ELEMENTS GH: INFORMATION MEMO #4 (10/4/06)
ELEMENTS GH: INFORMATION MEMO #6 (11/15/06)
(A) Post-Thanksgiving Office Hours, Review Session
& Related Information
(1) Post-Thanksgiving Office Hours
MON 11/27 9:45- 11:15 a.m.
WED 11/29 9:45- 11:15 a.m.
THU 11/30 9 a.m.- Noon
FRI 12/1 9 a.m.- Noon
MON 12/4 9 a.m.- Noon
THU 12/7 2-6 p.m.
FRI 12/8 9 a.m.-Noon & 2-6 p.m.
SAT 12/9 9 a.m.-1p.m. & 2-6 p.m.
(2) Review Session FRI 12/8 7:00 p.m. Room 309
(a) I’ll talk about approaching each type of question
(b) I’ll answer questions re exam technique & substance
(c) Session will be videotaped & CDs placed on reserve at circulation desk.
(3) General Info on Reading Period Availability:
(a) Office Hours are first come- first served.
(b) You can ask questions by e-mail or telephone, but students in the office take priority. I’ll get back to you by phone or e-mail as soon as I can.
(c) If you do one exam question under exam conditions and get it to me in person or by e-mail before 6 p.m. on Friday 12/8, I will go over it with you or get it back to you with comments before the test.
(d) I go off duty after office hours on the Saturday 12/9 (the day before the test). Phone calls and e-mails received after 6 p.m. that day will not be returned. However, I will stay and finish up with students who arrive at office hours before 6 pm, and will then answer phone calls and e-mails received before 6.
(4) Return of written work: My goal is to have completed grading all written work by the start of office hours on Thursday 12/7. Sometime soon, I will start posting “grading status” alerts on the course page that will tell you where I am in the grading process and what is available for pickup from my assistant. I will continue these updates while I am grading the exams, so you can get a sense of my progress.
(B) Oil & Gas Briefs: Comments & Models from Prior Years
(1) Hammonds v. Central Kentucky Natural Gas Co.
a. Citation: 255 Ky. 685, 75 S.W. 2d 204 (1934) or 75 S.W. 2d 204 (Ky. 1934)
b. Statement of Case: Hammonds, owner of land that included part of a depleted underground gas field, sued CKNG, which had reinserted gas into the field, for damages for trespass.
(i) A number of you included the phrase “using & occupying,” which the court used in its description of her claim. I don’t think these words add anything to the version of the statement above. You should get into the habit of trying to edit or translate the court’s account of the case. You can often make it more concise. In addition, putting it in your own words enables you to see if you really understand what’s going on.
(ii) A number of you referred to the gas as being “under” Hammonds’s land. However, as a technical matter, she owns the area underneath as well as the surface of the parcel. Thus, a portion of the gas field is part of her land, not merely underneath it.
c. Procedural Posture: Judgment for defendant. Plaintiff appealed.
d. Facts: Hammonds owned land that included a small part of a large underground gas field. Pursuant to leases with owners of other parts of the field, CKNG legally extracted the gas from the field. It then reinserted gas extracted elsewhere into the field for storage. CKNG had no lease with Hammonds and did not seek her permission to use the field.
(i) As is usually the case, precise numbers were not crucial to the court’s analysis. Thus, you did not need to include the acreages involved and the value of the stored gas.
(ii) For some reason, this case seemed to give rise to an unusually large number of mistakes regarding the correct form of the possessive. For a singular noun ending in “s” like Hammonds, either of two possessive forms is acceptable: Hammonds’s or Hammonds’. I prefer the former because it makes clear that the word is not plural. In any event, Hammond’s is wrong. It is the possessive form of the name “Hammond.”
e. Issue/Holding Did the lower court err in granting judgment for defendant on the grounds that parties who have natural gas in their possession and release it into a natural underground basin do not retain property in the gas and therefore do not commit trespass when the gas travels onto land owned by another?
(i) Narrow Holding: NO. The lower court did not err in granting judgment for defendant because parties who have natural gas in their possession and release it into a natural underground basin do not retain property in the gas and therefore do not commit trespass when the gas travels onto land owned by another.
(ii) Possible Broad Holding: Where parties have liquid or gaseous minerals in their possession and release them underground into areas that formerly contained that mineral, they do not retain property in the mineral.
(iii) Be careful about buying too far into the court’s use of the animals metaphor. For example, many of you gave as the issue the court’s “question” on page 77 about whether the gas “was restored to its original wild and natural status.[1] Whether gas has become “wild and natural” hardly seems to be a legal question. I think it is important that you try to distance yourself from the court’s more colorful language and try to figure out what is really at stake, which is, “Who owns gas that is reinserted into the ground?”
(iv) Some of you listed as a holding that Hammonds was “the absolute owner” of the gas underneath the area of the surface she owned, relying on the Mills & Willingham citation on page 76. However, the text refers to gas that has not yet been extracted and states that the gas can be lost through “escape,” when a neighbor withdraws the gas from a well on an adjoining lot.[2] Thus, the passage doesn’t tell you what happens when the gas is first possessed and then reinserted. Moreover, this was unlikely to be the holding in a case where nobody argued that Hammonds owned the gas. She argued that it belonged to the gas company and the gas company argued that it belonged to nobody.
(v) A number of you mixed rationales into the holdings both here and in the White briefs. A holding generally takes the form of a legal rule: “Where X facts are present, Y legal result follows. If you find yourself adding a clause that begins, “because,” you probably are drifting into the rationales.
f. Rationales:
(i) Doctrinal Rationales
(A) Gas is like animals. Westmoreland; Willis treatise. When animals escape into their natural element, they return to their unowned state. The same should be true of gas.
(B) Gas is also like underground water. If you pull water out of the ground it is yours. If you return it into the ground, you lose property rights. Willis treatise. Hill. Rock Creek. The same should be true of gas.
(C) When gas is returned to underground storage, it is taxed as part of the land, not as separate personal property of the surface owner. Willis treatise. This suggests that the property rights in the gas are the same as those in gas that has never been extracted: the owner of the surface has ownership rights unless the gas is legally extracted by another.
(ii) Possible Policy Rationales:
(A) The court may have been unfavorably inclined toward Hammonds because it may have perceived that she was trying to make easy money where she had not exerted labor nor experienced harm. The holding would prevent her from gaining an unearned benefit.
(B) The court may have been concerned that deciding in Hammonds’s favor would encourage numerous small landholders to bring similar suits, and decided for the gas company to prevent a flood of litigation.
(C) The court may have wanted to protect the gas companies who are performing useful labor by extracting and storing gas. Deciding this case in their favor limits their liability for trespass (although it also puts their reinjected holdings at risk of capture by others).
(D) Note that the case contains no policy discussion at all. The court never discusses whether the metaphor or the result is good or bad for society. Thus, any policy rationales you include should make clear that you are hypothesizing.
(iii) When the court provides several rationales for its decision, you should try to list them separately. Each one is a tool you can use later on. You will find them more effective tools if you have delineated them clearly to begin with.
(2) White v. N.Y. State Natural Gas Corp.
a. Citation: 190 F. Supp. 342 (W.D. Penn. 1960)
b. Statement of the Case: White, owner of rights to some of the proceeds of a gas well, sued NYSNGC (NY) and Tennessee Gas Transmission Co (Tenn.), the companies that owned and operated the well who had curtailed its production, to get an accounting and to force further production.
c. Procedural Posture: Decision following bench trial.
d. Facts: P had rights to part of proceeds from gas well that had not produced much gas for many years. Tenn. & another gas company were using a nearby gas pool for storage of gas, unaware that it connected to the pool that fed the gas well at issue. The stored gas was from another area and had a different chemical make-up than the local gas. The stored gas leaked underground into the adjoining pool, and gas production from the well suddenly increased significantly. Ds believed that the gas coming out of the well was stored gas and curtailed production.
(i) Most students included too many facts. The history of the ownership of the fields and the geographical details mostly don’t matter to the analysis in the case. The dates the names of the people and the gas fields and the well all seem unnecessary to the understanding of the case.
(ii) One way to help summarize information more concisely is to rewrite the relevant passages in your own words. That may help you see what points are significant and to recognize unnecessary repetition. Many of you seem to be simply typing the court’s fact sections into your briefs. A higher level of engagement with the material will improve your understanding.
e. Factual Disputes/Findings: Was the gas coming out of the well stored gas or local gas? By the time of trial, all the local gas was gone and only stored gas was coming out of the well.
(i) Whether the gas had “escaped” or had “returned to its natural habitat” are legal issues, not factual disputes. They require the court to decide whether the facts fit into a legal category.
f. Issue/holding: Does gas reinserted into the ground remain the property of the party reinserting it where it remains in the control of the reinserting party and it is chemically different from local gas?
(i) Narrow Holding: Yes. Gas reinserted into the ground remains the property of the party reinserting it where it remains in the control of the reinserting party and it is chemically different from local gas.
(ii) Broader Holding: Yes. Gas reinserted into the ground remains the property of the party reinserting it.
(iii) The issue in White is essentially the same as in Hammonds: Does the owner of gas lose property rights when the gas is reinserted into a natural underground field? White says no, explicitly rejecting the Hammonds reasoning. The issue arises in the slightly different context in White because if the gas was unowned, defendants presumably would have a duty to continue to operate the well for White’s benefit.
(iv) Many of you just copied the court’s version of the question presented here. In this case (although not always), that was a useful way to identify the issue. However, you may wish to examine cases and see if the court’s analysis contains other facts that seem particularly important to the court and include them in the issue and narrow holding. remember that a future court might decide that the absence of those facts changes the outcome.
g. Rationales
(i) rationales based in precedent: These all respond to the P’s argument that the court should follow Hammonds and declare the stored gas to be escaped and therefore available to the first finder.
(A) Pennsylvania courts do not use the animals analogy in every oil and gas case. Thus, it is proper for the court to refuse to apply it here.
(B) Even if the animals analogy applied, the escape cases would not apply because the gas had not really “escaped,” because it remained in the control of the defendants since they could get to it at any time. Thus, ownership of the gas remains with the gas companies storing the gas. [Note that the court here rejects the reasoning of Hammonds.]
(C) Even if the escape cases applied, the gas had not returned to its “natural habitat,” because it came from another part of the country. Thus, the gas would still belong to the gas companies. [Note that this is at least facially inconsistent with Mullett.]
(i) rationales based in policy:
(A) Pennsylvania statutes demonstrate that the state has a policy favoring underground storage of gas. To encourage the use of underground storage, the Supreme Court of Pennsylvania would want companies that store gas underground to retain property rights. [Note that the court doesn’t simply announce the policy in question. Instead, it provides evidence of the policy in the form of a number of Pennsylvania statutes. ]
(B) The ruling also rewards the labor and investment of the gas companies. However, the court never refers to this concept so you would need to make clear that it is, at most, an implicit rationale for the decision.
(C) POST-PENN CENTRAL TAKINGS LAW
For informational purposes only.
I will only test you on the cases up to and including Penn Central.
(1) Changes In The Court: Only Stevens remains (in dissent in Penn Central)
a. Stewart ( O’Connor ( Alito
b. Burger ( Kennedy
c. Powell ( Scalia
d. Brennan ( Souter
e. Marshall ( Thomas
f. White ( Ginsburg
g. Blackmun ( Breyer
f. Rehnquist ( Roberts
(2) Physical Invasion Line of Cases
a. Penn Central: More likely Taking if physical invasion of private property
b. Loretto (1982): Always taking if “permanent physical invasion”
c. Yee (1992): Limits “permanent physical invasions”
i) Only in category if did not invite invading entity
ii) Not in category if you invite people & then government regulates
(3) Loss of Property Value Line of Cases
a. Penn Central: No Taking if Reasonable Rate of Return
b. Lucas (1992): What to do if value reduced to 0?
i) Taking unless government could eliminate the desired use of the property under “background principles of property law”
ii) E.g., nuisance, adverse possession, implied easements, etc.
iii) Unclear if applies when no reasonable rate of return but value > 0
(4) Connection between government purpose & means chosen to implement
a. Normally: rationally related to legitimate govt. purpose
b. Penn Central: top para. p.105: “a use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose.”
c. Subsequent developments: Contract zoning cases: local gov’t requires landowner to give up some property rights in exchange for waiving land use regulations
i) Nollan (1987): requires substantially advancing purpose behind regulation
ii) Dolan (1994): requires rough proportionality between harm prevented and burden exacted
iii) Del Monte Dunes (1999) seems to limit Dolan holding to contract zoning.
(5) Last Word: Palazzolo (2001): Regulatory Takings claim not barred just because challenged regulation was already in place at time land was purchased
(D) Review Assignment (pp.81-82):
Comments and Models from Prior Years
There were two years when I gave this assignment as a graded written project. These comments & best answers come from student submissions from those years. The Fact Patterns identified by letter refer to the following old exam questions
Fact Pattern A: Spanish Treasure
Fact Pattern C: Fern Roots
Fact Pattern D: Software Programs
Fact Pattern E: Tribal Symbols
Fact Pattern F: Jokes
General Comments
1) Exam Question I v. Exam Question II: Your task on Exam Question I will be to discuss which of the parties in the fact pattern is entitled to the property in question. The midterm and Assignments I and II all provide examples of this task. Much of your time will be spent applying legal tests and policies to the facts of the problem.
By contrast, your task on Exam Question II is to discuss whether the animals cases provide a good method for resolving problems like the one in the fact pattern. Your time should be spent making arguments similar to those you were asked to do for this assignment. Much of your time will be spent discussing why the legal tests and policies are (or are not) appropriate tools to resolve the kinds of disputes illustrated in the fact pattern. Keep in mind that the fact that you could use the animals cases doesn’t mean you should use them.
While doing Question II you occasionally may want to apply one of the rules to the facts of the problem to demonstrate whether the rule works well in that context. However, you should not be spending much of your time applying rules to facts or arguing that one of the parties should prevail. You will not receive credit on Question II for arguments appropriate to Question I.
2) Consider Fact Pattern and Similar Cases: For Question II, you should address the applicability of the animals cases not just to the specific case in the problem but to other cases of the same kind that are likely to arise. For example, when the Pennsylvania Supreme Court chose to use the animals cases to resolve Westmoreland, it did so with the awareness that it was setting precedent for a range of different kinds of oil and gas disputes.
Thus, for Fact Pattern A, you would consider whether the animals cases should apply to sunken treasure disputes generally, not just the two disputes described in the problem. Similarly, for Fact Patterns D and E, past exams, you would address the applicability of the animals cases to disputes about ownership of computer programs generally and about ownership of Native American tribal symbols generally. The wording of Question II on this year’s exam will make this explicit.
3) First Possession Issues v. Escape Issues: An important part of your analysis for both Question I and Question II of the exam is to determine whether the problem raises a first possession issue, an escape issue, or both. If the problem only raises one of the two issues, you should focus your discussion on the cases addressing that issue.
In Fact Patterns A and E, the disputes are basically escape issues. In each dispute, one of the parties had actual possession of the items at one point, then lost it. In each dispute, the finder will argue that the prior possessor lost property rights when the items escaped. Thus, you should mainly have discussed the applicability of the escape cases.
For example, suppose in discussing Fact Pattern A or E, for the subject of Argument #4, you chose the mortal wounding test from Liesner and Pierson. It would be very easy to say the test doesn’t apply well to the fact pattern because you don’t have a dispute about who first possessed an unowned item. However, this isn’t a very useful point to make because the significant question will be whether the escape cases apply.
4) Because, Because, Because …: The most important parts of your response to Question II will begin with “because.” This fact is significant to the animals cases because …. This rule will not work well because…. Rewarding labor in sunken treasure cases is important because…. This rule will create a lot of uncertainty because …, which is particularly harmful in the context of sunken treasure cases because ….
Many of you spent much of Arguments #1 and #2 describing the factual similarity or difference in great detail. Unless you think the existence of the similarity or difference is debatable, describe it quickly and spend most of your time explaining why it is important. Similarly, for arguments like #3 and #4, quickly note the rule in question, and spend the bulk of your energy talking about why it should or shouldn’t be used. A long paragraph proving the existence of a policy we’ve discussed extensively is not a good use of time on this question.
In addition, you can improve your arguments by providing reasons for your reasons:
Finder’s knowledge should not be used to decide sunken treasure cases because the original owners would always win because every finder of sunken treasure should know that it once was owned by someone else because it doesn’t appear spontaneously or grow in the sea bed. It would be bad for original owners always to win because that would insufficiently reward the finders’ labor, which would discourage potential finders. This would be bad because we should get sunken treasure to the surface as soon as possible because it often has educational and historical value that can’t be tapped in the sea and that will be lost completely if it stays in the ocean until the salt water corrodes it.
5) Include and Address Counter-Arguments: Even when you are supposed to be arguing for a particular side (as in Arguments 1-6 or Question III of the exam), you can improve your analysis by noting counter-arguments and addressing them. Thus, if you were arguing that a particular factor like natural liberty should not be used, you might say something like:
You could say that, by definition, the ocean floor is “natural liberty” for sunken treasure, and that once something falls to the ocean floor without immediate pursuit, it becomes available to the first finder. However, this seems too much of a stretch because the treasure doesn’t originate on the ocean floor or any place like it and because, unlike animals in natural liberty, any observer would be able to tell just be seeing it on the ocean floor that it had a prior owner.
6) Use Your Sources Accurately: Some of your papers contained incorrect information regarding the cases you used. Be careful that you are quite sure about the facts, holding, and key reasoning of each case we read. I note this kind of error when I am grading and count it against you if you make a significant number of them. Three common examples:
(a) Mullett noted the Blackstone rule that gives abandoned animals to the finder and that the defendant claimed that the plaintiff had abandoned the sea lion. However, it did not rule on that claim. Thus, it is incorrect to say that Mullett held or found that the sea lion had been abandoned. Similarly, it is possible to distinguish Mullett from Albers and Kesler because the time and distance involved were much greater in Mullett. However, Mullett never says anything at all about time or distance having legal significance. Thus, you shouldn’t say that time or distance were part of the holding or the rationale of Mullett.
(b) One of the many facts listed as relevant in Manning is that the canary escaped once and returned. However, the court nowhere mentions the concept of animus revertendi nor does it single out the return as more important than any other fact in the problem. Indeed, given the examples it discusses, issues like labor and finder’s knowledge seem more important. Thus, you cannot say that the court returned the canary to the owner because of animus revertendi, or that it held or even stated that animus revertendi was an important factor. At most, you can say that it seems to be one of the factors the court considered and that Albers reads Manning (I think without much support) as resting on that factor.
(c) Many of the animals cases provide support for the idea that rewarding some kinds of useful labor is important. However, not a single case determines property rights by explicitly comparing the labor of the two parties. Indeed, in the escape cases, no mention is ever made of the finder’s labor at all. However, many of you stated or suggested that the party who did the most (or the best) labor should always win. Not only is this proposition unsupported by the language of the cases, it doesn’t fit the holdings well either. For example, the losing parties in both Mullett and Swift almost certainly performed more (and more useful) labor than the winners. You still can argue that we should look at the finder’s labor or compare the labor of the parties. You can note, for example that both Rose and Demsetz talk about the importance of protecting finders from engaging in wasteful labor. You can argue that the logic of the labor arguments in the cases suggests that the labor policy be extended beyond what the cases say explicitly. But you can’t attribute comparative or finder’s labor arguments to the cases themselves.
7) Simplify Your Writing: Many of you regularly use lengthy uncommon words, legalistic phrases and complex sentence structure. As a result, much of your writing is difficult to understand. I particularly dislike the use of phrases taken directly from the reading but used out of context in a way that suggests you don’t understand them. If you are trying to impress me with the sophistication of your vocabulary, you are failing.
Good writing is easy to understand. Develop a reader-friendly style. Use short simple sentences. Use active voice. Don’t use words unless you are sure of their meaning. This is particularly important for exam writing. You will have no opportunity to explain yourself if I can’t follow your reasoning. I will spend only a limited time puzzling over the meaning of obscure sentences before I will move on without giving you credit for what might have been a very good idea.
Arguments 1 & 2
1. Choose one factual similarity between situation described in the Fact Pattern and the situations typically governed by the animals cases. Explain why that similarity suggests that the animals cases are a good tool for resolving the issues in your Fact Pattern.
2. Choose one factual difference between situation described in the Fact Pattern and the situations typically governed by the animals cases. Explain why that difference suggests that the animals cases are not a good tool for resolving the issues in your Fact Pattern.
Comments
1) Facts v. Legal Tests: The most common error in this section was that people focused their arguments around one of the legal tests and not around facts. A factual similarity or difference is one that you could have recognized before you went to law school. Animals move; treasure doesn’t. Most animals are worth a lot less than a chest of gold. Most animals do not have historical value. This kind of argument is on the right track if it begins with a statement describing a fact about animals or the animals cases and comparing it to a fact about sunken treasure. If you begin with a legal test, you are off track. If you are applying a legal test to the facts, you are off-track.
2) Use Facts Common to a Group of Cases: Some of you compared the facts of one of the animals cases to the facts of the hypo. That kind of argument belongs in Question I. Here, you should compare a fact that is common to a group of animals cases (animals move around) with a fact that would be typical of sunken treasure cases (most valuable treasure is too heavy to float and so doesn’t move around). Because you are trying to determine whether a set of rules designed to deal with a large group of cases about animals should apply to sunken treasure cases, the facts that matter are those that are typical of many animals cases or many sunken treasure cases.
3) Look for Interests Not Addressed in Course Materials: Keep an eye out for concerns that are very different from any we’ve discussed. These are obvious sources of this type of argument. In Fact Pattern A, the possible interest of the Aztecs as original creators/owners of the treasure is unlike anything we’ve seen, as is the historic value of the treasure. With the Tribal symbols in Fact Pattern E , an important difference was the religious significance. With the plants in Fact Pattern C, it was the medical value of the roots. Discuss whether the animals cases are appropriate for dealing with these very different kinds of concerns.
Arguments 3 & 4
3. Choose one legal test or factor that is used in the animals cases. Explain why it is a sensible test or factor to use to help resolve the issues in your Fact Pattern.
4. Choose one legal test or factor that is used in the animals cases. Explain why it is not a sensible test or factor to use to help resolve the issues in your Fact Pattern.
Comments
1) What Makes Use of a Rule Sensible? Among the many kinds of arguments you could use, here are three that lawyers frequently employ:
a) ease of application: If you find it very difficult to employ the rule in the new context, that suggests that there might be better rules to employ. That said, ease of application by itself is not much of a reason for using a rule. Almost any property dispute could be easily settled with a coin flip, That doesn’t mean it is a good idea to do so. Many of you argued that a rule could be used, therefore it should be used. You need to defend it with more substantive argument.
On the other hand, you should not toss a rule out because you don’t immediately see an obvious application. Students frequently argued in #4 that there was “no way to use” a particular factor. That rarely is true. Use your imagination and explore ways to make the rule work for you as the courts did in Westmoreland and Hammonds. Moreover, don’t make arguments that say use if the animals cases is nearly impossible based on a fact like “the property at issue here is not alive” that also was true for oil & gas.
b) purpose of rule relevant: See if the reasons underlying the rule are relevant to the new situation. For example, if the natural liberty is designed to deal with the fact that an animal can return to a state where it is indistinguishable from many unowned animals, it may not make sense to use it for treasure, which never ends up in a place full of nearly identical chests of coins. On the other hand, if it is a way to think about whether the owner has taken sufficient care of the property, you might want a test that would distinguish between more responsible treasure losers and those who let it get too far away or failed to pursue adequately.
c) produces desirable results: See if the rule as applied to a typical fact pattern yields results you think are good. For example, as noted above, finder’s knowledge arguably will always point to the owner. If you think that colonial powers like Spain should not be rewarded for theft of cultural items, you won’t want to use this rule. If you think that any owner of identifiable property should get it back, you might think this was a great rule.
2) Dealing with Custom: Ghen and Swift provide several tests for when courts should treat custom as law. You can evaluate these tests using the structure of arguments #3 and #4. However, you should be careful about treating, “Apply industry customs” as though it was a rule common to all the animals cases. Remember in Bartlett, the court explains that it would not apply a supposed custom and the Pierson majority implicitly rejects the dissent’s suggestion that it rely on hunter’s customs.
3) Marginal Rules: Some rules discussed in the animals cases are never actually applied by any of them. Others can be formulated in ways that sound different from any rules explicitly used by those cases, but are substantively similar. Do either type count as animals cases rules? My answers for some of the most commonly cited:
a) Ratione Soli: Yes. It is an important assumption of the animals cases and clearly it is sometimes used to determine property rights to animals.
b) Salvage: No. I’d like you to treat salvage as an alternative. The whaling cases never actually use it and we have no evidence of it ever being used for animals.
c) First to complete project or make idea marketable/successful: Several of you proposed (as alternatives) rules that basically give property rights to the first person to complete a specified part of the process beyond the very first steps (e.g., re jokes or software). These rules seem to me to be variations on Pierson’s “pursuit is not enough” and “mortal wounding” rules. I would treat these as plausible applications of the animals cases rather than as alternatives.
Arguments 5 & 6
5. Choose one alternative method (i.e., different from the animals cases) of resolving the issues in the fact pattern.. Explain one reason why the animals cases might be superior to the alternative as a method of resolving the issues in your Fact Pattern.
6. Choose one alternative method (i.e., different from the animals cases) of resolving the issues in the fact pattern.. Explain one reason why the animals cases might be inferior to the alternative as a method of resolving the issues in your Fact Pattern.
Comments
1) Plausible Alternatives from Your Answers:
Original Owner Always Wins: So long as you can prove your prior ownership, you get title. Simple, but lowers incentives for owner to take care of her things.
Forced Licensing: A system for allocating rights to intellectual property that can simultaneously be used by more than one person. Original owner retains rights but others can use without permission if they pay preset fees. Ensures rewards for original labor. Rewards others who can make valuable use of the property. Owner has less control, which may prevent high cost of bargaining from blocking useful transactions. However, you might see this as a problem where the owner has strong intangible interests like the religious value of the tribal symbols in Fact Pattern E.
Registry Systems: Original owner must register claims in some official way. If she registers, she retains property rights in most circumstances. This costs a lot to set up, but makes proving ownership much easier. Again, may lower incentives for owner to take care of things. If you propose a registry system, describe how it will work. Don’t simply say that the owner should get a copyright or patent or trademark. Assume that no existing system applies. Don’t assume that you and I have the same understanding of how copyright or patent or trademark work.
Finders Keepers: Current possession is all that matters. Easy to administer. Encourages lots of finding, including inappropriate finding. Raises incentives for owner to take care of things.
Salvage: Rewards labor of finder while preserving investment of owner. Can set salvage fee on sliding scale to take care of factors like time and labor. Can be high costs to administer, particularly if sliding scale fees. If fixed fees, might provide wrong level of incentives for finding.
Other Split the Proceeds Solutions: Pros and cons similar to salvage. If you propose one of these, you need to very clearly explain what the criteria are for dividing the proceeds and who makes the necessary determinations.
Public/Museum Ownership: Addresses non-economic value of property in question by making it available to public. Need to address how to deal with paying for finding and claims of the original owners.
Lottery: Simple but random; uncontrollable, so may have odd effects on incentives.
2) Rule of Decision v. Maker of Decision: Some of you set up arbitration boards or international tribunals to resolve the case. Although this is clever, I’d like you to focus on alternative rules of decision for determining property rights rather than alternative decision-makers. Even if you set up an international tribunal, it will still need a method to determine who gets the property. That method should be your focus.
3) Weigh Alternatives in Light of Test Scenario: When you are comparing your alternatives to the animals cases, do so in the context of the type of cases raised by the fact pattern (sunken treasure in this case). Although a particular alternative might be a disaster if applied to all types of property, it might be quite sensible used in a limited context. For an example of doing a comparison that is really in too broad a context, see argument #5a under Fact Pattern A below. It contains the kind of comparison about which I would write “Tie back to sunken treasure.”
Argument 7
7. Briefly discuss which arguments you think are stronger (and why): those you’ve made for using the animals cases (Subjects 1, 3, 5) or those you’ve made for not using the animals cases. (Subjects 2, 4, 6). If your team disagrees on this issue, briefly describe the different positions team members have taken.
Comments
1) Weigh Earlier Arguments: The instructions said to weigh the pro arguments against the cons. Relatively few of you did that. You should, for two important reasons. First, you should always try to follow directions. Second, on exams, you get a lot of credit when you do more than simply make the most obvious argument for each side. The ability to discuss which of two pretty good arguments is the best is a large part of what separates the top exams from those in the middle of the class.
2) Defend Your Conclusions: Your responses to #7 often contained unsupported conclusions. When you compare two positions, you need to explain why you think one is stronger than the other. Simply repeating the positions and announcing the winner gets you no credit.
BEST STUDENT ANSWERS
This section includes the best answers from last year’s class, which did Fact Pattern A, as well as the best answers from each group this year. I have arranged them by Fact Pattern, so, if you choose, you can look at each set after you’ve gone over that particular Fact Pattern yourself. For some arguments, I included more than one student answer. My comments about each argument are in italics. As always, I have edited the answers lightly to correct errors and provide clarity.
Fact Pattern A: Spanish Treasure
1a. This is a very nicely laid out discussion of a useful similarity. The answer first sets out the similarity, then uses labor theory to explains why the importance of the fact is similar in both contexts, and then nicely addresses a good counter-argument.
Animals may be distinguished by markings that occur naturally as blemishes, coloring, or deformities. Markings can also be man-made or artificial E.g., Albers, Manning, Taber, and Bartlett. Similarly, the Spanish coat of arms on the chests containing the treasure and the royal emblems stamped on the gold and silver coins found within the chests are manmade markings, made by the Spanish government. The placard bearing the name Santa Barbara is like a tattoo identifying the remains of the ship in which the treasure was found.
This similarity is significant where an animal or item has social or economic value. Markings indicate that an owner has expended useful labor to develop the value of the animal or item by taming, Manning, breeding, Albers, or for the processing of products for human use, Taber. Where an animal or item has “escaped” the power and control of the original owner, markings put the finder on notice that a claim has been established. In addition to protecting useful labor of the owner, we don’t want to punish the original owner for uncontrollable events or accidents such as an animal escaping into the night, or the current carrying an anchored whale, or losing a ship full of treasure in a violent storm where retrieval is either impossible or economically unfeasible to the owner.
Although finders may argue they have expended labor, we want to make a distinction between useful labor where an owner “gives” or increases an item’s value, and misdirected labor where a finder “takes” an item thereby depriving another the rightful benefit of its value. The treasure, the boxes in which it was contained, and the ship carrying all were sufficiently marked, therefore, the animal cases are useful tools in resolving the issue of ownership and preventing unjust enrichment.
1b. This is a slightly different marking argument. I like it because it points out the subtleties of marking doctrine and ways that the finder can use them. It is a little too focused on the legal test and not quite enough on the factual similarity for this heading.
The lost property was contained in chests identified with the arms of the Spanish government, the original owner. Similarly in the animals cases, much of the lost property was identified by the original owner. The ability to identify lost property is a significant factor in determining the ownership of an escaped animal. See Manning, Albers, Taber, Swift. Many of the animal cases found that identification of lost property serves as notice of ownership. There is little difference between a marking on an animal versus a marking on a chest because both can serve as notice of prior ownership.
The doctrine of marking equally protects the owner and finder. The finder has an argument that the marking on the chest was not clear and gave no notice prior to being found. Mullett. The owner has an argument that the custom of the time was to mark the chest to give notice of ownership. Taber. The owner can also argue that the chest is like an “elephant in a cornfield” because it is so unique and that the original owner retains property rights. Kesler. The animals cases apply additional factors to determine the significance of marking in light of those other factors. However, the marking of the chest is similar to many of the animal cases and application of the doctrine of marking provides a fair tool in resolving issues of lost property.
2a. This is a very nicely laid out discussion of a very basic difference. The answer first sets out the difference clearly, then explains that it makes two tests unusable, then argues that the tests are too important to ignore.
Animals are living things that can think and move as the please, except if they are owned or controlled by humans or, perhaps, another animal. Further, animals can live without humans. They can feed and take care of themselves, and can reproduce. In contrast, the treasure items are inanimate objects. They are not capable of making decisions for themselves, nor can they move by themselves. Inanimate objects do not have to be owned or taken care of. In the hypothetical, the treasure could remain at the bottom of the ocean forever. It does not have to be retrieved by anyone. [The relevance of a few of these points could be made clearer.]
The difference between animals and inanimate objects is significant because it makes two of the legal tests in the animals cases irrelevant. Natural liberty will not apply to the hypothetical. An inanimate object cannot provide for itself because there is nothing to provide. Further, it cannot follow its natural inclination because this concept does not exist for inanimate objects. The second legal test that cannot apply is animus revertendi. An inanimate object does not have “will” and, therefore, does not have a will to return to its owner.
Natural liberty and animus revertendi are both important legal tests in the animal cases, particularly in Manning, Mullett, and Kesler. Because these significant legal tests can only be used with living things and that the treasure is not a living thing, we will not be able to use a significant part of the animal cases, and therefore, they should not be used.
2b. This is a very nice set of arguments that start out discussing the difference in the time frame of the two situations. There are a lot of nice points here, although the argument ends up encompassing other factual differences beside the time frame and it could use more editing.
The period of time in which the animals were deemed to have escaped, or otherwise were not under the power and control of the original owners, was short. With the exception of Mullett, in which the sea lion wasn’t found for a year, the time in which the animals were “escaped” ranged from a few hours, Albers, to a few days, Manning. This is extremely short compared to almost 400 years, from 1584 when the treasure “escaped” from the Spanish government to 1980 when Arango found the wreck.
In the animal cases, the escapes were fresh in the minds of the original owners who were either in pursuit or had relinquished pursuit due to extraordinary circumstances beyond their control. Albers. Taber. The argument for ownership is much stronger where the original owner is making an obvious attempt to recapture or recover his property immediately following the escape and where the likelihood of recapture is strong. Liesner. This is because the longer an animal is “escaped” the more likely it is to return to its natural liberty or wild state. Once reverted and free of control, the animal may become indistinguishable as personal property and any investment by the original owner is foregone. Thus at some point under the animal cases, more than enough time will pass for an animal to return to its natural liberty.
However, this should not apply the treasure case because the treasure is an organic substance that cannot return to its natural liberty or “follow the bent of its natural inclination.” Other than minimal chemical decomposition from years of immersion in salt water, the treasure has not changed and has not moved from the same general location for over 400 years (allowances made for currents and shifting sands). Thus, no need to say property rights are lost
Finders may argue that we should reward a finder who expends labor to capture an escaped animal that has been “escaped” for a significant period of time. This is because an animal has a limited lifespan and therefore declining value However, the gold, silver, and quartz have a fairly unlimited shelf life and therefore retain, or in this case increase, in value over time due to their rarity and historical significance. The treasure could have remained on the seafloor for another 400 years without detriment and so there would be no social or economic need or harm in not recovering it. Thus, no strong need to reward the finder who collects it.
Thus, we should not reward finders where the treasure has (1) remained virtually unchanged (no return to natural liberty); and (2) has remained in the same general location (not “followed the bent of its natural inclination”). Rewarding the finder rewards inefficient labor because finders’ technology and equipment and labor could have been better applied elsewhere. It could also encourage the inappropriate taking of personal property in situations where the owner is not present or lacks appropriate resources for timely reclamation.
3a. As noted above, I think salvage is not really part of the animals cases, but is an alternative. However, this argument would make a nice beginning to a discussion of salvage as an alternative. I like the use of the parallel to Bartlett, the specific example of the problem described here, and the use of labor theory..
If property is found adrift at sea, the finder is entitled to a fee for salvage but not to the property itself. Taber. In Bartlett the court basically says that a rule that treated whales that had recently gone adrift differently from anchored whales would be imprudent because it would turn property rights over to the finder in a very short period and would encourage fraud and deceit. For example, whalers could simply unhook anchors from the ocean and claim that the dead whales were adrift in order to claim property rights.
Similarly, if we grant exclusive property rights to the finder of sunken treasure it could encourage deceitful behavior. For example, it might encourage Captain Arango to empty treasure from the marked chests and claim that the coins were found on the ocean floor instead of in clearly marked chests in the Spanish galleon. However, if we employ the legal test of salvage, then the property rights of the original owner are preserved and the useful and efficient labor of the finder is rewarded.
3b. This answer was the best of many that primarily demonstrated that the rule in question could be used easily to address the problem. I like the attempt to show why the policy should matter, although it ought to be tied more tightly to the sunken treasure context. I like the demonstration that the policy might be used to get at some of the difficulties in the problem. The argument needs to be more tightly focused on the required topic.
The policy of rewarding labor occurs in many of the animals cases. Whoever is willing to put the effort into catching the animal is the one who should retain it. In the hypothetical, Spain published a guide about the treasurers and announced it would still search for treasures. Further, Spain had marked the treasure chests. Captain Arango invested in equipment, located the ship, and retrieved the treasure from the sea floor. Dan’s labor was to go to the dive site. He accidentally found the fourth quartz statute.
The test of labor is beneficial because we want to reward hard work. Rewarding hard work will provide an incentive for others to work hard in the future. Utilizing the test of labor, we need to look at not only the amount of labor, but also who labored better. For example, Spain might have given notice about its intentions of finding the treasure and put in weeks of assembling and distributing thousands of guides, but Captain Arango’s labor might have been better because he actually went out into the ocean and retrieved the treasure.
4a. Many #4s that focused on animus revertendi or natural liberty and the inanimate nature of treasure. This was easily the best of them because it considers two possible interpretations of the doctrine beyond the most obvious one.
The original owner maintains property rights in an escaped animal if it has animus revertendi. Mullett. When an owner sufficiently trains or takes care of an animal so that it returns after it escapes, property rights in the animal are not lost when it escapes and is found by someone before it returns to the owner. Manning. These are weak arguments for the instant case because gold and sunken treasure cannot move by their own volition and thus cannot have animus revertendi.
It has been suggested [by overzealous academics] that even dead animals (i.e. whales) can have animus revertendi if they are anchored in place and they return to their original location because of the anchor (thus animus revertendi is established through marking). However, in the instant case there are no facts that point to this tendency in either the sunken treasure or the sunken ship.
A stretch of animus revertendi to fit the fact pattern is that salvage customs imply that anything lost at sea that is sufficiently marked has animus revertendi because a finder would usually return it to the original owner and collect a salvage fee out of respect for the custom. If all finders are salvors then all property has animus revertendi because it has a tendency to return to its original owner. But since finders are not always salvors, see Taber, and this is a stretch, this doctrine does not apply to deciding who has ownership of the sunken gold.
4b. The subject matter of the next argument is problematic. It improperly analyzes a first possession rule in the context of an escape case. The resulting discussion is really addressing a ”finders keepers” rule (see discussion of alternatives above). Given the error, this is a very nice discussion of the pros and cons of finders keepers in terms of incentives and labor.
Mere pursuit is not enough to claim ownership of an animal. Pierson. Property rights, regardless of whether someone else is in pursuit or has declared or made known its claims, goes to the person who literally puts his hands on the animal first.
This factor is not helpful in the treasure case because both finders can make the claim but with different outcomes. In the case of Arango v. Spain, this rule appears to award efficient labor because Arango got there first and took corporal possession. Arango expended significant labor to retrieve the treasure as evidenced by the costs of his high-tech vessel and specialized equipment. He probably spent considerable sums to obtain his commercial captain’s license and hiring/training divers to handle the artifacts.
On the other hand, the rule arguably rewards inefficient labor and punishes useful labor. Arango’s expenditure of labor, while costly, is inefficient because his labor could have been better used elsewhere for something other than recovering treasure from the Santa Barbara (for example, he could have applied his resources to research or rescue services.) Furthermore, in rewarding his labor, we allow him to benefit at the expense of the Spanish government, which may have limited or no access to a comparable vessel and equipment.
Diver Dan’s labor piggybacks Arango’s and unfairly takes advantage of Arango’s labor. Arango found the wreck and labored to recover the majority of its contents. He unintentionally left the remaining quartz statue with the intent to recover when the weather improved. Assuming Arango’s labor was useful, rewarding Diver Dan’s labor would undermine the Arangos of the world and discourage them from expending labor in the first place. This could encourage harmful activities like poaching and could lead to a vicious cycle of first in time.
Given the lucrative value of the treasure, a corporal possession rule might encourage fraudulent or illegal activity similar to the illegal drug market, where first in time becomes last-man-standing-takes-all. This type of behavior infringes not only on property rights but civil rights as well and is not the type of behavior we want to encourage.
5a. This argument makes an important point about property and incentives and lays it out clearly with examples. I think it goes a little far in considering the suggested rule outside the context of sunken treasure, but it does make its point forcefully.
“Finders Keepers” as a method of determining ownership of sunken treasure would be less effective than using the animal cases. To begin, it relies solely on dumb luck as opposed to a reasoned method for establishing ownership. Likewise, it diminishes the principle of ownership by minimizing reasonable expectations of maintaining property rights in an object. For example, Arango invested a substantial amount of time, effort and money into locating the sunken vessel. That investment of labor would be diminished and devalued if Dan could go to the site when Arango was not present and take whatever he found.
Taken to the extreme, this method would also permit anyone who happened upon any item left unattended, even for a moment, to take possession of it. This it would create a state of anarchy, as claims of ownership could only be sustained by actual and constant possession. By contrast, the animal cases provide a set of rules and guidelines in determining ownership that define expectations and, as a result, promote social harmony. Therefore, application of the animal cases in establishing ownership in sunken treasure can be viewed as a superior alternative to the “Finders Keepers” rule.
5b. This argument both presents an interesting alternative and notes sensible reasons why the animals cases might be better.
We could apply property rights through an ownership registration system. So long as a claim was registered, the owner would get the property. Often these systems are not set up because of the expense of developing and maintaining records. However, if the items are significantly valuable, the value of the property outweighs the expense of setting up the system.
Determining ownership based on title, however, would be difficult now since many sunken ships may not have had records of contents or the records may not have survived to present. Even if the records did survive, there may be disputes over the appropriate heir. The animals cases would eliminate some of these intricate disputes by narrowing the case to original owner and finder.
Further, the animals cases would not overlook the investment of the finder in locating the treasure. Nor would the cases overlook the original investment of the owner. The registry system may prevent recovery of treasure, because the finder may not invest in finding the treasure if he knows someone else may place a claim to it.
6a. This argument provides a very different kind of solution. I like it both because it is creative and because it considers historic and educational interests that are important in buried treasure cases and not a part of animals cases. If you were to do this on an exam, you might want to discuss how to create incentives to retrieve treasure if property rights will go to a museum.
An alternative to the animal cases is putting the treasures in a museum. It could be in the U.S., Spain , or Mexico. The display could be sent around the world and people could pay to see it. People benefit from this type of education and the Aztec history is important and how the Spanish conquered that land.
The animal cases are inferior to this idea because they do not consider the historical value of the animals when deciding if it goes to the original owner or the finder. Also, the animal cases do not consider effects on other people if one person kept the treasure. It would be a shame if people all over the world missed out on viewing and learning from the treasures and the rich history behind them.
6b. This is a nice contrast to the “Finders Keepers” argument above. It makes nice points about incentives and adds a couple of clever points at the end.
“Finder’s keepers” would be another alternative method that could be used. Property lost in the ocean requires extensive labor and often technology in order for it to be recovered. Therefore, one should be rewarded for the investment in retrieving property from the ocean floor. One would be discouraged from investing labor and time if property recovered from the ocean floor would be awarded to the original owners regardless of how much time had passed since the property sank to the bottom of the ocean. Under the animal cases, the finders may risk acquiring little benefit from their substantial effort and monetary investments and therefore less property may be recovered from the ocean floor. This would be a loss to all who see the value in this type of archaeology. “Finder’s keepers” also limits litigation and is a very simple rule. In addition, future owners may go to greater lengths to secure their possessions in order to avoid almost certain loss if their property were to “escape.”
7a. I liked this answer because it goes beyond the “We can do it, so we should do it” argument used by most of the pro-animals cases papers. Although the argument that “There is a lot of helpful precedent” would be true of any established area of law, the argument that “These are complex questions for which complex multi-factor analysis is necessary” is strong.
Arguments in favor of using the animals cases to help resolve the issue are stronger. First, the animals cases deal with property rights, which are in question in the subject case. They provide examples of what factors and tests should be considered when determining property rights. For example, in Argument No. 1, there are animals cases which specifically deal with the issue of abandonment, and what effects it has on one’s property rights. Since time was already taken in determining abandonment issues in previous cases, it seems reasonable to use that knowledge and apply it to issues that contain similar elements.
Another reason why the animals cases should be use in determining the issues of the subject case is addressed in Argument No. 3. The animals cases demonstrate how the courts have applied the reasonable person test to property rights issues. We can benefit from looking at cases such as Ghen and analyzing the reasonableness of the parties’ actions in this matter. It may not always be clear to us what a reasonable person might have thought or done in a particular situation. By analyzing how the court has determined whether or not someone was reasonable in a prior case may help us determine how the court will decide here. For example, if the court determined that a person who finds an elephant in a cornfield in Iowa would be unreasonable because they should have known that the elephant was owned by someone who put the animal there, then one may argue that it is unreasonable for Arango to claim possession of treasure found at sea and that he should have know it was the property of another.
Finally, in Argument No. 5, it appears that the animals cases would result in a more fair and equitable determination of one’s property than any alternative method. There will never be any perfect method for determining issues such as property rights because there will always be someone who is left unhappy with the outcome. For that reason, we should choose a more careful method of determining property rights than a very simple one like a lottery. Because property rights are so important to people and emotions run high when one feels they may lose something valuable to them, it would seem inconsistent to apply a simple method for ease, rather than analyzing complex issues and factors which are more likely to result in a more fair and equitable resolution.
7b. This answer lists three good points from the authors’ earlier arguments. Although I would have liked more comparison with the pro-animals points, I thought that the first and third of these arguments were particularly worth sharing.
The most significant factor in this case is the issue of time. None of the animals cases have dealt with a period of time where property lost spans over a few centuries. For example, in Mullett, the sea lion escaped from his owner for two years and was found by someone else. The court in Mullett ruled for the finder where the animal had returned to its natural liberty after its owner had abandoned the search. In the present hypothetical, the treasure was found centuries after the Spanish ship carrying it sank.. The lapse in time between the sinking of the ship and the captain’s find is of primary interest since none of the animals cases have ever dealt with a finder/ownership issue that spans centuries. The time span might matter because it would be hard to conceive that an animal’s value would increase over time, as opposed to treasure, whose value appreciates over time.
Secondly, one of the deciding factors in animals cases is their return to natural liberty. There is no way for treasure to return to its natural liberty since it is an inanimate object unable to freely move without the aide of another party.
Lastly, the animals cases decide winners and losers, allowing for little compromise, whereas the alternative method available to the lost treasure would be salvage. Under this practice, both parties’ labor is rewarded. Generally, in the animals cases, the original owner receives the return and/or value of the animal while the finder receives nothing for his effort.
Because of the huge time span, the fundamental differences between animals and treasure, and the availability of salvage as an alternative practice, the animals cases seem a weak way to resolve the present fact pattern.
Fact Pattern C: Fern Roots
1. This argument chooses a useful similarity and provides a good idea of why it matters. The second paragraph probably contains too much detail supporting a point that is likely not to be contested. The student could have defended a little more that this is really an important consideration in the animals cases.
One factual similarity between the animal cases and the fact pattern is the lifespan of the desired property. In both cases, the life span of the desired property is relatively short. While animals possess a life span of several years, they are used routinely within a few years. If an animal escapes from its owner's possession, it is very possible that the animal might die prior to returning. Therefore, courts may allow finders to maintain rights in the animal so that the animal's use is not wasted.
Here, the fern’s lifespan encompasses only a few months. Beginning in the early fall, the spores inside the ferns commence development until they are ready to form ferns of its own. Once this development occurs, the spore sacs are unconfined from the fern and are carried by the wind to neighboring islands. The sacs lay on the ground of the island throughout the winter until spring when they begin to form new ferns. However, once a fern initially releases its spore sacs, the fern dies rather quickly and, in turn, loses its "unique rich woody flavor" and usefulness as a research tool.
This similar brief life span between animals and ferns is significant because society might not be enabled to enjoy their benefits if possession is not awarded to the finder. As a result of this significant similarity, we might want to follow the example set forth in the animal cases and sometimes award property rights in the ferns to the finders.
2. This answer nicely addresses an interesting difference that nobody else selected. It could explain in more detail why the animals cases are inappropriate for cases involving relatively rare types of property.
One factual difference between the Flying Ferns case and the animal cases is that the ferns are only found in the muddy islands in the state of Nature. In the animal cases, there is no animal that is unique and only found in one location. All of the animal cases govern animals that may be found in many different locations, even outside of their natural habitats. The difference matters because if a commodity is so valuable that it is only found in one location in the world, then different rules should govern how that commodity is divided and distributed among those who hunt it. Oftentimes, when a species is so unique to only one place left on earth, it is referred to as an endangered species. The animal cases have not addressed dividing resources when those sources are so unique in nature. Conserving such special resources might be an important key to deciding how to solve problems of possession and ownership.
3. I liked this argument because it explained the labor involved in detail and provided clear reasons to reward that work.
Industry and labor is important to the animal cases because the court has traditionally rewarded those owners or hunters who have put in significant labor into finding, confining, marking, and/or killing the animals. Thus, if an animal owner or hunter has proven significant industry and labor on his/her behalf the court has deemed it a substantial factor in granting that owner/hunter property rights.
The industry and labor test could be used here because the labor endured by the root hunters in finding and marking the roots is substantial. The fern roots are never in the same place from year to year. The spore sacs are carried by wind and their location is tough to find. Furthermore, mapping the islands where roots are found is nearly impossible due to yearly flooding and changing tides. Root hunters undertake significant labor to find and mark the location of ferns prior to winter.
Using industry and labor as a factor here would be useful because hunters who put in time to find and mark roots should be rewarded for their industry and labor. If this test was not applied, hunters who simply came for roots in the winter and dug up in spots where others had already marked would be rewarded with property rights, while those who did all the labor in finding, marking, and ensuring next seasons root crop would be punished.
4. This was the best of several arguments focusing on this factor. I like it because it doesn’t simply assert that you can’t apply the test to ferns because they have no volition. Instead, the students examine a possible application of the test in some detail before deciding it won’t work.
In determining the lawful owner of the Freeth Flying Fern roots, animus revertendi is not a sensible test/factor. Animus revertendi is a reference to an animal's natural inclination to return to its owner. It is established by closely examining the habits of the animal. Mullett. The view in Albers is that you examine each specific animal’s habits for its own intent to return.
Impracticality is evident in attempting to apply animus revertendi to the roots. One would have to trace them back to their only method of movement, which is when they are in the spore sac stage of development. Any inclination the roots have in moving is determined by outside forces, mainly gravity, wind and weather conditions. The roots grow from spore sacs that have spread to different islands in the park after falling off the branches of other ferns. In examining the inclination of a particular spore sac or the group as a whole, it is impossible to establish an inclination to move to any one specific area let alone return to the original fern it fell from. Establishing animus revertendi in the roots/spore sacs in this case would be equivalent to defining pattern in all wind gusts throughout the park on a daily and yearly basis. Since this is nearly impossible, it would be in error to apply animus revertendi to the Freeth Flying Ferns.
5. Although it is not entirely clear that this argument focuses on a rule that is different from what the animals cases would provide. However, on the assumption that the animals cases would honor the custom or the marks, I like this argument because it provides a detailed set of reasons that the animal cases would be better than the alternative.
An alternative to using the animal cases to resolve the fern dispute is to institute a rule states that whoever has "bodily possession" of the ferns is awarded property rights in them regardless of any marking. This would terminate disputes among the fern hunters because the only requirement for property rights in ferns is to go and pick them up. Thus, all disputes over fern rights would end quickly if possession were used as the method of awarding property rights.
The animal cases are a superior method of resolving these disputes for several reasons. First, they reward labor and investment of fern hunters who go out and mark the areas from which they will take the ferns after the ferns have had a chance to reproduce. A possession rule would eliminate the reward of labor. The possession rule would allow unscrupulous hunters to go to areas others have marked as fern populated and allow them to remove the ferns without undertaking sufficient labor to justify their property rights in the fern roots. If possession determined property rights in the fern roots, there would be a fern rush that would deplete the ferns before they replaced themselves. The hunters would take all the present fern roots due to the uncertainty of finding any ferns for themselves in the next season.
6. I liked this argument because the students used the fact that the ferns grow on government land to create an alternative not available in some of the other Fact Patterns. They then do a nice job explaining the advantages of their alternative and explicitly comparing the animals cases.
Another alternative method of resolving the issue in the fact pattern is to allow root hunters to purchase a lease on certain tracts of land that would provide them with exclusive rights to hunt for roots within the designated areas. The leases could be purchased for a particular season of harvesting and then could be made available to another hunter for the next season. This would be cost effective because it would reduce the amount of labor required to hunt for the roots, since root hunters would only be able to hunt within a confined area. It would also encourage the root hunters to develop certain techniques that would allow them to predict the availability of fern roots within a given area. This would lead to greater specialization within the industry, it would provide the local government with a regular source of revenue, it would ensure that the product continues to reach its market, and it would also lead to certainty because all roots found within a designated area would belong to the lessor of the land regardless of natural forces that may have intervened.
When compared to this alternative, the animal cases are inferior in the resolution of the issues presented in the fact pattern. In the animal cases, the maintenance of power and control is stressed as pivotal in the creation of property rights. This power and control may be almost impossible to obtain in the root hunting industry to the extent necessary to derive a financial benefit. If root hunters are sent sporadically throughout the region in search of these fern roots that are characteristically hard to find, their efforts will not be as efficient as they would be if the present solution could be applied. If the root hunters are confined only to the land that has been leased for the season their labor will likely be more efficient.
7. I liked this argument because it explicitly compares the positive arguments made in the assignment with the negative ones and provides arguments beyond those it made originally.
The arguments for using the animal cases as a way of resolving the disputes involving the fern roots are stronger. The animal cases protect the investment and labor that goes into hunting or breeding animals, even though the value of fern roots may not be as great as the value of a whale or even a fox does not mean that the value of this investment does not deserve the same protection. The value of the investment is relative to the person performing the investment. For a ship owner or fox breeder, the costs associated with fern hunting may not seem very high, but such costs may very well be burdensome for the fern hunters who need the return on their investment in order to survive.
The argument that the marking of the fern roots is insufficient because the staffs will blow away in a hurricane does not negate the fact that they are analogous to the harpoons, waits, and anchors that established possession in the whaling cases and the tattoo on the fox in Albers. They are all markers that are customarily used to establish possession in each field. Many things blow away during hurricanes. For instance, rough seas can unfasten an anchor or a harpoon from a whale; however, the possession goes to whoever subsequently finds the whale (Bartlett), or in our case, whoever takes out the fern roots.
Using the animal cases is a better way of resolving these disputes regarding property rights in the fern roots because the mere establishment of a penalty fee for someone who appropriates the ferns belonging to someone else [this was their proposed alternative] would diminish the value of the ferns in contrast with the penalty fee imposed upon the bad finder. The value of the ferns may outweigh the value of the penalty fee. [Note that you could resolve this by raising the fee.]
Fact Pattern D: Software Programs
1. This answer makes a strong case that the two situations are similar, but could defend more that the similarity makes the animals cases useful tools.
At issue is the ownership of a product with significant commercial value where multiple parties have a potential claim to the property. In this sense, the "Update Program" problem is analogous to the animal cases. The whaling cases (Taber; Swift; Ghen) lend special insight into the problem, due to the dollar amounts involved as well as the importance of the product to the community at large. At the time, whaling was an essential industry to society, producing a considerable amount of energy for many individuals and businesses. The labor and profit associated with whaling were great, and the failure to abide by customs and laws could encourage unscrupulous operators to manipulate the system (resulting in higher prices for, and less availability of, the product.)
The computer industry shares similar import in contemporary society. People and businesses simply cannot function without computers (and software, internet, etc.), which has led to technology race where companies compete to introduce the latest products to an insatiable public. As in whaling, there are legitimate and illegitimate players, and it is essential to enforce property rights to encourage investment and progress. Failing to protect those who develop product in good faith will have global repercussions. Although society has evolved dramatically in the last 150 years, the notable similarities between the industries suggest it will be useful to employ the principles of conflict resolution that successfully regulated whaling disputes.
2. This is a simple solid argument, noting an important difference and showing how it suggests a major concern about using the animals cases.
One factual difference between the animal cases and software disputes is that, in the animal cases, the dispute is usually between parties whose conducted separate efforts to acquire property in the same animal, whereas the program here was developed through the combined efforts of multiple parties who are now disputing its property rights. This is significant because where in the animal cases only one party is rewarded, here we may want to use a system that rewards each party that can prove that their efforts aided in the ultimate development of the SP.
3. I like this argument because it focuses on a non-obvious use of one of the factors. Once you decide that finishing off a program is like finishing off an animal (it’s all in the execution), the usefulness of mortal wounding becomes quite clear, as the students here demonstrate well.
Mortal wounding as considered in Pierson and Liesner, is a clear and certain rule for establishing first possession of an animal ferae naturae. One of the reasons it is relied upon is the difficulty in any clear act of ownership prior to it. An example of this was the many bullet wounds on the Liesner wolf that were inflicted by multiple pursuers. The creation of software programs or other byproducts of lengthy and complicated combinations of ideas can be an equally long and laborious hunt. In our case, Ryan had clearly wounded the "update program” with his set of ideas, but had not finished it off. This rule works well with ideas because the pursuit is occurring within the mind. Matt could not normally trespass on Ryan's mind-scape, and nothing forced Ryan to invite him into the hunt. An idea hunter is freer to pursue his prey without interference than was Post to hunt his fox unmolested by Pierson. Therefore, there is less likely to be a dispute over who performed the deciding act with respect to an idea. If Ryan had not shared his idea with Matt and Matt had still discovered the update program, Ryan would have no claim to the finished product.
Though Ryan undoubtedly did some useful labor before inviting Matt into the hunt, he also appears to have abandoned the chase some years into it, when he began to doubt that it would ever work. It would not seem right to reward him for the completion of a hunt that he not only failed at, but may also have abandoned. If Matt had not completed the idea, it is not at all clear that Ryan would have done so. It would not seem like good policy to give Ryan rights to the finished idea, because such a practice would discourage second party thinkers from pursuing half formed goals, it could even make people such as Ryan lazy in hoping that someone else would finish their idea for them. So just as society has at times had an interest in encouraging the finishing off of wolves and foxes, so might they have an interest in encouraging the finishing off of useful ideas and products.
4. I liked this argument because of the specific examples it uses to emphasize the difficulty of determining when an idea is abandoned.
Abandonment is a significant factor in animal cases because it helps to show whether the owner is no longer interested in or able to keep the animal. Abandonment could be used for computer software cases if the developer could be shown to abandon the idea or cease development. The problem lies in determining if an idea is abandoned. Determination of whether an animal is considered abandoned is based on factual evidence that is easily identifiable to others or reasonably presumed to be more probable than not. Is it in its natural environment? Is someone in the act of pursuit?
How do we determine if an idea or development is abandoned? Einstein chased E=mc2 for years, occasionally setting it aside to work on other things. Shakespeare wrote many plays simultaneously, leaving some to be finished at another time, and some never finished at all. When were the plays abandoned? Many believe only at his death.
Determination of whether a program development is abandoned proves difficult. Developers in any industry know that solutions do not come overnight no matter how much effort is expended. Many times, they set their ideas aside only to come back to them. As objects seem to be much more readily identifiable as abandoned than ideas, creating a rule that relies on abandonment could be more burdensome than useful.
5. Although I’m not sure the proposed rule is really different from Pierson, this is a nice discussion because it first develops some strengths of the proposal followed by concrete reasons why the animals cases still might be superior. Ideally, the students would go on to discuss why the certainty provided by the rule was outweighed by the benefits of custom.
An applicable alternative rule, different from the animal cases could be: Sole property rights are vested in the individual whose ingenuity and ideas finish the creation of a product. As a result of the completed creation, he or she reserves the right to subsequently allocate property rights. This method is useful because it will minimize ambiguity.
In our case, Ryan's claim is based on the idea that he developed the underlying approach for the program, which he shared with Matt. This leaves many unanswered questions about the degree of Ryan's contribution, and how, if taken into consideration, the contribution can be measured. If you apply the alternative rule, the picture is indisputably clear. Matt created the finished product, and all rights should be vested in him.
WCC seems to invoke industry custom to defend their assertion that the program created by Matt belongs to them. If the custom is applied, then WCC has a legitimate claim of ownership. But there is room for argument in this particular instance. I would assume that the custom's intention was to protect the software companies from employees using company resources and ideas for personal and selfish advancement. This would occur at the employer's expense and would be unfair. Matt seemingly has done all the work on his own; he thought about and developed ideas, both on and off the job. But it is hard to discern the degree of thinking or developing done by Matt while he was working at WCC. Our new rule would clear up the ambiguity, and give sole ownership to Matt.
The animal cases are superior because they support the application of custom when deciding cases. This is useful because it allows an industry to create the rules that will govern them. In the whaling cases, custom was significantly considered by all of the courts. This is essential because people involved in an industry are best qualified to determine useful ways to govern the industry. This proposition was especially espoused by the court in Ghen v. Rich. The court stated that the whaling customs of the area represented the best way to govern the area. This hypo invokes a custom in a specific industry like the whaling cases and therefore the rule from such cases might be more helpful.
6. This argument is based on the same alternative as #5 above. Although I am not convinced the new rule will be as exact as the students suggest, they do a good job of pointing out specific ways in which the animals cases are uncertain.
Our rule is superior because it is an exact science. In many of the animal cases, interpretation of the rules left room for debate. In Shaw, substantial control seemed to be an important standard in allocating property rights. But the nets created to trap the fish allowed for some of the fish to escape. In Swift, pursuit and reasonable prospect of capture is enough to constitute a property right. Both of these cases are too discretionary in deciding property rights. They allow room for legitimate claims from other parties. And these claims can inundate courts with disputes, and prove costly to society. The same is true in Liesner where mortal wounding is the standard, and there is a dispute on who inflicted the mortal wound. In all these cases, the person that has the animal in his physical possession should ultimately prevail. If this were the standard, there would be no room for discussion or argument. The same is true with our scenario. Matt "reached the finish line" first, and should own the rights to his program. This would eliminate arbitrariness, and make the allocation of property rights an exact science.
7. Although this argument did not explicitly compare the students’ earlier arguments, it does a thorough job pointing out problems with many of the animals factors and makes many sensible points about the differences between animals and software.
We prefer the arguments against using the animal cases. The imperviousness of the mental cage is such that we seem to be automatically dealing with a deliberate release or abandonment of the idea, to which none of our cases speak. On the flip side of this, without an admission such as Matt's that he is using Ryan’s idea, it is possible for a sufficiently identical idea to be captured or created by a "Matt” simultaneous with a "Ryan”, so that there is no first owner, and no release. These together eliminate the usefulness of many factors. Marking is irrelevant if doubles exist or if it was abandoned. Natural liberty also comes about only through abandonment, but may theoretically exist prior to first occupancy. Time and distance also only relate to an escape, where they serve as rubber band, connecting occupancy to the escaped animal, our concerns over fairness and justice becoming less and less as they stretch longer. Finder's knowledge fails for the same reason - it implies something was lost, not released deliberately. If the Hillman in Taber had told the Zone that they really didn't know what to do with this whale, and "if they wanted to work at it, here it is", and then took off, the case would have been different.
Labor is useful but it cuts the other way, if the first idea was labor then unlike the animal cases, it had value before it caught the prize, and it is hard to measure. Rose wants a clear act, but short of keeping it to yourself, the complexity of declaring a half formed idea as yours seems formidable, particularly when it might have originated somewhere else independent of you. Once the idea enters the material world, the “product” can be treated as an animal. Before that, when it is arguably even less than "process", the rules falter. None of the ideas work particularly well in addressing the relationship between Matt and his company either. Custom and usage is the closest, but even then, it is hard to imagine an injunction that forces Matt to empty his mind for the company.
Fact Pattern E: Tribal Symbols
1. This argument provides a nice detailed layout of the ways in which the situations are similar. It should have spent some more time defending the idea that the similarity makes the animals cases useful.
One factual similarity between animals and the symbols of the Orenabele tribe is that both have value. This is particularly true where the property in question is the basis of an industry. Animals such as foxes have value in that their pelts are used in fur trade. Sea lions are valuable as show animals. Whales have value in that their oil and bone are bought and sold on the market. The value of such animals is important because it is the reason that disputes arise over ownership. The owner of the animal is the person who stands to profit from its use, and therefore has an interest in attaining and maintaining control over the animal.
The same is true of the Orenabele's symbols. Their blankets that employ the symbols have a market value, as evidenced by the fact that the blankets are sold in local shops. The Orenabele recognize this value and have attempted to maximize it by ensuring that their tribe is the only manufacturer of such blankets, and therefore the only group that will profit from their sale. The Orenabele's interest in maintaining control of their property is what leads them to search local shops for impostor blankets.
Sentimental value is another way that value acts similarly in the animal cases to the way it does in the Orenabele's situation. An owner can grow emotionally attached to property, as the canary owner did in Manning. Likewise, here the Orenabele have a significant sentimental attachment to their blankets. The blankets depict each clan's unique symbol. The method by which this symbol is produced is closely guarded by the women of the clan with respect to dyes and stitching used. Clearly, the Orenabele believe there is a value in their blankets, which is more than economic; it is sentimental. The reproduction of the Orenabele's work may seem like a violation of their relationship with the blankets in much the same way that an animal's owner may feel an emotional loss in addition to a financial one if his animal is taken by another individual. Because animals and the blankets are similar in that they have value, both economic and emotional, the animal cases are a good tool for resolving the issues of the Orenabele tribe in this case.
2. This is a very nice argument that focuses on an important difference and clearly explains why it suggests problems with applying the animals cases.
Unlike the animal cases, here the property in question, the tribal clan symbols, has some religious significance to the owners. There may have been some emotional significance associated with the canary in Manning, but overall the animals were of tangible commercial value. Given the religious significance of the symbols, the animal cases are not appropriate tools for deciding the issues of the Orenabele case.
While the animal cases focus on issues arising from the commercial value of a particular animal and the competing financial interests of the parties, they ignore issues that arise from the "unauthorized" use of a religious symbol. For instance, the tribe may have strong feelings of community (camaraderie among clan members who associate with the same symbol) or cultural identity associated with knowing that a particular symbol is exclusive to their culture, which the animal cases do not consider. The tribe may also believe that any use of the symbol by an "outsider" diminishes its religious significance. As a result, the tribal symbols possess some intangible, sacred value that cannot be measured by the typical methods used in animal cases. The religious importance of the symbols increases its value to the tribe but not to Michelle. This should provide the tribe with stronger rights and tip the scale in their favor; however, the animal cases fail to recognize this possibility.
3. This argument flirts with slipping back into analysis appropriate for Question I; the passages applying the factors to the specific facts are a little bit too detailed. However, in the end, the team does a good job of using these passages to demonstrate ways in which the animals cases can sensibly be used.
Time and distance[3] can help determine property rights in the animal cases. Often the court will determine, based on how long the animal has been gone or how far it has run away, whether the original owner did everything they could to maintain control of the animal or retrieve it after escape. If the time and distance of escape are large enough the court may conclude the owner did not do enough to find and regain control of its property, and that the finder is entitled to retain property rights in the escaped animal. [Also tends to show animal unlikely to return and unlikely to be recovered.]
In the present case, Michelle was 100 miles away from the tribe when she discovered the Orenabele symbol. The distance may indicate how effective the Orenabele warnings against non-tribal use of the symbols were. Perhaps the tribe, given modem technology like cars and the Internet, which help images travel far in a short time, should have extended their warnings to a larger area. The distance may help determine how effective tribes in general are in maintaining control of their symbols, whether they could have done a better job of monitoring the use of symbols, and how much work they need to invest in tracking the unauthorized use of those symbols in the future.
Turning to time, the court may consider a significant lapse of time between the animal's escape and when the original owner discovers the animal as an indication of abandonment. The time lapse may work in the finder's favor if they have become dependent on the property in some way (perhaps emotionally or financially). In such a case, the court may award the property to the finder. In the present case two years passed before the tribe discovered that Michelle was using the clan symbols. It may be unreasonable after so long to ask her to stop using the symbols, particularly if she relies on the money from the sale of her blankets. In general, the length of time it takes the tribe to discover unauthorized use of its symbols may indicate the relative importance of the symbols to that tribe. Time and distance factor may help resolve these issues.
4. This is a nice solid argument providing a strong reason why distance might not be a sensible element to use. The students do a good job structuring the argument to highlight that distance does not operate in a parallel fashion in the two situations.
One legal test or factor used in the animal cases is the measurement of distance traveled by a fox, seal, bird, or dead whale from its original owner as evidence of the potential continued property rights of the original owner. According to this test, the further the animal traveled from its original owner, the closer it came to returning to its former freedom, thus eventually divesting an original owner of property rights. This test was sensible in the animal cases because the original owners did not intend for their property to travel great distances.
However, when applied to the present case, this test is not sensible. The Orenabele deliberately place their symbols into the stream of commerce. It seems likely that the Orenabele's hope and intention is to have the symbols travel great distances, thus broadening the stream of commerce and generating an increase in revenue. If the Orenabeles risked losing property rights in their symbols as the symbols traveled, the Orenabeles would lose incentive to place the designs into the stream of commerce. This would result in a detriment to the Orenabeles, as they would be deprived of their primary source of income, and to society, as the designs would no longer be available for sale.
5a. This is a terrific set of arguments. The students first provide a plausible alternative and some related benefits. They then lay out thoughtful detailed efficiency arguments that suggest that factors used in the animals cases are necessary here.
In the present case the clan symbols were created by the Orenabele tribe, passed down to the tribeswomen, and then copied by Michelle for her own use. In such cases, where the property in question is produced by the owner rather than extracted from some other source (i.e. a wild animal captured from its natural habitat), it might be effective to give exclusive property rights to the creator with no possibility of “escape” (the exclusive rights method, or "ERM"). ERM provides an incentive to create or innovate generally by removing the concern that anyone could capitalize off of another's good idea. ERM also helps preserve the religious significance they bear to tribal communities. Under ERM, Michelle would have to stop using the symbols once the tribe discovered her activity in order to preserve the Orenabele's rights.
ERM disregards issues like notice and finder's knowledge that are addressed in the animal cases when determining property rights. Since ERM would give the Orenabele rights to the symbols irrespective of other circumstances, they have no incentive to mark their property or make their intentions of restricted use well known. As a result, finders like Michelle would have no indication of a pre-existing "owner" or that she was precluded from using the symbols. This type of situation will create more disputes between tribes and non-tribal members who adopt the symbols because they are unaware that a tribe wants to maintain exclusive rights. Lack of clear communication of ownership will lead to greater uncertainty and increase the possibility of disputes. Rose.
Alternatively, if non-tribal members are aware of a tribe's exclusive rights, they will never bother to adopt the symbols for their own use. As a result, ERM could lead to market inefficiencies. For example, if the Orenabele are unable to meet the demand 100 miles away for crafts containing clan symbols (either because they are unaware of the demand or lack sufficient resources), and Michelle is able to meet that demand, ERM restricts her from filling the market gap and realizing untapped financial benefits.
The methods used in the animals cases often help address these efficiency concerns. For instance, if a fox is found roaming through the forest with no indication that it has a prior owner, the finder is inclined to take the fox and realize its value without concern of conflicting property interests. Where the fox would otherwise remain untouched and the value of its pelt unrealized, the animal cases provide methods for simultaneously insuring that the finder's behavior is not penalized and that market efficiency concerns are not ignored. As a result, the animal escape cases provide a superior method to ERM for determining property rights.
5b. This is an interesting alternative that focuses on the unique religious aspect of this fact pattern. The students do a nice job suggesting the strengths of the alternative and then showing the administrative problems it would raise.
One alternative method that could be used to decide the Orenabele fact pattern would be to say only members of a cultural group can reproduce and possess cultural symbols of that group. Cultural symbols should be awarded a high degree of deference, and therefore, those people not ascribing to the culture should not avail themselves of the benefits of another's culture. This method is grounded in the assumption the Orenabele's anger may come from a non-member using their cultural symbols for personal financial gain.
While this method may afford respect to various cultures, obviously a positive consideration, it would probably prove difficult to enforce, and the animal cases seem to be superior to this alternative test. Implementing this test would not be difficult. The tension would probably come from the enforcement. If only members of a cultural group can use and reproduce the group’s cultural symbols, then problems may arise when determining who is actually a member of the cultural group. Do members of the cultural group have to be born into the group? After all, Michelle could participate in cultural rituals, eat foods specific to the Orenabele tribe, and attend community functions to discuss matters of the Orenabele, and not yet be a member of the cultural group. Therefore, under this test she could not use the clan's symbols.
On the other hand, an individual born on the Orenabele reservation could distance himself from the culture, and only use the cultural symbol when it benefits his wallet. The interests to be protected are those of the Orenabele, but this method could easily be manipulated. The tests from the animal cases seem to be less prone to obvious manipulation and deceit, especially when considered in total, whereas this alternative method could actually benefit those who manipulate the system while ignoring those with legitimate interests.
6. This argument could be clearer about its underlying assumption that the Tribe will get ownership rights but will be forced to license their symbols. It also could be more explicit about why the animals cases don’t provide the same benefits. However, I liked the discussion of the benefits for each side.
Licensing fees can provide another method for resolving the dispute in the present case. The tribe could charge non-members a flat one-time fee, or a per-use fee each time the symbol is used. As originators of the symbols, the tribe may feel entitled to some recognition/reward or exclusive right to the symbols for having created them. The licensing scheme allows Michelle to continue benefiting from the use of the symbols, while acknowledging or rewarding the tribe for creating the symbols.
In addition to recognizing the interests of the tribe as creator of the symbols, the fee system also produces other positive spillover effects including increased efficiency. Michelle is no longer completely barred from using the symbol, and she can benefit from the demand for blankets in her area, that is otherwise unmet by the tribeswomen. This makes the licensing scheme a superior method for resolving the issues in the present case.
7. This is a very thorough and thoughtful discussion of the pros and cons of the animals cases and probably the best #7 argument I received.
Overall, arguments in favor of the animal cases are stronger, as they consider many of the factors we think most important in allocating property rights. The escape cases and symbol hypo both illustrate the importance of a "clear act" or mark to notify others that an object belongs to someone. Consistent with the ideas set forth in the Rose essay, the Orenabele appeared to have done all they could reasonably do to notify others that they owned the symbols. They monitored nearby sellers, negotiated with artists not to use their symbols, and asked Michelle to stop using the symbols when they discovered she was duplicating them.
Moreover, it is important to defer to the customs of the tribal blanket-making industry for two reasons. First, the tribe's sole income comes from the sale of the blankets. The blanket industry currently operates to ensure that the tribe has little or no competition to detract from their revenue. Should the courts deviate from the customs of the industry, the financial security of the tribe may be at risk. Second, the tribe places heavy emphasis on tradition and the sanctity of its symbols. The weavers' trade secrets are not exposed within the industry. Should the courts disrupt the operation of the industry by ignoring custom/usage, the tribes' sacred "industry" traditions would be violated and exploited.
Finally, the method of 'selling out' the secret techniques and rights to make and sell their symbols, would produce results inconsistent with those produced by applying the animal cases. Because the animal cases give sufficient consideration to the factors that seem most crucial to protect the industry, labor, traditions, and finances of the Orenabele, we feel that the animal cases are superior to this licensing/contracting method of allocation, which would only protect the tribe's income by ensuring persons who use the symbols pay for the right to do so.
We rejected arguments against the animal cases because the animal cases seem to better protect custom and usage of the industry, tradition, and labor. We suggested volition as a factual difference between animals and symbols. However, we believe this distinction to be overall irrelevant in protecting customs, industry, tradition, and labor (although one could argue that it requires greater labor to maintain control over an animal with volition).
We found the Mullett Test focuses on traits (natural liberty and animus revertendi) that cannot plausibly be attributed to a symbol. Further, the Mullett Test focuses on abandonment, and the symbol was not abandoned, as illustrated by the Orenabele's attempts to monitor and prevent outside use of the symbol. Though we suggested copyrighting as a superior alternative to the animal cases, some of the downfalls of copyrighting include disputes over the types of things that can be subject to copyright, increased litigation, and expense. Moreover, it is arguable that copyright, like the 'selling-out' method, would detract from the Orenabele's sacred tradition.
Fact Pattern F: Jokes
1. This argument does a good job explaining the importance of labor both to the animals cases and to problems involving jokes. The student might defend a bit more that society needs to reward the labor of joke production.
Both animals and jokes require a certain amount of labor in order to bring them into one’s control. The capture of an animal often requires the captor to invest a significant amount of labor in the chase, the tools or the traps. These efforts afford the captor the privilege to obtain and maintain property rights in the animal. Though some animals may be caught more easily than others, the time invested in the pursuit of animals in general is a substantial factor in determining the captor's rights.
Similarly, a comic or writer invests a significant amount of labor in order to develop his material. The majority of successful comics have worked long and hard in their careers to achieve recognition for their talents. They have labored to hone and refine their skills, material and delivery. Moreover, just as some animals are easier to catch than others, the fact that some jokes come easier than others does not diminish the original investment of the laborers. This similarity between animals and jokes suggests that the laws governing property rights in animals would be good tools for disputes regarding property rights in jokes. Labor and effort are both facts that can be measured and considered by the courts in determining the efforts of the owner and the rights that he deserves.
2a. This answer is nicely structured and contains several good ideas all arising out of one important difference. It is very strong on why the difference suggests that the animals cases are an inadequate tool.
One factual difference between the situation described in the fact pattern and the situations typically governed by the animals cases is that in the latter, you're primarily dealing with tangible objects whereas in the former, a joke is a creation of the mind using words available to many humans. An animal is a single entity, while a joke may, in theory, have many creators. Accordingly, the difference suggests that the animal cases may not be a good tool for resolving the issues would be very difficult to be certain of the first possessor of the joke.
Many complex issues would arise that the animal cases could not efficiently handle. For example, is the first possessor the person who formulated the joke in their head, the first person to tell it, or the first person that is publicly recognized as the originator of the joke? How can one be certain as to who the first person was to create the joke? The possible parties contesting ownership of an animal are limited and seemingly easy to identify, however here, the parties may be limitless.
Also, because of the mental process involved, it is possible to modify the joke in such a way that may alter the original. In the fact pattern, the parties are in dispute of the "punch line" of the original joke. Faye successfully utilized her own creative skills to create several similar, but different jokes. She in effect changed the "beast," or the animal over and over, to the extent that an argument may be made that it no longer was the original. The animal cases do not address this issue. [Arguably, you could address this issue through “domestication.”]
Lastly, the resolutions in the animal cases award ownership to either one or the other party involved in the dispute. Here, Oscar wants "part" of the proceeds. This important distinction suggests that the animals cases may not be applicable because they offer no mechanism for the division of the property rights in a single object.
2b. This also is a strong argument, nicely demonstrating how the factual difference affects both 1st possession and escape analysis.
A significant factual difference between the situation in the Fact Pattern and the situations typically governed by the animals cases is that jokes, unlike animals, cannot be confined in a traditional sense. Owners may cage their birds, trap their foxes, or anchor their whales but authors who publish their work would be hard pressed to find an anchor or cage sufficient to confine their words. The confinement issue, in the wild animals cases, appeared in answer to the questions of power and control. Assuming that the cases applied and that the joke was "wild," in order to establish property rights in wild animals, pursuers would have to have the joke in such a condition that its escape was improbable as indicated either by a mortal wound or detention within a private enclosure. Such a requirement cannot apply to intangible property that in a physical sense is not subject to detention within a private enclosure. There is no cage, leash or net that will protect either the original writer or the "finder" of the joke from usurpation.
Again, the confinement issue appeared in the escaped animals cases with respect to natural liberty and notice to the finder. In Taber, the fact that the whale was confined by an anchor indicated that the whale had not regained its natural liberty and also demonstrated to the finders that someone else had a prior claim. Returning to the present Fact Pattern, published words can easily be lifted from their original sources of publication, copied and pasted without a trace of attribution to the author. No "finder" would have any idea that someone else had penned the words, which would at all times be in a state of natural liberty because they are not subject to confinement. If the law does not afford protection to writers, their recourse to keep their work under their control is simply not to publish at all. Thus, the animals cases should not apply to the present situation where the original owner cannot reasonably be expected to confine and maintain proper precautions to prevent the escape of his work.
3. This argument includes sensible reasons to employ industry custom here. As I note above, application of the custom is not a universal rule in the animals cases, and so a more appropriate focus for Question #3 might be the usefulness of the Swift/Ghen factors for assessing customs. That said, the students here did a pretty good job of trying to discuss joke cases in general rather than just the fact pattern.
Custom would be helpful in resolving the issue in this fact pattern because as in the animals cases, it is a factor which relates the standards of the industry. According to the fact pattern the custom among professional stand up comics is that it is acceptable to use other comics' jokes without attribution so long as you don't steal entire routines. As in the animals cases, the people who are involved in the industry are well aware of the custom. It is possible to argue that if this custom has not been challenged by anyone in the trade, it must be because most people agree with it or because it works relatively well within the comedy industry. For instance, in the present case Ortiz is not challenging the rule per se. He is only seeking a share of the revenue from the t-shirts. [Although O is arguably not in the industry.]
Also, as in the animal's cases jokes can "escape" from the owner's grasp. In this case, Ortiz printed the joke in his column and up until then, it was his own. However, once that printed column was read, the joke could be used by anyone. In other words, while the joke was written and printed in the column it was within Ortiz's control. But once the public read the joke and people started using it, the joke escaped from his grasp. If the industry has a rule for dealing with such cases it might be more efficient for the court to follow that rule rather than to have to create a whole new rule that the industry would need to adapt to.
4. This is a good argument that the purposes behind the time and distance factors in animals cases do not apply here. The discussion in the first paragraph focuses a little too much on particular cases and not enough on the purposes the factors serve more generally.
The animal cases are not useful to apply to the allocation of property rights in jokes, because time and distance are not useful in the present dispute. Time was a relevant factor in Taber. Since the whale was only dead for a few hours, the finders should have assumed that the original owners were coming back for it. Distance was a relevant factor in the outcome of Mullett, where an escaped sea lion had traveled seventy miles from the site of containment. The court noted that the larger the distance an animal travels, the less likely it will return.
Time and distance could be applied to the present dispute. Jokes can escape one's possession for an infinite period of time. Once the joke is communicated to others the creator of the joke loses exclusive control over that joke, because other people can tell the joke at any time. Therefore, the creator loses possession of the joke as long as other people are telling the joke. Joke's can also travel large distances in a short amount of time. With television, newspaper, and the Internet jokes can travel the globe instantaneously.
Time and distance should not be used as relevant factors in the present dispute. The general purpose of a joke is for it to be heard by a large audience for an extended period of time. If comedians and political pundits kept jokes to themselves, the intended purpose of making other people laugh is defeated. Since jokes are meant to travel a great distance and exist for an extended period of time, they are not factors that will aid in determining whether Ortiz has a claim of ownership over the joke he published.
5. This argument needs to be clearer about why this method is different from the animals cases; I presume the students meant that no “escape” was possible. Their custom discussion could be improved by defending why it would be good to follow custom here. However, the second and especially the third sets of reasons for preferring the animals cases are very strong.
One alternative method to resolving the dispute would be to a strict first in time method of allocating property rights in jokes. Under this system, the first comedian to come up with the joke and utilize it in some form of media has rights to the material. While this system may promote certainty, it ignores several factors that the animals cases capture.
First, this type of system largely ignores the custom in the comedy industry and as the whaling cases show, industry custom can be an important consideration in allocating resources. Although the courts in Tabor and Bartlett do not give strong weight to the custom, in Ghen and Swift custom plays an important role.
Second, we would argue a first in time system may not promote certainty to the extent it does in the animals cases. Whereas in the animals cases there is typically one identifiable physical entity at stake, here we are dealing with intellectual property where it is feasible that multiple may come up with the same idea. In such circumstances, multiple people would claim first in time ownership.
Third, a first in time system may alter the format of the industry for instance, if jokes augmented by building upon the ideas of another comedian, perhaps the fear of taking material that is already claimed, and thus not reaping the benefits of any improvements the second party makes would prevent this normal industry practice. This system discounts any investment made by the so called finder and grants exclusive property rights to the first comedian and does not consider other factors such as investment and labor, intent to abandon (whether a comedian cares about the use of his material), and lapse of time since the first comedian published the joke that the animals cases deem significant.
6. This argument does a very nice job with a common suggested alternative (the registry). I like the detailed discussion of why it would work better than the animals cases and the acknowledgement of the weaknesses of the system toward the end.
One alternative method of resolving disputes within the comedy profession that is more effective that employing the concepts from the animals cases would be to establish a registry of comic material to which certain comedians mark rights to certain material. While this would involve elements similar to those in the marking discussions from animals cases, it would be more detailed and catered to the comic industry. One goal should be to maintain and build upon the custom that it is acceptable to utilize other comics' jokes without attribution so long as you do not steal the entire routine. To achieve this goal, a system specifically geared towards comics in particular will be most effective.
In the animals cases, the system of property rights is geared towards animals that do not wish to be domesticated or owned (with the possible exception of the canary). Here, we are dealing with material that is the creation of a person and should be regulated not as maintaining control over something that will escape on its own volition, but rather something that is subject to takings from a competitor. Therefore, employing a system that permits and encourages negotiation between comics for use of material beyond what is covered in the custom would allow for access to others' ideas, but also ensure just compensation for the original creator. Although the potential administrative costs of implementing and maintaining a successful registry could be high if comedians had to register their material or prove they were the first ones to come up with a certain routine or punch line, it would offer substantial certainty that cannot be achieved in the animals cases.
7. I like this argument because it explicitly considers the strengths and weaknesses of the side it selects and provides concrete reasons why the alternatives would be superior. However, you should not treat negotiation and mediation as alternatives. Both require that there be some understanding about who owns what before they begin. They are steps you take in light of some pre-existing property allocation system.
In the final analysis, the arguments made for not using the animal cases are better for resolving the present dispute, because the majority of the tests and factors of the animal cases are simply inapplicable to the current situation. The concepts of animus revertendi and abandonment help to underscore this assertion. As previously mentioned, animus revertendi is not applicable to the current situation, because, unlike a live and thinking animal, intent to return does not play a significant role with respect to an inanimate object such as a punch line. In short, there is no way for a creation from the living conscious of man to return to the mental process from which it was spawned. The concept of abandonment is also inapplicable and because it runs afoul of the whole purpose of a joke which is to be conveyed to as many other people as possible. In short, one can't abandon an idea which one liberally gives to others for the purpose of stimulating their minds.
Although the use of custom as a defense and the presence of markings help to highlight the importance of the animal cases, these legal tests or factors are not definite in their application to the joke fact pattern. In other words, the custom and markings arguments are important in strengthening the opposing parties positions against each other, but they do very little to bring the current dispute to a successful resolution. For example, Oscar will claim that his routine was well marked in newspapers across the country and that the presence of such identifiable marks should be the determining factor of ownership of the punch line. On the other hand, Faye will argue that she changed Oscar's punch line and that the custom among professional stand-up comics should apply because she didn't steal his entire routine. Neither the custom nor marking arguments directly take in consideration the labor of creating the initial or subsequent jokes or the time which was invested in performing the jokes.
Both Oscar and Faye would be better off if they utilized an alternative method in resolving their dispute over the joke, instead of complete reliance on the animal cases. Such alternative methods could include a first in time registry, mediation, or even some process of negotiation. All of these alternatives allow for more consideration of time and labor for both parties. For example, Oscar and Faye could negotiate out their differences in which he receives substantial compensation or royalties over all performances and merchandise which the original “How many Florida Voters... " punch line appeared, but Faye maintains all profits from all of the altered punch lines. By not arguing the animal cases, one creates a stronger case for rewarding the time and labor considerations for both parties.
7. This argument does a nice job of comparing pros and cons and makes several nice points along the way. However, as was true for many of you, the students use too much passive voice. The argument would be much clearer if the students rewrote it in more active form.
Utilizing the legal concepts developed to remedy disputes involving wild animals would not be beneficial. Although an analogy can be drawn between wild animals and words, or more specifically, how they are used to form jokes, a major obstacle exists in that animals are tangible, singular entities, where as words are not. The application of the animals cases allows a method of establishing primary ownership. They also offer guidance where problems of escape and capture arise.
Utilizing these concepts for establishing property rights in jokes becomes a problem. A joke may have several creators, because we as humans, are free to formulate words in order to communicate humor. Establishing primary possession of such thoughts is very difficult. Words are arguably too "wild" to be tamed or captured along the lines that the animals cases suggest. This is exemplified here when Faye repeatedly changed the lead in question, without changing the punch line, to seemingly formulate entirely new jokes.
Where complex issues have arisen in the animals cases, the court was willing to allow custom in limited areas be a guide towards finding a solution. However, this use was qualified, in that the custom would only work where it would affect small numbers. Words, or jokes, affect great numbers of people. The fact pattern established that the custom present in the stand-up comic industry would not efficiently handle the dispute over ownership of a single joke, seemingly formulated by a writer, not a comedian.
Because of the broad scope that humor has in any society, universal agreement on a custom to establish ownership of jokes would be virtually impossible. What would be needed is an established case or statutory law that would provide a clear set of parameters to facilitate an efficient resolution. Perhaps adoption of a more flexible method, such as the clear-act principle suggested by Rose would prove more beneficial and adaptable to the complexities of jokes, which are in essence, the communicated thoughts of an individual.
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[1] Similarly, several of you repeated that the gas “wandered onto” Hammonds’s land. The gas company deliberately placed the gas into a reservoir, part of which she owned. The gas predictably spread throughout the reservoir including Hammonds’s part of it. The case is different in that sense than Albers or Kesler, where the owners could reasonably assert that they had no idea where the fox would go once it escaped.
[2] The ownership interest described here is the kind of contingent interest that landowners get in animals on their land through the doctrine of ratione soli.
[3] Note that time and distance are treated as two components of one factor since in our class discussions we have usually analyzed the two together. {this is a nice way to show that you understand that I might think this team wasn’t following directions because they list two factors. On an exam, if you are not sure whether you are violating a particular instruction, explaining why you think you are not is a good idea.]
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CONTENTS
(A) Post-Thanksgiving Office Hours, Review Session & Related Info
(B) Oil & Gas Briefs: Comments & Models from Prior Years
(C) Post-Penn Central Takings Law
(D) Review Assignment: Comments and Models from Prior Years
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