Music: Uncle Bonsai A Lonely Grain Of Corn (1984) FYI: See Song Called “Day Old Whale”

Music: Uncle BonsaiA Lonely Grain Of Corn (1984)

FYI: See Song Called “Day Old Whale”

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: DQ81-83 (OXYGEN)•Escape: DQ 90-94 (RADIUM)•Group Assignment #3 Distributed

LOGISTICS CLASS #22• Reminder DF Session Here Today @

1:30 p.m.

• Group Assignment #2 Due Sunday @ 4 pm– Please Reread Directions Before

Finalizing

– Qs on Assignment?

• My Exam Tip Workshops Start Next Week– Try to Attend One: 10/24, 10/30, 11/1

– All from 12:30-1:50 in Room F309

Mid-September Crisis

Mid-October Crisis

Mid-October Crisis:The Upside

Mid-October Crisis:SOME ADVICE

1. Don’t Miss Classes, Even When Unprepared


1. Don’t Miss Classes

2. If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later


1. Don’t Miss Classes2. If You Get Behind in Reading, Skip Ahead to

Current Class & Catch Up Later

3. Eat, Get Sleep, Take Short Breaks


1. Don’t Miss Classes2. If You Get Behind in Reading, Skip Ahead to

Current Class & Catch Up Later3. Get Sleep & Take Short Breaks

4. Plan Catch-Up Work and Outlining for One Course Each Weekend

Mid-October Crisis: Like Doing Law School Exam Qs

• Can’t do everything as well as you’d like; do the best you can with time you have

• Be very careful not to waste time• Identify what work is most important for you

and spend time accordingly• Be realistic in your expectations; don’t get

upset that you are not superhuman.• This too shall pass!

Swift v. Gifford (Uranium) DQ71: Applying 1st Possession ACs

Pierson Majority•Mortal Wound + Pursuit Enough•Pursuit Alone Not Enough

Swift Facts•Wound + Harpoon + Pursuit

Enough under Pierson?


Wound + Harpoon + Pursuit •Falls into Gap in Literal Language of Pierson•Can resolve with other language like “deprived of NL”•Can resolve w resort to underlying policies


Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson

•Continued Pursuit Shows No Intent to Abandon– Does this pursuit + harpoon serve purpose?– F unaware of pursuit & harpoon when caught– BUT easy to determine when 2d ship arrives

•General Policy : Reward Effective Labor– Might look at how likely R was to succeed without

H– Finding of Fact was low probability, so maybe no

reward

•Certainty: Clearer Rule than 1st Kill (Ford)


Overall: Looks Like Testable Hypo•Wound + Mark (iron) probably make this stronger case for 1st Hunter than Pierson•Clearly less good control than Liesner boys or net-owners in Shaw.

Leave to you other arguments from Shaw, Pierson, Liesner

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law?

• Custom: 1st iron holds whale if claim made before whale cut.

• Stronger for 1st ship than version of custom discussed in Taber & Bartlett–Whale can be still alive/swimming (v.

adrift)– 1st ship just has to get harpoon to stick

(v. kill)


• Swift decides to treat custom here as binding law and provides an important discussion explaining its decision. – v. Pierson (custom ignored)– v. Bartlett (says likely wouldn’t adopt as

law)


Swift decides to treat custom here as binding law and provides an important

discussion explaining its decision.

DQ73. What problems with using custom as law does Swift recognize?

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law?Problems with using custom as law include:• Surprise to outsiders – Note references to LOCAL custom and to

ABUSES– Problem as commerce becomes more

widespread

• Uncertainty as to what custom is or when it applies – “loose and inconclusive customs” – “liable to great misunderstandings and

misinterpretations”

• Custom may be unreasonable

Swift v. Gifford (Uranium) DQ72-73: When Should Custom Become Law?Problems with using custom as law include:• Surprise to outsiders• Uncertainty as to what custom is or when it

applies

• Custom may be unreasonable– See Bartlett–Note discussion on p.64 re what laws

can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”


Problems with using custom as law include:• Surprise to outsiders• Uncertainty as to what custom is or

when it applies • Custom may be unreasonable (see

Bartlett)

With these in mind, court gives us a list of considerations to use when deciding

whether to treat custom as law.


Should Custom = Law: Swift Considerations

1.Doesn’t affect outsiders2.Used by entire business for a long time (equivalent of a contract)3.Where legal rule is hard to apply here, use of custom may prevent quarrels 4.Custom is reasonable

We’ll describe each and apply to Swift and to hunter’s customs noted in Pierson.


(1) Doesn’t Affect Outsiders•DQ72: Describe each consideration noted by court and explain how it applied in Swift.


(1) Doesn’t Affect Outsiders•Usage here is “not … open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.” p.64

•DQ73. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?


(2) Used by Entire Business for a Long Time (Equivalent of a Contract)

•DQ72: Describe each consideration noted by court and explain how it applied in Swift.


(2) Used by Entire Business for a Long Time (Equivalent of a Contract)

•Custom here “embraced an entire business, and had been concurred in for a long time by every one engaged in that trade.”



(3) Legal rule may be hard to apply, so use of custom prevents quarrels

•DQ72: Describe each consideration noted by court and explain how it applied in Swift.


(3) Legal rule may be hard to apply, so use of custom prevents quarrels

•May be harder to determine 1st killer than 1st harpoon.•“Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. “ (p.64)



(4) Custom is Reasonable•DQ72: Describe each consideration noted by court and explain how it applied in Swift.


(4) Custom is Reasonable•Contrasts custom proposed inBartlett with custom at issue in Swift.

•Why is Judge Lowell especially authoritative on meaning of Bartlett?


(4) Custom is Reasonable•He wrote it: “I there intimated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances.” •Leave for you arguments about reasonableness of hunters’ customs in Pierson.

Swift v. Gifford (Uranium) DQ74: Unpublished Opinions

In deciding to treat custom as law, Swift relies on an unpublished opinion on point cited by one of the parties.

Problems with doing this?


Problems with relying on unpublished opinion

•Lack of notice to other party (paid costs here).•Lack of notice to others affected.•Unpublished may mean court doesn’t want it used as precedent.

Problems sufficient to justify blanket rule against doing this?


Problems relying on unpublished opinion include:•Lack of notice to other party.•Lack of notice to others affected.•Unpublished may mean court doesn’t want it used as precedent.

Note that if opinion unpublished b/c easy application of existing law, problems don’t arise

(can just rely on that existing law)

Swift v. Gifford (Uranium)

QUESTIONS?

You Are Now Swift-BoatVeterans

Ghen v. Rich (KRYPTON) We move from the North Pacific to Cape Cod Massachusetts (and to Cranberry Headings)

Ghen v. Rich (1881) Historical Context: Next Class For All

Taber = 1856; Bartlett = 1868; Swift = 1872Two Significant Events Probably

Relevant to Timing of Dispute Being Litigated inGhen:

1.U.S. Civil War2.Completion of Transcontinental Railroad

Ideas About Why Relevant?

Ghen v. Rich (KRYPTON): DQ77Special Assignment

Published Ghen Brief now on Course Page.

•In the brief, try to identify as many mistakes and questionable statements about the case as you can. •Don’t worry that their briefing form is different from ours.•Work-Product = Annotated Copy of Brief

Ghen v. Rich (KRYPTON): DQ77

Special AssignmentE-Mail to Me by Tue Oct 23 @ 9

pm B1 KRYPTONS

• Garcia, Raul• Mena, Lexi• Shannon, Kerry

B2 KRYPTONS

• Briggs, Brandon• Ercolani, Brianna• Newingham, Alison

Documents

Music: Uncle Bonsai A Lonely Grain Of Corn (1984) FYI: See Song Called “Day Old Whale”