MUSIC: “Crazy for You”
Cast Album (1992)
Music & Lyrics by
George & Ira Gershwin (1918-37)
§B Lunch Wed Oct 1
§D Lunch Thu Oct 2
Meet on Bricks @ 12:15
Meet on Bricks @ 11:55
Bautz * Fierro
Golden* Jones
Prado
Centofanti * George * Leveille
Miller-Ciempela * Seiglie
Stockman * Witkiewitz
(§B: Very Last Lunch)
(§D: Typed Characters Welcome)
The Logic of Albers: Critique
RADIUM DQ1.58 (Authority of Colo. S.Ct.)
1. Court here essentially:
a. carved out exception to the Mullett rule
b. to meet perceived policy need.
2. Alternative (as in Ontario):
a. Court applies existing rule
b. Legislature responds by enacting new statute
modifying rule to meet policy need.
The Logic of Albers: Critique
RADIUM DQ1.58 (Authority of Colo. S.Ct.)
Pros/cons of allowing courts to alter/develop
law (as in Albers) v. legislature (as in Ontario)?
• Might look at:
– Relative institutional strengths?
– Democratic theory?
– Certainty/notice?
The Logic of Albers: Critique
RADIUM DQ1.58 (Authority of Colo. S.Ct.)
Having then neither statute nor applicable
common-law rule governing the case, we must so
apply general principles in the light of custom,
existing facts, and common knowledge, that justice
will be done. So the courts of England and the
United States have acted from time immemorial,
and so the common law itself came into existence.
(2d Para. p.49)
Logistics: Skills, Assignments,
Exam Prep, Fall Break
Lot of Info Today
I’ll Go Through Fast Because You’ll
Have Slides
E-Mail Me if Qs
Logistics: Skills, Assignments,
Exam Prep, Fall Break
Try to Think About Assignments & Exams in
Terms of Skills
Relevant Skills in Elements Include:
I. Reading Comprehension
II. Applying Legal Authority to New Sets of Facts
III. Determining Appropriate Legal Test for Particular
Situation
Skills: Reading Comprehension
Assignments: Briefs
A. Reading Comprehension Sub-Skills:
1. Reading Legal Materials (& Other Relevant Authorities)
2. Following Directions
B. Relevant Assignments: Submitted Briefs (Radiums Done)
1. Krypton #2: Bartlett v. Budd (Due Sun @ End of Break
2. Oxygen #2: Swift v. Gifford (Due Sun @ End of Break)
3. Uranium #2: Ghen v. Rich (Due Sun 1 week after Break)
Skills: Reading Comprehension
Assignments: Briefs
B. Relevant Assignments: Submitted Briefs
For Prep: Prior Briefs
• Check status of grading on bottom of course page
• Oxygen Brief #1 & Krypton Brief #1: Available by Friday
– If not picked up by Fri mid-afternoon, we’ll e-mail you PDF
• Uranium Brief #1: Available by Friday of Fall Break
– When available, we’ll e-mail you PDF
Skills: Reading Comprehension
Assignments: Briefs
B. Relevant Assignments: Submitted Briefs
For Prep: Other Materials
• Class Notes/Slides from Fri on Taber
• Posted by Thursday of Fall Break
– Sample Taber Brief
– Quizzes on Bartlett/Swift
• Posted by Friday after Fall Break
– Sample Bartlett/Swift Briefs
– Ghen Quiz
Skills: Applying Legal Authority to New
Sets of Facts
A. Applying Legal Authority: Sub-Skills
1. Applying Language (Rules, Factors, Elements)
2. Comparing Facts
3. Applying Relevant Policies
Skills: Applying Legal Authority to New
Sets of Facts
Exam Prep: Final Exam Q1 (XQ1)
B. XQ1: Apply “Animals Cases” to New Fact Pattern
1. Animals Cases = Cases in Unit One plus Whaling Cases
2. Three Types of Issues
a. First Possession
b. Escape
c. Custom
Skills: Applying Legal Authority to New
Sets of Facts
Exam Prep: Final Exam Q1 (XQ1)
B. XQ1: Apply “Animals Cases” to New Fact Pattern
2. Three Types of Issues
a. First Possession
i) Pierson, Liesner, Shaw,
ii) Swift
iii) Written Asssignment I & Weasel Hypo
b. Escape
c. Custom
Skills: Applying Legal Authority to New
Sets of Facts
Exam Prep: Final Exam Q1 (XQ1)
B. XQ1: Apply “Animals Cases” to New Fact Pattern
2. Three Types of Issues
a. First Possession
b. Escape
i) Manning, Mullett, Albers, Kesler
ii) Taber, Bartlett
iii) Squirrel hypothetical (DQ1.48)
c. Custom
Skills: Applying Legal Authority to New
Sets of Facts
Exam Prep: Final Exam Q1 (XQ1)
B. XQ1: Apply “Animals Cases” to New Fact Pattern
2. Three Types of Issues
a. First Possession
b. Escape
a + b. Border Line: First Possession + Escape
i) Written Assignment #2 & Wolverine Hypo
ii) Ghen
c. Custom
Skills: Applying Legal Authority to New
Sets of Facts
Exam Prep: Final Exam Q1 (XQ1)
B. XQ1: Apply “Animals Cases” to New Fact Pattern
2. Three Types of Issues
a. First Possession
b. Escape
c. Custom: We’ll Do in Detail After Fall Break
i) Pierson
ii) All 4 Whaling Cases
Skills: Applying Legal Authority
Exam Prep & Final Exam Q1
C. Exam Prep & Fall Break
1. Generally:
a. Day or two really off
b. Steady work on indiv courses: at least one solid day each
2. For Elements:
a. I’ll be around; if you have Qs, e-mail me for appointment
b. Opportunity for Careful Prep on both 1st Possession & Escape
c. Much less material than other courses 
i) Good News: Can do more in-depth
ii) Bad News: Must do more in-depth
Skills: Applying Legal Authority
Exam Prep & Final Exam Q1
C. Exam Prep & Fall Break
2. For Elements:
a. I’ll be around; if you have Qs, e-mail me for appointment
b. Opportunity for Careful Prep on both 1st Possession & Escape
c. Much less material than other courses  Do More In-Depth
- can reread cases
- double-check quizzes + sample briefs (Albers & Kesler posted)
- do weasel & squirrel hypos w other cases
- charting
Skills: Applying Legal Authority
Exam Prep & Final Exam Q1
C. Exam Prep & Fall Break
2. For Elements:
a. I’ll be around; if you have Qs, e-mail me for appointment
b. Opportunity for Careful Prep on both 1st Possession & Escape
c. Much less material than other courses  Do More In-Depth
- Can reread cases
- Go thru quizzes + sample briefs (Albers & Kesler posted)
- Do weasel & squirrel hypos w other cases
- Charting
CHARTING AS STUDY TOOL
FACTOR
MARKING/
FINDER’S
KNOWLEDGE
(FK)
MANNING
Parted Crest (ManMade, Not
Permanent; Other
Bird has)
MULLETT
Scarring (Likely
permanent;
probably not
clearly manmade)
likely permanent
ALBERS
Tattoo w #s in Ears (manmade; permanent; industry
custom; i.d.s OO);
F knew of industry & that fox
likely from fox farm
Treated as Relevant
Not Treated as
Relevant
Treats both mark and FK as
relevant
Refers to Menagerie
Animals/Organ
Grinder Monkey;
could mean FK
Holds: can be NL
w/o being Nat’l
Habitat; could be
concern about FK,
but not explicit
F can’t take Seal in Millpond;
Bear in City; looks like FK
Has Blackstone language re
mark only matters if AR
Skills: Applying Legal Authority
Exam Prep & Final Exam Q1
D. Practice Midterm & Exam Skills
1. Posted on Course Page by Monday
a. Preliminary Note on Exam Technique (in new Info Memo)
b. Practice Midterm Q with Instructions for “Exam Conditions”
c. Comments/Best Student Answers Memo from Prior Years
2. For Feedback from Me
a. Do Under “Exam Conditions”
b. Go through Comments /Best Answers Memo
c. Bring me Specific Qs (I can’t go through 114 line-by-line)
Skills: Applying Legal Authority
Exam Prep & Final Exam Q1
D. Practice Midterm & Exam Skills
1. Practice Midterm Posted on Course Page by Monday
2. For Feedback from Me: Bring me Specific Qs
3. More Generally:
a. I do Faculty-Perspective Exam Skills Workshops in November
b. Worth your time (very well-received)
c. I am world’s leading expert on what I look for in student exam
answers to my own tests. 
Skills: Applying Legal Authority
Group Written Assignment #2
Important Exam Task/Skill: Apply
Authorities Studied to New Hypothetical or
“Fact Pattern”
• Assmt #1 : Structured Sequence of Arguments
• Assmt #2: Wider Range of Arguments
Skills: Applying Legal Authority
Group Written Assignment #2
Wide Range of Arguments w 3 Limits
1. Each Team Only Addresses One Issue:
– “First Possession” = Was There a Moment
When Wolverine Became Property Of P?
– “Escape” = Did P Lose Property Rights When
Wolverine “Escaped” to D’s Property (Must
Assume P Acquired a Property Right)
Skills: Applying Legal Authority
Group Written Assignment #2
Wide Range of Arguments w 3 Limits
1. Each Team Only Addresses One of Two
Issues (1st Possession -OR- Escape)
– Stick to Your Issue
– Be Very Careful to Explain Relevance If You
Use Authority Focused on Other Issue
Skills: Applying Legal Authority
Group Written Assignment #2
Wide Range of Arguments w 3 Limits
1. Each Team Only Addresses One Issue
2. Representing One Particular Party
– All Arguments Must Support Your Client
– Legal Smeagols: Identify Other Side’s Best
Arguments, Then Respond to Them
Skills: Applying Legal Authority
Group Written Assignment #2
Wide Range of Arguments w 3 Limits
1. Each Team Only Addresses One Issue
2. Representing One Particular Party
3. Arguments must be “based on the
materials in Unit One.”
– No arguments based on Whaling Cases
– No arguments based on Rose Article
Skills: Applying Legal Authority
Group Written Assignment #2
Preparation
1. Do Work Suggested Above for Fall Break
Reviewing Materials on Both Issues
2. Look at Feedback on Assignment #1
– Comments & Best Answers Memo Now on Course
Page & Updated by End of Break
– Individual Comments on Your Work Available
Thursday after Break
Skills: Applying Legal Authority
Group Written Assignment #2
General Points
1. Care re Formatting & Substantive Directions
2. Review “Common Writing Concerns”
3. Working Together:
– Due October 19 (Sunday after Break)
– Before Break Should Work Out Individual
Responsibilities and Timing
QUESTIONS?
Skills: Determining Appropriate Legal
Test for Particular Situation
A. Determining Legal Test: Sub-Skills
1. Using Relevant Policies
– As Seen in Pierson; Albers; Shaw
– Policy Arguments from Demsetz
2. When to Apply Existing Tests to New Situations
– Argument by Analogy
– E.g, Applying Animals Cases (1st Poss & Escape) to
» Whaling Cases
» Oil & Natural Gas
Skills: Determining Appropriate Legal
Test for Particular Situation
B. A Little Twist
1. Concern re Importance of Animals Cases (ACs)
– Very Rare to Litigate These Fact Patterns
– BUT Ideas from ACs re 1st Possession & Escape Show
Up in Many Different Places
2. So Whales/Wolverines will be Last Animals You See
FINAL EXAM QUESTIONS 1 & 2
• Single Fact Pattern for Both
• Will Involve Type of Property Not Explicitly
Covered in Course
• I’ll Post Three Samples Over Break
– One Primarily First Possession (& Custom)
(Uninhabited Island)
– One Primarily Escape (& Custom) (Gesture
Strongly Associated with Celebrity: L-Bowing)
– One All Three (Computer Program)
FINAL EXAM QUESTIONS 1 & 2
• XQ1: “Assuming Animals Cases Apply,
Discuss Who Should Get Property Rights?”
– Basically Issue-Spotter Like Practice Midterm
• Same Skills We’ve Been Working On
• Same Close Knowledge of Cases Required
– But Need to Be Creative Applying Doctrine
• E.g., Whale Carcasses & Natural Liberty
FINAL EXAM QUESTIONS 1 & 2
• XQ2: “Discuss Whether Animals Cases Are
Good Tools to Use in New Scenario”
– Testing Ability to Analyze When/Whether
Analogy is Useful & Assess Value of Rules
– Should Utilize Three Approaches We’ll Work
With (EXTENSIVELY) in Unit Two (& Group
Assignment #3)
– E.g., Good rule to say if anchored whale returns
to NL (floats free), should go to finder?
Back to Work!!
Kesler v. Jones: TYPO
PAGE 53
Last Sentence of Block Quote:
“remained”
should be
“regained”
Kesler v. Jones: Oxygen
In-Class Brief & DQ1.60-1.62
M A N Y T A N K S!!
Kesler v. Jones BRIEF: Oxygen
Statement of the Case:
• Kesler … and the Davises… ???
• sued Jones …
• for [cause of action]
• seeking [remedy].
Kesler v. Jones BRIEF: Oxygen
Statement of the Case:
• Kesler, the original owner (OO) of an escaped
fox, and the Davises, its caretakers …
– Fox is “property” of “other appellant”: must be Kesler
– Davises probably plaintiffs because they had custody of
the fox and would be liable to Kesler for its loss
Kesler v. Jones BRIEF: Oxygen
Statement of the Case:
• Kesler, the OO of an escaped fox, and the Davises,
its caretakers …,
• sued Jones … ???
• for [cause of action]
• seeking [remedy].
Kesler v. Jones BRIEF: Oxygen
Statement of the Case:
• Kesler, the OO of an escaped fox, and the Davises,
its caretakers,
• sued Jones, who killed the fox to protect a
neighbor’s chickens and kept its pelt,
– Need both killing & keeping pelt.
• for [cause of action] ???
• seeking [remedy].
Kesler v. Jones BRIEF: Oxygen
Statement of the Case:
• Kesler, the owner of an escaped fox, and the Davises, its
caretakers sued Jones, who killed the fox to protect a
neighbor’s chickens and kept its pelt, …
• for unlawful killing of the fox and unlawful
retention of its pelt
• seeking [remedy] ??? Case doesn’t say explicitly. Hint
from case?
Kesler v. Jones BRIEF: Oxygen
Statement of the Case:
• seeking [remedy] ??? Case doesn’t say explicitly. Hint
from case?
• Court orders new trial to determine “the value of the
pelt”  seeking damages
Kesler v. Jones BRIEF: Oxygen
Statement of the Case:
• Kesler, the OO of an escaped fox, and the Davises,
its caretakers, sued Jones, who killed the fox to
protect a neighbor’s chickens and kept its pelt, for
unlawful killing of the fox and unlawful retention
of its pelt [presumably] seeking damages.
PROCEDURAL POSTURE?
Kesler v. Jones BRIEF: Oxygen
Procedural Posture:
• After a trial, the court found for defendant on both claims.
Plaintiffs appealed.
• How do you know there was a trial?
Kesler v. Jones BRIEF: Oxygen
Procedural Posture:
• After a trial, the court found for defendant on both claims.
Plaintiffs appealed.
• How you know there was a trial:
– “The court was justified … in concluding from the evidence…”
– “the cause remanded for a new trial …”
Kesler v. Jones FACTS
• Fox owned and cared for by Ps had escaped and
been recaptured at least once. It escaped again
and Ps pursued.
• A short time after the escape and a short distance
away, a neighbor found it among her chickens and
asked D for help.
• D shot and killed the fox, unaware of its prior
captivity or Ps’ ownership.
• Ps requested that D return fox’s pelt. D refused.
Kesler v. Jones BRIEF: Oxygen
How Many Oxygens Saw That There Were Two Issues in
Case? (Show of Hands)
(Uraniums are Radioactive for This Purpose and Must Be Silent
and Still!)
Kesler v. Jones BRIEF: Oxygen
How You Know There Are Two Issues In Case:
1. Two different kinds of legal claims addressed
– Unlawful killing of fox (Tort Q: Justification for
shooting)
– Unlawful retention of pelt (Property Q: Ownership of
escaped animal)
2. Judgment is affirmed in part, reversed in part.
Means:
– One issue decided in favor of D
– One issue decided in favor of Ps
Kesler v. Jones BRIEF: Oxygen
1st Issue (Unlawful Killing): Did trial court err in entering
judgment for defendant because …
• Hard to be precise about relevant facts b/c
– Court doesn’t say why Ps thought the killing
was unreasonable
– We aren’t studying defenses to intentional torts
here, so don’t have other examples to look at.
Kesler v. Jones BRIEF: Oxygen
1st Issue (Unlawful Killing): Pretty General Version
• (E.g.:) Did trial court err in entering judgment for defendant because a
person has no right to kill a fox escaped from captivity when asked to
help protect a neighbor’s chickens from the fox?
Probably helpful to also include some language about reasonableness.
Kesler v. Jones BRIEF: Oxygen
1st Narrow Holding (Unlawful Killing):
• (E.g.:) No, trial court did not err in entering judgment for
defendant because a person does have the right to kill a fox
escaped from captivity when reasonably necessary to help protect
a neighbor’s chickens from the fox.
QUESTIONS?
Kesler v. Jones (Oxygen)
DQ1.60: Severability of Property Rights
Both Albers and Kesler treat the question of
the right to kill the fox as independent of the
question of who owns it.
If the plaintiffs owned both foxes, why was it
legally acceptable for a 3d party to kill them?
Kesler v. Jones (Oxygen)
DQ1.60: Severability of Property Rights
Can have some rights with regard to an
object without having all possible rights
• Common Examples:
– Landlord-Tenant
– Ratione Soli
Kesler v. Jones (Oxygen)
DQ1.60: Severability of Property Rights
Can have some rights with regard to an
object without having all possible rights
• Your “right” not to have others destroy your
property can be lost when your property
endangers person or property of others.
• Common Example: Necessity
– Neighbor can cut down your trees to limit
spread of fire
Kesler v. Jones (Oxygen)
DQ1.60: Severability of Property Rights
• Can have some rights with regard to an
object without having all possible rights
• Common Example: Necessity
– Neighbor can cut down your trees to limit
spread of fire
– BUT You still own the cut wood.
Kesler v. Jones (Oxygen)
DQ1.60: Severability of Property Rights
Here, court says OK for Dr. Jones to kill a fox owned
by Kesler because
• he acted (for Mrs. White) as “a reasonably prudent
person” would,
• “under reasonably apparent necessity,
• in the protection of his own property” (chickens).
Kesler v. Jones (Oxygen)
DQ1.60: Severability of Property Rights
• Here, court says OK for Dr. Jones to kill a fox
owned by Kesler because
– he acted (for Mrs. White) as “a reasonably prudent
person” would,
– “under reasonably apparent necessity,
– in the protection of his own property” (chickens).
• Looks like standard defense to intentional tort for
“defense of property.”
Could fold some of this language into issue/holding.
Kesler v. Jones (Oxygen)
DQ1.60: Severability of Property Rights
BOTTOM LINE
• Fox owners’ property rights limited to
protect property of others (e.g., chickens)
• Jones had right to kill fox, but ownership of
carcass is separate issue, turning on whether
fox was owned when shot.
• Qs?
Kesler v. Jones (Oxygen)
DQ1.61: Factual Differences from Albers
Note that Kesler describes Albers as
“a case squarely in point ….”
BUT cases not really absolutely identical,
so we’ll look at factual differences.
Kesler v. Jones (Oxygen)
DQ1.61: Factual Differences from Albers
Important Exam Skill:
• Identify Factual Differences Between Hypo and
Precedent Cases & Discuss Possible Significance
– Weakest Answers Tend to Ignore Differences
– Better Answers See Arguments that New Facts Change
Result
– Best Answers Discuss Why New Facts Might or Might
Not Change Result
Kesler v. Jones (Oxygen)
DQ1.61: Factual Differences from Albers
Important Exam Skill:
• Identify Factual Differences Between Hypo and
Precedent Cases & Discuss Possible Significance
– Explanation of Significance is Key
– Part of More General Point: Use Every Fact I Give You
• I’ll give you an exercise later: if change facts in
wolverine problem, how might it affect result?