MUSIC: Paul Winter

Canyon (1985)

LOGISTICSLessons from Assignment #1

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

LOGISTICSQs on Assignment #2?

Look for Weekend Update

Swift v. Gifford (Continued)

DQ2.13-2.15 : OXYGEN

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

Should Custom = Law: Swift Considerations

1.Doesn’t affect outsiders2.Used by entire business for a long time (equivalent of a contract)3.Where legal rule is hard to apply here, use of custom may prevent quarrels 4.Custom is reasonable

We’ll describe each and apply to Swift and to hunter’s customs noted in Pierson.

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.

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?

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.

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?

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)

Swift v. Gifford (Oxygen) DQ2.15: Unpublished Opinions

In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties.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?

Swift v. Gifford (Oxygen) DQ2.15: Unpublished Opinions

Problems with relying on unpublished opinion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 doesn’t want it used as precedent.

Problems sufficient to justify blanket rule against doing this?

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 doesn’t want it used as precedent.

Note that if opinion unpublished b/c easy application of existing law, problems don’t arise

(can just rely on that existing law)

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 Says Need Actual Possession, 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?

Now We Will Go Ghen

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

Paul Gauguin, The Beach at Dieppe (1885)

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

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

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].

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].

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]. ??

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.

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

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.

Ghen v. Rich (Radium) 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 (Radium): DQ2.16: 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 (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/Finder’s Knowledge •Time/Distance•Abandonment/Pursuit•Labor/Industry

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

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

•Marking/Finder’s Knowledge?

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

(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

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?

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?

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

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?

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.

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? 1.Doesn’t affect outsiders?2.Used by entire business for a long time? 3.Legal rule harder to apply than custom?4.Custom is reasonable?

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?

1.Doesn’t affect outsiders?•Obviously can affect outsiders who find whales (beachcombing tourists).•Why might we think this isn’t a big problem?

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? 1.Doesn’t affect outsiders: Sometimes does, but maybe OK b/c can’t process whale w/o people in industry2.Used by entire business for a long time? Court says YES.3.Legal rule harder to apply than custom?

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? 3.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?

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? 4.Custom is reasonable?– Whalers doing all they can.– Necessary for Continued Operation of Industry– Finder Gets Fee

Qs on Ghen?

Rose Article & DQ 2.21 (Uranium):Characterize Cases in Rose’s 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.

Rose Article & DQ 2.21 (Uranium):Characterize Cases in Rose’s 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

Argument By AnalogyOil & Gas: 1st Possession

Are Pierson/Liesner/Shaw Good Tools for Determining 1st Possession of Oil & Gas? Three Common Approaches

1.Significance of Factual Similarities & Differences (DQ2.23 = OXYGEN)2.Usefulness of Doctrine (DQ2.24 = KRYPTON)3.Usefulness of Alternatives (DQ2.25 = URANIUM)

Argument By AnalogyOil & Gas: 1st Possession

Set-Up for MON/TUES: DQ2.25 Set-Up for MON/TUES: DQ2.25 (Uranium) (Uranium)

First, We’ll Create a List of Alternatives to

Westmoreland Approach for Allocating Initial Rights to Oil &

Gas

Argument By AnalogyOil & Gas: 1st Possession

Set-Up for MON/TUES: DQ2.25 Set-Up for MON/TUES: DQ2.25 (Uranium) (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.