T.G.I. FRIDAY OCTOBER 9

1
T.G.I. FRIDAY OCTOBER 9

• MUSIC Max Bruch
• Violin Concerto 1 (1868)
• Scottish Fantasy (1880)
• RECORDING (1972)
• Royal Philharmonic Orchestra
• Rudolf Kempe, Conductor
• Kyung Wa Chung, Violin

• LUNCH
• TODAY _at_1225
• Cappell
• Daley
• Daniel
• Joyner
• Stevenson
• Tuchman

2
DQ59 Taber under Albers

• From Discussion Wednesday
• Marking? Strong (Man-Made Owner I.D.)
• Fs Knowledge? Knew Claim Likely Return
• Protecting Labor/Industry?
• Labor Killing Careful Marking/Securing
  Abandonment Only by Compulsion
• Industry Protect whaler that did best job they
  could under circs dont encourage unnecessary
  risk-taking to keep carcass

3
DQ59 Taber under Albers

• Marking? Strong (Man-Made Owner I.D.)
• Fs Knowledge? Knew Claim Likely Return
• Protecting Labor/Industry? Both
• Time
• Ownership ? Escape Very short
• Escape ? F Capture lt12 Hours
• F Capture ? OO Reclaim lt24 hours
• Last two very quick, so good for OO if we dont
  care about emotional connection

4
DQ59 Taber under Albers

• Marking? Strong (Man-Made Owner I.D.)
• Fs Knowledge? Knew Claim Likely Return
• Protecting Labor/Industry? Both
• Time? Short
• Distance? How far has property in Q moved since
  out of control of OO Very Little
• Note cases dont seem concerned with how far OO
  has moved around.

5
DQ59 Taber under Albers

• Marking? Strong (Man-Made Owner I.D.)
• Fs Knowledge? Knew Claim Likely Return
• Protecting Labor/Industry? Both
• Time/Distance? Relatively Short Very Little
• Bottom Line Under Albers
• Strong Case for 1st Ship (OO)

6
PHOSPHORUS DQ62

• In Taber, what is the significance of the
  participation in the dispute of the Captain of
  the Massachusetts?

7
PHOSPHORUS DQ62

• Significance of the participation of the Captain
  of the Massachusetts?
• tends to show that 2d ship acting out of normal
  way to go
• could see as knowledgeable bad finder as in Albers

8
NEON DQ60 Bartlett Factual Differences from
Taber

• Preliminary Question
• Anchor Not Holding Means ?
• Two Possiblilities

9
NEON DQ60 Bartlett Factual Differences from
Taber

• Anchor Not Holding Means ?
• Anchor no longer attached to whale OR-
• Anchor attached to whale but not to sea bottom
• Evidence from the Case?

10
Neon DQ60 Bartlett Factual Differences from
Taber

• Anchor Not Holding Means ?
• The right to this whale appears to stand on
  the same footing as the right to the anchor
  attached to it, which was very properly restored
  to its owner
• Anchor was still attached to whale but not to the
  sea bottom.

11
Neon DQ60 Bartlett Factual Differences from
Taber

• Anchor Not Holding means anchor was still
  attached to whale but not to the sea bottom.
• Gotta Read Carefully

12
Neon DQ60 Bartlett Factual Differences from
Taber?

• Marker Gone From Carcass. Significance?

13
Neon DQ60 Bartlett Factual Differences from
Taber?

• Marker Gone Marking/Notice Less Strong, But
  Anchor Still Attached
• Whale Adrift Significance?

14
Neon DQ60 Bartlett Factual Differences from
Taber?

• Whale Adrift
• Maybe natural liberty
• increase in distance
• less likely OO will find
• less effective labor by OO
• Longer Time (few hours v. next morning)
  Significance?

15
Neon DQ60 Bartlett Factual Differences from
Taber?

• Longer Time (few hours v. next morning)
• Time itself a factor in some escape cases
• Less likely owner will return (which finder may
  be able to determine)
• Maybe less effective labor by OO

16
Taber Bartlett Issue

• No procedural element because not an appeal (no
  court below so no error by court below to
  identify)

17
Taber Bartlett Issue

• Does killer of whale lose property rights in the
  carcass by leaving the carcass in the ocean where
  ?

18
E.g., Taber Issue

• Does killer of whale lose property rights in the
  carcass by leaving the carcass in the ocean where
  
• Killer anchors carcass leaving marks indicating
  killers identity
• Killer returns as soon as practicable to collect
  carcass
• Carcass is still anchored when found and finder
  sees identifying marks and knows whale is less
  than 12 hours dead?

19
Taber Bartlett Issue

• Cases suggest three ways to resolve
• Law of Salvage
• Whaling Customs
• Common Law of Property

20
DQ63 LAW OF SALVAGE

• Party finds property belonging to another (OO)
  adrift on open seas
• Finder recovers property returns to OO
• Finder receives standard salvage fee from OO
• Begins as custom, but is established as law by
  the time of these cases

21
DQ63 LAW OF SALVAGE

• Party finds property belonging to another (OO)
  adrift on open seas
• Finder recovers property returns to OO
• Finder receives standard salvage fee from OO
• PHOSPHORUS Why not employed in Taber?

22
DQ63 LAW OF SALVAGE

• Why not employed in Taber?
• Zone owners never claimed salvage rights
• Zone didnt behave like salvor ( return found
  goods and ask for )
• Rule if try to adopt salvage property for own
  use, can forfeit salvage rights
• Note Salvage is usually for goods found adrift,
  so not clear should apply here

23
DQ63 LAW OF SALVAGE

• Taber uses a comparison with the law of salvage
  to support its result
• Doctrinal Rationale Law says if property found
  adrift at sea, finder entitled to fee for salvage
  but not to property itself. Owner of property
  that is not adrift has an even stronger interest,
  so does not lose rights to finder.

24
Custom Discussed in Taber Bartlett

• If a dead whale is found adrift, the finding
  ship may appropriate it to her own use, if those
  who killed it do not appear and claim it before
  it is cut in.

25
Custom Discussed in Taber Bartlett

• If a dead whale is found adrift, the finding
  ship may appropriate it to her own use, if those
  who killed it do not appear and claim it before
  it is cut in.
• Relevance to Taber From Monday
• Doesnt apply because whale not adrift.

26
Custom Discussed in Taber Bartlett

• If a dead whale is found adrift, the finding
  ship may appropriate it to her own use, if those
  who killed it do not appear and claim it before
  it is cut in.
• Recall fact dispute/finding in Taber
• Was there a custom in whaling industry that if an
  anchored whale dragged its anchor, ownership can
  be lost?
• No evidence of such a custom.

27
Custom Discussed in Taber Bartlett

• If a dead whale is found adrift, the finding
  ship may appropriate it to her own use, if those
  who killed it do not appear and claim it before
  it is cut in.
• ZINC How dealt with in Bartlett?

28
Custom Discussed in Taber Bartlett

• If a dead whale is found adrift, the finding
  ship may appropriate it to her own use, if those
  who killed it do not appear and claim it before
  it is cut in.
• Relevance to Bartlett?
• Factual Finding Custom only applies if no
  anchor attached, so not applicable here.
• Recall Anchor is different from harpoons because
  it is proof of actual possession.

29
Bartlett Finds as fact no custom giving adrift
dead whale to finder if anchor still attached

• And if it were not so, there would be great
  difficulty in upholding a custom that should take
  the property of A and give it to B under so very
  short and uncertain a substitute for the statute
  of limitations, and one so open to fraud and
  deceit.

30
ZINC DQ65 MEANING OF

• And if it were not so, there would be great
  difficulty in upholding a custom that should take
  the property of A and give it to B under so very
  short and uncertain a substitute for the statute
  of limitations, and one so open to fraud and
  deceit.

31
ZINC DQ65 MEANING OF

• And if it were not so, there would be great
  difficulty in upholding a custom that should take
  the property of A and give it to B under so very
  short and uncertain a substitute for the statute
  of limitations, and one so open to fraud and
  deceit.

32
Bartlett Policy Rationale A rule that treated
whales that had recently gone adrift differently
from anchored whales would be imprudent because
it would take property rights from the OO in a
very short period and would encourage finders to
lie about what they found or to fraudulently set
the whale adrift.
33
DQ65 MEANING OF

• And if it were not so, there would be great
  difficulty in upholding a custom that should take
  the property of A and give it to B under so very
  short and uncertain a substitute for the statute
  of limitations, and one so open to fraud and
  deceit.
• Bartlett provides arguments for refusing to treat
  particular customs as law

34
What do Taber Bartlett decide?

• Salvage Inapplicable
• No Relevant Custom
• Anchored Whale Remains Property of OO
• Forever? Taber Bartlett Short Time Frame
• Result unclear if longer time frame policy
  against wasting resource might change result
• Ill give you more detail on rationales
  significance of Taber/Bartlett in Info Memo

35
Argument By Analogy When Should We Use Legal
Rules Developed in One Context to Decide Cases
Arising in a Different Context?

• Weve seen that we could use the escape cases to
  resolve cases like Taber and Bartlett, but
  should we?
• In other words, use of the analogy is possible,
  but is it a good idea?

36
Argument By Analogy When Should We Use Legal
Rules Developed in One Context to Decide Cases
Arising in a Different Context?

• Three Common Approaches
• 1) Applicability of the Doctrine
• 2) Factual Comparison
• 3) Comparison with Alternative Schemes

37
Argument By Analogy When Should We Use Legal
Rules Developed in One Context to Decide Cases
Arising in a Different Context?

• Three Common Approaches
• Applicability of the Doctrine
• Can you sensibly apply some or all of the legal
  tests in the new context?
• Are the purposes behind the rules relevant in the
  new context?

38
Argument By Analogy When Should We Use Legal
Rules Developed in One Context to Decide Cases
Arising in a Different Context?

• Three Common Approaches
• 2) Factual Comparison
• Are there factual similarities between the two
  contexts that suggest similar treatment
• Are there factual differences between the two
  contexts that suggest different treatment

39
Argument By Analogy When Should We Use Legal
Rules Developed in One Context to Decide Cases
Arising in a Different Context?

• Three Common Approaches
• 3) Comparison with Alternative Schemes
• What alternative approaches plausibly might be
  used to address the new context?
• What are the pros and cons of using any of these
  alternatives instead of the proposed analogy?

40
DQ66 FACTUAL COMPARISON

1. Identify Similarity or Difference Between the Two
   Contexts (Factual not Legal)
2. Explain Why the Similarity (or Difference) You
   Identified Suggests that the Legal Treatment of
   the Two Contexts Should be the Same (or Different)

41
DQ66 FACTUAL COMPARISON

• Sample 1 Similarity
• Mobility Both contexts involve property that
  can move (w/o human intervention) away from where
  the owner left it.
• Escaping ACs good for Taber context b/c
  specifically designed to decide when to return
  mobile property. They address relevant questions
  like extent of OOs investment, OOs labor to
  control or retrieve property and whether finder
  would have reason to believe another person has a
  strong claim. Can then argue re relative
  importance.

42
DQ66 FACTUAL COMPARISON

• Sample 2 Difference
• Living/Dead Land animals are alive when they
  escape whale carcasses are not.
• Some concepts from Escaping ACs (provide for
  itself intent to return) assume property was
  alive at escape these will not work well in
  Taber context. Can then argue re relative
  importance doesnt have to be 100 suitability
  to be reasonable option.