Music: Schumann, Piano Concerto in A Minor (1949)
Grieg, Piano Concerto in A Minor (1872)
Bavarian Radio Symphony Orchestra (2004)
Conductor: Sir Colin Davis Pianist: Murray Perahia
Kesler Briefs (Uranium)
E-Mailed PDF
Late Saturday
On Course Page
by Noon Sunday:
• Ghen Quiz
• Rose Quiz
• Bartlett Sample Brief
• Rest of Old XQ1/XQ2
Argument By Analogy
Bottom Line: Not asking if ACs are a perfect
tool for the new context, but discussing how
good a tool they are.
Swiss Army Knives & Barbie’s Eye Shadow
Argument By Analogy
Sample Factual Difference: Living/Dead
• Land animals are alive when they
“escape”; whale carcasses are not.
Argument By Analogy
Sample Factual Difference: Living/Dead
• Land animals are alive when they “escape”;
whale carcasses are not.
• Some concepts from ACs will not work well in
Taber context b/c they assume property was
alive at escape.
– E.g., “provide for itself” & “intent to return”
– Can then argue re relative importance of these
factors.
Argument By Analogy
Sample Factual Difference: Living/Dead
• Some concepts from ACs will not work well in
Taber context b/c they assume property was
alive at escape.
– E.g., “provide for itself” & “intent to return”
– Can then argue re relative importance of these
factors.
Again, ACs don’t have to fit 100% to be
reasonable option.
Argument By Analogy
RADIUM DQ2.09:
Additional Factual Differences?
Can You Construct This Kind of
Argument Around Them?
Argument By Analogy
2. Usefulness of Doctrine
Qs About Individual Rules or Factors
• Can you sensibly apply some or all of
the legal tests in the new context?
• Are the purposes behind the rules
relevant in the new context?
Argument By Analogy
2. Usefulness of Doctrine
• Overall Q: Is the doctrine targeting the
right concerns?
• Are there important concerns raised by the
precedent that aren’t relevant in the new
context?
• Are there important concerns raised by the
new context that weren’t relevant in the
precedent?
Argument By Analogy
DQ2.10: Usefulness of Doctrine
Individual Escape Factors Whose Relevance is
Pretty Clear to Disputes re Whale Carcasses
•
•
•
•
(Arguably used in Taber & Bartlett):
Marking/Finder’s Knowledge
Rewarding Labor/Protecting Industry
Abandonment (by Compulsion)/Pursuit
Time/Distance (though time frame may be
different than for living animals)
Argument By Analogy
Arguments (1) Based on Factual Comparisons and
(2) Based on Usefulness of Doctrine Often Overlap:
(1) Factual Comparison: OO can attach identifying
marks to both escaping animals and whale carcasses.
–
–
–
ACs reward OOs who use strong marks that help identify
the animal and give notice to Fs of prior claim
For same reasons, good idea to reward OOs of whale
carcasses who use strong marks
Thus, this similarity supports using ACs
Argument By Analogy
Arguments (1) Based on Factual Comparisons and
(2) Based on Usefulness of Doctrine Often Overlap:
(2) Usefulness of Doctrine: ACs factor we called
“marking” (Manning; Albers), rewards OOs who use
strong marks that help identify the animal and give
notice to Fs of prior claim.
–
–
OO of whale carcass can attach identifying marks that
serve the same purposes.
Thus, it is a good idea to reward OOs of whale carcasses
who use strong marks, which makes “marking” a useful
factor to use.
Argument By Analogy
Arguments (1) Based on Factual Comparisons and
(2) Based on Usefulness of Doctrine Often Overlap:
– Overlap is logical:
• Concerns addressed by the legal tests are made relevant by
the factual setting.
• Factual comparisons are made relevant by the way the
doctrine operates.
Argument By Analogy
Arguments (1) Based on Factual Comparisons and
(2) Based on Usefulness of Doctrine Often Overlap:
– For XQ2, if you see overlapping arguments, you
only need to give me one of them
– BUT useful to practice approaching analogy
question from both directions b/c sometimes you will
find it easier to see a useful point looking from one
angle than from the other.
Argument By Analogy
DQ2.10: Usefulness of Doctrine
Factors Less Clearly Relevant?
• Natural Liberty
– Maybe NL = carcass is floating free
– Pros & Cons: Should Consider:
• LANGUAGE: E.g., “Provide for itself” v. “No artifical restraint”
• UNDERLYING POLICIES : I did some in Class #19
Argument By Analogy
DQ2.10: Usefulness of Doctrine
Factors Less Clearly Relevant?
• Taming or Intent to Return
– Could mean simply anchoring the carcass
– Pros & Cons include:
• Anchoring similar b/c labor expended to maintain control
• Maybe unnecessary b/c can reward anchoring using NL or
general policy rewarding useful labor
Argument By Analogy
3. Usefulness of Alternatives
Identify alternative approaches that might
be used to address the new context
•
–
–
–
–
For 1st Possession might include: auction,
lottery, state ownership, most deserving, etc.
For Escape might include: salvage, F always
wins, OO always wins, registration systems
Don’t spend time on alternatives that seem fairly
stupid (could award carcass to oldest whaler…)
Look at old model answers
Argument By Analogy
3. Usefulness of Alternatives
• Identify alternative approaches that might be used to
address the new context
• Discuss the pros and cons of using each
possible alternative instead of the
proposed analogy
–
–
Ideally provide both pros and cons for each
Can consider fairness, cost, ease of
administration, incentives created, whether
the right Qs are being asked, etc.
Argument By Analogy
3. Usefulness of Alternatives
• Identify alternative approaches that might be used to address
the new context
• Discuss the pros and cons of using each possible alternative
instead of the proposed analogy
• You can identify possible alternatives and common
pro/con arguments from class and from model
answers. However, only way to get proficient enough
to do well under exam conditions is PRACTICE.
Argument By Analogy
Usefulness of Alternatives
OXYGEN: DQ2.11: One Particular Alternative
Would salvage be a better way to resolve
anchored whale cases than using the escaped
animal cases? Why or why not?
Argument By Analogy
Usefulness of Alternatives
OXYGEN: DQ2.11: Would salvage be better than
using the escaped animal cases? Might Consider:
• Splitting Rewards v. One Side Takes All (& Labor?)
• Rule Most Likely to Save Most Whale Carcasses
• Ease of Application:
– ACs = multiple factors = complex
– But maybe hard to do salvage where property must be cut
up and altered to take on board
Argument By Analogy
Bottom Line: Not asking if ACs are a perfect
tool for the new context, but discussing how
good a tool they are.
Argument By Analogy
Next Week: More Practice
• First Possession/Oil & Gas:
– DQ2.23: Facts (OXYGEN)
– DQ2.24: Factors (KRYPTON)
– DQ2.25: Alternatives (URANIUM)
• Group Assignment #3 Distributed
LOGISTICS CLASS #23
Starting Oil & Gas Monday-Tuesday
• Work Through Technical Readings to Try to
Get Sense of How Things Work
– Reread after we’ve gone through cases when you
have a sense of relevant legal issues
– Common task for lawyers: need to acquire
expertise in areas important to client (me &
accounting & fire sites)
LOGISTICS CLASS #23
Starting Oil & Gas Monday-Tuesday
• I’ll Lecture Through Westmoreland
– Difficult Case to Understand Both re Gas
Extraction and Business Transaction
– Read Through for Plot; Don’t Try to Brief
– Look at in Advance Because Presentation Will
Primarily Be at White Board (Few Slides)
LOGISTICS CLASS #23
Starting Oil & Gas Monday-Tuesday
• Westmoreland Adopts Animals Cases to
Govern 1st Possession of Natural Gas
• Case Does Not Make Explicit Animals Analogy
to Specific Facts. My Take:
– 1st Gas Co. Gets Permission to Hunt from
Landowner
– Catches Deer, Ties It to Tree, & Leaves for Lunch
– Landowner Refuses to Let 1st Gas Co. Return &
Sells Hunting Rights, Including Tied Deer, to 2d
Gas Co.
Swift v. Gifford
“First Iron Holds the
Whale”
KRYPTON: Brief & DQ2.12
OXYGEN: DQ2.13-2.15
Swift v. Gifford (Krypton)
BRIEF: Statement of the Case
• Swift and others … ?,
• sued Gifford … ,
• for [cause of action]
• seeking [remedy].
Swift v. Gifford (Krypton)
BRIEF: Statement of the Case
• Swift and others, owners of a ship (H)
whose crew killed a whale
• sued Gifford … , ???
• for [cause of action]
• seeking [remedy].
Swift v. Gifford (Krypton)
BRIEF: Statement of the Case
• Swift et al., owners of ship (H) whose crew killed whale
• sued Gifford , managing owner of a ship (R)
whose crew first harpooned the whale and
later took it from H,
• for [cause of action] ???
• seeking [remedy].
Swift v. Gifford (Krypton)
BRIEF: Statement of the Case
• Swift and others, owners of a ship (H) whose crew killed a
whale sued Gifford , managing owner of a ship (R) whose
crew first harpooned the whale and later took it from H,
• presumably for conversion
• seeking [remedy]. ???
Swift v. Gifford (Krypton)
BRIEF: Statement of the Case
• Swift and others, owners of a ship (H) whose crew killed a
whale sued Gifford , managing owner of a ship (R) whose
crew first harpooned the whale and later took it from H,
presumably for conversion
• Seeking damages for the value of the
whale.
Swift v. Gifford (Krypton)
BRIEF: Procedural Posture
Decision after a trial.
Swift v. Gifford (Krypton)
BRIEF: Facts
• Crew of ship R harpooned a whale, but whale
escaped with the harpoon attached.
• Crew of ship H captured the whale, unaware that ship
R was still pursuing it.
• Crew of ship R came to ship H, found its harpoon in
the whale, and took the whale.
What Else Needs to Be Included?
Swift v. Gifford (Uranium)
BRIEF: Facts
• Crew of ship R harpooned a whale, but whale escaped with the
harpoon attached.
• Crew of ship H captured the whale, unaware that ship R was
still pursuing it.
• Crew of ship R came to ship H, found its harpoon in the whale,
and took the whale.
• Custom among whalers in North Pacific was 1st
iron holds whale if claim made before whale cut.
Parties all understood custom.
Swift v. Gifford (Uranium)
BRIEF: Facts
• Custom among whalers in North Pacific
was 1st iron holds whale if claim made
before whale cut. (Parties all understood.).
– Note: Hercules gave whale up voluntarily
honoring custom (cf. Taber: reaction of
Captain of Massachusetts to Zone)
– Suggests maybe Swift et al. are new players in
whaling game:
• Hercules gets home & reports to Owners
• Swift: “You did what??!!”
– Swift = famous business family in Chicago, so …
Mini-Comparison Box
•
•
•
•
Boston
Chicago
Red Sox (& Lost Braves)
Cod & Lobster
Shipping
"So this is good old
Boston. The home of the
bean and the cod. Where
the Lowells talk only to
Cabots. And the Cabots
talk only to God."
• White Sox (& Losing Cubs)
• Pork & Beef (Swift/Armour)
• Railroads
• “City of Broad Shoulders” &
“Not for Breeding Purposes.”
Swift v. Gifford
Nature of Dispute
• Escaping wild animals cases only apply to Taber &
Bartlett by analogy.
• By contrast, Swift is a 1st possession wild animal
case. Two hunters (ships) chasing a wild whale.
Who gets?
– First to harpoon & pursue (Rainbow) –OR—
– First to kill (Hercules)
Swift v. Gifford: Nature of Dispute
• Two ships chasing a wild whale. Who gets?
– First to harpoon & pursue (Rainbow) –OR—
– First to kill (Hercules)
• Could decide using common law or using custom.
• We will
1. Look at how Swift addresses common law claim
•
KRYPTON from Brief
2. Look at how our ACs resolve without custom
•
KRYPTON DQ2.12
3. Look at how Swift addresses custom
•
OXYGEN DQ2.13-2.14
Swift v. Gifford
Swift Applying 1st Possession ACs
• Court: Common Law Rule = must have “actual
and complete possession” to get property in
wild animal
– If so, Rainbow loses
– NOTE: 1872 = Before Liesner and Shaw = Rules
now different
Swift v. Gifford (KRYPTON)
Swift Applying 1st Possession ACs
• Court: Common Law Rule = must have “actual and complete
possession” to get property in wild animal
• R Owner argued that “modern civil law has introduced
the modification that a fresh pursuit with reasonable
prospect of success shall give title to the pursuer.”
– Court says this reading of civil law is not “free from doubt”
– May come from Pierson dissent quoting Barbeyrac (p.6)
– Note underlying argument that court might alter common law
rule to follow trend in civil law
Swift v. Gifford (KRYPTON)
Swift Applying 1st Possession ACs
• Court: Common Law Rule = must have “actual and complete
possession” to get property in wild animal
• Rainbow Owner argued that “modern civil law has introduced
the modification that a fresh pursuit with reasonable prospect
of success shall give title to the pursuer.”
• Court deals with this claim with reference to
disputed fact, apparently assuming
“reasonable prospect” = “reasonable
probability”
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
“The only disputed question of fact or opinion
was concerning the reasonable probability that
the whale would have been captured by the
Rainbow, if the boats of the Hercules had not
come up.” (p.63)
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
“The only disputed question of fact or opinion was
concerning the reasonable probability that the whale would
have been captured by the Rainbow, if the boats of the
Hercules had not come up.” (p.65) 
Factual Dispute: Was it reasonably probable that the
whale would have been captured by the Rainbow, if the
boats of the Hercules had not come up?
How does court resolve?
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
•
•
•
•
•
Where on List is “Reasonably Probable”?
Absolute Certainty
High Probability
Democrats Retain Control of the Senate
Jameis Winston has no Further Incidents this Season
+
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
Factual Dispute: Was it reasonably probable that
the whale would have been captured by the
Rainbow, if the boats of the Hercules had not
come up?
(Very bottom p.65) “[I]t would be impossible for
me to say that the [Rainbow], though continuing
the chase, had more than a possibility of
success.”
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
Where on List is “A Possibility of Success”?
• Absolute Certainty
• High Probability
• Reasonable Probability
• Democrats Retain Control of the Senate
• Jameis Winston has no Further Incidents this Season
• Snowball in Hell
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
Levels of Probability
• Absolute Certainty
• High Probability
• Reasonable Probability
• Democrats Retain Control of the Senate
• Jameis Winston has no Further Incidents this
Season = “A Possibility of Success”
• Snowball in Hell
So how does court resolve disputed fact?
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
Factual Dispute: Was it reasonably probable that the
whale would have been captured by the Rainbow, if the
boats of the Hercules had not come up?
• “Reasonably probable” = “more than a possibility of
success.”
Factual Finding: NO! “[I]t would be impossible for me to
say that the [Rainbow], though continuing the chase,
had more than a possibility of success.”
Swift v. Gifford (KRYPTON)
BRIEF: Factual Dispute
• Rainbow Owner argued that “modern civil law has introduced
the modification that a fresh pursuit with reasonable prospect
of success shall give title to the pursuer.”
• Court deals with claim by finding supposed test from
civil law not met on these facts, so doesn’t have to
decide:
– If civil law really has adopted
– Whether to make test part of common law
QUESTIONS?