MUSIC:%20Paul%20Winter%20%20Canyon%20(1985)

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MUSIC Paul Winter Canyon (1985)

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LOGISTICS

• Lessons from Assignment 1
• Follow Directions!!!
• Accuracy with Facts
• Accuracy with Cases
• Explain/Defend Conclusions (No IRC)
• One Thing at a Time
• Simplify Your Writing

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LOGISTICS

• Qs on Assignment 2?
• Look for Weekend Update

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Swift v. Gifford (Continued)

• DQ2.13-2.15 OXYGEN

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OXYGEN Swift v. Gifford DQ2.13-2.14 When
Should Custom Become Law?

• Should Custom Law Swift Considerations
• Doesnt affect outsiders
• Used by entire business for a long time
  (equivalent of a contract)
• Where legal rule is hard to apply here, use of
  custom may prevent quarrels
• Custom is reasonable
• Well describe each and apply to Swift and to
  hunters customs noted in Pierson.

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OXYGEN Swift v. Gifford DQ2.13-2.14 When
Should Custom Become Law?

• (3) Legal rule may be hard to apply, so use of
  custom prevents quarrels
• DQ2.13 Describe each consideration noted by
  court and explain how it applied in Swift.

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OXYGEN Swift v. Gifford DQ2.13-2.14 When
Should Custom Become Law?

• (3) Legal rule may be hard to apply, so use of
  custom prevents quarrels
• May be harder to determine 1st killer than 1st
  harpoon.
• Every judge who has dealt with this subject has
  felt the importance of upholding all reasonable
  usages of the fishermen, in order to prevent
  dangerous quarrels in the division of their
  spoils. (p.66)
• DQ2.14. Reasons to treat customs in Swift
  differently from hunters customs in Pierson?

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OXYGEN Swift v. Gifford DQ2.13-2.14 When
Should Custom Become Law?

• (4) Custom is Reasonable
• DQ2.13 Describe each consideration noted by
  court and explain how it applied in Swift.

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OXYGEN Swift v. Gifford DQ2.13-2.14 When
Should Custom Become Law?

• (4) Custom is Reasonable
• Contrasts custom proposed inBartlett with custom
  at issue in Swift.
• Why is Judge Lowell especially authoritative on
  meaning of Bartlett?

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OXYGEN Swift v. Gifford DQ2.13-2.14 When
Should Custom Become Law?

• (4) Custom is Reasonable
• He wrote it I there intimated a doubt of the
  reasonableness of a usage in favor of the larceny
  of a whale under such circumstances.
• Leave for you arguments about reasonableness of
  hunters customs in Pierson (maybe certainty v.
  safety)

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Swift v. Gifford (Oxygen) DQ2.15 Unpublished
Opinions

• In deciding to treat custom as law, Swift relies
  on an unpublished opinion on point cited by one
  of the parties.
• Possible problems with doing this?

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Swift v. Gifford (Oxygen) DQ2.15
Unpublished Opinions

• Problems with relying on unpublished opinion
• Lack of notice to other party (paid costs here).
• Lack of notice to others affected.
• Unpublished may mean court doesnt want it used
  as precedent.
• Problems sufficient to justify blanket rule
  against doing this?

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Swift v. Gifford (Oxygen) DQ2.15 Unpublished
Opinions

• Problems relying on unpublished opinion include
• Lack of notice to other party.
• Lack of notice to others affected.
• Unpublished may mean court doesnt want it used
  as precedent.
• Note that if opinion unpublished b/c easy
  application of existing law, problems dont arise
  (can just rely on that existing law)

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Swift v. Gifford Wrap-Up (Absent Custom)

• Additional 1st Possession Animals Case
• Hard to Resolve Under Prior Cases
• Wound Mark More than Mere Pursuit
• Briefly Had Whale Attached to Ship w Line/Harpoon
• BUT Low Probability of Capture Hurts Rs Claim
• Swift Says Need Actual Possession, so H would win
• BUT prior to Liesner Shaw

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Swift v. Gifford Wrap-Up (Custom)

• Swift Custom at issue treated as law
• Provides List of relevant considerations
• Affect outsiders?
• Used by entire business for long time?
• Easier to apply than otherwise applicable legal
  rule?
• Reasonable?

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Swift v. Gifford

• QUESTIONS?
• Now We Will Go Ghen

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Ghen v. Rich (1881) (Radium) BRIEF DQs
2.16-2.18

• Paul Gauguin, The Beach at Dieppe (1885)

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Ghen v. Rich (Radium) BRIEF Statement of the
Case

• Ghen, ?,
• sued Rich ,
• for cause of action
• seeking remedy.

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Ghen v. Rich (Radium) BRIEF Statement of the
Case

• Ghen, killer of whale whose carcass sank and
  later floated onto beach ,
• sued Rich ,
• for cause of action
• seeking remedy.

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Ghen v. Rich (Radium) BRIEF Statement of the
Case

• Ghen, killer of whale whose carcass sank and
  later floated onto beach ?,
• sued Rich, who purchased carcass from finder ,
• for cause of action??
• seeking remedy.

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Ghen v. Rich (Radium) BRIEF Statement of the
Case

• Ghen, killer of whale whose carcass sank and
  later floated onto beach, sued Rich, who
  purchased carcass from finder,
• presumably for conversion
• seeking remedy. ??

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Ghen v. Rich (Radium) BRIEF Statement of the
Case

• Ghen, killer of whale whose carcass sank and
  later floated onto beach, sued Rich, who
  purchased carcass from finder, presumably for
  conversion
• seeking damages for the value of the whale.

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Ghen v. Rich (Radium) BRIEF FACTS

• Crucial Fact Custom on Cape Cod
• Whaler shoots a finback whale with marked lance.
  Whale dies and sinks. Several days later, it
  rises to surface.
• If whale gets stranded on beach,
• F notifies owner of lance receives small
  payment.
• Lance owner gets whale.
• Note Custom is variation on salvage

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Ghen v. Rich (Radium) BRIEF FACTS

• Custom on Cape Cod If finback whale killed with
  marked lance, lance owner gets whale finder
  gets small fee
• Ghen killed finback whale using a marked lance.
• The whale floated up and was found by 3d party,
  who sold it to Rich.
• 3d party and Rich knew or could have known that
  a professional whaler killed the whale.

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Ghen v. Rich (Radium) On These Facts Who Gets
Whale?

• What would happen without custom?
• Case doesnt fit neatly into prior precedent
• Did Ghen ever get property rights at all? Killed,
  but no clear moment of possession and no pursuit.
• Assuming Ghen owns at moment of death, does he
  lose property rights when carcass sinks?
• Should custom apply as law?
• Lets Look at Precedent We Have

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• Did Ghen ever get property rights at all under
  Shaws first possession analysis?
• Brought whale into his power and control?
• So maintained his control as to show that he
  does not intend to abandon it again to the
  world at large.?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (b) Assuming Ghen owns at moment of death, does
  he lose property rights under the escaped animal
  analysis of Albers? Look at
• Marking/Finders Knowledge
• Time/Distance
• Abandonment/Pursuit
• Labor/Industry

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (b) Does Ghen lose property rights under the
  escaped animal analysis of Albers?
• Marking/Finders Knowledge?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (b) Does Ghen lose property rights under the
  escaped animal analysis of Albers?
• Marking/Finders Knowledge Maybe a little
  Weaker than Albers b/c F not in industry
  whales native to area
• Time/Distance?
• Kill to find 3 days 17 miles
• Find to claim by killer 3 days

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (b) Does Ghen lose property rights under the
  escaped animal analysis of Albers?
• Time/Distance Pretty Helpful to Killer
• Abandonment/Pursuit?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (b) Does Ghen lose property rights under the
  escaped animal analysis of Albers?
• No Pursuit but seems like Abandonment by
  Compulsion
• Labor/Industry?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (b) Does Ghen lose property rights under the
  escaped animal analysis of Albers?
• Labor/Industry Very Strong for Killer
• Killer not negligent re confinement unclear what
  else could do
• Court says industry fails if Fs could take
• Overall Albers pretty strong for killer if OK w
  Finder outside industry

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (c) Assuming Ghen owns at moment of death, does
  he lose rights under Taber Bartlett?
• Similar Killer did all possible to mark
• Similar Fs have reason to know of can identify
  killer
• Different Killer never had actual control
• Different No return/pursuit rely on others to
  find
• Different Longer time frame
• Overall Result?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (c) Assuming Ghen owns at moment of death, does
  he lose rights under Taber Bartlett?
• Note Ghen reading of Bartlett Taber (dicta in
  last para p.72) If fisherman does all he can do
  to make animal his own, would seem to be
  sufficient.

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (d) Should the custom in Ghen be treated as law
  under the analysis of Swift?
• Doesnt affect outsiders?
• Used by entire business for a long time?
• Legal rule harder to apply than custom?
• Custom is reasonable?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (d) Should the custom in Ghen be treated as law
  under the analysis of Swift?
• Doesnt affect outsiders?
• Obviously can affect outsiders who find whales
  (beachcombing tourists).
• Why might we think this isnt a big problem?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (d) Should the custom in Ghen be treated as law
  under the analysis of Swift?
• Doesnt affect outsiders Sometimes does, but
  maybe OK b/c cant process whale w/o people in
  industry
• Used by entire business for a long time? Court
  says YES.
• Legal rule harder to apply than custom?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (d) Should the custom in Ghen be treated as law
  under the analysis of Swift?
• Legal rule harder to apply than custom? Unclear.
  
• Court suggests killer might win under
  Taber/Bartlett
• Would be similar facts over over, so likely to
  be pretty certain over time.
• 4. Custom is reasonable?

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Ghen v. Rich (Radium) DQ2.16 Application of
Prior Cases

• (d) Should the custom in Ghen be treated as law
  under the analysis of Swift?
• Custom is reasonable?
• Whalers doing all they can.
• Necessary for Continued Operation of Industry
• Finder Gets Fee
• Qs on Ghen?

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Rose Article DQ 2.21 (Uranium)Characterize
Cases in Roses Terms

• Westmoreland choosing 1st Possession rules for
  wild animals instead of rules for solid minerals.
• Relationship to Clear Act
• For claims to coal/metals, ownership of surface
  Clear Act
• For Minerals fn (oil, gas, water)
• Ownership of surface not Clear Act re claims of
  adjoining surface owners
• Extracting Clear Act to anyone.
• Relationship to Rewarding Useful Labor
  Extracting and containing oil gas on surface
  Useful Labor worth rewarding.

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Rose Article DQ 2.21 (Uranium)Characterize
Cases in Roses Terms

• Next Class, Uraniums be Ready to do for
• Shaw rejecting perfect net rule
• Mullett defining Natural Liberty
• Albers limiting Mullett rule
• Swift Ghen adopting respective customs

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Argument By AnalogyOil Gas 1st Possession

• Are Pierson/Liesner/Shaw Good Tools for
  Determining 1st Possession of Oil Gas?
• Three Common Approaches
• Significance of Factual Similarities
  Differences (DQ2.23 OXYGEN)
• Usefulness of Doctrine (DQ2.24 KRYPTON)
• Usefulness of Alternatives (DQ2.25 URANIUM)

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Argument By AnalogyOil Gas 1st Possession

• Set-Up for MON/TUES DQ2.25 (Uranium)
• First, Well Create a List of Alternatives to
• Westmoreland Approach
• for Allocating Initial Rights to Oil Gas

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Argument By AnalogyOil Gas 1st Possession

• Set-Up for MON/TUES DQ2.25 (Uranium)
• Then Limited Discussion of Pros Cons
• Just Looking at
• Westmoreland (Rule of Capture) v.
• Distribution of Profits Proportional to Surface
  Area (w Reasonable Fee to Drillers for Labor and
  Risks)
• Assume Some Large Oil/Gas Fields Under Multiple
  Surface Lots
• Think About, e.g., Ease of Operation, Incentives,
  Effects on Market, etc.