MUSIC: The Beatles MAGICAL MYSTERY TOUR (1967) §B Lunch Wed Sep 10 Meet on Bricks @ 12:15pm Gil * McLaughlin Martinez * Morales Pope * Randolph * Rose.

MUSICMUSIC::

The BeatlesThe BeatlesMAGICAL MYSTERY TOUR MAGICAL MYSTERY TOUR

(1967)(1967)

§B Lunch Wed Sep 10Meet on Bricks @ 12:15pm

Gil * McLaughlinMartinez * Morales

Pope * Randolph * Rose

§D Lunch Thu Sep 11Meet on Bricks @ 11:55am

Baronoff * Coplowitz Di Mattia * Freitez Arteaga Kleinberg * Novak * Sinner

LOGISTICS: CLASS #11

• Friday: • We’ll begin with Introduction to Escape & DQs 1.41-

1.42 (Radium)• Then pick up with Demsetz material wherever we leave

off today.

• After Friday, I’ll adjust assignment sheet to reflect where we actually leave off.

Finishing UpSTATE v. SHAW

Brief

STATE v. SHAW BriefISSUE (from Friday):

Did the trial court err in directing a verdict for the defendant on the grounds that

defendant did not commit grand larceny because net-owners do not have property rights in fish found in their nets where the

fish can escape from the nets?

STATE v. SHAW BriefNarrow Holding: YES. The trial court erred in directing a verdict for the defendant on

the grounds that defendant did not commit grand larceny because net-

owners can have property rights in fish found in their nets even if some fish can

escape from the nets.

STATE v. SHAW BriefTo Set Up Broader Holding & Rationales,

Let’s Jump Forward

Result?

STATE v. SHAW Brief

Result:Reversed & Remanded for New Trial

Will State necessarily win?

STATE v. SHAW Brief

Result:Reversed & Remanded for New Trial

Will State necessarily win?No. Jury could still find that Thomas

didn’t do it.

STATE v. SHAW BriefResult:

Reversed & Remanded For New Trial

•On remand, trial court will have to instruct jury about when net creates property rights in fish for net-owners• Can’t simply say “Net doesn’t have to be perfect.”• Broader version(s) of holding needed for this.

STATE v. SHAW Brief• On remand, trial court will have to instruct jury

about when net creates property rights in fish. • Broader version(s) of holding needed. Possible

Rules/Holdings:1. Any Net is OK? (Raggedy Volleyball Net??)

STATE v. SHAW Brief• On remand, trial court will have to instruct jury

about when net creates property rights in fish. • Broader version(s) of holding needed. Possible

Rules/Holdings?1. Any Net is OK? 2. Look to language in case: Two plausible rules (long

para. pp.28-29), either of which could be incorporated into broader version of holding.

STATE v. SHAW BriefTwo Plausible Rules (long para. pp.28-29)

1.To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.

2.When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure … will be larceny.

STATE v. SHAW BriefFirst Plausible Rule (bottom of p.28)

““[T]he pursuer must …[T]he pursuer must …

[i] bring them into his power and [i] bring them into his power and controlcontrol, and …, and …

[ii] so maintain his control as to show [ii] so maintain his control as to show that he does not intend to abandon them that he does not intend to abandon them again to the world at large.”again to the world at large.”

•Note two parts/requirements •Note showing intent is not a separate requirement (and is not sufficient by itself), but instead is part of the requirement of maintaining control

STATE v. SHAW BriefSecond Plausible Rule (pp.28-29)

The trapper acquires property in wild animals “[w]hen …

[i] he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and …

[ii] maintains reasonable precautions to prevent escape….”

•Again, two parts/requirements•Slightly different language you can use; we’ll mostly focus on 1st Plausible Rule

STATE v. SHAW BriefNote on Interpreting Legal Tests in Context of Cases

•Because Ohio SCt reversed the trial court, should assume that it believes net-owners met its tests.• E.g., fish caught in nets have been brought within net-

owner’s “power and control.”• E.g., set up of these nets = “reasonable precautions to

prevent escape.”

•Thus, can use facts of Shaw to help explain what the tests mean going forward.

STATE v. SHAW BriefOneOne Broader Version of HoldingBroader Version of Holding

YES. The trial court erred in directing a verdict for the defendant because net-owners have property rights in fish found in their nets if the nets [i] bring the bring the fish into their power and controlfish into their power and control, , and [ii] so maintain their control as [ii] so maintain their control as to show that they do not intend to to show that they do not intend to abandon the fish again to the world abandon the fish again to the world at large.at large.

QUESTIONS ON HOLDING OR QUESTIONS ON HOLDING OR TESTS?TESTS?

STATE v. SHAW BriefRationales:

•Doctrinal Rationales from Authorities Cited on pp. 28-29 Provided in Sample Brief•Policy Rationales (Hints from Language of Case):

Court refers to Perfect Net Rule as “Unnecessarily Technical” (p.28). MEANS?


•Policy Rationales (Hints from Language of Case):• Court refers to Perfect Net Rule as “Unnecessarily

Technical” (p.28). Probably refers to difficulty of proof/certainty arguments.

• Court says possession of fish by net-owners “was so complete and certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.29) Significance?

STATE v. SHAW Brief• Policy Rationales (Hints from Language of Case):• Possession of fish by net-owners “was so complete and

certain” that Ds raised nets “with absolute assurance that they could get the fish that were in them.” (p.27)• Maybe refers to certainty of capturing fish (as a

group) or of identifying owners• Maybe goes to sufficiency of Net-owners’ labor

OTHER DIFFERENT POLICY CONCERNS?


•Policy Rationales (Hints from Language of Case):• Could discuss protecting important industry (subset of

labor argument), but need to be clear that court doesn’t reference explicitly.

APPLYING STATE v. SHAW DQ1.26-1.27

RADIUMRADIUM

STATE v. SHAW DQ1.26: Radium

“[T]he pursuer must …

[i] bring them into his power and control, and

[ii] so maintain his control as to show that he does not intend to abandon them again to the world at large.”

We’ll work with this test and leave other plausible rule & policy

arguments from Shaw for you and DFs



[i] bring them into his power and [i] bring them into his power and controlcontrol, and


Apply to Liesner (trial court facts):Mortal Wound + Vigorous Pursuit +

Escape Improbable




[ii] so maintain his control as to [ii] so maintain his control as to show that he does not intend to show that he does not intend to abandon them again to the world at abandon them again to the world at large.” large.”

Apply to Liesner (trial court facts):Mortal Wound + Vigorous Pursuit +

Escape Improbable



[i] bring them into his power and [i] bring them into his power and controlcontrol, and


Apply to Pierson facts.




[ii] so maintain his control as to [ii] so maintain his control as to show that he does not intend to show that he does not intend to abandon them again to the world at abandon them again to the world at large.” large.”

Apply to Pierson facts


Should the result in Shaw be the same if the fishermen used a sunken boat sunken boat

instead of a net to trap the fish? Assume the boat retains the same percentage of fish that

enter it as the net in Shaw. (E.g., <4% of fish that enter escape both nets & boat)


Marking/Notice of Claim to Others is an important recurring policy concern•See Shaw test part 2: “maintain his control as to show that he does not intend to abandon” •See Pierson: Mortal wounding + pursuit OK because hunter “thereby manifests an unequivocal intention of appropriating the animal”


Nice Additional Policy Reason to Treat Sunken Boat Differently

(Griffin-Fall ’12 & Kasdin §D)

•Net is easily visible (28-foot square & top 4 feet above water)•Sunken boat may not be visible so may be safety hazard to lake traffic if not very well marked•May not want to reward trap that is dangerous to humans


Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw?

Why is this a useful exercise?•Explain unreconciled cases•In court or legal memo•Ideally reconciles cases AND shows that your side wins


Can you frame a single rule that makes sense of the results in Pierson, Liesner, and Shaw?

•We’ll look at two student submissions • For substance• For clear concise writing• I’ll go a little quickly b/c you can review

slides in more detail later


STUDENT #1: Property rights to a wild animal occur when a pursuer, who continues to pursue the animal and has no intent of releasing him back into the wild, has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.


STUDENT #1: Property rights to a wild animal occur when a pursuer, [ii] who continues to pursue the animal and has no intent of releasing him back into the wild, [i] has substantially rid the animal of his natural liberty as to render escape highly unlikely under normal circumstances.

Note normal chronological sequence.Note normal chronological sequence.


Property rights to a wild animal occur when a pursuer …

A pursuer acquires property rights to a wild animal when the pursuer…

Eliminating passive voice.Eliminating passive voice.


A pursuer acquires property rights to a wild animal when the pursuer…

[i] has substantially rid the animal of his natural liberty as to render escape highly

unlikely under normal circumstances.


A pursuer acquires property rights to a wild animal when the pursuer… [i]

(a)has substantially rid the animal of his natural liberty

Need both (a) & (b)?Need both (a) & (b)? (b) as to render escape highly unlikely (c) under normal circumstances.


A pursuer acquires property rights to a wild animal when the pursuer… [i]

(a)has rendered escape highly unlikely (b) under normal circumstances. (Very (Very clever idea)clever idea)


A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered escape highly

unlikely under normal circumstances; and [ii]

(a) continues to pursue the animal and (b) has no intent of releasing

him back into the wild,




(a)continues to pursue the animal (Do you want to require (a) for traps/nets?)(Do you want to require (a) for traps/nets?)

and (b) has no intent of releasing him back into the wild




(a)continues to pursue the animal and

(b) has no intent of releasing him [it] [it] back into the wild (Do you want test of pure (Do you want test of pure intent w/o actions?)intent w/o actions?)


A pursuer acquires property rights to a wild animal when the pursuer [i] has rendered

escape highly unlikely under normal circumstances; and [ii]

continues to pursue the animal or to otherwise show he has no intent of releasing it.

Takes care of traps & eliminates test Takes care of traps & eliminates test based on pure intent. based on pure intent.


STUDENT #2: A wild animal is deemed property of a person pursuing it if he through his actions made escape of the animal highly unlikely and through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.


STUDENT #2: A wild animal is deemed property of a person pursuing it if he

[i] through his actions made escape of the animal highly unlikely and [ii] through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.

Pronoun problem plus passive voice.Pronoun problem plus passive voice.


• A wild animal is deemed property of a person pursuing it if he …

• A person acquires property rights in a wild animal if he …

1. through his actions made escape of the animal highly unlikely and

2. through his actions has substantially decreased the likelihood of escape since the outset of the pursuit.

How else would you accomplish these tasks?How else would you accomplish these tasks?


A person acquires property rights in a wild animal if he …

1.made escape of the animal highly unlikely and

2.has substantially decreased the likelihood of escape since the outset of the pursuit.

Interesting idea, BUT Interesting idea, BUT •Hard to proveHard to prove•Not clear would lead to Not clear would lead to Pierson Pierson resultresult•Not clear how would apply to traps/netsNot clear how would apply to traps/nets


I’ll do a more extensive write-up of the submissions from this & prior years and

put in a future Information Memo.

Qs on DQ1.28?

DQ1.29-1.31: KryptonDemsetz Excerpt

•DQ1.29(a) & (b) = Exercise re Shaw Facts to Introduce Concepts•DQs 1.30-1.31 on Introductory Paragraphs of Excerpt

STATE v. SHAW DQ1.29(a): Krypton

Assume net-owners have no enforceable rights in fish caught in their nets until they physically remove the fish from the nets. Thomas chooses

to take fish from the owners’ nets.

•Who is affected by this decision?

•Which of these effects is Thomas likely to take into account when deciding whether to take the fish?

STATE v. SHAW DQ1.29(a): Krypton

Thomas Likely to Consider

• Own Exertions/Cost of Equipment, etc.

• Benefits to Dependents• Benefits to Likely

Purchasers

Likely Externalities• Costs to Net-Owners,

Their Dependents, Their Purchasers

• Costs to Net Manufacturers

• Effect on Ecosystem (note might be benefits if “theft” discourages use of big nets)

MUSIC: The Beatles MAGICAL MYSTERY TOUR (1967) §B Lunch Wed Sep 10 Meet on Bricks @ 12:15pm Gil * McLaughlin Martinez * Morales Pope * Randolph * Rose.

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