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MUSIC: “Crazy for You” Cast Album (1992); Music & Lyrics by George & Ira Gershwin (1918-37)
If you are taking Elements exam Friday:–Look at Info Memo #4–Office Hours Today 9:45-10:45, 5-6:30
The Logic of Albers: Critique
DQ55: Authority of Colo. S. Ct.(URANIUM) Pros/cons of allowing courts to alter/develop
law (as in Albers) v. legislature (as in Ontario)?
– Relative institutional strengths? – Democratic theory?– Certainty/notice?
The Logic of Albers: Critique
DQ55: 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.47)
CHARTING AS STUDY TOOLFACTOR MANNING MULLETT ALBERS
MARKING/FINDER’S KNOWLEDGE(FK)
Parted Crest (Man-Made, Not Permanent; Other Bird has)
Treated as Relevant
Refers to Menagerie Animals/Organ Grinder Monkey; could mean FK
Scarring (Probably not clearly man-made; likely permanent)
Not Treated as Relevant
Holds: can be NL w/o being Nat’l Habitat; could be concern about FK, but not explicit
Tattoo w #s in Ears (man-made; permanent; industry custom; i.d.s OO);
F knew of industry & that fox likely from fox farm
Treats both mark and FK as relevant
F can’t take Seal in Millpond; Bear in City; looks like FK
Has Blackstone language re mark only matters if AR
§B Mid-Semester Assessment &
Expectations for Second Half • Collective Strengths: – Application of Tests to New Facts (DQ51)– General Policy Discussions (DQ55)– Positive Energy & Group Cooperation
§B Mid-Semester Assessment &
Expectations for Second Half • Collective Weaknesses: – Getting Sloppy re Preparation & Readiness•Need to Have Notes Ready –OR- Be Able to Discuss Without Notes• Even more important that panel ready in 2d half: time tighter & others rely on you more
–
§B Mid-Semester Assessment &
Expectations for Second Half • Collective Weaknesses: – Reading Carefully• Many Submitted Briefs Pretty Weak– Errors on Basic Points– Inability to Discern What Court was
Deciding– Lot of Errors re Formatting & Parts of
Brief• Some Albers DQs
Mid-Semester Assessment & Expectations for Second Half
• Albers Rapidly Addresses Many Arguments
• Can Be Hard for 1Ls to See Significance: – What the parties had argued– Precise nature of Court’s responses
• Push yourselves to get as much as possible– For clients: You are their translators and
you will not have back-up!– For class: I will expect better going
forward.
Kesler v. Jones: Krypton(ite)
Kesler v. Jones BRIEF: Krypton
Statement of the Case:• Kesler … and the Davises… ???
• sued Jones …• for [cause of action]• seeking [remedy].
Kesler v. Jones BRIEF: Krypton
Statement of the Case:• Kesler, the owner 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: Krypton
Statement of the Case:• Kesler, the owner of an escaped fox, and the
Davises, its caretakers …
• sued Jones … ???• for [cause of action]• seeking [remedy].
Kesler v. Jones BRIEF: Krypton
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 the pelt,
• for [cause of action] ???• seeking [remedy].
Kesler v. Jones BRIEF: Krypton
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 the 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: Krypton
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: Krypton
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 the pelt, for unlawful killing of the fox and unlawful retention of its pelt [presumably] seeking damages.
PROCEDURAL POSTURE?
Kesler v. Jones BRIEF: Krypton
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: Krypton
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: Krypton
How Many Kryptons Kryptons Saw That There Were Two Issues in
Case? (Show of Hands)(Uraniums are RadioactiveRadioactive for
This Purpose and Must Be Silent and Still!)
Kesler v. Jones BRIEF: Krypton
How You Know There Are Two Issues In Case:
1. Two different kinds of legal claims addressed– Unlawful killing of fox (Q of justification for shooting)– Unlawful retention of pelt (Q of 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: Krypton
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,
so don’t have other examples to look at:
Kesler v. Jones BRIEF: Krypton
1st Issue (Unlawful Killing): Pretty General Version
• 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: Krypton
1st Narrow Holding (Unlawful Killing):
• 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 asked to help protect a neighbor’s chickens from the fox.
QUESTIONS?
Kesler v. Jones (Krypton) DQ57: Severability of Property
RightsBoth 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 the foxes, why is it legally acceptable for a third party to kill them?
Kesler v. Jones (Krypton) DQ57: Severability of Property
Rights• Can have some rights with regard to an
object without having all possible rights
Kesler v. Jones (Krypton) DQ57: 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 (Krypton) DQ57: 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
Kesler v. Jones (Krypton) DQ57: 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–You still own the cut wood.
Kesler v. Jones (Krypton) DQ57: Severability of Property
RightsHere, 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).
Could fold some of this language into issue/holding.
Kesler v. Jones (Krypton) DQ57: Severability of Property
RightsHere, 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.”
Kesler v. Jones (Krypton) DQ57: Severability of Property
RightsBOTTOM LINE
•Fox owners’ property rights limited to protect property of others (e.g., chickens)•Jones has right to kill fox, but ownership of carcass is separate issue, turning on whether fox was owned when shot. •Qs?
Kesler v. Jones (Krypton) DQ58: Factual Differences
from AlbersImportant 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 They Might or Might Not Change
Result
•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?
Kesler v. Jones (Krypton) DQ58: Factual Differences
from Albers• Identify Factual Differences Between Kesler and
Albers & Discuss Possible Significance
Start by Creating List of Differences
Kesler v. Jones (Krypton) DQ58: Factual Differences
from AlbersProbably Less Significant Differences
1.Semi-Domesticated v. Not (Only Very Mild Help in Albers)
2.Level of Security Employed by OO (Doesn’t Seem Very Significant in Albers)
3.D was F in Kesler; Bought from F in Albers: (Might matter if Q of innocent purchaser, but not true in either case)
4.Caretakers in possession rather than OO (not clear why this would effect result)
Kesler v. Jones (Krypton) DQ58: Factual Differences
from AlbersProbably Most Significant Differences
1.Kesler caretakers still in pursuit when fox killed.
2.Probably shorter time & distance from escape to kill
3.Fox in Kesler had escaped once before & been recaptured.
4.Kesler finder/defendant is not expert.
5.No evidence Kesler fox has tattoo.
6.Kesler takes place in Idaho, not Colorado.
Kesler v. Jones (Krypton) DQ58: Factual Differences
from AlbersHelp OO or F (and Why?)
1.Kesler caretakers still in pursuit when fox killed.
2.Probably shorter time & distance from escape to kill
3.Fox in Kesler had escaped once before & been recaptured.
4.Kesler finder/defendant is not expert.
5.No evidence Kesler fox has tattoo.
6.Kesler takes place in Idaho, not Colorado.
Kesler v. Jones (Krypton) DQ59: Differences in Analysis
from AlbersAlbers assumes F would win under the rule in Mullett, so it carves out an exception to that
rule for valuable wild animals. How does Kesler deal with the Mullett rule?
Kesler v. Jones (Krypton) DQ59: Differences in Analysis
from Albers
Kesler holds that the fox never returned to natural liberty because she …
“had formerly escaped and been recaptured; she had been out of her pen but a short time;
her owners were in pursuit [and] she was killed but a short distance from her pen….”
Kesler v. Jones (Krypton) DQ59: Differences in Analysis
from Albers
Note what Kesler says about Albers: “Stephens & Co. v. Albers, a case squarely in point, supports the conclusion herein ....”
[i.e., NOT the reasoning.]
Kesler v. Jones (Krypton) DQ59: Differences in Analysis
from Albers
Albers: Returns pelt to OO by rejecting Mullett rule & creating new rule for valuable animals
v.Kesler: Returns pelt to OO by applying Mullett
rule
Kesler v. Jones BRIEF: Krypton
2d Issue (Escape/Unlawful Retention):
Did trial court err in entering judgment for defendant
because … ???
Helpful to frame in terms of what constitutes return to NL
Kesler v. Jones BRIEF: Krypton
2d Issue (Escape/Unlawful Retention): • Did trial court err in entering judgment for defendant
because the original owner of a escaped fox with no intention of returning retains property rights because the fox had not returned to natural liberty, where– it had escaped and been recaptured before, – it was killed a short time and distance from its escape, and – its owners were still pursuing it when it was killed?
Kesler v. Jones (Krypton) DQ59: Differences in Analysis from
AlbersNote block quote from treatise (p.50):
Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.”
Kesler v. Jones (Krypton) DQ59: Differences in Analysis from
AlbersCompare block quote (p.50) to
Manning (p.38): Even without AR, “where the wild animals of a menagerie escape from their owner's immediate possession, it is hardly to be expected that the courts would hold that they would therefore belong to the first person who should subject them to his dominion.” v. It “is hardly to be expected … that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion.”
Kesler v. Jones : MAJOR POINTS
• Escaped wild animal Escaped wild animal not returned to natural not returned to natural libertyliberty if closely pursued with good possibility if closely pursued with good possibility of recapture (different approach than of recapture (different approach than AlbersAlbers))• Explicit relevance of pursuit, time, distanceExplicit relevance of pursuit, time, distance• Severability of Property RightsSeverability of Property Rights
QUESTIONS?QUESTIONS?
Pierson and Kesler : First Possession v. Escape
• Same terms can have different significance Same terms can have different significance depending on context.depending on context.
Pierson and Kesler : First Possession v. Escape
Same terms can have different significance Same terms can have different significance depending on context: depending on context: PursuitPursuit• Unowned AnimalUnowned Animal: Close pursuit : Close pursuit insufficientinsufficient to to
createcreate ownership. ownership.• Escaped AnimalEscaped Animal: Close pursuit : Close pursuit may be may be
sufficientsufficient to to maintainmaintain ownership. ownership.
Pierson and Kesler : First Possession v. Escape
Same terms can have different significance Same terms can have different significance depending on context: depending on context: Natural LibertyNatural Liberty• Unowned AnimalUnowned Animal: Close pursuit : Close pursuit insufficientinsufficient to to
deprive deprive animal of NLanimal of NL• Escaped AnimalEscaped Animal: Close pursuit : Close pursuit may be may be
sufficientsufficient to to prevent prevent animal from animal from returningreturning to to NL.NL.