ELEMENTS EG: INFORMATION MEMO #6 (11/2/08)

(A) Information About the Final Exam and Preparation

1. Exam Format: The exam is three hours long and consists of three questions. You will have 45 minutes to read, outline and take notes without writing in bluebooks or on the computer screen. You then will have two hours and fifteen minutes (45 minutes per question) to write your answers. The exam is closed book, but an edited copy of the syllabus will be attached to help you remember case names, etc. On the next two pages of this memo, you can find copies of the instruction page of the exam and of the syllabus that you will be attached.

2. Old Exam Questions. In prior years, I have allowed students to turn in one sample answer to an old exam question for my comments. Last year, this took up about a solid week of my time. Unfortunately, this year, with the amount of grading I must do for my workshop, I will not be able to review written exam answers and get their grades and yours in on time.

Instead, if you do an old exam question under exam conditions, read through the comments and model answers that I’ve posted for that question. Then, if you have specific questions about your work or about the posted information, bring them to office hours or send me an e-mail and I will do my best to answer them.

3. Review Session: I will hold a review session on Friday night, December 11. I’ll post the time and place on the course page as soon as I have the information. During the review session, I will talk about each of the three types of questions on the exam, outline what I am looking for, and identify common mistakes from past tests. I then may go over some substantive material if I perceive from questions in the reading period that review/clarification would be helpful. After that, I’ll stay as long as you want and take your questions. The review session will be taped and made available through the course page for those of you who cannot attend.

4. Office Hours/E-Mail Contact: My office hours are posted on the course page. As always, there are no sign-ups; I see people on a first-come first-served basis. If you send my questions via e-mail, I will answer you as soon as I can, but live people in the office have priority. I will not accept questions in any form after 6:00 p.m. on December 12, although I will finish answering e-mail questions that were sent before that time.


Anonymous Grading Number:

UNIVERSITY OF MIAMI SCHOOL OF LAW

Elements EG Professor Fajer

Final Examination (Sample Draft) December 13, 2009

INSTRUCTIONS

1. Write your anonymous grading number at the top of this page. Read all other instructions before beginning.

2. This is a closed book exam. You may not use or consult any outside materials of any sort during the exam.

3. You will have three hours to complete your work on this exam. During the first forty-five minutes, you should read the exam materials and you may make notes on scrap paper or on the exam itself. Bluebooks will not be distributed and laptop users may not begin using their laptops until the end of the first forty-five minutes.

4. I will not grade material written on scrap paper or on the exam itself. I will grade only material written in the bluebooks or typed on your laptop during the final two hours and fifteen minutes of the exam.

5. The exam consists of three questions; you must answer all of them. The questions will be weighted equally, so use your time accordingly. I have designed the test to give you roughly forty-five minutes to write your response to each question. You may not have enough time to answer each question exhaustively; do the best you can.

6. If you are handwriting the exam, start each question in a separate bluebook. On the cover of each bluebook write your anonymous grading number and the question number (e.g., "Question II" or "Question III continued"). Write only on one side of the page and write legibly. If your handwriting is large or difficult to read, write only on every other line. Illegible portions of the answer simply will not count.

7. If you are typing the exam, put the answer to each question on a separate question tab and type the question number at the beginning of each answer.

8. Please read each question carefully. You may receive less credit if you disregard any part of the instructions or any of the material presented in the question.

9. Your grade will be determined by both the breadth and depth of your analysis and, in part, by how well you present it (conciseness, clarity, and organization). If you are pressed for time, you may wish to put the end of your answer in outline form. While you will receive some credit for issues you clearly identify in this manner, you will receive less credit than you would if you fully analyze the issues.

10. If you think you need to make assumptions in order to answer a question, please identify the assumptions you make. (E.g., "Assuming the ghost in Room 209 stops whistling , ... .")

11. Good Luck!


ELEMENTS EG: FALL 2009 SYLLABUS (For Exam Purposes)

I. THE COMMON LAW OF PROPERTY RIGHTS IN WILD ANIMALS

A. The Rule of Capture

1. Pierson v. Post (N.Y. 1805)

2. Liesner v. Wanie (Wisc. 1914)

3. State v. Shaw (Ohio 1902)

4. Demsetz, Toward A Theory of Property Rights

B. Escaped Animals

1. Mullett v. Bradley (N.Y. App. 1898)

2. Manning v. Mitcherson (Ga. 1882)

3. E.A. Stephens & Co. v. Albers (Col. 1927)

4. Kesler v. Jones (Ida. 1931)

II. EXTENSION BY ANALOGY

A. Whaling Cases

1. “Escaping” Whales

a. Taber v. Jenny (D. Mass. 1856)

b. Bartlett v. Budd (D. Mass. 1868)

2. Whales and the Rule of Capture: Swift v. Gifford (D. Mass. 1872)

3. Putting It Together

a. Ghen v. Rich (D. Mass. 1881)

b. Rose, Possession as the Origin of Property

B. The Law of Oil & Gas

1. The Rule of Capture: Westmoreland & Cambria Natural Gas Co. v. DeWitt (Penn. 1889)

2. “Escaped” Oil & Gas

a. Hammonds v. Central Kentucky Nat’l Gas Co. (Ky. 1934)

b. White v. N.Y. State Natural Gas Corp. (W.D. Penn. 1960)

III. CONSTITUTIONAL PROTECTION OF PRIVATE PROPERTY

A. Getting Started

1 Hadacheck v. Sebastian (U.S. 1915)

2 Academic Perspectives I: Joseph Sax

B. The 1920s (and More Academic Perspectives)

1. Pennsylvania Coal Co. v. Mahon (U.S. 1922)

2. Academic Perspectives II: Richard Epstein

3. Miller v. Schoene (U.S. 1928)

4. Other 1920’s Takings Cases

a. Euclid v. Ambler Realty (U.S. 1926)

b. Nectow v. Cambridge (U.S. 1928)

C. Adding Complexity

1. Academic Perspectives III: Frank Michaelman

2. Penn Central Transportation Co. v. New York (U.S. 1978)

3. Academic Perspectives IV: Bruce Ackerman

(B) Review Problem #2: Comments/Best Answers From Prior Years’ Written Submissions

There were three years when I gave this assignment as a graded written project. These comments & best answers come from those submissions. The Fact Patterns identified by letter refer to the following old exam questions

Fact Pattern A: Spanish Treasure

Fact Pattern C: Fern Roots

Fact Pattern D: Software Programs

Fact Pattern E: Tribal Symbols

Fact Pattern F: Jokes

General Comments

1) Exam Question I v. Exam Question II: Your task on Exam Question I will be to discuss which of the parties in the fact pattern is entitled to the property in question. The midterm and Assignments I and II all provide examples of this task. Much of your time will be spent applying legal tests and policies to the facts of the problem.

By contrast, your task on Exam Question II is to discuss whether the animals cases provide a good method for resolving problems like the one in the fact pattern. Your time should be spent making arguments similar to those you were asked to do for this assignment. Much of your time will be spent discussing why the legal tests and policies are (or are not) appropriate tools to resolve the kinds of disputes illustrated in the fact pattern. Keep in mind that the fact that you could use the animals cases doesn’t mean you should use them.

While doing Question II you occasionally may want to apply one of the rules to the facts of the problem to demonstrate whether the rule works well in that context. However, you should not be spending much of your time applying rules to facts or arguing that one of the parties should prevail. You will not receive credit on Question II for arguments appropriate to Question I.

2) Consider Fact Pattern and Similar Cases: For Question II, you should address the applicability of the animals cases not just to the specific case in the problem but to other cases of the same kind that are likely to arise. For example, when the Pennsylvania Supreme Court chose to use the animals cases to resolve Westmoreland, it did so with the awareness that it was setting precedent for a range of different kinds of oil and gas disputes.

Thus, for Fact Pattern A, you would consider whether the animals cases should apply to sunken treasure disputes generally, not just the two disputes described in the problem. Similarly, for Fact Patterns D and E, past exams, you would address the applicability of the animals cases to disputes about ownership of computer programs generally and about ownership of Native American tribal symbols generally. The wording of Question II on this year’s exam will make this explicit.

3) First Possession Issues v. Escape Issues: An important part of your analysis for both Question I and Question II of the exam is to determine whether the problem raises a first possession issue, an escape issue, or both. If the problem only raises one of the two issues, you should focus your discussion on the cases addressing that issue.

In Fact Patterns A and E, the disputes are basically escape issues. In each dispute, one of the parties had actual possession of the items at one point, then lost it. In each dispute, the finder will argue that the prior possessor lost property rights when the items escaped. Thus, you should mainly have discussed the applicability of the escape cases.

For example, suppose in discussing Fact Pattern A or E, for the subject of Argument #4, you chose the mortal wounding test from Liesner and Pierson. It would be very easy to say the test doesn’t apply well to the fact pattern because you don’t have a dispute about who first possessed an unowned item. However, this isn’t a very useful point to make because the significant question will be whether the escape cases apply.

4) Because, Because, Because …: The most important parts of your response to Question II will begin with “because.” This fact is significant to the animals cases because …. This rule will not work well because…. Rewarding labor in sunken treasure cases is important because…. This rule will create a lot of uncertainty because …, which is particularly harmful in the context of sunken treasure cases because ….

Many of you spent much of Arguments #1 and #2 describing the factual similarity or difference in great detail. Unless you think the existence of the similarity or difference is debatable, describe it quickly and spend most of your time explaining why it is important. Similarly, for arguments like #3 and #4, quickly note the rule in question, and spend the bulk of your energy talking about why it should or shouldn’t be used. A long paragraph proving the existence of a policy we’ve discussed extensively is not a good use of time on this question.

In addition, you can improve your arguments by providing reasons for your reasons:

Finder’s knowledge should not be used to decide sunken treasure cases because the original owners would always win because every finder of sunken treasure should know that it once was owned by someone else because it doesn’t appear spontaneously or grow in the sea bed. It would be bad for original owners always to win because that would insufficiently reward the finders’ labor, which would discourage potential finders. This would be bad because we should get sunken treasure to the surface as soon as possible because it often has educational and historical value that can’t be tapped in the sea and that will be lost completely if it stays in the ocean until the salt water corrodes it.

5) Include and Address Counter-Arguments: Even when you are supposed to be arguing for a particular side (as in Arguments 1-6 or Question III of the exam), you can improve your analysis by noting counter-arguments and addressing them. Thus, if you were arguing that a particular factor like natural liberty should not be used, you might say something like:

You could say that, by definition, the ocean floor is “natural liberty” for sunken treasure, and that once something falls to the ocean floor without immediate pursuit, it becomes available to the first finder. However, this seems too much of a stretch because the treasure doesn’t originate on the ocean floor or any place like it and because, unlike animals in natural liberty, any observer would be able to tell just by seeing it on the ocean floor that it had a prior owner.

6) Use Your Sources Accurately: Some papers contained incorrect information regarding the cases used. Be careful that you are quite sure about the facts, holding, and key reasoning of each case we read. I note this kind of error when I am grading and count it against you if you make a significant number of them. Three common examples: