material than other courses c. Much less material than other courses Do Do

More In-DepthMore In-Depth- Can reread cases Can reread cases - Go thru quizzes + sample briefs (Albers & Go thru quizzes + sample briefs (Albers &

Kesler posted)Kesler posted)- Do weasel & squirrel hypos w other casesDo weasel & squirrel hypos w other cases- ChartingCharting

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


D. Practice Midterm & Exam SkillsD. Practice Midterm & Exam Skills1. Posted on Course Page by Monday1. Posted on Course Page by Monday

a. Preliminary Note on Exam Technique (in a. Preliminary Note on Exam Technique (in new Info Memo)new Info Memo)

b. Practice Midterm Q with Instructions for b. Practice Midterm Q with Instructions for “Exam Conditions”“Exam Conditions”

c. Comments/Best Student Answers Memo c. Comments/Best Student Answers Memo from Prior Yearsfrom Prior Years

2. For Feedback from Me2. For Feedback from Mea. Do Under “Exam Conditions”a. Do Under “Exam Conditions”b. Go through Comments /Best Answers b. Go through Comments /Best Answers

MemoMemoc. Bring me Specific Qs (I can’t go through c. Bring me Specific Qs (I can’t go through

114 line-by-line)114 line-by-line)


D. Practice Midterm & Exam SkillsD. Practice Midterm & Exam Skills1. Practice Midterm Posted on Course 1. Practice Midterm Posted on Course

Page by MondayPage by Monday2. For Feedback from Me: Bring me 2. For Feedback from Me: Bring me

Specific QsSpecific Qs3. More Generally: 3. More Generally: a.a. I do Faculty-Perspective Exam Skills I do Faculty-Perspective Exam Skills

Workshops in November Workshops in November b.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 I am world’s leading expert on what I look

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

Skills: Applying Legal AuthorityGroup Written Assignment #2

Important Exam Task/Skill: Apply Authorities Studied to New

Hypothetical or “Fact Pattern”

•Assmt #1 : Structured Sequence of Arguments

•Assmt #2: Wider Range of Arguments


Wide Range of Arguments w 3 Limits

1.Each Team Only Addresses One Issue: –“First Possession” = Was There a

Moment When Wolverine Became Property Of P?–“Escape” = Did P Lose Property Rights

When Wolverine “Escaped” to D’s Property (Must Assume P Acquired a Property Right)



1.Each Team Only Addresses One of Two Issues (1st Possession -OR- Escape)–Stick to Your Issue–Be Very Careful to Explain Relevance

If You Use Authority Focused on Other Issue



1.Each Team Only Addresses One Issue

2.Representing One Particular Party– All Arguments Must Support Your

Client–Legal Smeagols: Identify Other

Side’s Best Arguments, Then Respond to Them



1.Each Team Only Addresses One Issue2.Representing One Particular Party

3.Arguments must be “based on the materials in Unit One.” –No arguments based on Whaling Cases –No arguments based on Rose Article


Preparation

1.Do Work Suggested Above for Fall Break Reviewing Materials on Both Issues2.Look at Feedback on Assignment #1– Comments & Best Answers Memo Now

on Course Page & Updated by End of Break

– Individual Comments on Your Work Available Thursday after Break


General Points

1.Care re Formatting & Substantive Directions 2.Review “Common Writing Concerns”3.Working Together: – Due October 19 (Sunday after Break)– Before Break Should Work Out Individual

Responsibilities and Timing

QUESTIONS?

Skills: Determining Appropriate Legal Test for Particular Situation

A. Determining Legal Test: Sub-Skills A. Determining Legal Test: Sub-Skills 11. Using Relevant Policies . Using Relevant Policies

– As Seen in As Seen in Pierson; Albers; ShawPierson; Albers; Shaw– Policy Arguments from DemsetzPolicy Arguments from Demsetz

2. When to Apply Existing Tests to New 2. When to Apply Existing Tests to New Situations Situations

– Argument by AnalogyArgument by Analogy– E.g, Applying Animals Cases (1E.g, Applying Animals Cases (1stst Poss & Poss &

Escape) toEscape) to» Whaling CasesWhaling Cases» Oil & Natural GasOil & Natural Gas

Skills: Determining Appropriate Legal Test for Particular Situation

B. A Little TwistB. A Little Twist1.1.Concern re Importance of Concern re Importance of Animals Cases (ACs)Animals Cases (ACs)

– Very Rare to Litigate These Fact Very Rare to Litigate These Fact PatternsPatterns

– BUT Ideas from ACs re 1st BUT Ideas from ACs re 1st Possession & Escape Show Up in Possession & Escape Show Up in Many Different PlacesMany Different Places

2. So Whales/Wolverines will be 2. So Whales/Wolverines will be Last Animals You SeeLast Animals You See

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: TYPO

PAGE 53Last Sentence of Block Quote:

“remained” should be

“regained”

Kesler v. Jones: Oxygen

In-Class Brief & DQ1.60-1.62

M A N Y T A N K M A N Y T A N K S!!S!!

Kesler v. Jones BRIEF: Oxygen

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 Oxygens Oxygens Saw That There Were Two Issues in

Case? (Show of Hands)(Uraniums are RadioactiveRadioactive 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 (Oxygen) 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 (Oxygen) 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?

music: “crazy for you” cast album (1992) music & lyrics by g eorge & ira gershwin...

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