ELEMENTS B 1 B 2 POWER POINT

ELEMENTS B 1 & B 2 POWER POINT SLIDES Class #29 Wednesday, November 2, 2016 Thursday, November 3, 2016

Music to Accompany the Bill of Rights Greatest Hits of 1790 Philharmonia Virtuosi of New York Conductor: Richard Kapp (1980) featuring Chick Corea, Piano TODAY: WE START w REV PROB 2 F URANIUM (for Phormycans) RADIUM (for Mermiges I. F. ) • B 1: Zilber, Massagli, Rafaeli, • B 1: W. Pereira, Sainte, Wasserman (Alt: Goldschmidt) Pringle (Alt: Cheney) • B 2: Ricobaldi, Sholes, • B 2: Levine, D’Bazo, Brody Mc. Lemore, C. Berman (Alt: Shevlin) Saldana)

LOGISTICS CLASS #28: On Course Page: – Unit One Summary Exercises (Ask Qs if Anything is Unclear) • Midterm Grading Form • GWA#2: Comments & Best Answers from Prior Years – Unit Two Briefs: • Write-Up of Bad Ghen Brief (DQ 2. 19) • Sample Hammonds Brief • Sample White Brief

LOGISTICS CLASS #28: On Course Page: – Complete Bank of Old XQ 1 & XQ 2 • Fact Patterns/Questions • Comments/Best Student Answers for Both XQ 1 and XQ 2 – 1997, 2007, 2012: I’ll Post Comments Best/Student Answers as we complete relevant review problems in class and in DF

LOGISTICS CLASS #28: Review Problems/Exam Qs • Best Way to Prepare for Exams is to Do Old Exam Qs – Start by Working Through Some Untimed (Alone or in Groups) – Build Up to Doing Timed Under Exam Conditions – Compare to Posted Comments/Models and Bring Qs to Me • Review Problems: – Opportunity to Work Through Old Qs & Get Immediate Feedback (Class Discussion, then Posted Answers) – Worth Spending Time on As We Do in Class (Even Though You’re Very Busy) to Get Used to My Qs – We Will Do More for Unit III/XQ 3 During Last Few Classes

FACT PATTERN O (2012): Human Gestures/Celebrities • Review Probs. 2 B & 2 C: Exam Q 1 (Custom) (Last. Week) – Comments & Models Posted • Review Problem 2 G: Exam Q 1 (Escape) (Friday): • Oxygen (for L-Bow) v. Krypton (against L-Bow) • Assume No Binding Custom or Other Relevant Law, PLUS • Gesture has “Escaped” if Someone Else Can Do It • If OO Retains Property, F Needs OO’s Permission in Commercial Setting • We’ll Focus on Two Factors: • Marking/Finder’s Knowledge • Protecting OO’s Labor/Investment • Look for Ways Analysis Might Differ: BB v. CA/KG • I’ll Post Comments/Best Answers after Class

FACT PATTERN O (2012): Human Gestures/Celebrities • Rev Prob. 2 J: Exam Q 2 (Escape) (Next Wed/Thu) • Assume Property Rights in Gestures … • Only if Very Strong Association with Particular Celebrity • Only Enforceable in Commercial Settings • Oxygen • Arguments from Similarities/Differences • Pros & Cons of Alt #1: No Property Rights in Gestures at All • Krypton • Arguments re Usefulness of Factors (Other Than Marking/FK & Labor/Investment) • Pros & Cons of Alt #2: If Strong Association, Celebrity has Complete Commercial Rights While Alive)

FACT PATTERN L (2007): Ownership of Uninhabited Island • Review Prob. 2 F: Exam Q 1 (1 st Possession) (Today) – I’ll Post Comments & Models after Class Thursday to Help w 2 I • Review Problem 2 A: Exam Q 1 (Custom): – DF Sessions Thu 11/3 & Mon 11/7 • Review Problem 2 I: Exam Q 2 (1 st Possession) (Mon/Tue) • Uranium • Arguments from Similarities/Differences • Pros & Cons of Alt #1: 1 st to Take Resources Gets Whole Island • Radium • Arguments re Usefulness of Factors • Pros & Cons of Alt #2: Party Gets as Much of Island as They are 1 st to Use (Can Split)

FACT PATTERN L (2007): Ownership of Uninhabited Island • 1100 -1200 A. D. : Tulyans begin to travel to Arynisha Island 2 -3 x/yr to fish & gather fruit • By 1400 A. D. : Ts build stone huts on South end – Stay in huts when on A (through 20 th Century) – Carved religious symbols on some huts – Rooves of fronds & clay replaced if necessary

FACT PATTERN L: Ownership of Uninhabited Island • Pre 1200 Present: Ts travel to Island 2 -3 x/yr to fish & gather fruit • 1400 Present: Ts build/stay in stone huts on South end; religious symbols; regularly replace rooves • 1855: Phormycans build lighthouse on north tip – Staffed by two people from P; supplies sent from P – P Staffers also gather some fish/fruit from Island • 1925: T becomes part of new nation (MIF) • 1935: Per Int’l Custom, P publicly claimed island; put on official maps. Nobody objected.

FACT PATTERN L: Ownership of Uninhabited Island • Pre 1200 Present: Ts travel to Island 2 -3 x/yr to fish & gather fruit • 1400 Present: Ts build/stay in stone huts on South end; religious symbols; regularly replace rooves – Late 20 th C: Ts add Plexiglass Rooves & Astroturf floors • 1855: Ps build/staff lighthouse on north tip; gather some fish/fruit • 1925: T becomes part of new nation (MIF) • 1935: P publicly claimed island; Nobody objected. • 2006: MIF Surveys Island; Finds Oil; Ps & MIF Claim

White v. N. Y. Gas Co. CLOSING UP WHITE: OXYGEN DQ 2. 32

White v. N. Y. Gas Co. DQ 2. 32 (Oxygen) B 2: From Last Time Under the reasoning of White, will surface owners (Os) have a trespass action against those who reinsert gas (Gs)?

White v. N. Y. Gas Co. DQ 2. 32 (Oxygen) B 2: From Last Time Under the reasoning of White, will surface owners (Os) have a trespass action against those who reinsert gas (Gs)? • They should; gas remains property of Gs. • Penn giving Gs Eminent Domain power to purchase rights from Os suggests state thinks Gs should have to pay Os.

White v. N. Y. Gas Co. : DQ 2. 32 (OXYGEN) • Under the reasoning of White, Os have trespass action against Gs who don’t purchase rights to use pool. • White & Hammonds can’t be reconciled on this point. After White, Pennsylvania has different rule than Kentucky. Qs on White?

REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy 1. DQ 2. 33: Arguments from Factual Similarities & Differences (OXYGEN) 2. DQ 2. 34: Arguments re Usefulness of Legal Rules/Factors (KRYPTON) 3. Arguments re Comparisons to Alternatives (Ill Explain Choices Today; We’ll Do Pros & Cons on Friday) – DQ 2. 35: Oklahoma Statute (KRYPTON) – DQ 2. 36; Airspace Solution (KRYPTON) – DQ 2. 37: Overall (ALL)

REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy Keep in Mind: Gas Companies (G) Reinserting Gas Produces Two Kinds of Disputes: 1. Hammonds: G v. Owners of Lots Containing Part of Reinsertion Pool – Who owns gas? – If G owns gas, does G have to pay for right to use pool? – If G doesn’t own, can other Owners extract reinserted gas? 2. White: G v. Owners of Adjoining Pools: If reinserted gas leaks into reservoir not owned/controlled by G, does G lose property rights to gas?

REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy Gas Companies (G) Reinserting Gas Produces Two Kinds of Disputes: 1. Hammonds: G v. Owners of Lots Containing Part of Reinsertion Pool 2. White: Leaks (G v. Owners of Adjoining Pools) You could address the two kinds of disputes separately where you thought they raised different issues. E. g. , might argue ACs better for leaks than for Hammonds.

REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ 2. 33 (OXYGEN): Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Similarities re Usefulness of Escaping Animals Cases

REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ 2. 33 (Oxygen): Factual Comparisons • Relevant Factual Similarities Include: – In both, property moving from complete control to place where ownership is less certain. – White leak like escaping animal b/c escaping confinement w/o OO’s intent despite labor to control – Valuable property/industry – Both can hold identifying mark (although marking of gas probably only discernable to expert )

REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ 2. 33 (Oxygen): Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Differences re Usefulness of Escaping Animals Cases

REINSERTING GAS & ESCAPING ANIMALS CASES : Argument By Analogy DQ 2. 33 (Oxygen): Factual Comparisons • Relevant Factual Differences Include: – Natural Gas Lasts Much Longer Than Animal or Whale Carcass – Natural Gas Generally More Valuable Than Animal or even Whale Carcass – Reinsertion is Socially Valuable ; Escape is Not – Reinsertion is Deliberate; Escape is Not – Reinsertion Leaves OO with Much More Control than Typical Animal Escape b/c Pool is Limited Area

Argument By Analogy Oil & Gas: Escape DQ 2. 34 (Krypton): Usefulness of Doctrine (Legal Rules or Factors) from Escaping Animals Cases for “Escaping” Gas Situations (Hammonds Facts; White Facts; Both; Neither) Factors from Mullett & Blackstone: ANIMUS REVERTENDI (Last Class) RETURN TO NATURAL LIBERTY ABANDONMENT (& Pursuit)

Argument By Analogy Oil & Gas: Escape DQ 2. 34 (Krypton): Usefulness of Doctrine (Legal Rules or Factors) from Escaping Animals Cases for “Escaping” Gas Situations (Hammonds Facts; White Facts; Both; Neither) Factors from Other Cases: PROTECTING LABOR/INDUSTRY (Easy) MARKING/FINDER’s KNOWLEDGE DISTANCE

Argument By Analogy Oil & Gas: Escape Possible Alternatives to ACs (DQ 2. 352. 37) Thinking About Pros & Cons Might Consider: • • Importance of Reinsertion & Cheap Fuel Relative Importance of Landowners’ Interests Ease of Administration Public Reaction

Argument By Analogy Oil & Gas: Escape Possible Alternatives to ACs DQ 2. 35 (KRYPTON): Oklahoma Statute (p. 101 fn 2) • I’ll go through language so you can see what it does • Then ask Kryptons re some pros & cons

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 101: fn 2) “All natural gas which has previously been reduced to possession, and which is subsequently injected into underground storage fields, sands, reservoirs and facilities, shall at all times be deemed the property of the injector, his heirs, successors or assigns injector …. ” = Reinserted gas remains property of Gas Co. (G)

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 101: fn 2) “ … and in no event shall such gas be subject to the right of the owner of the surface of said lands or of any mineral interest therein, under which said gas storage fields, sands, reservoirs, and facilities lie, or of any person other than the injector, his heirs, successors and assigns, to produce, take, reduce to produce possession, waste, or otherwise interfere with or possession exercise any control thereover, …” = … and other owners of pool cannot take reinserted gas or bring trespass action …

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 101: fn 2) “ … provided that the injector, his heirs, successors and assigns, shall have no right to gas in any stratum, or portion thereof, which has not been condemned under the provisions of this Act, or otherwise purchased. ” = … BUT G doesn’t have any rights to gas in portions of the pool that it has not paid to use via Eminent Domain or negotiated agreement. ”

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 101: fn 2) (Summary) • (1) Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action , BUT • (2) G doesn’t have any rights to gas in portions of the pool that it has not paid to use. • MEANS: So long as G buys rights through negotiation or eminent domain, Os cannot prevent reinsertion or take gas.

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 101: fn 2) (Summary) Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action , BUT G doesn’t have any rights to gas in portions of the pool that it has not paid to use. • If G doesn’t buy rights from Os, doesn’t own gas in those parts of pool. – Means Os can extract, but not bring trespass action. – Might mean Gs will take risk that small Os can’t afford to extract and not pay them for rights. QUESTIONS?

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 101: fn 2) (Summary) • Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action , BUT G doesn’t have any rights to gas in portions of the pool that it has not paid to use. • If G doesn’t buy rights from Os, doesn’t own gas in those parts of pool. – Means Os can extract, but not bring trespass action. – Might mean Gs will take risk that small Os can’t afford to extract and not pay them for rights. KRYPTON DQ 2. 35: Pros & Cons v. Escaping Acs

Argument By Analogy Oil & Gas: Escape Possible Alternatives to ACs: Airspace Solution Possible State Regulation: • Reinserted gas stays property of Gas Co. (G) • BUT Surface Owners have no right to trespass action even if Gs haven't leased/bought space • Like rule about airspace over surface: above certain height, no rights. Here, below certain depth, Surface Owner has no rights (once gas extracted). KRYPTON DQ 2. 36: Pros & Cons v.

Argument By Analogy Oil & Gas: Escape Possible Alternatives to ACs DQ 2. 37 (ALL): Best Solution? (I’ll Take a Few Arguments Friday) • White Rule: Reinserted Gas = Property of Gas Co. • Hammonds Rule: Reinserted Gas = Unowned (Simplified ACs) • More Complex ACs (Consider marking, control, etc. ) • DQ 2. 35 Oklahoma Statute (White footnote 2) • DQ 2. 36 “Airspace Solution to Hammonds problem. ” • Other? ?