music: gilbert & sullivan pirates of penzance (1879) welsh national opera charles mackerras,...

MUSIC: Gilbert & SullivanPIRATES OF PENZANCE

(1879)Welsh National Opera

Charles Mackerras, ConductorRecording: 1993

OXYGEN DQ46: Applying Manning ‘s Factors to Facts of

Mullett• Taming (or Other Investment in Animal) • Marking (or F Likely Aware of OO)• Emotional Bond• Short Time/Distance from Escape


Mullett• Taming (or Other Investment in Animal)• No Evidence of Taming/Training• Probably Significant $$$ Investment; •Might be Important under Manning • See Reference to Menagerie Animals

•No Evidence of Emotional Bond


Mullett• Marking = “Blemishes”• As I.D., Probably Better Than Crest• More Permanent• Others Unlikely to Have Same

• As Notice to Finder, Probably Weaker • Could Occur Naturally in Wild• Unless Scarring Pattern “Unnatural” (E.g., Imprint

of Collar or Net


Mullett• Short Time/Distance from Escape1. Escape “a few days” after OO regained it• Cf. Manning: Owned for 2 Years• Not Helpful to OO of Sea Lion– Little Additional Investment– No Emotional Bonding


Mullett• Short Time/Distance from Escape2. Captured ~2 Weeks/70 Miles from “Home”• Cf. Manning: 5 days/Nearby in Same Town

Significance?


Mullett• Short Time/Distance from Escape2. Captured ~2 Weeks/70 Miles from “Home” (v.

5 days/Nearby in Same Town)•Longer Time & Distance Might Mean:– Less Training or Likelihood of Return– OO Less Likely to Recover– Animal More Likely to Have Returned to Wild

•BUT: 70 Miles for Sea Lion Probably Much Less Than for Canary


Mullett• Short Time/Distance from Escape3. Claimed by OO 1 Year After Found• Cf. Manning: 1 Day After Found

Significance?


Mullett• Short Time/Distance from Escape3. Claimed by OO 1 Year After Found (v. 1 Day)

Could Mean• Insufficient Pursuit by OO• Significant Investment by F


Mullett• Short Time/Distance from Escape• Evidence Here• Escape “a few days” after OO regained animal• Captured ~2 Weeks/70 Miles from “Home”• OO discovers animal about 1 year later

• Factor Help OO Under Manning?• All Worse than Facts in Manning, year to

discover may suggest weak pursuit•Maybe 70 miles not far for sea lion?


Mullett• Factors Together• Taming: No Evidence (But Lot of $$$)• Marking: Good I.D.; Not Strong re Notice • Emotional Bond: No Evidence of• Short Time/Distance from Escape: Worse than Manning, Especially Year to Discover


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.

OXYGEN DQ45: Articulating Manning Holding:

Nature of the Exercise• Lots of Ways to Articulate Manning Holding– Can Include or Exclude Particular Facts– Can Describe Facts More Specifically or More Generally

• Squirrel Hypo in DQ 45 designed to get you to – Play with the holding in the way that litigators do– Find one plausible version helpful to client’s position.

• Requested Work-Product is Simply a Version of Manning Holding (Helpful to Assigned Client)


Nature of the Exercise• Squirrel Hypo in DQ 45 designed to get you to – Play with the holding in the way that litigators do– Find one plausible version helpful to client’s position.

• Good Way to Start– Apply Manning Factors to Hypo– Determine strengths & weaknesses under Manning of

your client’s position.


Apply Manning Factors• Taming (or Other Investment in Animal) • Marking (or F Likely Aware of OO)• Emotional Bond• Short Time/Distance from Escape


Apply Manning Factors• Taming (or Other Investment in

Animal) • Emotional Bond• Responded to Name (Trained)• Comfort with Humans• OO Owned for Three Months• No Prior Escape & Return

More Helpful to Amy (OO) or Brandon (F)?


Apply Manning FactorsEmotional Bond (Going

Forward):•Rest of “escape” cases arise in commercial contexts (fur fox farming; whaling) where emotional bond is not going on•I’m not going to include emotional bond in applications of Manning in these contexts•“Menagerie Animals” suggests not necessary for Manning•You can bring it back for other problems we do to the extent you think it’s relevant.


Apply Manning Factors• Marking (or F Likely Aware of OO)• Recognizable from “Markings”• Comfort with Humans



Apply Manning FactorsShort Time/Distance from

Escape•Time: Escape to Find: Unclear

•Distance: Escape to Find: Across Town

•Time: Find to OO Claim: 2 Months


OXYGEN DQ45: Articulating Manning Holding:Relevance of Facts

Helpful to A• Owned for 3 Months• Responds to Name• Comfortable w

Humans*• Identifying Markings

Helpful to B• Squirrel Travels “Across

Town”*• No Prior Return• 2 Months Before Found*• Markings Not Man-Made

(apparently)*


Nature of the Exercise• Squirrel Hypo in DQ 45 designed to get you to – Play with the holding in the way that litigators do– Find a plausible version helpful to client’s position.

• Apply Manning Factors to Hypo; Determine Strengths & Weaknesses of Client’s Position.

• Try to craft holding that emphasizes strengths and minimizes weaknesses.

OXYGEN DQ45: Articulating Manning Holding

Sample for Amy (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, • that had been missing for a short period of time

and was located by the owner soon after [arguable].


Samples for Amy (broader versions; 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 its name and

remembers its name after a significant period of time (2) tamed, trained to answer by name, and marked in such

a way as to make identification straightforward –


Sample for Amy (a little too broad): OO retains property rights in an escaped animal f.n.

if it accidentally escapes from their immediate possession and comes 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; case doesn’t say that.


Sample for Brandon (narrow version; includes almost all helpful facts):

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.


Sample for Brandon: (Focusing on Time as Key Element):

OO retains property rights in an escaped animal f.n. that had been possessed by the OO 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 animal was possessed by the finder.


Sample for Brandon: (ME: Conceding Taming)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

Mullett v. Bradley BRIEF: KRYPTON

Statement of the Case:

Mullett … ???sued Bradley … for [cause of action]seeking [remedy]



Mullett, original owner of an escaped sea lion,

sued Bradley … ???for [cause of action]seeking [remedy]


Statement of the Case:Mullett, OO of an escaped sea lion,

sued Bradley, who purchased the animal from its finder

for [cause of action] … ???seeking [remedy]


Statement of the Case:Mullett, OO of an escaped sea lion, sued

Bradley, who purchased the animal from F

for conversionseeking [remedy] … ???



Mullett, OO of an escaped sea lion, sued Bradley, who purchased the animal from F, for conversion seeking damages.


Procedural Posture:

The lower court dismissed the complaint. The plaintiff appealed.

After a Trial or on a Dispositive Motion?

How do you know?


Procedural Posture: The lower court dismissed the complaint after a trial. The plaintiff appealed.

• “The complaint was dismissed on the merits.” (Top p.41)• Statements referring to evidence and proof, e.g., “The

evidence not only fails to show that there was any animus revertendi on its part, but the inference from the facts proven is quite the contrary.” (Long para. mid-p.41)

Mullett v. Bradley BRIEF: KRYPTONFacts Relevant to Analysis:

• P placed sea lion he owned on island in Atlantic. Sea lion escaped. P made no effort to recapture it.

• Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles from the island. Fisherman sold it to D.

• A year later, plaintiff recognized the sea lion and demanded its return. D refused.

ADDITIONAL FACT NOT FOUND IN FACT SECTION OF OPINION?

Mullett v. Bradley BRIEF: KRYPTONFacts Relevant to Analysis:

• Sea lions are native to Pacific Ocean; not found in the Atlantic.

• P placed sea lion he owned on island in Atlantic. Sea lion escaped. P made no effort to recapture it.

• Fisherman found sea lion in Atlantic 2 weeks later, 70+ miles from the island. Fisherman sold it to D.

• A year later, plaintiff recognized the sea lion and demanded its return. D refused.


Before Doing Issue/Holding, We’ll Examine the Three Factors that the

Court adopts from the English Common Law

DQ47: Mullett Factors : KRYPTON

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

DQ47: Mullett Factors : KRYPTON

For Each Factor, We’ll:

1.Define & Discuss How to Prove2.Discuss Why It Is Relevant to OO/F Disputes3.Discuss Evidence & Outcome in Mullett4.Discuss How It Would Apply to Facts of Manning (Next Class: DQ48 Uranium)

DQ47: Mullett Factors : KRYPTON:

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.


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


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

hopeless)

•Outcome in Mullett?



•Outcome in Mullett?•[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. (Last para.)


ANIMUS REVERTENDI (AR)Define & Discuss How to Prove

•Animus Revertendi is “Intent to Return” in Latin. In this context, means animal 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


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?

music: gilbert & sullivan pirates of penzance (1879) welsh national opera charles mackerras,...

Documents

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