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ELEMENTS B 1 & B 2 POWER POINT SLIDES Class #18 Monday, September 26, ELEMENTS B 1 & B 2 POWER POINT SLIDES Class #18 Monday, September 26, 2016 Tuesday, September 27, 2016.

To Accompany Albers: JELLY ROLL MORTON & THE RED HOT PEPPERS Original Victor Jazz To Accompany Albers: JELLY ROLL MORTON & THE RED HOT PEPPERS Original Victor Jazz Recordings Vol. 1 (1926 -27) Posted On Course Page: • Gen’l Info re Practice Midterm (Read Carefully) • Copy of Midterm Instructions and Attached Syllabus • Mullett & Albers Briefs • GWA#2 (I’ll Take Qs Next Class) TUESDAY LUNCH Meet on Bricks @ 12: 30 Gordon * Michel Robledo

 LOGISTICS: PRE-MIDTERM CLASSES PRIMARY GOAL: MORE FULLY PREPARE YOU TO ADDRESS ESCAPE ISSUES LOGISTICS: PRE-MIDTERM CLASSES PRIMARY GOAL: MORE FULLY PREPARE YOU TO ADDRESS ESCAPE ISSUES IF RAISED BY MIDTERM HYPOTHETICAL • Finish Discussion of Application of Manning Factors (Today) • Discuss Application of Mullett Factors in Detail (Today) • Albers Holding & Possible Application (Today) • Kesler Holding & Possible Application (Wed/Thurs) HOLD Qs UNTIL I ASK FOR THEM ADDITIONAL COVERAGE: • Details on the Logic of Albers (Today as time allows Wed/Thurs)

Manning v. Mitcherson Relevant Factors • Taming (or Other Investment in Animal) • Emotional Manning v. Mitcherson Relevant Factors • Taming (or Other Investment in Animal) • Emotional Bond (Not Relevant in Commercial Cases) • Marking (or F Likely Aware of OO) • Short Time/Distance from Escape

Manning v. Mitcherson Factors as Precedent 1. Using Factors & Elements Generally – Assume Manning v. Mitcherson Factors as Precedent 1. Using Factors & Elements Generally – Assume Each There for Separate Reason with Different Supporting Evidence – Apply One at a Time, Then Look at Whole Picture (Often Hard for September 1 Ls) 2. Manning Applied – To Facts of Albers (Did on Friday) – To Squirrel Hypothetical (Started Friday)

Manning Factors: Short Time or Distance from Escape Relevant Evidence & Significance DQ 1. Manning Factors: Short Time or Distance from Escape Relevant Evidence & Significance DQ 1. 48: Squirrel Hypo • Time: Escape to Find: Unclear • Distance: Escape to Find: “Across Town” • Sounds like a lot for a squirrel, so good for F • Time: Find to OO Claim: 2 Months: Helpful to F: • Fair amount of time for bonding & maintenance by F • Much closer than in Manning to amount of time OO had animal

Manning Factors: TOGETHER DQ 1. 48: Squirrel Hypo • • Helpful to A/OO 3 Manning Factors: TOGETHER DQ 1. 48: Squirrel Hypo • • Helpful to A/OO 3 Months with OO Responds to Name Identifying Markings Comfortable w Humans (if not common for local squirrels) • • Helpful to B/F Squirrel Travels “Across Town” No Prior Return 2 Months with Finder Markings Not Man-Made (apparently)

DQ 1. 48: Articulating Manning Holding • Asked to articulate versions of Manning holding DQ 1. 48: Articulating Manning Holding • Asked to articulate versions of Manning holding helpful to each party. • I’ve provided some examples & comments on the slides that follow and I’ll write up & post a few more later this week in Info Mem #2. E-mail if Qs. • On exam, can state versions of holding and apply to hypo, framing as follows: “One plausible version of Manning’s holding is that an OO retains property rights in an escaped wild animal where …. Here that would mean …. ” • Can strengthen this by briefly indicating why your version of the holding is a particularly good one because – Supported by language of Manning or other cases AND/OR – Supported by relevant policy concerns.

DQ 1. 48: Articulating Manning Holding This Slide and the Subsequent Slides Addressing DQ DQ 1. 48: Articulating Manning Holding This Slide and the Subsequent Slides Addressing DQ 1. 48 were not Shown in Class; E-Mail if Qs Asked to articulate versions of Manning holding helpful to each party fpr Squirrel Hypothetical in DQ 1. 48. Formulations successful if: – Consistent with Manning (facts, result, examples) – Helpful to your client – Relatively easy to understand & apply – (Plus ideally) Consistent with relevant policy concerns

DQ 1. 48 Sample Manning Holding (for Amy/OO) Pretty good narrow version; includes almost DQ 1. 48 Sample Manning Holding (for Amy/OO) Pretty good 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; and • that had been missing for a short period of time and was located by the owner soon after. [This point problematic b/c not clearly true of squirrel].

DQ 1. 48 Sample Manning Holding (for Amy/OO) Solid broader version; focuses on a DQ 1. 48 Sample Manning Holding (for Amy/OO) Solid broader version; 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 and remembers its name after a significant period of time [italicized phrase is an interesting idea but ba little vague; might replace with, e. g. , “when the OO discovers its location”] (2) and marked in such a way as to make identification straightforward. [Clever way to talk about marking for A that doesn’t turn on telling F there is an OO. ]

DQ 1. 48 Sample Manning Holding (for Amy/OO) Too broad; case doesn’t protect OO DQ 1. 48 Sample Manning Holding (for Amy/OO) Too broad; case doesn’t protect OO this far OOs retain property rights in escaped animals f. n. if they accidentally escape from the OOs’ immediate possession and come 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.

Brandon/F) Very narrow version; includes almost all facts unhelpful to A OO retains property Brandon/F) Very narrow version; includes almost all facts unhelpful to A 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. Although consistent with Manning and helpful to Brandon, might need to defend that it would be sensible for court to focus on this set of facts.

DQ 1. 48 Sample Manning Holding (for Brandon/F) Solid relatively simple version OO retains DQ 1. 48 Sample Manning Holding (for Brandon/F) Solid relatively simple version 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 Sensible to include (and concede) factor helpful to A (taming) because balanced by two factors that A cannot meet here. “Shortly” might leave a court with more discretion than you’d want.

DQ 1. 48 Sample Manning Holding (for Brandon/F) Clever version focused on different measures DQ 1. 48 Sample Manning Holding (for Brandon/F) Clever version focused on different measures of time. OO retains property rights in an escaped animal f. n. that OO had possessed 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 F possessed the animal. Many students have submitted samples (like the first one for Amy and the second one for Brandon above) that use imprecise phrases like “a short time. ” This student removes some of the uncertainty by forcing the court to compare the two relevant time periods after escape to the length of time the OO had the animal before escape.

Mullett v. Bradley Factors as Precedent 1. Recap of Mullett Factors & Info as Mullett v. Bradley Factors as Precedent 1. Recap of Mullett Factors & Info as to Meaning 2. Using Mullett Factors : a) Applied to Facts of Manning b) Applied to Facts of Albers c) Mullett Issue/Holding/Rationales Integrated into Discussion of Natural Liberty

Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO (Also Very Rare) 3. Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

Understanding the Mullett Factors : Types of Information a Case Might Provide • Definition: Understanding the Mullett Factors : Types of Information a Case 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 Factors: NONE!! Quick Point re Abbr. on My Exams

Understanding the Mullett Factors : Types of Information a Case Might Provide • List Understanding the Mullett Factors : Types of Information a Case Might Provide • List of Evidence in This Case Relevant to Factor: AR – Because no list for NL or Aband. , we have to speculate as to what facts are relevant. – Because court lists evidence for AR, must rely on this list for what facts in the case are “relevant” • Time & distance from point of escape (Presumably in addition to “usual custom of returning”) • Have to be careful, e. g. , re clever 2014 point about scarring as evidence of no AR

Mullett v. Bradley Factors Applied to … DQ 1. 51: Facts of Manning DQ Mullett v. Bradley Factors Applied to … DQ 1. 51: Facts of Manning DQ 1. 54: Facts of Albers

Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO (Also Very Rare) 3. Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

Mullett Factors ABANDONMENT Types of Evidence of Abandonment Relevant from Prior Discussions • Value Mullett Factors ABANDONMENT Types of Evidence of Abandonment Relevant from Prior Discussions • Value to OO (Goes to OO’s Likely Desire to Retain) • Care in Confinement (More Presumably Better for OO, Though Negligence isn’t Necessarily Abandonment) • Pursuit (More/Quicker Effort Presumably

Mullett Factors ABANDONMENT DQ 1. 51: Applied to Manning Types of Evidence Relevant to Mullett Factors ABANDONMENT DQ 1. 51: Applied to Manning Types of Evidence Relevant to Abandonment • Substantial Value to OO (Strong Emotional Bond) • Confined Well Enough So Only 2 escapes in 2 Years • OO pursued/claimed as soon as bird located SOLID EVIDENCE OF NO

Mullett Factors ABANDONMENT DQ 1. 54: Applied to Albers Types of Evidence Relevant to Mullett Factors ABANDONMENT DQ 1. 54: Applied to Albers Types of Evidence Relevant to Abandonment • Substantial Value to OO (Pelt + Breeding) (When Chasing Fox, Not Anticipating Death) • Substantial Care in Confinement • Investment in special enclosure • Got through “inner gate” + “outer fence” • Pursuit?

Mullett Factors ABANDONMENT DQ 1. 54: Applied to Albers Types of Evidence Relevant to Mullett Factors ABANDONMENT DQ 1. 54: Applied to Albers Types of Evidence Relevant to Abandonment • Substantial Value to OO (Pelt + Breeding) • Substantial Care in Confinement • Pursuit? – OO Pursues Immediately but Stops at Nightfall – Court Describes as “Abandonment by Compulsion” • Colorado S. Ct. must have believed OO did not abandon fox, or would have given pelt

Mullett Factors ABANDONMENT Albers Leaves Qs re Meaning of “Abandonment” • When Should Failure Mullett Factors ABANDONMENT Albers Leaves Qs re Meaning of “Abandonment” • When Should Failure to Pursue or Stopping Pursuit = “Abandonment”? • Phrase “Abandonment by Compulsion” (ABC) Compulsion Suggests Doesn’t Hurt OO. What counts as ABC? – Matter if could start pursuit again later? (Sight v. Smell) – Was Mullett itself ABC? (NY Court: Reasonable to believe pursuit hopeless) Testable Issues!!

Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO (Also Very Rare) 3. Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

Mullett Factors Intent to Return (AR) Types of Evidence Relevant to AR • Blackstone: Mullett Factors Intent to Return (AR) Types of Evidence Relevant to AR • Blackstone: “Usual Custom of Returning” • Mullett: Behavior of Animal (at least to show not AR) Purposes Behind AR Factor • Might Show Training (Labor) • Might Show Animal has Emotional Bond • Might Shows Reasonable for OO to Allow Animal

Mullett Factors Intent to Return (AR) DQ 1. 51: Applied to Manning • Evidence Mullett Factors Intent to Return (AR) DQ 1. 51: Applied to Manning • Evidence in Manning Relevant to AR – One prior return • Not “usual custom” & no evidence of relevant training v. • Cute argument: 100% return rate (likely not winner) – Away 5 days; goes to house in same town (trying? ) • Maybe Close Q so Check if Evidence Fits Purposes – Shows Training? – Shows Emotional Bond? – Shows Reasonable to Allow Animal Out?

Mullett Factors Intent to Return (AR) DQ 1. 51: Applied to Manning • Evidence Mullett Factors Intent to Return (AR) DQ 1. 51: Applied to Manning • Evidence in Manning Relevant to AR – One prior return; apparently no relevant training – Away 5 days; enters house in same town (trying? ) • Not Great Fit With Purposes Behind Factor – Evidence Consistent w No Training nor Emotional Bond on Bird’s Side – No Real Evidence That Reasonable to Allow Animal Out

DQ 1. 55: Albers on Manning How does Albers characterize the holding in Manning? DQ 1. 55: Albers on Manning How does Albers characterize the holding in Manning? One Escape/Return = Animus Revertendi (Bottom p. 47) • BUT Nothing in Manning refers to Blackstone Rule or to “Intent to Return” or AR • So why does court say this?

DQ 1. 55: Albers on Manning • Albers characterizes the holding in Manning as DQ 1. 55: Albers on Manning • Albers characterizes the holding in Manning as “One Escape/Return = AR” • Court (or treatise authors) might read Manning this way to reconcile Manning with the Mullett. Blackstone Rule: Court returned bird to OO, so must’ve believed AR. Other ways to reconcile Manning with the Mullett-Blackstone Rule? – – Canary was domesticated not wild. Canary never returned to NL. • Note that Georgia case and NY case do not have to agree; OK if not reconcilable. • Note that Colorado S. Ct. is not authoritative as to meaning of Georgia S. Ct. opinion (could simply be wrong).

Mullett Factors Intent to Return (AR) DQ 1. 54: Applied to Albers Evidence Relevant Mullett Factors Intent to Return (AR) DQ 1. 54: Applied to Albers 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

Using Factors or Elements When Applying to New Facts 1. Apply One at a Using Factors or Elements When Applying to New Facts 1. Apply One at a Time, Then Look at Whole Picture 2. If significant arguments for both parties on any one factor (= 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: – Quite EASY CASE: “Intent to Return” & Albers (No evidence) – Arguably HARD CASE : “Intent to Return” & Single Return in Manning – Quite EASY (hypothetical) CASE: Animal left/returned every day for two years

Albers (Evidence of AR) • Types of Evidence Relevant to AR from Mullett • Albers (Evidence of AR) • Types of Evidence Relevant to AR from Mullett • Blackstone: “Usual Custom of Returning” • Mullett: Behavior of Animal (at least to show no AR) • Albers: Determine AR for individual animal, not by species (bottom p. 47) • Generally consistent with analysis in Mullett • Only binding in Coloradoas to meaning of AR, but you can use to argue AR should be handled

Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent Mullett Factors (from Blackstone) 1. Abandonment: If Abandoned, to Finder (Very Rare) 2. Intent to Return (Animus Revertendi/AR): If not abandoned & animal has AR, to OO (Also Very Rare) 3. Return to Natural Liberty (NL): If no intent to return, and animal has returned to NL, to Finder

Mullett Factors Return to Natural Liberty Evidence Relevant Under Definition of NL • Condition Mullett Factors Return to Natural Liberty 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

Mullett v. Bradley BRIEF & NL ISSUE: Did the trial court err in dismissing Mullett v. Bradley BRIEF & NL 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, because it cannot have returned to its natural liberty when the Atlantic is not its natural habitat?

Mullett v. Bradley BRIEF NARROW HOLDING: No, the trial court did not err in Mullett v. Bradley BRIEF 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, because it had returned to its natural liberty even though the Atlantic is not its natural habitat.

Mullett v. Bradley BRIEF: NARROW BROAD SUBSTANTIVE HOLDING: • The owner of an escaped Mullett v. Bradley BRIEF: 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, because it had returned to its natural liberty even though the Atlantic is not its natural habitat. • One 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.

Mullett v. Bradley BRIEF: KRYPTON RATIONALES • Doctrinal Rationales: Can derive from Blackstone and Mullett v. Bradley BRIEF: KRYPTON RATIONALES • 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 & concerns we noted about making “natural habitat” a key part of the rule. • See Examples in Sample Brief Posted on Course Page

Mullett Factors Return to Natural Liberty Evidence in Cases re Natural Habitat & NL Mullett Factors Return to Natural Liberty Evidence in Cases re Natural Habitat & NL Canaries Not Native to Georgia & Silver-Black Foxes Not Native to Relevant Part of Colorado. Not Dispositive Under Mullett as to NL Must Look to Definition

Mullett Factors Return to Natural Liberty Mullett Definition (Reminder): • NL = “that which Mullett Factors Return to Natural Liberty 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 Factors Return to Natural Liberty DQ 1. 51: Applied to Manning Definition: “to Mullett Factors Return to Natural Liberty DQ 1. 51: Applied to Manning 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. ” Bird out for 5 days then flew into B’s kitchen; Also Check • Local Dec. Ga Weather (Coast v. Mtns) v. Canary Habitats • Availability of Food Canaries Eat • Physical Health of Bird When Found

Mullett Factors Return to Natural Liberty DQ 1. 51: Applied to Manning Evidence Thin Mullett Factors Return to Natural Liberty DQ 1. 51: Applied to Manning Evidence Thin So Hard to Check Against Purpose(s) of Rule • 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

Mullett Factors Together DQ 1. 51: Applied to Manning 1. Abandonment: Strong Evidence Against Mullett Factors Together DQ 1. 51: Applied to Manning 1. Abandonment: Strong Evidence Against 2. Intent to Return (AR): One Escape & Return 3. 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 Factors Return to Natural Liberty DQ 1. 54: Applied to Albers • Silver-Black Mullett Factors Return to Natural Liberty DQ 1. 54: Applied to Albers • Silver-Black Foxes Not Native to Area (Not Conclusive) Types of Evidence Relevant Under Definition of NL • Condition of the Animal: No evidence of problems (strong enough to threaten chickens), but not out very long. • Similarity of Area to Natural Habitat: No evidence re habitat of silver-black foxes, but language

Mullett Factors Return to Natural Liberty DQ 1. 54: Applied to Albers Evidence of Mullett Factors Return to Natural Liberty DQ 1. 54: Applied to Albers Evidence of Fit with Purpose(s) of Rule • 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 Might turn on whether ordinary farmers in

Albers: Return to Natural. Liberty The Supreme Court of Colorado must have believed that Albers: Return to Natural. Liberty 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 reject Mullett rule for valuable animals to protect industry.

Mullett Factors Together DQ 1. 54: Applied to Albers • Abandonment: By compulsion, which Mullett Factors Together DQ 1. 54: Applied to Albers • Abandonment: By compulsion, which (court seems to say) doesn’t count against OO • AR: No • Return to NL: Court must have thought “Yes” QUESTIONS on Mullett: Factors, Brief or Generally?

Mullett & Manning Together DQ 1. 52 -1. 53 The Following Slides Were Not Mullett & Manning Together DQ 1. 52 -1. 53 The Following Slides Were Not Shown in Class; I’ll Add Some Other Examples for DQ 1. 53 in Info Memo #2

Comparing Mullett and Manning (DQ 1. 52) • Which is the stronger case for Comparing Mullett and Manning (DQ 1. 52) • Which is the stronger case for returning the escaped animal to its owner, Manning or Mullett? Why? – Helpful Exam-Related Exercise; Useful to Compare Relative Strength of Legal Position of Party in Exam Hypo to that of Equivalent Party in Case We Studied – Can Go Through Factor by Factor

Comparing Mullett and Manning (DQ 1. 52) FACTOR Manning Mullett TAMING/INVESTMENT Tamed (Name) $$$ Comparing Mullett and Manning (DQ 1. 52) FACTOR Manning Mullett TAMING/INVESTMENT Tamed (Name) $$$ but no Training EMOTIONAL BOND Yes No MARKING Man-Made Crest; Shows OO; Maybe Not Very Permanent Scars; Maybe Not Evidence of OO TIME/DISTANCE 2 Years Ownership; 5 Days Escape Discovery Short Ownership after Return 1 Year Escape Discovery ABANDONMENT Strong Evidence Not One Escape & Unclear Strong Evidence

Comparing Mullett and Manning (DQ 1. 52) • Manning is a better case for Comparing Mullett and Manning (DQ 1. 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) • Would be Very Unusual for an Exam Hypo, where situation typically like squirrel hypo in DQ 1. 48: – Better on some factors, worse on others – You then have to discuss which factors should outweigh the others and why.

Mullett & Manning: DQ 1. 53 Can you develop a rule for determining ownership Mullett & Manning: DQ 1. 53 Can you develop a rule for determining ownership of escaped animals that is consistent with both Manning & Mullett? • Good if – Consistent with Facts/Result of Both Cases – Easy to Understand (& Perhaps Apply) • Better if – Consistent with Language/Examples from Both Cases – Consistent with Relevant Policy Concerns

Mullett & Manning: DQ 1. 53 (Sample #1) OO loses property rights in an Mullett & Manning: DQ 1. 53 (Sample #1) 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: DQ 1. 53 (Sample #2) OO loses property rights in an Mullett & Manning: DQ 1. 53 (Sample #2) OO loses property rights in an escaped animal when the animal 1. Has returned to its 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: DQ 1. 53 (Sample #2) OO loses property rights in an Mullett & Manning: DQ 1. 53 (Sample #2) 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 (seems sensible & generally consistent with thrust of Albers)

Mullett & Manning: DQ 1. 53 (Sample #3) OO loses property rights in an Mullett & Manning: DQ 1. 53 (Sample #3) 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 2 d part of Shaw rule for 1 st Possession as basis of escape rule

Mullett & Manning: DQ 1. 53 (Sample #3) “OO loses property rights in an Mullett & Manning: DQ 1. 53 (Sample #3) “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 (hard to achieve) 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.

The Logic of Albers 1. What The Case Holds 2. Domesticated or Wild? 3. The Logic of Albers 1. What The Case Holds 2. Domesticated or Wild? 3. Addressing Prior Authority 4. Critique

The Logic of Albers: What The Case Holds • Preliminarily, rejects P’s apparent claim The Logic of Albers: What The Case Holds • Preliminarily, rejects P’s apparent claim that animal is “domestic” not wild. – Not precisely a separate holding b/c doesn’t affect result (P wins case anyway). – We’ll go through arguments in 2 d part of discussion of Albers.

The Logic of Albers: What The Case Holds • Rejects claim that animal is The Logic of Albers: What The Case Holds • Rejects claim that animal is “domestic” not wild. • Decides Mullett/Blackstone rule inapplicable here because of changed circumstances (valuable animal; development of fox fur industry). – Implicit: D would win under Mullett/Blackstone – Implicit: Could still use Mullett/Blackstone for animals without commercial value (like pet canary)

The Logic of Albers: What The Case Holds • Rejects claim that animal is The Logic of Albers: What The Case Holds • Rejects claim that animal is “domestic” not wild. • Mullett/Blackstone rule inapplicable for valuable animal • Doesn’t articulate specific replacement rule. Instead, court says original owner wins where … [Manning-like list but with even more facts].

The Logic of Albers: What The Case Holds (p. 49): Original owner wins where The Logic of Albers: What The Case Holds (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

The Logic of Albers: What The Case Holds (p. 49): Original owner wins where The Logic of Albers: What The Case Holds (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

The Logic of Albers: What The Case Holds D “had, or is charged with, The Logic of Albers: What The Case Holds 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 …

The Logic of Albers: What The Case Holds D “had, or is charged with, The Logic of Albers: What The Case Holds 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. ”

Logic of Albers: What The Case Holds DQ 1. 57(c): Factors that Albers treats Logic of Albers: What The Case Holds DQ 1. 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. – Could see as extension of taming $$$ investment hinted at in Manning in reference to menagerie animals/OG monkey • Finder’s Knowledge – Focus of penultimate paragraph: grizzly bear in NY; elephant in cornfield; seal in millpond. – Could see as extension of marking hinted at in Manning in reference to menagerie animals/OG

Manning Factors as Adopted/Modified by Albers • Taming (or Other Investment in Animal) Explicit Manning Factors as Adopted/Modified by Albers • Taming (or Other Investment in Animal) Explicit Recognition of $$$ Investment & Industry • Emotional Bond (Not Relevant; Commercial Case) • Marking (or F Likely Aware of OO) Explicit Recognition of Other Forms of F’s Knowledge • Short Time/Distance from Escape (Not Discussed in Albers)

The Logic of Albers: What The Case Holds DQ 1. 57(d): Articulate Possible Rule The Logic of Albers: What The Case Holds DQ 1. 57(d): Articulate Possible Rule in Albers (I’ll leave for you) Helpful to Recognize Dual Focus (on OO & F): 1. Acts of OO: investment, protection, animus rev. , pursuit, taming 2. Likely Knowledge of Finder : nat’l liberty, other evidence F knew of OO 3. Both: marking

The Logic of Albers: What The Case Holds Completing Albers Brief • Like Manning, The Logic of Albers: What The Case Holds Completing Albers Brief • Like Manning, many possible broad holdings. • Rationales – Doctrinal = Difficult because court rejects most prior authorities. – Policy = Several possibilities; again helpful to note dual focus • Examples of Holdings & Rationales in Sample Brief. Qs on Albers Holding or Reasoning?

The Logic of Albers 1. What The Case Holds 2. Domesticated or Wild? 3. The Logic of Albers 1. What The Case Holds 2. Domesticated or Wild? 3. Addressing Prior Authority 4. Critique

The Logic of Albers: Domesticated or Wild? Parties’ Presumption (p. 46): 2 Available Rules The Logic of Albers: Domesticated or Wild? Parties’ Presumption (p. 46): 2 Available Rules 1. Rule for Wild Animals (Mullett/Blackstone) under which finder (D) likely wins here (so D supports) 2. Rule for Domestic Animals under which Original Owner (P) clearly wins (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 2. Domesticated or Wild? i. DQ 1. 56(d): Species v. The Logic of Albers 2. Domesticated or Wild? i. DQ 1. 56(d): Species v. Individual? ii. Birth in Captivity? iii. DQ 1. 56(c): Taxation of Fur Foxes? iv. Black’s’ Definition of “Domestic Animal”

The Logic of Albers: Domesticated or Wild? (1) • DQ 1. 56(d) (start of The Logic of Albers: Domesticated or Wild? (1) • DQ 1. 56(d) (start of last para. p. 47): “Counsel for D 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. Thus, argues that all foxes are wild.

The Logic of Albers: Domesticated or Wild? (1) • DQ 1. 56(d) (start of The Logic of Albers: Domesticated or Wild? (1) • DQ 1. 56(d) (start of last para. p. 47): “Counsel for D 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. Thus, argues that all foxes are wild. • Court says no; don’t look at species. – Nature of AR (checking for “custom” of returning) indicates that, under the Mullett rule, you look at individual animals. – This almost certainly is true only for animals that are arguably wild. Court surely is not suggesting an individualized determination of whether a sheep is wild or domesticated.

The Logic of Albers 2. Domesticated or Wild? i. Determine by Individual not Species The Logic of Albers 2. Domesticated or Wild? i. Determine by Individual not Species ii. Birth in Captivity? iii. Taxation of Fur Foxes? (DQ 1. 56(c)) iv. Black’s’ Definition of “Domestic Animal”

The Logic of Albers: Domesticated or Wild? (2) • End 3 d para. p. The Logic of Albers: Domesticated or Wild? (2) • End 3 d para. p. 48 : “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 animal is “domesticated” if born in captivity (so fox here is domesticated). • Court disagrees in this passage; consistent w focus on individual animal.

The Logic of Albers 2. Domesticated or Wild? i. Determine by Individual not Species The Logic of Albers 2. Domesticated or Wild? i. Determine by Individual not Species ii. Birth in Captivity Irrelevant iii. Taxation of Fur Foxes? (DQ 1. 56(c)) (featuring G. I. Joe!) iv. Black’s’ Definition of “Domestic Animal”

The Logic of Albers: Domesticated or Wild? (3) • DQ 1. 56(c) (last full The Logic of Albers: Domesticated or Wild? (3) • DQ 1. 56(c) (last full para. p. 46): Plaintiff argued that “foxes are taxable in this state, hence the common-law rule as to domesticated animals applies…. ” • Gist of P’s argument likely 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). ” (Clever Argument!)

The Logic of Albers: Domesticated or Wild? (3) • DQ 1. 56(c) P: “You The Logic of Albers: Domesticated or Wild? (3) • DQ 1. 56(c) P: “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 respond directly, but – Could again say that relevant doctrine looks at individual animals, not species – Taxation likely also true for, e. g. , zoo animals (pretty clearly wild) – Tax system is separate legal structure with its

Characterization of Same Item in Different Legal Contexts • Common for a particular type Characterization of Same Item in Different Legal Contexts • Common for a particular type of property or intangible interest to be governed by more than one set of legal rules, each of which applies in a different context. • Example: A time-share interest in a resort might be treated – like ownership of part of a building for tax purposes – like a hotel room for purposes of anti-discrimination law – like a share of stock for purposes of securities laws.

Characterization of Same Item in Different Legal Contexts • Sensible to argue that legal Characterization of Same Item in Different Legal Contexts • Sensible to argue that legal treatment of the item in one context should be RELEVANT to its treatment in other contexts. • BUT be aware that, because different sets of rules have different purposes, there is no requirement that an item has to be treated in a consistent manner by different sets of applicable rules. • E. g. , characterizations for tax purposes are frequently different than others.