Miami



SUB-ASSIGNMENT 3A: QUESTION 1 & 2 (FACTUAL SIMILARITIES)

General Points

• Instructions say to begin with a clear and concise description of your similarity. Many of you didn’t. Where I saw a clear statement of the similarity, I put it in bold type.

• I divided your arguments into several rough categories. The first argument under each heading was the best of that category. The rest are in no particular order.

• I used red ink [pixels?] for any passages in your arguments that I thought were more appropriate for Q1 than for Q2/this assignment. As you will see below, there’s a lot of red.

Similarities Related to Abandonment or Pursuit:

• Possible Similarity: Both animals & treasure can be abandoned. Not very helpful; virtually any kind of ppty can be abandoned.

• Better version: Pursuit can be difficult. (Animals can go in many directions, can go far distance quickly, can blend into forest or ocean; treasure often sunk in unknown location & can’t be found from surface w/o modern technology).

• BKQ#2 isn’t framed as well as it might be for this Sub-Assignment, but makes a number of helpful points about usefulness of abandonment as a factor.

QUESTION 2 SUBMISSION: Team: BKQ: Both escaped animals and sunken treasure are capable of being abandoned by their prior owner. The original owner of sunken treasure is capable of either implicitly or explicitly abandoning it. The original owner could simply cease searching for the treasure or openly disclaim any interest in it. Both of these actions would be considered abandonment.  In this specific case it is somewhat unclear as to whether Spain actually abandoned the treasure. At the very least, the search for it had gone cold.

Abandonment occurred in the escaped animals cases as well. In Mullett, the original owner abandoned the sea lion. However, the court decided the original owner had only abandoned the sea lion by compulsion. It would be very difficult to locate a dark gray sea lion in a dark gray ocean.

Willful abandonment (as opposed to abandonment by compulsion) is useful, because it lets us know the intent and attitude of the original owner towards the escaped animal or sunken treasure. Willful abandonment can function as an estoppel of subsequent claims to the treasure or animal in question. In other words, a court will not be inclined to sustain the property rights of an individual who has made clear to society that she no longer wished to exercise or possess those rights.  In this case, Spain’s recent lackluster attitude toward locating the treasure could be construed as abandonment. Although it is unclear if the efforts of the prior regime to locate and reclaim the treasure are far enough removed to say for certain that Spain had abandoned the treasure altogether.

One problem with using abandonment for sunken treasure, is that one’s ability to locate and reclaim sunken treasure changes based on available technology. Should Spain be seen as having abandoned the treasure because it was unwilling or unable to develop the technology required to find it? However, abandonment does not have to be viewed as a binary. The court can conclude that an original owner made a token effort to locate the treasure, but did less than it could have or should have.  This intermediate position would simply have to be weighed against the other relevant factors in determining whether the original owner should retain property rights in the treasure.

QUESTION 2 COMMENTS: Team: BKQ: Pretty Solid (Best Similarity re Abandonment/Pursuit)

Sense of Task

Fact Comparison (v. Law/Factor): Stated as a fact comparison initially, although some drift into simply asking whether abandonment should be viewed as legal factor.

Start w Clear Statement: Yes

ACs/Treasure Generally (v. This Case/Q1): Mostly fine; a little drift into Q1 analysis not well-tied to general Q (indicated in red). Compare reference to Spain in last paragraph, where you more clearly use it as an example of a larger issue.

Substantive Argument

Fact Comparison Chosen: Not especially helpful; virtually any kind of property can be abandoned.

Defense of Importance: Given that you drift into defending abandonment as a legal factor, generally solid discussion. Useful ideas re estoppel, technology, and use as one of a number of factors.

Accuracy: Mullett did not rule on whether OO abandoned the animal and did not use the phrase abandonment by compulsion.

Presentation: Wordy in places; some unnecessary passive voice.

QUESTION 1 SUBMISSION: Team: BCOT: The treasure chest that was on board when the Santa Barbara sank is similar to an animal in that they are both commodities that can be abandoned.  Whether the animal was abandoned or not was one of the factors used by the courts in the animal cases to determine property rights.  In Mullett, the original owner lost property rights because once the sea lion escaped he did not attempt to track or find it.  The court referred to the fact that the original owner did not make an effort to regain or find the sea lion during the year that passed after escape as abandonment.  In Manning, the canary was not considered abandoned because the original owner quickly learned, after escape, where the canary was and tried to regain possession.  In Albers, the original owner gave up searching for the fox because searching for a black fox in a dark forest would be an almost impossible task.  The court described the abandonment of the fox as “abandonment by compulsion” and it did not prevent the original owner from maintaining property rights. (Albers). In the case at hand, the crew of the sunken treasure chest searched for the ship immediately after it sank.  However, from the very first attempt to find the treasure chest until over the course of the next several centuries there were no attempts to find the lost treasure chest by Spain.  Using the precedent set by the animal cases, it seems the treasure chest was abandoned because Spain did not try to find the treasure chest and a great deal of time lapsed between the loss and finding.

QUESTION 1 COMMENTS: Team: BCOT: Mostly Non-Responsive (Almost All Q1)

Sense of Task

Fact Comparison (v. Law/Factor): Yes.

Start w Clear Statement: Yes

ACs/Treasure Generally (v. This Case/Q1): No. Really All Q1.

Substantive Argument

Fact Comparison Chosen: Not especially helpful; virtually any kind of property can be abandoned

Defense of Importance: None. Just applying ACs to facts of hypo (= Q1).

Accuracy

• Mullett did not rule on whether OO abandoned the animal.

• Manning did not discuss whether OO abandoned the animal.

Presentation: No serious concerns.

QUESTION 1 SUBMISSION: Team: ABI: Lack of sufficient pursuit by the original owner to recover property. In escaped animals cases, sufficient pursuit by the original owner can serve as a major factor in determining whether the original owner retains property rights in the escaped animal or if the finder now possesses those rights. In Mullett, the original owner was found to have failed to pursue his escaped sea lion enough to retain property rights in it. The sea lion escaped into the open ocean for 2 weeks before being caught by a fisherman. The original owner had failed to pursue the sea lion and the court ruled that the original owner had lost his property rights in it to the finder. This factor is significant in this case because the Spanish had over 400 years to pursue their lost treasure. The sea lion was found to have regained its natural liberty after 2 short weeks in the ocean. After 400 years of limited or no pursuit by the Spanish, it seems likely that property rights in the treasure would go to the finder.

QUESTION 1 COMMENTS: Team: ABI: Mostly Non-Responsive (Almost All Q1)

Sense of Task

Fact Comparison (v. Law/Factor): Framed as discussion of a factor, not a factual similarity.

Start w Clear Statement: No.

ACs/Treasure Generally (v. This Case/Q1). Basically all Q1.

Substantive Argument

Fact Comparison Chosen: Might be useful if framed in terms of “OO can choose whether to expend labor pursuing the escaped property.”

Defense of Importance: Just application to hypo (= Q1)

Accuracy: Mullett did not say OO lost due to failure to pursue, but rather said owner reasonably decided pursuit was hopeless. Case turned on NL and lack of AR.

Presentation: No significant concerns.

QUESTION 2 SUBMISSION: Team: SST: Stop of Pursuit by Force.  

(A) The members of the crew that survived in longboats were not able to relocate the Santa Barbara once it sunk.  This treasure is very valuable to the Spanish government both for true monetary value and historical value.  The finding of the treasure would have been of upmost [utmost] importance had certain events not occurred.  The changing of the form and hands of the government, over the centuries following the treasure being lost could be seen as a distraction keeping them from finding the treasure.  

(B) The government put notice of the intent to find the treasure in 1973 by releasing the guide titled “Lost Spanish Treasure.”  

(A) The ruler of Spain, General Franco, died shortly after the guide was released which can show that the choice of ceasing to pursue the treasure was not done by choice.  The death of General Franco fell upon the Spanish government like the night fell in Albers. If the Spanish government had abandoned the treasure by choice then one could argue that they abandoned their rights to the property.  However, they had not abandoned by choice but by necessity.  

(C) The value of the property was also of concern in Albers to protect the investment by the owner.  Foxes are valuable to the fox industry whereas gold/treasure is seen as valuable to anyone regardless of industry.  

(A) A reasonable person would not abandon property that is of high value unless there was no choice but to abandon it.  Had it not been for the change in the government and the death of General Franco the Spanish government might have had an opportunity to find the treasure just as had night not have fallen Albers maybe could have found the fox.

(B) The finder in Albers was in the same industry as the original owner and the court determined that the knowledge of the finder should be taken into consideration when granting who gets the property.  Here the treasure hunter, Captain Arango, can be seen as in the same industry as the original Spanish government.  This industry is one of finding valuable treasures from across the world.  By knowing where the treasure came from one could reasonably foresee that the original owner would come and claim it.  

(A&B) Therefore, the combination of the knowledge of the finder and the forced stop of pursuit the court could likely give property rights to the Spanish government.

QUESTION 2 COMMENTS: Team: SST: Non-Responsive (All Q1)

Sense of Task

Fact Comparison (v. Law/Factor): Unclear; looks like you focus on legal factor more than factual similarity

Start w Clear Statement: No. Italicized statement is unclear. Quote correctly if you are referring to technical term from Albers (abandonment by compulsion.)

ACs/Treasure Generally (v. This Case/Q1): All Q1.

Substantive Argument

Fact Comparison Chosen: Unclear

Defense of Importance: All application of ACs to hypo (= Q1)

Accuracy: Arguments that Spain abandoned by compulsion are not convincing. The changes in govt did not fully occupy their time for 400 years and nothing in problem says death of Franco prevented new govt from acting.

Presentation: Helpful to separate out different topics. Here, you mix together abandonment-by-compulsion (in passages marked (A)), F’s knowledge/marking (B); and protecting investment (C).

Similarities Related to Marking, Notice, or Finder’s Knowledge:

• Every group that did this Sub-Assignment did one of these.

• The BKQ version has a very nice articulation of the similarity and is easily the best submission among the 3A similarity arguments.

• You should recognize that marking and finder’s knowledge as facts as not universally present nor identical in either set of cases:

o Marking was very strong in Albers, Bartlett & Taber, but less so in Manning and especially Mullett. We have no info about Kesler at all.

o Not all sunken treasure will be as well-marked or well-advertised as the cargo of the Santa Barbara. However, a finder will be aware for virtually all sunken treasure that it had a prior human owner.

QUESTION 1 SUBMISSION: Team: BKQ: Both escaped animals and sunken treasure are capable of having markings that point either to a specific prior owner or a prior owner in general. Coins, idols, and statuettes are typically not culturally ambiguous. Just about any coin can be traced to a specific geopolitical entity and time period. Ironically, in this case, the markings on the treasure itself would not point to a prior claim by Spain. However, it is not just the treasure itself that is marked. Sunken treasure, when found, is typically still within the wreckage of the ship that had been carrying it. Even if it were found outside a ship, the treasure would probably be contained in a chest or container of some description that would probably bear the ship’s name. Both the ship wreckage and the container would illustrate who was in possession of the treasure when it sank to the bottom of the sea. Likewise, escaped animals can have markings as well. In Albers, The escaped fox had ear tattoos. In Taber, the whale had several markings including a waif (a flag), an anchor, and labelled irons (harpoons).

This factual similarity is meaningful for two reasons. First, markings let us know that claims by prior owners are genuine. In Taber, the killers of the whale could approach the finders and say “That’s our whale; it had our irons and anchor attached to it when you found it.” Similarly, Spain can approach Arango and say, “That’s our treasure; you found it in a Spanish ship”. Without these markings it would be more difficult for judges and juries to determine the authenticity of claims by supposed prior treasure owners. The second reason why markings are important is that markings put the finder on notice. It’s important to know whether the finder innocently claimed another’s property or did so with knowledge of the prior claim. We are more inclined to return treasure, animals, or other property to the original owner when the finder is said to have acted in “bad faith”, meaning he claimed property as his own despite knowledge of the prior claim. In Albers, one of the reasons the court returned the fox pelt to the original owner was that the ultimate possessor ought to have known that the pelt he purchased from the finder came from a fox that escaped from a commercial farm.

The only drawback of using markings in disputes over sunken treasure is that the markings on the treasure itself may not point to the previous owner. In this case, the treasure was from South American [Mexican] native tribes. However, the treasure will most likely come with various other markings as mentioned above.  Presumably the markings associated with the ship will eliminate any confusion.

QUESTION 1 COMMENTS: Team: BKQ: Quite Solid (Easily Best Similarity re Marking & Best Similarity Argument Overall)

Sense of Task

Fact Comparison (v. Law/Factor): Yes.

Start w Clear Statement: Very Nicely Articulated.

ACs/Treasure Generally (v. This Case/Q1): Mostly General. For purposes of Q2, don’t need to provide the detailed descriptions of ACs in the red passages above. Can just cite to the relevant cases to make points that are pretty straightforward.

Substantive Argument

Fact Comparison Chosen: Good

Defense of Importance: Two reasons you give are both solid ideas clearly explained. Good being clear that marks don’t have to completely decide the cases. Good seeing that marks might suggest returning some treasure to Aztecs. Not clear why you run away from this insight. Instructions say that ACs would choose between Spain & Arango, but in Q2, you can contemplate other solutions.

Presentation: A little wordy, including some unneeded passive voice.

QUESTION 2 SUBMISSION: Team: BCOT: The treasure chest[s] that sunk with the Santa Barbara is comparable to animals because they are both things that can be marked. The canary in Manning had a distinctive crest for its marking and the treasure chest was marked with the arms unique to the Spanish government. The visibly marked chest can also be compared to the tattooed fox in the Albers case. In both of these cases, the markings exhibited that the animals had an original owner. (Manning and Taber). The marked arms on the treasure chest are also like the marker attached to the whale in Taber, which displayed the killers’ property interest in the whale. Although the treasure chest was at the bottom of the ocean, its markings retain the Spanish government’s property interest and clearly provide notice to others of their original ownership of the chest. (Taber).

The list of contents from the Santa Barbara ship produced by the Spanish government is similar to the marked and anchored whale in Bartlett and Taber. After killing the whale and before leaving, the killers rushed and did everything in their power to anchor and mark the whale. (Taber). Here, the Spanish government made sure the Aztec treasures were recorded in a list after they were taken from the Aztecs. Furthermore, the Spanish government also released a guide called “Lost Spanish Treasure,” which contained a list of treasures that sunk along with the Santa Barbara. The guide also expressed their plans of searching for the lost treasure chest. This is like the anchor in Bartlett, which provided notice to other whalers. Therefore, like Bartlett, the guide provides notice to all other treasure hunters of the Spanish government’s original ownership of the chest and of their intent to undertake an extensive search for it.

QUESTION 2 COMMENTS: Team: BCOT: Non-Responsive (All Q1)

Sense of Task

Fact Comparison (v. Law/Factor): Initially stated as a similarity, but looks like application of factor to hypo.

Start w Clear Statement: Yes, although should be talking about treasure generally and not just these chests.

ACs/Treasure Generally (v. This Case/Q1): All Q1.

Substantive Argument

Fact Comparison Chosen: Useful idea.

Defense of Importance: All application to facts of hypo (= Q1)

Accuracy

• The Spanish government made sure the Aztec treasures were recorded in a list.” May overstate role of govt. Just says a clerk made the list. You make it sound like it was a policy decision related to alerting future finders (as opposed to, say, a way to ensure the crew didn’t pilfer or to make sure the Conquistadors got credit for pillaging even if ship didn’t get home).

• Might Q importance of notice of “intent to undertake an extensive search” when Spain never follows through.

Presentation: No serious concerns; some avoidable passive voice.

QUESTION 1 SUBMISSION: Team: ABOT: Identifying Mark: In regards to animals, identification by way of marking can take place in two ways. Animals may be identified by naturally occurring marks such as blemishes, colorings, or deformities. Animals can also be identified through markings that are man-made. Usually, man-made markings on animals are implemented to notify other parties of an established dominion of an original owner; Albers, Manning, Taber, and Bartlett. In the treasure hunt case, the man-made engraving on the treasure chests, the Spanish coat of arms, is similar to the marking in the animal-escape cases because the purpose of the marks were to establish and identify an original owners claim. Further, it could be argued that the clerk’s action of recording or marking all the contents of the Santa Barbara on paper is akin to a tattoo mark; the intent was to permanently mark and control claimed property.

Man made markings in the animal cases are also important because they advertise an owner’s sufficient labor in regards to confining and ensnaring an animal. Additionally, markings are a vital part of animal industries that have social or economic value because they identify who should be compensated for providing the community at large with demanded products. In regards to the treasure hunt case, it could be argued that the metals in the marked chests constitute an important industry because they can be used for socio-economic purposes; the preservation of history or used for trading purposes.

QUESTION 1 COMMENTS: Team: ABOT: A Little Uneven; Pretty Good Overall

Sense of Task

Fact Comparison (v. Law/Factor): Pretty good.

Start w Clear Statement: Phrase Identifying Mark doesn’t really state a factual similarity; not all treasure & not all animals have marks. Might frame as Capable of being marked.

ACs/Treasure Generally (v. This Case/Q1): Should be talking about treasure cases generally and not just this hypo, but I think you mostly stay just on the right side of the line in avoiding Q1 arguments because you seem focused on why marking ought to be relevant (as opposed to just explaining who wins).

Substantive Argument

Fact Comparison Chosen: General topic is a good choice if framed better.

Defense of Importance: Good idea to lay out ways that marking serves similar purposes in both sets of cases, although I’m uncertain about some of your claims (see below)

Accuracy:

• Purpose of mark in Manning probably aesthetic rather than notice, which may be true of thje coats vof arms as well.

• Point about clerk’s action may overstate similarity. You make it sound like it was a policy decision related to alerting future finders (as opposed to, say, a way to ensure the crew didn’t pilfer during the voyage home or to make sure the Conquistadors got credit for pillaging even if ship didn’t get home).

• Labor at issue in whaling cases is confining and ensnaring an animal, but in Albers may be simply investing in purchase price. Might make clearer how these ideas have parallels in treasure cases. To the extent that Spain was engaged in looting from less technologically sophisticated people, maybe we don’t want to reward.

• Time frame of industry point needs to be clearer. Spanish in 1584 not trying to preserve history.

Presentation: No serious concerns; some avoidable passive voice.

QUESTION 1 SUBMISSION: Team: GLMM: In Albers, the fox has a unique tattoo behind its ears, indicating its owner within the industry. Here, the treasure was identified by “several metal chests, clearly marked with the arms of the Spanish government.” The markings on the treasure, similar to the markings behind McKenzie Duncan’s ears, indicate the existence of prior ownership. However, the markings could be considered more generic in this situation. Similar to currency, the markings indicate a country of origin, but not necessarily a specific owner, like in McKenzie Duncan in Albers.

This would be helpful to establish ownership for the Spanish government. The strong markings indicate the existence of an identifiable original owner. While this would be helpful for the Spanish government, any other finder would be certain to lose a dispute, because unless the treasure is scraps of gold, there will always be an original owner who formed it into “treasure.”

QUESTION 1 COMMENTS: Team: GLMM: Uneven

Sense of Task

Fact Comparison (v. Law/Factor): Framed as fact comparison, although largely between Albers and hypo.

Start w Clear Statement: Not right at beginning, and need to be clear that not all animals and not all treasure have man-made marks.

ACs/Treasure Generally (v. This Case/Q1): Mostly Q1 except (maybe) last sentence.

Substantive Argument

Fact Comparison Chosen: Topic is useful; probably should frame similarity in terms like capable of being marked.

Defense of Importance: Some general sense of showing ownership with general point that man-made treasures always allow creator to claim ownership. Might be clearer re what consequences should be of last sentence of each paragraph. Helpful to provide a more thorough general explanation of why following ACs on marking would be a good idea.

Accuracy/Clarity:

• the markings indicate a country of origin, but not necessarily a specific owner: might explain this more. Spain certainly thought of itself as the owner, and it was not the country of origin.

• any other finder would be certain to lose a dispute: ACs don’t say any marked animal goes to OO. Albers & Whaling Cases leave open possibility that OO can lose if, e.g., enough time passes.

• there will always be an original owner who formed it into “treasure.”: Might explain this more. If you find unmarked gold coins in an unmarked chest, do you have any way to find the OO? Why does F lose?

Presentation: Generally fine.

QUESTION 2 SUBMISSION: Team: FMR: Marking provided significance in the animal escape cases by way of aiding in the identification of the animal as well as notification to the finder of prior ownership of the animal itself. How strongly marked an animal was spoke to how strong the claim of prior ownership would be. A mark that could not be mistaken for anything but indicia of prior ownership and could not be erased or disappear easily was the strongest notice that one could give to any potential finder that the particular animal was owned. A part in a cockatoo’s feathers in Manning and a tattoo in a fox’s ear in Albers were relevant factors indicating property rights in the original owners of escaped animals. Both the part and tattoo were important in that the specificity of the mark gave notice to the finder that the animal in question was owned by a single and identifiable person.

The relevance of marking in the escaping animals cases can likewise be applied in the current matter, the discovery of gold in international waters. The fact that the discovered gold and quartz were intact and could be readily identified some after spending some 300 years on the harsh salinity of the seabed speaks to a very strong mark existing on both the gold and the chest that contained the gold.

In the current matter, the gold and quartz were reduced to possession once they were mined from the Earth by the Aztecs, and coined or sculpted respectively. (That is to say that while gold and quartz occur naturally, coins and sculptures do not, thus indicating to any finder that at one point in time, someone owned the found property). These acts by the Aztecs established marks that were clear indicia of ownership and were not easily erased. (As evidenced by their identifiable character after spending 300 years underwater). What is unknown from the given facts is whether the coins themselves had any markings that would allow the finder to be certain of the specific original owner. Assumingly, [Presumably,] the Spanish knew the original owner to be the Aztecs, yet whether the coins bear Aztec markings could be relevant in any Aztec claim of original ownership to the current finder.

However, the Spanish did labor to take the gold and quartz from the Aztecs, and placed the bounty into metal chests “clearly marked with the arms of the Spanish government.” As stated prior, gold and quartz do occur naturally and can be reduced to possession by coining and sculpting. When the coins and sculptures are placed into a manmade metal box that indicates the specific owner, a very strong mark is established giving any potential finder great notice of specific prior ownership. The marking in this case provides greater clarity of specific ownership than either the tattoo in Albers or the parting of feathers in Manning (both of which were relevant factors in determining that the original owner retained property rights) in that the arms of the Spanish government are more readily identifiable than either of the animal traits. The tattoo number of the fox would have to be researched in either a stud-book or online database and the part of the cockatoo would need to be established by very specific knowledge of a finder (a missing cockatoo flyer or the like), whereas the arms of the Spanish government may be generally known by a sailor or can be discovered by a simple internet search. Additionally, the Spanish recorded their claim to the treasure by publishing a guidebook. This first recording of their bounty further bolsters their claim to recognizable property rights in the gold.

QUESTION 2 COMMENTS: Team: FMR: Pretty Uneven

Sense of Task

Fact Comparison (v. Law/Factor): Your focus is on factor (legal consequences of mark) not on fact parallel.

Start w Clear Statement: No.

ACs/Treasure Generally (v. This Case/Q1): Mostly just applying factor to facts of hypo (= Q1). No discussion of why it’s a good idea to do this.

Substantive Argument:

Fact Comparison Chosen: Topic is good idea, but need to frame as, e.g., Capable of being marked.

Defense of Importance: Some useful points about significance of marks, although argument as a whole not really focused on Q2 issue. Good to explain at outset why/how marking is important in ACs. Good seeing that Aztecs might play some role here and that Spain knows of their claim, but why do you seem to accept that Spanish labor in subduing Aztecs & stealing their stuff is worth rewarding?

Accuracy/Clarity:

• Manning involved a canary and part didn’t show finder single OO (both canaries had same part, plus most Fs probably wouldn’t recognize as pointing to specific owner.

• Relevance of reduced to possession by Aztecs unclear here (plus you don’t know that Aztecs didn’t steal the coins from other peoples).

• Not sure it’s fair to talk of internet searches as making mark strong when mark isv 400 yrs old

• Might clarify relevance of guidebook given rest of your discussion, which doesn’t explicitly talk about other ways to give notice beside marks.

Presentation: Pretty wordy; some repetition & passive voice. Some suggested edits on text; more possible.

QUESTION 1 SUBMISSION: Team: DGL: In both the escaped animals cases and the recovery of sunken treasure case the property that was recovered can be identified by the previous owner. The Santa Barbara was known to belong to Spain and the chest that contained the treasure was marked with the arms of the Spanish government. This is similar to Manning, where the canary’s chest [crest] was divided in a distinctive way, to Albers, where the fox had a tattoo with its registration number, and to Taber, where the harpoon found in the whale was marked with the original owner’s [ship’s initials] name. This similarity suggests that escaped animals cases would be useful for deciding disputes about the recovery of sunken treasure because it promotes the recovery of the property to its rightful owner. It establishes a fair and just way to determine who retains property rights. If the item can be properly identified, then it should go to the original owner.

QUESTION 1 COMMENTS: Team: DGL: A Little Uneven

Sense of Task

Fact Comparison (v. Law/Factor): Yes.

Start w Clear Statement: Yes.

ACs/Treasure Generally (v. This Case/Q1): Pretty Good. You begin in a way that is too focused on this hypo, but then broaden your discussion some.

Substantive Argument

Fact Comparison Chosen: General topic is a good idea, but, as stated, not true for all ACs or for all sunken treasure cases. Might frame as Can be marked in a way that makes it identifiable.

Defense of Importance: Major points need more defense:

• Why is OO necessarily “rightful owner”? Lot of time here & no pursuit.

• Always have to defend “fair and just.” (Here, why Spain & not Aztecs?)

• Need a because… after last sentence.

Accuracy: Seems to assume incorrectly that ACs say any marked animal goes to OO. Albers & Whaling Cases leave open possibility that OO can lose if, e.g., enough time passes. Plus sea lion in Mullett was identifiable by OO, but still went to F.

Presentation: A little wordy; some unneeded passive voice.

QUESTION 2 SUBMISSION: Team: ABI: Clear notice of possession by the OO: In escaped animals cases, one of the factors that can contribute to the original owner retaining possession of lost property is clearly identifying or placing notice to indicate to the finder that the property belongs to someone else. Notice helps the finder differentiate between wild animals and those belonging to other people. Clear notice is important in this case because people in the treasure hunting industry, such as Captain Arango, would likely have some knowledge about the Santa Maria’s lost treasure. Only 5 years before Arango started his company to rediscover sunken ships, the Spanish government released the “Lost Spanish Treasure” guide that described in detail the contents of the treasure that was lost when the Santa Maria sank. A man dedicating his life to the pursuit of sunken treasures would likely have had knowledge of the guide and that the Spanish had claimed this treasure. Clear notice of possession of the treasure is an important factual similarity to the escaped animals cases.

QUESTION 2 COMMENTS: Team: ABI: Quite Uneven.

Sense of Task

Fact Comparison (v. Law/Factor): Primarily focused on legal factor, not factual similarity.

Start w Clear Statement: Italicized phrase could be more clearly phrased as a similarity and could be explained a bit better.

ACs/Treasure Generally (v. This Case/Q1): No reference to other treasure cases, so mostly looks like Q1.

Substantive Argument

Fact Comparison Chosen: General topic is a good idea, but, as stated, not true for all ACs or for all sunken treasure cases. Might frame as Can be marked in a way that makes it identifiable.

Defense of Importance: Pretty thin. No discussion of why this kind of knowledge should count against treasure hunters. Mostly looks like applying factor to facts of hypo (= Q1)

Accuracy

• Don’t use possession when you mean “property rights.”

• clearly identifying: sentence is a little unclear, but OO doesn’t win just by clearly identifying an animal. Mullett.

• between wild animals and those belonging to other people.: Cases do not say that “wild animals” are animals that do not have owners; you can own an animal fn.

Presentation: No serious concerns.

QUESTION 2 SUBMISSION: Team: HPST: Escaped animals can be easily identified if it has [they have] been marked in certain ways. The effect of markings on escaped animals [cases] is that the finder knows that the property has belonged to someone else. Similarly, lost treasure can be traced to its original owner if it has been clearly marked. Just like in the animal cases, markings of a treasure give the finder adequate knowledge that the property was once under someone else’s power and control. 

When lost property is valuable, markings play a significant role in resolving the issue of ownership. The owner can argue that by marking the property, notice is given to potential finders that someone else has already put time and labor into developing this property in some way. In Albers, the fox had an identification number tattooed on its ear. Also in Taber, the original owner killed the whale, anchored it, and attached a marker to the corpse. When the new finder stumbled upon the animals, that person knew the animal had belonged to someone else due to the markings. Similarly, when Captain Arango found the treasure that was adequately marked with the Spanish coat of arms, he knew it was Spanish treasure.

The element of markings implemented in escaped animal cases is useful and applicable when deciding the ownership of the lost treasure. In the escaped animal cases, the markings not only gave notice of a prior owner, but the markings also represented that the owner exerted great labor to protect that animal. In the cases of sunken treasure, markings also represent labor spent and previous ownership that cannot be denied. In some of the animals cases, the courts said that the markings were not sufficient because they were unclear or not visible, but here, the markings were clearly and discernably the arms of the Spanish government.

QUESTION 2 COMMENTS: Team: HPST: A Little Uneven

Sense of Task

Fact Comparison (v. Law/Factor): Some drift between talking about the fact similarity & talking about the factor (e.g., “The element of markings implemented in escaped animal cases…”)

Start w Clear Statement: Pretty good; might slightly rephrase to something like Can be marked in a way that clearly identifies the original owner.

ACs/Treasure Generally (v. This Case/Q1): Some discussion of treasure cases generally, but some Q1

Substantive Argument

Fact Comparison Chosen: Solid idea; might be a little clearer that good marking not there in all ACs or all treasure cases.

Defense of Importance: Useful references to use of markings in ACs to show prior OO and to show labor. Need to defend that these things are generally true in treasure cases (not just here) and that they ought to be relevant to deciding who gets treasure (e.g., Spain’s labor was subduing Aztecs & robbing from them, so should we reward?). Phrases like markings play a significant role and previous ownership that cannot be denied assume the conclusions you are trying to defend.

Accuracy/Clarity

• under someone else’s power and control: what is important here is prior ownership, so not helpful to use legal test for first possession as a stand-in for “ownership”

• he knew it was Spanish treasure: Not clear whether you mean that he knew that Spain used to own it or that he knew Spain still owned it (which is not clearly true).

• the owner exerted great labor to protect that animal. Odd phrasing; not clear there was “great labor” in Manning or that the labor in the whaling cases went to “protect” the whales.

• In some of the animals cases, the courts said that the markings were not sufficient because they were unclear or not visible. No case we read says anything like this.

• previous ownership that cannot be denied: Seems to assume incorrectly that ACs say any marked animal goes to OO. Albers & Whaling Cases leave open possibility that OO can lose if, e.g., enough time passes.

Presentation: Some minor glitches but no serious concerns.

QUESTION 1 SUBMISSION: Team: CCDT: The escaping animals cases involved several different types of animals. [Relevance?] Many of the animals have a distinctive mark, such as a human applied tattoo, Albers, or even scars from attempted capture, Mullet[t]. Comparably, the fact pattern here indicated that the treasure was marked by the Spanish coat of arms on the chest and the emblems embossed on the coins themselves. Spain may argue that the treasure was sufficiently marked in a way that the finder should be put on notice that it had an original owner. Though Captain Arango (A) found this treasure hundreds of years later, the treasure was still visibly marked. In Stevens v. Albers, the fox was marked with a distinguishable tattoo to indicate that it had an owner, as was the custom of the fox breeding industry. Because of the tattoo, the finder should have had notice that the fox had an owner. In this case, the marking of the Spanish arms on the treasure serves this same purpose and is a useful tool when dealing with items of economic value. Just like in the animal cases, an original owner should not be disadvantaged for an item (treasure) “escaping” his control due to events outside his control (attack). A should have known that the treasure previously belonged to someone who made the effort to mark the treasure. However, A may argue that since the government of Spain changed hands so many times, the marking was unidentifiable to him. In addition, he may say that it is not likely that an American would know the history of Spanish markings. Nevertheless, regardless of his ability to identify the source of the marking, one was clearly there. In addition, A was a retired naval officer. It is possible that through his academy training, he learned about the history of naval powers.

Spain also “marked” the treasure by printing out a guide entitled “Lost Spanish Treasure.” This would provide notice to others that they were aware of the shipwreck and were still claiming the treasure as their own. Since A was in the business of hunting down sunken ships, it is likely that he knew of this guide or heard of it through word-of-mouth in the industry. Furthermore, Spain announced that they would undertake an extensive search for the shipwrecks soon. Even though the de facto ruler of Spain, General Franco, died shortly after, this would not provide substantial reasoning for someone to think that they would [not?] give up pursuit. On the other hand, A searched for the ship 7 years after Spain declared they would undertake a search. A could argue that this time difference negated the notice of the search.

QUESTION 1 COMMENTS: Team: CCDT: Quite Uneven; mostly Q1

Sense of Task

Fact Comparison (v. Law/Factor): You start with fact comparison, but mostly seem to work with the factor.

Start w Clear Statement: Pretty good; might slightly rephrase to something like Can be marked in a way that clearly identifies the original owner.

ACs/Treasure Generally (v. This Case/Q1): Almost all Q1.

Substantive Argument

Fact Comparison Chosen: Generally solid idea; might be clearer that good marking not there in all ACs or all treasure cases.

Defense of Importance: Some useful reference to marking providing notice of prior owner, but really no defense that we should want to protect OO here or that we should protect OO even if finder doesn’t understand mark. You mostly just apply marking rules to hypo (= Q1). Also some references to time and to not punishing innocent O that are not tied clearly to subject of argument.

Accuracy: the emblems embossed on the coins themselves: Hypo doesn’t say this & it’s unlikely b/c coins taken from Aztecs, not minted by Spain.

Presentation: Pretty wordy; some unneeded passive voice.

QUESTION 1 SUBMISSION: Team: CSS: In Albers, the original owner marked their [her] fox by tattooing its ear. In the fact pattern, agents of the Spanish government put the arms of the Spanish government on their treasure chest. Both of these actions gave notice to potential finders of prior ownership. A court could hold that the finders of the treasure chest in the fact pattern—Captain Arango’s divers—had notice that the chest had a prior owner due to the arms on the chest. That can be compared to the court’s holding in Albers that the finder had notice that the fox had a prior owner due to the tattoos. The Albers court held that this fact helped the original owner’s case. This is useful because courts in sunken treasure cases can use the Albers reasoning to say it helps the original owner’s case because the finder had notice if a treasure chest bears the arms of a government or other entity.

QUESTION 1 COMMENTS: Team: CSS: Quite Uneven

Sense of Task

Fact Comparison (v. Law/Factor): Done at the level of one case and the hypo, not a similarity between treasure cases generally and ACs.

Start w Clear Statement: Yes.

ACs/Treasure Generally (v. This Case/Q1): Mostly Q1; reference to other treasure cases in last sentence.

Substantive Argument

Fact Comparison Chosen: Too narrowly focused; also need some recognition that not all ACs or treasure cases will have significant marks.

Defense of Importance: Useful to note that marks give notice of prior ownership, but no attempt to explain why that should be important in treasure cases. Should OO get credit for luck that marked chest was used hundreds of years later?

Presentation: Pretty repetitive.

QUESTION 1 SUBMISSION: Team: SST: (A) The sunken treasure can be seen like a whale that is clearly marked but is lost to the original owner.  

(B) Here the Spanish government secures the treasure by taking it from the Aztec people of Mexico.  People obtain property rights when they bring the property under their power and control, and then maintain sufficient control to show intent not to abandon, Shaw.  Here the treasure was taken under the power and control of the Spanish government when it took the property from the Aztec and sustained the control for a period of time.  However, one could argue that the control was not maintained sufficiently.  The interference of the English ship could be seen like the thieves in Shaw because if it were not for the interference the gold/fish would have remained secured.   The Spanish can be seen to have taken reasonable precautions to prevent the gold from escaping.

(C)  Once lost, this gold is like a sunken whale waiting for a finder to discover it.  In Ghen, the whale is marked by a bomb lance which lets any person who finds it know that the cause of death was not natural and that someone had property rights.  Here the treasure is marked by being in chests that are marked with the arms of the Spanish government.  

(D) The Spanish government could seek to get the treasure from the Captain Arango by paying a finders fee for the labor.  The labor of Captain Arango is essential to the discovery of the treasure and should be rewarded.  By rewarding useful labor, the Spanish government would entice other people to look for the other treasures that were lost.

QUESTION 1 COMMENTS: Team: SST: Mostly Non-Responsive (Q1 and very little on your own topic).

Sense of Task

Fact Comparison (v. Law/Factor): Done at the level of one case and the hypo, not a similarity between treasure cases generally and ACs.

Start w Clear Statement: Yes.

ACs/Treasure Generally (v. This Case/Q1): Nothing about treasure cases generally; all Q1)

Substantive Argument

Fact Comparison Chosen: Too narrowly focused on particular case; also need some recognition that not all ACs or treasure cases will have significant marks.

Defense of Importance: No attempt to explain why we should protect OOs of sunken treasure that is marked. You give significance of bomb-lance from Ghen, but don’t even explicitly draw parallel to significance of marks on treasure. Plus, most of argument is not about marking at all.

• (B) is not marking, but control analysis from Shaw, which addresses 1st possession, so is not really relevant to an escape case.

• (D) is labor rather than marking, and salvage is not part of ACs, so shouldn’t be part of this argument (where you are supposed to use the similarity to defend using the ACs).

Presentation: A little wordy; avoid passive voice. *** (A) and (C) should be placed together b/c topic is same.

Similarities Related to Value (Including Emotional Bonds)

and Rewarding Labor/Industry

- Useful in describing similarity and its significance to recognize that both animals and treasure can have different kinds of value: commercial, historical/cultural, emotional.

o Clever idea to compare emotional bond in Manning to connection between a people and their cultural heritage, although that might favor the Aztecs as much or more than the Spanish.

o Fair to say ACs have dealt with very valuable property (fox-furs; whales). Even though treasure can have value far beyond any individual animal (even a 19th century whale) not clear that rules could or should get more protective of OOs rights than ACs already are.

- Where the escaping ACs explicitly reward labor or protect industry, they always are rewarding/protecting the OO. The cases in which there was significant finder’s labor either don’t mention it, Mullett, or give rights to the OO anyway, Taber/Bartlett. Thus, if you think F’s labor needs protection/reward, you probably should discuss doing that as part of a difference rather than a similarity.

- If you argue someone’s labor is useful enough to reward, need to at least briefly defend its value. In this problem in particular, what did Spain do that was worth rewarding?

QUESTION 1 SUBMISSION: Team: HPST: The escaping animal cases deal with acquiring animals, which often can be made into valuable commodities. Pelts made from the fur of animals are extremely valuable. Those involved in the practice of obtaining the pelts are involved in a rewarding industry with global demand. Blubber obtained from whales is also of high value and even a necessity of the times. In the past, the blubber from whales was used for many things such as to power lamps and to generally facilitate the basic amenity of light. Today, blubber is turned into oil and used to make soap, leather, and cosmetics. The whalers who acquire blubber are engaged in an incredibly lucrative industry by providing social needs.

Similarly, sunken treasure is exceptionally valuable because it is made up of rare precious metals that have universal appeal and because the treasure may have major historical significance. If successful, the workers who undertake the task of obtaining sunken treasure are greatly rewarded with large sums of money and usually fame. The escaping animal cases and sunken treasure scenarios both deal with products in high demand and thus both have giant industry implications.

The animal cases can help to resolve disputes regarding sunken treasure because they illustrate previous precedents on how different property claims are resolved in industries driven by commercial goals. In the sunken treasure scenario, the treasure is found in international waters. Therefore, it is clear that multiple entities may lay claim, such as those who had possession before it was lost, the country whose waters it is closest to, or whoever found it. Multiple entities may lay claim to an escaped animal due to the fact that it is not in the current possession of anyone and therefore its ownership is contested. By applying the analysis the courts use in the escaping animal cases to the sunken treasure scenario we can help flesh out who is the rightful owner of this valuable property, despite the various ownership rights that multiple persons or entities may claim.

QUESTION 1 COMMENTS: Team: HPST: Pretty Good

Sense of Task

Fact Comparison (v. Law/Factor): Good

Start w Clear Statement: Sense of first two paragraphs is pretty clear, but (given instructions) helpful to begin with one or two sentences concisely & explicitly describing the parallel. Probably don’t need so much explanation of value of whaling, especially value today. Not controversial that industry was important when cases decided.

ACs/Treasure Generally (v. This Case/Q1): Good.

Substantive Argument

Fact Comparison Chosen: Solid idea. I might make clearer that ACs don’t all involve expensive industries (Manning, Mullett) and Kesler doesn’t mention protection of industry or investment as important. Might also briefly discuss whether historical significance is really same kind of interest.

Defense of Importance: This is a little too general.

• Might be clearer about who “multiple entities” are in ACs, because none of the cases discusses multiple claimants and finders are generally neighbors or industry players.

• Might be clearer about what ideas from ACs are particularly helpful. E.g., ACs explicitly protect OO’s labor & investment, but not F’s, so would seem not very helpful if you want to encourage treasure hunting industry.

Accuracy

• deal with acquiring animals: No. 1st possession cases are about acquiring; escape cases are about when you lose property rights.

• rewarding industry: When I’ve used this phrase, rewarding is a verb and it’s an aspect of labor theory. You seem to be using rewarding as an adjective (as in wanting a rewarding career). I suspect that, at the very least, the crew of the whale ships would describe their jobs that way. (

Presentation: Wordy in places; avoid passive voice.

QUESTION 2 SUBMISSION: Team: GLMM: In Albers, the fox, “McKenzie Duncan” was of substantial importance to the original owners because of a strong emotional bond. The owners trained the fox to be able to eat out of their hands, making it unique, special, and difficult to replace. Here, the treasure is a representation [part?] of the Spanish government’s heritage. It is a unique piece of their history and although new treasure can be made, it would not bear the same emotional significance as the treasure found by Arango.

This would be helpful in deciding disputes over sunken treasure because the emotional bond that exists between [OOs and both] sunken treasure and escaping animals is comparable. The treasure holds a significant emotional bond with the Spanish government’s heritage and is irreplaceable, similar to a unique animal.

QUESTION 2 COMMENTS: Team: GLMM: A Little Uneven; Pretty Good Overall (interesting idea w/o enough follow-through)

Sense of Task

Fact Comparison (v. Law/Factor): Done at the level of one case and the hypo, not a similarity between treasure cases generally and ACs.

Start w Clear Statement: Yes.

ACs/Treasure Generally (v. This Case/Q1): Although you start with just Albers & hypo, you do open up to include sunken treasure cases generally.

Substantive Argument

Fact Comparison Chosen: Idea of playing with non-monetary value of historic treasure is good, BUT hard to say this idea is strongly supported by ACs:

• Reliance on Albers for this is q’able. Case says MD took food from the hand of his keeper, so not clear OO was even involved. She’d only had him less than two weeks and court says nothing about any emotional connection.

• Only AC that really suggests emotional bond is Manning, and reference to zoo animals suggests that bond is not especially important.

Defense of Importance: Helpful to do more thorough explanation/defense of

a) Why historic connection means a lot to nation or to its people

b) Why this is like emotional bond with animal

c) Why using ACs helps protect this interest (e.g., might have most meaning to Aztecs, who are invisible under ACs)

Presentation: No serious concerns.

QUESTION 2 SUBMISSION: Team: DGL: In both the escaped animals cases and the recovery of sunken treasure case the property held significant emotional and/or monetary value to the original owner due to the labor that was put into the property. The Spanish government cared enough about the items to put out a guide, which included the treasures located in the Santa Barbara. This shows the extreme value that was held even after centuries had past. Although the pursuit was halted due to the death of Spain’s ruler, the initial attempt suffices to show the value the treasure held.

In Mullet[t], Manning, Albers, Kesler, Taber, Bartlett, Swift, and Ghen the escaped animal and whale held great value in each case. A significant reason for its value was the time and labor that was put into the upkeep/capturing of the animal. Analogously, the treasure was obtained by Spain as a result of the conquering of the Aztec people of Mexico, which took a great deal of time and resources. The escaped animals cases would be useful for deciding this dispute because it would promote the values of the original owners that was brought on by the labor that was put into property before it “escaped”.

QUESTION 2 COMMENTS: Team: DGL: A Little Uneven.

Sense of Task

Fact Comparison (v. Law/Factor): Good.

Start w Clear Statement: Good.

ACs/Treasure Generally (v. This Case/Q1). Really no sense of treasure cases generally, so a lot is Q1.

Substantive Argument

Fact Comparison Chosen: I think working with value is a solid idea, although as noted under accuracy, I’m skeptical of the tie to labor.

Defense of Importance: Need to do more to explain how & why this similarity makes ACs work here. ACs deal with both labor & value in different ways, so what do you think will be accomplished by focusing on this similarity & using ACs? Also, is it appropriate to reward Spain for labor of conquest & removal of Aztec treasures?

Accuracy

Guide … shows … extreme value: This needs more defense. Might say cynically that guide is a cheap way to score propaganda points with the public without doing anything labor-ious like mounting search missions.

Swift: Not an escape case.

Mullett: Not clear scarred seba lion had great value.

Albers, Kesler, Ghen: Animals here valuable in and of themselves, but not clear how much labor or upkeep involved (as opposed to simple $$$ investment). Fox in Albers only there two weeks; labor in Ghen may just be aiming & pulling trigger on harpoon cannon.

Presentation: A little wordy; use active voice.

QUESTION 2 SUBMISSION: Team: CCDT: In escaped animals cases, courts have found significant labor and investment to be strong indicators of ownership. In Manning v. Mitcherson, the original owner retained property rights in an escaped canary she had owned for two years prior to the escape and trained to recognize its own name.  Likewise, in E.A. Stevens v. Albers, where the animals have value and are part of an important industry, the court will develop rules more protective of the owner’s investment.

While A is a finder and not an original owner, he started a company to find sunken ships. A invested significant amounts of his own time and capital in developing sonar equipment, as well as materials related to deep-sea diving and recovery operations. Ultimately, divers under his employ recovered the sunken treasure.

In contrast, the Spanish government had merely announced their intentions to begin search and salvage operations of the area; an announcement that took place nearly 400 years after the initial shipwreck occurred. Shortly after this announcement, the leader of the Spanish government, Franco died, and with him, their efforts to locate the Santa Barbara. Other than publishing a guide about the Santa Barbara’s treasures, Spain failed to exert any significant labor in searching for the vessel after the survivors of the wreck called off their search in the 16th Century.

However, it is worth noting that Spain invested a significant amount of men and material in conquering the Aztec Empire, which resulted in their initial claims to the gold in the first place. Ships’ manifests were created by a clerk and preserved in records in Mexico. [Relevance of manifests is not manifest!]

Like in Albers, the historical shipment of gold across the Atlantic and salvage operations are important industries that confer significant value. It could be argued that one should not be divested of his labor in obtaining treasure.

Spain would have a stronger case if they had attempted to recover the gold once they knew that ship sunk; however, here, the time difference between their labor in obtaining the gold from the Aztecs and A’s labor in procuring it from the ship may be deemed much too vast.

QUESTION 2 COMMENTS: Team: CCDT: A Little Uneven (Some good ideas but form off and too much Q1)

Sense of Task

Fact Comparison (v. Law/Factor): Applying Factor (labor is strong indicator of ownership)

Start w Clear Statement: No Statement at Start Describing Parallel

ACs/Treasure Generally (v. This Case/Q1): Almost nothing that refers even implicitly to treasure cases more generally; mostly looks like Q1 (e.g., lot more detail about Spain/Arango activities than you need to make Q2 points.)

Substantive Argument

Fact Comparison Chosen: Reasonable possibilities available in context of points you make. Might try to articulate as a similarity: Many ACs and all treasure cases involve very valuable property and important industries. Need to be clear that not all ACs fit this model.

Defense of Importance: Mostly applying factor rather than defending that it is a good idea to do so. General point about not divesting people of labor getting treasure is a good place to start, but that you have significant arguments for each side should raise Qs as to overall usefulness. Whose labor ought to be rewarded here? If ACs don’t tell you that, maybe they don’t help. Other useful points hinted at w/o enough follow-through:

- A is finder (and ACs generally don’t protect/reward F’s labor)

- Labor arguments probably get weaker as time passes (how much weaker?)

- S labor is conquest (should we reward this at all?)

Accuracy: trained to recognize its own name: We don’t know if she did this or if it was trained when she got it.

Presentation: No serious concerns

QUESTION 2 SUBMISSION: Team: CSS: Also in Albers, the original owners had paid $750 for their escaped fox. In the fact pattern, Spain lost gold and silver coins and four quartz statues. The fox and the treasure are both of substantive [substantial] value. A court could hold that the treasure Spain lost was of considerable and easily ascertainable value. That can be compared to the courts holding in Albers that the fox had a considerable and easily ascertainable value. The Albers court held that this fact [which] helped the original owner’s case. This is useful because courts in sunken treasure cases can use the Albers reasoning to say that the item being of considerable and easily ascertainable value is helpful to the original owner’s case.

QUESTION 2 COMMENTS: Team: CSS: A Little Uneven

Sense of Task

Fact Comparison (v. Law/Factor): Pretty good focus on comparison, but should be working more clearly from ACs as a group and treasure cases as a group

Start w Clear Statement: Pretty good. Would conform more with instructions to start with third sentence.

ACs/Treasure Generally (v. This Case/Q1): You get to treasure cases generally at the end. Level of detail about both Albers and this hypo drifts into Q1. Won’t be controversial to say substantial value both in some ACs and in sunken treasure.

Substantive Argument

Fact Comparison Chosen: Substantial/considerable value is reasonable idea for basis of argument. I’m not sure I’d include easily ascertainable. Unlike fur foxes, of which there are thousands, Aztec Quartz statutes might be quite hard to value.

Defense of Importance: Need to defend not simply that courts in treasure cases can use this idea from Albers, but that they should use it. Why should we protect OO’s value when so much time has passed? And if we want to protect value of treasure, why not protect Aztec interests and not Spain’s?

Presentation: Pretty wordy.

Miscellaneous Similarities

QUESTION 2 SUBMISSION: Team: ABOT (Escape Against OO’s Will): Another similarity between the escaped animals and the sunken treasure is that in both instances, escape took place without the intent of the original owner. For example, in Albers a fox managed to escape multiple enclosed fences set up by the original owners. Similarly, the Spanish confined the treasure within the chests and boarded it onto ships with the intent to deliver the treasure back to Spain. Due to this similarity, it could be argued that the escaping animal cases could be useful to determine who gets the treasure because both cases involve original owners expending sufficient labor in regards to confining and controlling property

QUESTION 2 COMMENTS: Team: ABOT: Uneven.

Sense of Task

Fact Comparison (v. Law/Factor): Good

Start w Clear Statement: Solid

ACs/Treasure Generally (v. This Case/Q1): No real sense of addressing treasure cases generally.

Substantive Argument

Fact Comparison Chosen: I’m a little dubious about the significance of this.

- Presumably, if the OO intends to have the property “escape,” there’s a good argument for abandonment. Maybe you could clarify what you are getting at by contrasting either Hammonds or intellectual property cases where, arguably, the OO deliberately allows the property to escape.

- No reason to assume sufficient labor confining or controlling in either situation. Mitcherson or Kesler might have been negligent in allowing 2d escapes. OO in Bartlett might not have anchored properly. Ship that sinks with treasure on board might have done so as the result of incompetent seamanship.

Defense of Importance: Need to be much clearer about how you think ACs will play out (are we protecting OOs if not negligent?) and why that result would be a good thing.

Presentation: No serious concerns. Might avoid passive voice.

QUESTION 1 SUBMISSION: Team: FMR (Time/Distance):

(A) (1) Time and distance jointly serve as a significant factor in the escaped animals cases by granting a certain time lapse in which it would be reasonable for the original owner to be without his property and still have a strong claim when found.

(2) It follows logically that as the length of time without possession increases, the probability that an animal has returned to its natural liberty greatly increases, leading to a minimal probability for recovery by the owner.

(3) Certain factors relevant to measuring the time/distance aspect include the presence of a custom or industry and the labor of the original owner. The presence of a custom, generally created in awareness and respect for a certain industry, places no significance on the length of time or distance that an animal has escaped from its owner’s control. As a result, generally the original owner of the animal retains property rights, no matter the circumstances, as seen in Albers and Ghen.

(4) Furthermore, the length of ownership and labor derived [expended?] from owning an animal for a long time serves as a strong indicator of the original owner’s property rights when compared to the length of time the animal has been out of captivity, such as the 2-year ownership of the canary in Manning.

(B) (1) At first glance, one would be led to see the time factor as [might be] an important difference between the animal cases and this treasure situation. Many of the cases discussed in class dealt with a time frame of several days, or at most a couple of years [, as opposed to the 400] The 300-year timeframe pertinent to the dispute over the lost treasure certainly fails to find a case that comes even close to this length of time.

(2) However, once the length of time has reached a certain point, such as 50 years, the significance of every passing year greatly diminishes.

(3) A statute of limitations is not relevant to this dispute,

(4) so whether property has been gone for a 100 years or 300 years does not really matter. Rather, one should be more focused on the fact that the property has been gone for a significant amount of time, as the extra 250-290 years merely serve as a shock factor.

(5) Both the escaped animals cases and the treasure fact pattern are concerned with an owner being dispossessed of his or her property for a length of time that matters.

(C1) When applying time to situation at hand, one finds it easy to see how Captain Arango should obtain property rights to the sunken treasure.

(2) First of all, no custom concerning lost treasure exists as a windfall for the Spanish.

(3) Obviously, the value of the treasure is significant, but the decline of colonization has made any demand for any treasure hunting industry obsolete.

(4) As a result, the Spanish would be hard pressed to apply Albers in asserting their property rights.

(5) The treasure was lost for 300 years, a length of time that is more than adequate for the Spanish to pursue and locate the treasure, especially considering that the treasure chests were firmly implanted in one general location the entire time.

(6) The lack of strong and efficient pursuit over time should be contrasted with the growing opportunity for Captain Arango to invest more labor and money into making sure to find something that has been difficult to find over such a long time.

(7) The length of time that has passed invites any potential finder to demonstrate why their labor and investment should be rewarded over the labor, or lack thereof, of the finder [OO] in asserting a claim to property, as was the case in Mullett.

QUESTION 1 COMMENTS: Team: FMR: Pretty Weak (Some interesting ideas, but not responsive to assignment and lots of errors)

Sense of Task: Very Weak

Fact Comparison (v. Law/Factor): Almost entirely application of the Time factor. Middle paragraph does seem to compare time frames, but as primarily as a difference, not a similarity.

Start w Clear Statement: None.

ACs/Treasure Generally (v. This Case/Q1): No discussion of treasure cases generally; all about this hypo (and last paragraph is all Q1)

Substantive Argument

Subject Chosen: Some interesting ideas about how time factor ought to play out, but not framed in a way that is responsive to your assignment.

Defense of Importance: You seem to assume that time factor will mean F likely to win. Need to defend that this is a desirable result, especially given cultural/historical significance of property, that pursuit pretty much abandoned by compulsion (no way to find) until well into 20th century, and that Fs in this area basically always know there’s an OO with a prior claim.

Accuracy/Clarity: Many concerns:

(A1) jointly serve: While time & distance are sometimes employed in similar ways, fact that I listed them separately for purposes of Sub-Assignment 3B should suggest to you that they are not one joint factor. Not clear why you even introduce distance here, since you never discuss the significance of distance for sunken treasure.

(A1) a certain time lapse : I think fairer to say that the more time has passed since the escape, the weaker the OO’s claim becomes. None of the cases establish any bright lines except in the context of whaling customs and the second ship cutting in.

(A2) the probability that an animal has returned to its natural liberty greatly increases: Depends heavily on context. Kesler treats short time (plus pursuit) as defeating NL, but an elephant in downtown Pittsburgh would probably not be at NL no matter how long it was there.

(A3) & (C2) Time & custom:

• Don’t treat custom issues as part of the analysis of ACs for purposes of Q2

• Albers is not a custom case; the fact that the mark is an industry custom strengthens it as a mark and makes finder’s knowledge stronger b/c finder was in industry. However, case does not rely on custom as a legal source of property rights as Swift & Ghen do. Moreover, Albers does not say OO always wins.

• Whaling custom in Swift has explicit time limit built in.

• Custom in Ghen is that OO wins so long as bomb-lance is still attached, but nature of whaling means that there are built in time limits and it’s unlikely that if the whale was found 600 miles away, the custom would still apply.

(A4) Manning is the only case we read that uses length of ownership to support OO. In Albers and the whaling cases, length of ownership is very short. We have no info about Kesler. In Mullett, where there had been a lot of time & investment b/c of the transcontinental travel, court doesn’t mention it & OO loses.

(B1) A legal factor cannot be a factual difference. You seem to mean time frame.

(B2) Interesting idea; need to defend more (especially to a 50+ year old instructor ()

(B3) Why??!!!

(B4) Again, interesting idea, but need to defend this is so.

(B5) As written, vague to the point of saying almost nothing:

• A length of time that matters: Matters to what or to whom? To the value of the property? As evidence of OO or finder labor? As evidence of abandonment?

• are concerned with: Not clear if you mean “have as a relevant legal factor” (in which case, you are assuming the result for treasure cases that I’ve asked you to discuss) or “have as a factual similarity” (in which case you need to explain “that matters” a lot more clearly).

(C1) When applying time to situation at hand: Clearly here applying the factor, not discussing the similarity, and asrguing about who wins, not about what rules should be.

(C3) Obsolete seems a questionable factual assumption. Ever-improving technology means that people still frequently locate old shipwrecks. Colonialism (treasure-removing) may be obsolete, but there is a treasure-hunting industry made up of people like Arango.

(C4) hard pressed to apply Albers: I don’t understand the basis of this statement or what it has to do with time. Albers, among other things, protects an OO who has marked escaped property in a way that makes the particular finder aware of the prior claim. It is the AC most helpful to Spain.

(C5) more than adequate for the Spanish to pursue and locate the treasure. Problem strongly suggests that the technology to find the ship didn’t exist until late 20th century.

(C6) Need to be much clearer why A’s labor and investment is related to time.

(C7) Need to be clear that:

- Nothing in ACs explicitly rewards F’s labor

- Mullett awards Clion to finder based on return to NL w/o AR. Could say that unstated reason for court’s decision might have been a desire to reward F’s labor.

Presentation: Writing wordy and often hard to follow. Use active voice. Use short simple sentences. Proofread for clarity!! A few suggested edits on text above; lot more needed.

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