music: paul winter canyon (1985)

MUSIC: Paul Winter

Canyon (1985)STATUS OF GRADING:

Practice Midterms: Ready for Pick-Up

Next: Assignment #1Target Date: Nov. 6

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 R’s Claim

•Swift: Actual Possession Needed, so H would win– BUT prior to Liesner & Shaw

Swift v. Gifford Wrap-Up (Custom)

• Swift: Custom at issue treated as law• Provides List of relevant considerations

1. Affect outsiders?2. Used by entire business for long time? 3. Easier to apply than otherwise applicable legal rule? 4. Reasonable?

Swift v. Gifford

QUESTIONS?

Rose Article

Recall idea of theory as a way to determine what kinds of facts are relevant to addressing particular

problems.

Rose Article• 2 principles tying possession to ownership

1. Reward useful labor

2. Provide clear act giving notice of ownership.

• Substantial overlap between the two– Right kind of labor can constitute clear act

– Sending clear signals itself is useful labor we might wish to reward

Rose Article & DQ 78 (Radium):Rewarding Useful Labor

• Benefits Clear: –We want people to do useful labor so we reward them

– Labor-”Desert” Theory = Deserving

• What (two) problems does Rose see with labor theory?

Rose Article & DQ 78 (Radium):Rewarding Useful Labor

Problems with labor theory? •Not clear why you own your own labor – e.g., cd be duty to community

•How much labor must you add to a thing to make the thing yours?– Pouring tomato soup into ocean

– Broader Version: What is scope of right that labor creates?

Rose Article & DQ78 (Radium): “Clear Act”

Benefits flowing from “clear act” •Gives notice to people who want to use or purchase property. (similar idea in Demsetz)– Facilitates trade highest (most valued) uses

– Minimizes conflicts

Rose Article & DQ78 (Radium): “Clear Act”

Benefits flowing from “clear act” •Gives notice to people who want to use or purchase property. (similar idea in Demsetz)

•Note relationship to language in Pierson & Shaw: – Intent to retain animal insufficient

– Need act demonstrating that intent

Rose Article & DQ 78 (Radium):“Clear Act”

• Possible problems arising from attempt to provide the “clear act”?


• Possible problems arising from attempt to provide the “clear act”? 1. Making clear to people who actually use or

might want to use

2. Making clear at relevant time

3. Expensive to establish/maintain symbols


• Expensive to establish/maintain symbols– Registration system is often useful alternative to

consider for XQ2, but often expensive

– By contrast, first possession systems often relatively cheap to administer


“Relevant Audience”•Clear act never clear to everybody; needs to be clear to people who need to know (= rel. aud.)

•Clarity of act can be dependent on culture (aliens buying sunshine)


“Relevant Audience”•Rose: In our system, acts showing property in land often depend on not conforming to nature (see adverse possession)

QUESTIONS?

Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms

SAMPLES:1.Westmoreland Adopts Rule of Capture for First Possession of Oil & Gas

2.Mullett Defines Natural Liberty Broadly to Mean More than Natural Habitat

Rose Article & DQ 79 (Radium):Characterize Cases in Rose’s Terms

Next Class, Radiums do for:

•Shaw rejecting perfect net rule

•Albers limiting Mullett rule

•Swift & Ghen adopting respective customs

LOGISTICS CLASS #23• 1st Exam Workshop: Wed. 12:30

Room F309

• On Course Page: – Unit Three Complete Materials

– Essentially Complete Syllabus & Assignment Sheet

• Friday: 55-Minute Classes Begin

• Keeping Friday Dean’s Fellow Session @ 1:30

Ghen v. Rich (KRYPTON) BRIEF: Statement of the Case

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


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


• 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].


• Ghen, killer of whale [whose carcass sank and later floated onto beach], sued Rich, who purchased carcass from finder,

• presumably for conversion• seeking [remedy]. ??


• 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.

Ghen v. Rich (KRYPTON) 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

Ghen v. Rich (KRYPTON) 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.

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

• What would happen without custom?• Case doesn’t 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?

Let’s Look at Precedent We Have

Ghen v. Rich (KRYPTON): DQ75: Application of Prior Cases(a)Did Ghen ever get property rights at all under Shaw’s first

possession analysis?

1. Brought whale “into his power and control”?

2. “[S]o maintain[ed] his control as to show that he does not intend to abandon [it] again to the world at large.”?

Ghen v. Rich (KRYPTON): DQ75: 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/Finder’s Knowledge •Time/Distance•Abandonment/Pursuit•Labor/Industry


(b) Does Ghen lose property rights under the escaped animal analysis of Albers?

•Marking/Finder’s Knowledge?


(b) Does Ghen lose property rights under the escaped animal analysis of Albers? •Marking/Finder’s 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



•Time/Distance: Pretty Helpful to Killer• Abandonment/Pursuit?



• No Pursuit but seems like Abandonment by Compulsion

• Labor/Industry?



• 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


(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?


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

Ghen v. Rich (1881)Historical Context

Taber = 1856; Bartlett = 1868; Swift = 1872Significant Events Probably Relevant to Timing of Development of Industry & Custom in Ghen:

1. U.S. Civil War: Provides Technology for Bomb-Lances2. Completion of Transcontinental Railroad• Whaling in Pacific from New England no longer profitable• Gives New England whalers reason to find ways to make fin-

back whaling more possible

music: paul winter canyon (1985)

Documents

clear actbenefits

clear actexpensive

clear actsending clear

useful laborbenefits

clear actpossible problems

clear actrelevant audiencerose

sunshinerose article

administerrose article