ELEMENTS EH INFORMATION MEMO #7 (11/19/07) ASSIGNMENT III: COMMENTS BEST STUDENT ANSWERS FROM PRIOR YEAR

(A) 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 kindthat 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 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 more recent exams (including this year’s) makes 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 Pattern E, the dispute is basically an escape issue. One of the parties had actual possession of the items at one point, then lost it. 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 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 students 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:

[Fact Pattern A]: 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:

[Fact Pattern A]: 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 be seeing it on the ocean floor that it had a prior owner.

6) Use Your Sources Accurately: Some of your papers contained incorrect information regarding the cases you 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:

(a) Mullett noted the Blackstone rule that gives abandoned animals to the finder and that the defendant claimed that the plaintiff had abandoned the sea lion. However, it did not rule on that claim. Thus, it is incorrect to say that Mullett held or found that the sea lion had been abandoned. Similarly, it is possible to distinguish Mullett from Albers and Kesler because the time and distance involved were much greater in Mullett. However, Mullett never says anything at all about time or distance having legal significance. Thus, you shouldn’t say that time or distance were part of the holding or the rationale of Mullett.

(b) One of the many facts listed as relevant in Manning is that the canary escaped once and returned. However, the court nowhere mentions the concept of animus revertendi nor does it single out the return as more important than any other fact in the problem. Indeed, given the examples it discusses, issues like labor and finder’s knowledge seem more important. Thus, you cannot say that the court returned the canary to the owner because of animus revertendi, or that it held or even stated that animus revertendi was an important factor. At most, you can say that it seems to be one of the factors the court considered and that Albers reads Manning (I think without much support) as resting on that factor.

(c) Many of the animals cases provide support for the idea that rewarding some kinds of useful labor is important. However, not a single case determines property rights by explicitly comparing the labor of the two parties. Indeed, in the escape cases, no mention is ever made of the finder’s labor at all. However, many of you stated or suggested that the party who did the most (or the best) labor should always win. Not only is this proposition unsupported by the language of the cases, it doesn’t fit the holdings well either. For example, the losing parties in both Mullett and Swift almost certainly performed more (and more useful) labor than the winners. You still can argue that we should look at the finder’s labor or compare the labor of the parties. You can note, for example that both Rose and Demsetz talk about the importance of protecting finders from engaging in wasteful labor. You can argue that the logic of the labor arguments in the cases suggests that the labor policy be extended beyond what the cases say explicitly. But you can’t attribute comparative or finder’s labor arguments to the cases themselves.

7) Simplify Your Writing: Many of you regularly use lengthy uncommon words, legalistic phrases and complex sentence structure. As a result, much of your writing is difficult to understand. I particularly dislike the use of phrases taken directly from the reading but used out of context in a way that suggests you don’t understand them. If you are trying to impress me with the sophistication of your vocabulary, you are failing.

Good writing is easy to understand. Develop a reader-friendly style. Use short simple sentences. Use active voice. Don’t use words unless you are sure of their meaning. This is particularly important for exam writing. You will have no opportunity to explain yourself if I can’t follow your reasoning. I will spend only a limited time puzzling over the meaning of obscure sentences before I will move on without giving you credit for what might have been a very good idea.

(B) Arguments 1 & 2

1. Choose one factual similarity between situation described in the Fact Pattern and the situations typically governed by the animals cases. Explain why that similarity suggests that the animals cases are a good tool for resolving the issues in your Fact Pattern.

2. Choose one factual difference between situation described in the Fact Pattern and the situations typically governed by the animals cases. Explain why that difference suggests that the animals cases are not a good tool for resolving the issues in your Fact Pattern.

Comments

1) Facts v. Legal Tests: The most common error in this section was that people focused their arguments around one of the legal tests and not around facts. A factual similarity or difference is one that you could have recognized before you went to law school. Animals move; treasure doesn’t. Most animals are worth a lot less than a chest of gold. Most animals do not have historical value. This kind of argument is on the right track if it begins with a statement describing a fact about animals or the animals cases and comparing it to a fact about sunken treasure. If you begin with a legal test, you are off track. If you are applying a legal test to the facts, you are off-track.

2) Use Facts Common to a Group of Cases: Some of you compared the facts of one of the animals cases to the facts of the hypo. That kind of argument belongs in Question I. Here, you should compare a fact that is common to a group of animals cases (animals move around) with a fact that would be typical of sunken treasure cases (most valuable treasure is too heavy to float and so doesn’t move around). Because you are trying to determine whether a set of rules designed to deal with a large group of cases about animals should apply to sunken treasure cases, the facts that matter are those that are typical of many animals cases or many sunken treasure cases.

3) Look for Interests Not Addressed in Course Materials: Keep an eye out for concerns that are very different from any we’ve discussed. These are obvious sources of this type of argument. With the Tribal symbols in Fact Pattern E , an important difference was the religious significance. With the plants in Fact Pattern C, it was the medical value of the roots. Discuss whether the animals cases are appropriate for dealing with these very different kinds of concerns.

(C) Arguments 3 & 4

3. Choose one legal test or factor that is used in the animals cases. Explain why it is a sensible test or factor to use to help resolve the issues in your Fact Pattern.

4. Choose one legal test or factor that is used in the animals cases. Explain why it is not a sensible test or factor to use to help resolve the issues in your Fact Pattern.

Comments

1) What Makes Use of a Rule Sensible? Among the many kinds of arguments you could use, here are three that lawyers frequently employ:

a) ease of application: If you find it very difficult to employ the rule in the new context, that suggests that there might be better rules to employ. That said, ease of application by itself is not much of a reason for using a rule. Almost any property dispute could be easily settled with a coin flip, That doesn’t mean it is a good idea to do so. Many of you argued that a rule could be used, therefore it should be used. You need to defend it with more substantive argument.

On the other hand, you should not toss a rule out because you don’t immediately see an obvious application. Students frequently argued in #4 that there was “no way to use” a particular factor. That rarely is true. Use your imagination and explore ways to make the rule work for you as the courts did in Westmoreland and Hammonds. Moreover, don’t make arguments that say use if the animals cases is nearly impossible based on a fact like “the property at issue here is not alive” that also was true for oil & gas.

b) purpose of rule relevant: See if the reasons underlying the rule are relevant to the new situation. For example, if the natural liberty is designed to deal with the fact that an animal can return to a state where it is indistinguishable from many unowned animals, it may not make sense to use it for treasure, which never ends up in a place full of nearly identical chests of coins. On the other hand, if it is a way to think about whether the owner has taken sufficient care of the property, you might want a test that would distinguish between more responsible treasure losers and those who let it get too far away or failed to pursue adequately.

c) produces desirable results: See if the rule as applied to a typical fact pattern yields results you think are good. For example, as noted above, in Fact Pattern A, finder’s knowledge arguably will always point to the owner. If you think that colonial powers like Spain should not be rewarded for theft of cultural items, you won’t want to use this rule. If you think that any owner of identifiable property should get it back, you might think this was a great rule.

2) Dealing with Custom: Ghen and Swift provide several tests for when courts should treat custom as law. You can evaluate these tests using the structure of arguments #3 and #4. However, you should be careful about treating, “Apply industry customs” as though it was a rule common to all the animals cases. Remember in Bartlett, the court explains that it would not apply a supposed custom and the Pierson majority implicitly rejects the dissent’s suggestion that it rely on hunter’s customs.

3) Marginal Rules: Some rules discussed in the animals cases are never actually applied by any of them. Others can be formulated in ways that sound different from any rules explicitly used by those cases, but are substantively similar. Do either type count as animals cases rules? My answers for some of the most commonly cited:

a) Ratione Soli: Yes. It is an important assumption of the animals cases and clearly it is sometimes used to determine property rights to animals.

b) Salvage: No. I’d like you to treat salvage as an alternative. The whaling cases never actually use it and we have no evidence of it ever being used for animals.

c) First to complete project or make idea marketable/successful: Several of you proposed (as alternatives) rules that basically give property rights to the first person to complete a specified part of the process beyond the very first steps (e.g., re jokes or software). These rules seem to me to be variations on Pierson’s “pursuit is not enough” and “mortal wounding” rules. I would treat these as plausible applications of the animals cases rather than as alternatives.

(D) Arguments 5 & 6

5. Choose one alternative method (i.e., different from the animals cases) of resolving the issues in the fact pattern.. Explain one reason why the animals cases might be superior to the alternative as a method of resolving the issues in your Fact Pattern.

6. Choose one alternative method (i.e., different from the animals cases) of resolving the issues in the fact pattern.. Explain one reason why the animals cases might be inferior to the alternative as a method of resolving the issues in your Fact Pattern.