He went through his analysis of a case from factual plane, to legal plane to public policy etc.

·  Factual disputeà research law (legal plane): we look for a rule of law that allows a cause of action and file complaintà file answerà pre-trial: discovery (production, interrogatories, depositions) also motions (to dismiss, for summary judgment, etc) All these pre trial is factual planeà trial: prima facie case is presented and rebuttedà Jury instructions on the law so the rule can be applied to the factsà verdictà appeal (factual findings not appealable, but law and application or technical issue can be appealed). When an issue is of first impression we have to look forwards, not backwards because we’re creating precedent, so we need to look at public policy (public policy plane is third plane).

So, legal analysis is being able to analyze simultaneously up and down the three planes, and back and forth the past and the present line. Important. He placed great importance in being able to do this.

After doing the analysis the issue on a brief or exam should always be a question in the legal plane. No yes or no questions. And because appeal is only a question of law, the answer should be an answer of law: find one sentence that answers the question of law. In this case, what constitutes possession.

So brief as :
facts, issue (no yes or no), rule of law created or used, public policy behind it (why?).

Property is an ex-ante area of law. Torts is a post area of law: low predictability, soft lines, fact dependant, etc. Property relies heavily on predictability, and people change their positions relying on the law: bright line rules, consistency. Lower cost of administration.

I- Principle of Acquisition

·  1-by capture: NOTE: Only applicable to wild animals where property has not been assigned yet. If you kill a dog that belongs to someone, it’s not covered by this rule.

o  Pierson v. Post: In this case, what constitutes possession.

o  Tresspass: wrongful interference with another’s property. So you need to show property. Rule says you acquire property by occupancy. That’s not disputed. What’s the issue is what constitutes occupancy and that’s the novel issue!

o  So the rule is the rule of occupancy. Occupancy gives you possession and to have occupancy you need to entrap, restrain or eliminate the natural freedom, ensnare, etc. by one not abandoning his pursuit. not merely pursue.

RULE: the three elements are:

§  Intent to appropriate to individual use

§  Deprive of natural liberty

§  Brought beast within his certain control

§  When ct explores Justinian, Barbeyrac and Puffendorf they are looking for a definition they can choose from to fit their current pubic policy.

·  Majority in this case talks about the law because it favors their opinion, dissent argues the facts because the facts tend to favor Post and that’s what his opinion was.

Principle of first in right, first in time: he who saw it first or “captured” it first gets it! Under this principle Pierson gets the fox as well, if we assume that occupancy is what the principle refers to. OR the second it gets on my land if I use Ratione Soli. In that case, occupancy attaches the moment the bird lands on my pool, then I own the bird. BUT, if you shoot it while it’s flying, can you trespass on my land to get it?

·  Western states you can trespass to hunt unless you put up signage saying no trespassing. The rule that prevailed, however, is land owners’ rights. No trespassing for hunting.

Constructive Possession: Ratione Soli:

If wild animal is on your property, then you have constructive possession over the animals on his property until the animal leaves his property. It encourages public policy that does not allow trespass. So this public policy of protecting property rights trumps the policy of maximizing fox kills.

Keeble v. Hickeringhill: Malicious interference rule.

Duck pond to catch ducks and guy goes shooting to scare ducks. Difference between this and Pierson is that in this case, the owner of the pond does this for a living, not just for recreation, so in effect Hickeringhill is interfering maliciously with someone’s trade or employment. It’s about first possession in his property. Ratione soli, although this is not mentioned in the case. The whole principle is the principle of malicious interference. As long as you’re benefiting society as a whole, you can compete in the same trade.

Difference between Pierson and Keeble: In Pierson, both are pursuing the socially desirable case, in Keeble , only one of them is pursuing the socially desirable case. Distinguishable case.

Hypo of the surf and sand law school: ok to do because even if your intention was to maliciously interfere with Santa Clara, you are still serving a public good by educating people. Even if you stand out there with sign on SCU grounds recruiting, you’re promoting competition, therefore anything that informs the public and furthers competition is ok. Even if you undersell your product at beginning to get it started. BUT if you continuously undersell, you get into issues of antitrust.

Animus Revertendi: Animals that are not wild. Tamed. Intent to return to the owner. Domesticated animals may not be subject to the rule of occupancy. You should visibly tag or identify the animals. Branding gave notice to the hunter. Constructive notice is ok. Some courts say that tamed animals behave differently and a good hunter would know, so that would qualify as constructive notice. Under law and economics, you would create an incentive for the owner to avoid the problem by tagging the animals. That would minimize the lawsuits by creating a brighter rule.

Property rights are relative: exercise of the captured fox on land of O. O owns fox under Ratione Soli. T owns it under occupancy and T1 steals it back and now owns it under occupancy as well. O, as first in line, owns the fox. So property is relative depending as to who you want to establish your right.

Self help is bad because it led to killing of people for trespassing, so it is no longer allowed. Now you need to take people to court to recuperate your fox.


Exercise on escaped fox from your property taken by hunter: when does occupancy end? When is it wild again? When you lose control of it? When it is no longer under your control AND it has returned to its natural habitat. Is it reasonable to believe that someone else brought it here? If so, you cannot kill it and keep it.

Moore: spleen guy whose cells were harvested without his knowledge as they took his spleen and UCLA develops a line of cells and patent it and sell them, but eventually it lost money, but at the time, they thought it was worth billions and he wants a cut. He was never told and never had informed consent. He sues for conversion: someone takes your property with the intention of permanently depriving you of it. It’s unfair. Unfair to whom? Moore or society? If we don’t recognize his property right, it’s unfair to him but fair to society. Ct decides that for purposes of selling your cells, you don’t have a property right to your body parts. But they do rule in his favor as far as his claim for nondisclosure.

Mentioned but apparently not very important or contemporaneously valued: Bundle of rights: includes: property rights is only a bundle of rights. But recently, there has been a shift towards examining not the bundle, but the people vis a vis each other and their rights over something.

Possession

Use

Exclude others

Transfer or dispose

You can have property rights but not necessarily all the rights in the bundle. You can gift or transfer body parts but you cannot sell them. Feathers of bald eagles, ambergris (to protect whales, you cannot sell the beaks of squid that are found inside whales and are used in the elaboration of perfume). All these give you property rights over your find, but you cannot sell them by public policy to protect these animals

In Ap v. INS we see the new concept of property rights being relative as to what you’re suing for and whom.

AP doesn’t have an absolute right over the news, just as it relates to INS, because we need to recognize their work and from PP perspective we want to encourage the activity of AP. But they cannot sue you for sharing news with your neighbor.

IN Chenney bros. the silk case of the copied fabrics, we get the general rule that copying is ok because the essence of capitalism is competition, and to protect Chenney bros. would give them a monopoly. So in effect, AP is an exception to the rule of chenney even though Chenney was later. It has to do with whether tangible or intangible property is involved. When intangible (ideas, knowledge) etc are at stake, more than one person having it is beneficial to society, a tangible thing on the other hand, can be possessed by only one person at a time. (?) Confusing. Natural lead time protection issue: east v. west coast.

·  2- FINDERS: Soft fact sensitive doctrine.

Trover vs. Replevin: trover suing for damages repleving suing for the actual item back. Armory case: chimney sweep wins because he has superior rights as to the whole world except the rightful owner. Replevin is a better policy because it doesn’t split the interest, and it’s easier to administer.

Hypo of sweeper, jeweler, owner. Owner can sue jeweler, and sweep for damages or ring. If she sues jeweler, he can step into her shoes and sue the sweep for “subrogation”. Jewel was not bonafide purchaser without notice in this case.

Allocation of risk: put the burden on party who is in best position to eliminate the risk. Economic theory.

·  Thief: When you BUY from a thief, you bear the risk of loss, because a thief can never pass good title because buyer is best position to discuss title and how he came to possession of the item.

·  Bailee: hypo of wendell’s dry clean. Gemma takes her clothes there, Wendell sells them to me, Gemma voluntarily transferred possession so SHE bears the risk. She was in the best position to avoid the risk by selecting her bailee. Subsequent bona fide purchaser without notice possessor of title wins as long as there was good faith. If I suspect he doesn’t have title, I should enquire. But the burden needs to be placed on bailor.

·  Finder: where in the spectrum between bailee and thief does a finder fall? And who is the best position to avoid the risk? No clear answer. As the lawyer, you spin or characterize the event. If you lose it, it’s involuntary, so it’s more like the thief. If the other side, you argue that she was careless and we should encourage people taking care of their things better.

In theory, title is superior than possession, but it doesn’t always work: tenant-landlord cases.

Hannah v. Peel: case of the brooch found in house quartering soldiers. He gives it to police, after some years police gives it to owner of house who never lived there. Peel claims on basis of locus in quo (owner of house) Different to ratione soli (applied to wild animals, to protect property rights). Hannah claims it as a finder. Hannah, finder, sues, and after examining three other cases, judge rules for Hannah as a finder because Peel never had any knowledge about it anyway, wouldn’t have known about it, and it was not “attached” to the property. He also seemed to consider that Hannah was honest and returned it to the police in his ruling, going against two precedents and following one. Also, since he never had possession, his expectation was not as high. Finder’s rule: a man owns everything attached or under his land (title) but not necessarily what’s just lying on top of it. Ah! So what does it mean to say that something is attached? The brooch was “loose on a crevice”. If it’s loose, is it attached? If it was on the crevice, was it not attached? Did he “find” it that day or the next day when he actually took control of it and it was lying on the surface?

Ratione soli: concentrates on deterring trespass and trespassers.

Locus in quo: concentrates on protecting landowner’s expectation that anything on your land is yours, and it also sends the message to finders that deters trespass as well. Possession of land carries with it possession over anything attached to it or under it. But, title may trump possession! Court in ring case didn’t have to differentiate between title and possession because they were one and the same. So, when title and possession are vested in the same person, they own it. But when title and possession are split as in the ewes v. gas company case where they find the antique boat and court rules for landowner NOT for land possessor. Maybe because of:

Limited purpose doctrine: allows a licensee to be in a place for a particular purpose only, any other purpose would be considered trespass. Landowner’s intent which goes hand in hand with landowner’s expectations. So Ewes had a reasonable expectation as landowner and he gave the gas company possession but with a certain scope only. So as between a landlord and a tenant, does it make a difference where in the property you found it. If it’s on the ground, the owner’s expectation is bigger, than if it’s just lying on the ground. Courts have always been more protective of things buried in the ground.

Public-public, private-private, private-public: Spectrum. A park, a house, a shop. This can also affect the outcome of a case. How much of their expectation has a landowner given up by opening it to the public if he is the owner of store v. being the owner of the house. Paramount public policy: maximizing probability of return to true owner. So you reward the honorable thing done by the finder because you want to incentivate or promote the public policy, and that means reward the finder.