tue sep 23 (today): office hours cancelled

MUSIC: ERIK SATIEOEUVRES POUR PIANO

(1887-1922)Aldo Ciccolini, Piano

(Disc 2: Recordings 1966-71)

Tue Sep 23 (Today): Tue Sep 23 (Today): Office Hours Office Hours

CancelledCancelled

Wed Sep 24 Wed Sep 24 (Tomorrow) (Tomorrow) Both Sections MeetBoth Sections Meet

7:55-9:157:55-9:15

DQ1.49: Applying Manning ‘s Factors to Facts of Mullett

• Factors Together:• Taming: No Evidence (But Lot Taming: No Evidence (But Lot of $$$)of $$$)

• Marking: Good I.D.; Not Strong Marking: Good I.D.; Not Strong re Notice re Notice

• Emotional Bond: No Evidence ofEmotional Bond: No Evidence of

• Short Time/Distance from Short Time/Distance from Escape: Worse than Escape: Worse than Manning, Manning, Especially Year to DiscoverEspecially Year to Discover

DQ1.49: Applying Manning ‘s Factors to Facts of Mullett

• Factors Together• Taming: No Evidence of (though $$$)• Marking: Good I.D.; Not Strong re Notice • Emotional Bond: No Evidence of• Short Time/Distance: Worse than Manning,

Esp. Year

Pretty weak case for OO under Manning unless

court considers $$$ investment very important.

LOGISTICS

CLASSROOM TOMORROW§D Seating §B

Opposite of Class #7•If you normally sit on the side where your section is sitting tomorrow, take your usual seat.•If you normally sit on the side where the other section is sitting tomorrow, sit on the other side in the back four rows (i.e., behind the usual seating).•§D: All but 4 of the §B students remembered their make-up class, even though it was day after 3-day weekend.

DQ1.53 Oxygen 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 6pm

TonightSection B

•Ciani, Nick•Hennings, Spencer •Maclaughlin, Stephanie

Section D (PH balanced)

•Gilmartin, Christopher•Miller-Taylor, Randolph•Rapp, Howard

COVERAGE: CLASS #16#17TODAY

Primarily Cold Calls; Keep Hands to Yourself Till I Ask

1.Mullett factors & Rest of Mullett brief (RADIUM)2.Apply Mullett factors – to facts of Manning DQ1.51 (OXYGEN) & DQ1.55 (KRYPTON)– to facts of Albers DQ1.54 (KRYPTON)

TOMORROW I’ll Lecture More Than Usual

1. Brief Intro to Unit Two. Look at/I’ll Take Qs on: – Instructions for Briefing Trial Court Decisions (56-57)– Intro to Whaling Cases (57-59)

COVERAGE: CLASS #17TOMORROW (Continued)

2.Finish Albers facts under Mullett factors DQ1.54 (KRYPTON)

3.Apply Manning factors – to Squirrel Hypo DQ 1.48 (URANIUM)– to Facts of Albers DQ 1.54 (KRYPTON)

4.Closing Up Mullett & Manning– DQ1.48 & 1.53 (Me from E-Participation)– DQ 1.52: : Stronger case for OO: Manning or Mullett (OXYGEN)

•Begin Structure & Reasoning of Albers2. I’ll go to Uranium some for Brief & DQ1.56

3. I won’t get to Radium DQs until Monday/Tuesday

COVERAGE: CLASS #17#18Thursday-Friday: No Class

Sunday 9/28 Due @ 4:00 pm

• Uranium Written Brief #1: Uranium Written Brief #1: Kesler v. JonesKesler v. Jones• Radium Written Brief #2: Radium Written Brief #2: Taber v. JennyTaber v. Jenny

Monday/Tuesday (9/29-30)

•Pick up where we left off w Albers – Finish Brief & DQ1.56 (Uranium)– Cover DQ1.57-1.59 (Radium)

•Begin Kesler Brief & DQs 1.60-1.62 (Oxygen)

Mullett v. Bradley

DQ1.50: RADIUMDQ1.50: RADIUMBefore Returning to Brief, We’ll

Examine the Three Factors that the Court adopts from the English

Common Law

DQ1.50: Mullett Factors : RADIUM

1. Abandonment: If Abandoned, to Finder2. Intent to Return (Animus

Revertendi/AR): If not abandoned & animal has AR, to OO

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


For Each Factor, We’ll:

1.Define & Discuss How to Prove

2.Discuss Why It Is Relevant to OO/F Disputes

3.Discuss Evidence & Outcome in Mullett

4.Later Discuss How It Would Apply to Facts of Manning and Albers


ABANDONMENTDefine & Discuss How to Prove

•No Definition in Case; Usually Means Intentionally Giving Up Property Rights in Something.•Look for act by OO indicating intent to relinquish ownership.•Negligence in caring for the animal or in maintaining possession is insufficient (again, laptops in library).


ABANDONMENTWhy Relevant to OO/F Disputes?

•Typically, we allow people to choose to give up property rights if they want to

•Maybe unfair to return to OO, esp. if F aware of act of abandonment or has invested in animal

DQ1.50: Mullett Factors : RADIUM:

ABANDONMENTEvidence & Outcome in Mullett

•Evidence of Abandonment Here?



•Evidence of Abandonment Here?– Investment, but low commercial value– Left unenclosed on island– No pursuit –BUT court says reasonable to think couldn’t find.

Why Not? Should it Matter?



•Evidence of Abandonment Here?– Investment, but low commercial value– Left unenclosed on island– No pursuit –BUT court says reasonable to think couldn’t find.

Outcome in Mullett?


ABANDONMENTOutcome in Mullett? (see last para. p.44)

[C]ounsel for the defendant [suggested] that the animal had been abandoned by the plaintiffs …. It is, however, unnecessary to pass upon this, in view of the conclusion to which we have come that the plaintiff had lost his right of property in the sea lion [because] it had regained its natural liberty without any intention of returning.


ANIMUS REVERTENDI (AR)Define & Discuss How to Prove

•Animus Revertendi is “Intent to Return” in Latin. In this context, means animal (that is out of OO’s immediate control) intended to return home

How do you prove what goes on in mind of animal?


ANIMUS REVERTENDI (AR)Define & Discuss How to Prove

•Animus Revertendi is “Intent to Return”

•Blackstone: Can “only” show by “usual custom of returning.”

Why Relevant to OO/F Disputes?


ANIMUS REVERTENDI (AR)Why Relevant to OO/F Disputes?

•Shows labor/training by OO •Shows connection betw OO and animal•Reasonable for OO to let loose

Evidence in Mullett?


ANIMUS REVERTENDI (AR)Evidence & Outcome in Mullett

•Evidence– No prior returns– Leaves soon after placed on island– Travels 70 miles in 2 weeks with no return

•Outcome?


ANIMUS REVERTENDI (AR)Evidence & Outcome in Mullett

•Evidence– No prior returns– Leaves soon after placed on island– Travels 70 miles in 2 weeks with no return

•Outcome = No AR– Doesn’t appear to have been contested, so not a separate issue in case.


Return to NATURAL LIBERTY (NL)Court Defines NL:

•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.”

How Would You Prove?


Return to NATURAL LIBERTY (NL)Proving NL:

•Look at Condition of Animal When Found– Is It Healthy?– Has It Survived for a While?

•Look at Biology of Animal– Where Does It Usually Live? (Climate/Habitat)– What Does It Eat?


Return to NATURAL LIBERTY (NL)Court Defines NL:

•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.”

Why Relevant to OO/F Disputes?


Return to NATURAL LIBERTY (NL)Why Relevant to OO/F Disputes?

Note that court doesn’t explain this.

•Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses.•Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses


Return to NATURAL LIBERTY (NL)

What exactly is at issue in Mullett?


Return to NATURAL LIBERTY (NL)What exactly is at issue in Mullett?

Can animal be in natural liberty even if not natural habitat? Court says yes.

Mullett provides definition and result w/o explanation. (Insufficient for you!)


Return to NATURAL LIBERTY (NL)Court says can be NL even if not natural habitat.

Fit w purposes of Rule that, if NL F?•Labor/Control: OO should control (confine or pursue). If animal gets far enough away from control that it can take care of itself, OO loses.•Notice/Certainty: If animal in place that ordinary finder wouldn’t know of prior owner, OO loses

Understanding Mullett Factors : Types of Information Case

Might Provide• Definition• General Info on Evidence That Shows if Factor Met• List of Evidence in This Case Relevant to Factor• Decision as to Whether Factor Met in This Case• Indication of Purpose of Factor


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 Factor: No.


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 tells us for AR, must rely on this

list for what facts in the case are “relevant” –Have to be careful, e.g., re clever point about

scarring as evidence of AR

Mullett v. Bradley

BACK TOBACK TO

IN-CLASS CASE BRIEF: IN-CLASS CASE BRIEF: RADIUMRADIUM

Mullett v. Bradley BRIEF: RADIUM

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.


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.•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.


RATIONALES See Models in Sample Brief

•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

I’ll post sample brief for Mullett after class Tuesday

Qs on Mullett?

Using Factors or Elements

1.Crucial Set of Skills for Lawyering & for Exams

2.We’ll Do at Length Today

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

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

Using Factors or Elements1. 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 already for Factors fromboth Manning & Mullett

Using Factors or ElementsWhen Applying to New Facts

1.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)

Mullett v. Bradley Factors Applied to …

DQ1.51:

Facts of Manning(OXYGEN)

DQ1.54:

Facts of Albers

(KRYPTON)

Mullett FactorsABANDONMENT

Types of Evidence of Abandonment Relevant in Prior Discussions

•Value to OO

•Care in Confinement

•Pursuit


DQ1.51: Applied to Manning (OXYGEN)

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

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

We’ll Look at Under Mullett & Manning Factors


DQ1.54: Applied to Albers (KRYPTON)


•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 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 (OXYGEN)•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 (OXYGEN)•Evidence in Manning Relevant to AR – One prior return • No custom v. 100%• Bird returned despite no evidence of relevant training

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

•Fit Purposes Behind Factor?– Shows Training?– Shows Emotional Bond?– Shows Reasonable to Allow Animal Out?


DQ1.51: Applied to Manning (OXYGEN)•Evidence in Manning Relevant to AR – One prior return – Away 5 days; to different house in same town (trying?)

•Not Great Fit With Purposes Behind Factor– Actions Consistent w No Training or Emotional Bond– No Real Evidence That Reasonable to Allow Animal Out

KRYPTON DQ1.55Albers on Manning

How does Albers characterize the holding

in Manning?


How does Albers characterize the holding in Manning?

One Escape/Return = Animus Revertendi (Bottom p.47)

Is This a Fair Characterization?


• Albers characterizes the holding in Manning as “One Escape/Return = AR”

• BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR

• So why does court say this?



• Court (or treatise authors) might read Manning this way to reconcile result with the Mullett-Blackstone Rule: Court returned bird to OO, so must’ve believed AR.

Other ways to reconcile?



• Other ways to reconcile the result with the Mullett-Blackstone Rule?

• Canary was domesticated not wild.• Canary never returned to NL.



• Trying to reconcile the result with the Mullett-Blackstone Rule

Note that Georgia case and NY case do not have to agree; OK if not

reconcilable.



Types of Evidence Relevant to AR

•Blackstone: “Usual Custom of Returning”

•Mullett: Behavior of Animal

Evidence Here?



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)

Albers (Animus Revertendi)

Evidence re AR•Note: Court says determine AR for individual animal, not by species (bottom p.47)•Not binding on other states as to meaning of AR, but you can use to argue individual case.

tue sep 23 (today): office hours cancelled

Documents

manning mullett

mullett factors dq1

facts of manning dq1

manning s factors

kryptonapply manning

askmullett factors

mullett manningdq1

kryptonto facts of albers