SUB-ASSIGNMENT 3B: QUESTION 1 & 2 (Useful Factors)

SUB-ASSIGNMENT 3B: QUESTION 1 & 2 (Useful Factors)

I sorted your arguments by the factors that you chose as subjects. The first arguments under each heading were the best of that category. The rest are in no particular order.
I used red ink [pixels?]for any passages in your arguments that I thought were more appropriate for Q1 than for Q2/this assignment. As you will see below, there’s a lot of red.

Return to Natural Liberty (1 Submission)

QUESTION 1: Submission: Team: DLM (Natural Liberty)

(A) Return to Natural Liberty would be useful for the treasure case. Precisely because animals are ferae naturae, the “return to natural liberty” principle from the escape cases is subtly relevant here.

(B) (1) Many courts extended the ferae naturae principle to minerals, forming a useful system for applying (or denying) oil & natural gas rights.

(2) By acknowledging the subtlety of the gold coins, four quartz statues, and the boat as all being essentially composed of earthly materials in the same way as animals (such as oil & natural gas),

(3) and applying this understanding to our discussion on pursuit/abandonment,

(4) we can adduce a baseline method of deciding rights to sunken treasure for resolving the specific dispute between Captain Arango and Spain.

(5) More generally, we can even apply this to potential treasure hunting disputes if it ever became industry.

(2) But strong, natural currents beneath ocean surfaces can move natural elements or the ship itself— like other metals, minerals, or wood—in similar ways to those natural forces dictating animals’ free will above ground or those sand-troubled reservoirs of minerals below.

(3) To illustrate, consider how zero countries have territorial jurisdiction over the waters covering the Santa Barbara and its contents. By comparing actual location with the previously mistaken beliefs that the Santa Barbara and its contents were somewhere near South, Central, or North America; we can reasonably infer that oceanic (or some other natural movement) previously unaccounted for may have caused the miscalculation underlying the mistaken beliefs.

(D) The benefit is that “return to natural liberty” is relatively neutral to the finder/original owner and would greatly benefit with other principles, such as the next.

QUESTION 1: Comments: Team: DLM (NL): Very Weak

Sense of Task: Pretty Good.

Q1 v Q2: Argument seems properly focused on usefulness of factor.

This Case v. All Cases: Mostly seems focused on particular case rather than sunken treasure disputes generally. Hints of broader view in (B4) and (C2)

Substantive Argument: Quite Uneven. I have little idea what you think NL means for sunken treasure and no idea why you think it’s a good idea to use it to help resolve treasure cases. (C3) suggests you might mean that treasure is at NL if natural forces move it from where it first landed on the ocean floor. If so, the consequence would be that the OO keeps property rights if it can show the treasure hasn’t moved, but the F’s rights get stronger the further away it moves. Why is that a good idea??

Accuracy/Clarity: Lots of Problems:

(B1) & (B2) Courts only extended fn idea to specific minerals (oil, gas, water), not to metals or rock and they did so because minerals fn move like animals, not because they’re all made of earthly materials
(B3): No idea what this means. Pursuit only relevant to NL in a Kesler-like case where original pursuit is ongoing when F gets animal. Almost by definition, will rarely be true of sunken treasure.
(B4) You never explain/define your baseline method or who would win.
(B5) What does becoming an industry have to do with NL? If anything Albers suggests NL is less important if there’s an industry.
(C2) Need to explain parallel more clearly. Escaped animals not primarily moved by wind, gravity, ocean currents, but by their own volition.
(C3) Nothing in the problem refers to these mistaken beliefs or supports in any way that the ship moved from where it originally sunk. It was somewhere near North America.
(D) Return to NL is not neutral, but rather strongly supports the finder, who then wins absent the additional facts found in Albers about industry and finder’s knowledge. If it’s relatively neutral, why would it be at all useful to resolve the dispute??!!

Presentation: Lots of Problems: Writing is wordy, often hard to follow, has too much passive voice. E.g.,

I don’t understand 2d sentence of (A).
(B2): What do you mean by subtlety?
(B5): Unclear what it refers to.
(C1) I know you mean that treasure is too different from animals that have free will. However, sentence as written says that, in these circumstances, animals cannot exercise free will.
(C2) As written, you say that underwater ocean currents determine animals’ free will and the movement of natural gas underground.

Rewarding & Protecting Investment, Labor, and Industry (5 Submissions)

QUESTION 1: Submission: Team: DLP (Labor/Industry)

(A) It would be useful to reward investment and labor put into discovering the treasure, because otherwise it might stay on the bottom of the ocean for an indefinite period of time. The rationale is that, similar to whales that escaped, it is better for society that the resource will be used than for it to perish, or remain uncaptured. The treasure and whales are different in that the value of the whale’s carcass would be lost forever if not captured, and the treasure will likely not disintegrate for centuries. However, if left unfound, the treasure can be considered perished, because if the finder will not have an incentive to invest in the search equipment, divers, etc. there is a high probability that the treasure will disintegrate or never be recovered.

(B) There is a strong argument for a high amount of investment and labor by Captain Arango. He invested time and money to design and build complicated equipment that enabled him to locate sunken vessels. He invested additional funds into other equipment that would enable him to conduct deep sea diving and recovery operations, and it can be fairly assumed that he employed a staff, which required time and resources to train and keep working.

(C) It could also be important to protect the industry of treasure hunting, as this industry could help discover and preserve ancient artifacts and treasures that would not only have significant monetary value, adding to the economy, but also historical value.

(D) On the other hand, Spain would argue that they spent a great deal of time and resources in first acquiring the treasure and attempting to transport it back to Spain. However, this argument is weaker because the court would likely not want to protect the investment Spain made in stealing treasure from the Mexicans.

(E) Society would likely prefer a policy that punishes thieves and rewards those who invest significant time, money, and labor in pursuing something that adds financial and historical value to society.

QUESTION 1: Comments: Team: DLP (Labor/Industry): Solid; Best Labor Argument.

Sense of Task: Pretty Good Overall: Some sense of seeking rules for treasure cases generally. Some detailed arguments tied to tightly to specific parties at (B) and (D) that look like Q1. Can fix by generalizing more about treasure hunters and colonial powers (as you do at (C)).

Substantive Argument: Quite Solid Overall. Good explanation of why good to reward hunters’ labor, particularly with reference to historic/cultural value.. Nice parallel to whaling cases especially as a way to justify rewarding F and not OO. You might acknowledge explicitly that the reward for finder’s labor comes in the whaling customs and not from the legal analysis of Taber/Bartlett, and that the rest of the ACs don’t reward F’s labor. Good explanation at (D) and (E) of why Spain’s labor might not be rewarded, that would be a little stronger if generalized to colonialist OOs generally.

Accuracy: Thieves at (E) might be a little strong, since Arango is well aware of Spain’s claim, so could be seen as a thief himself.

Presentation: Generally clear but wordy. Lot of Passive Voice!!

QUESTION 2: Submission: Team: DLM (Labor/Industry)

(A) Rewarding & protecting investment, labor, and industry would also be useful here for upholding property rights and government perceptions of fairness. For example, say the US or Spanish government simply declared ownership to the Santa Barbara and its contents or an escaped fox bred in captivity or the hunted whale on open seas. In many common law countries (and especially the US), this would constitute a taking of Captain Arango or any of these original owners’ financial investments and labor without just compensation. If the finder’s country of citizenship awarded finder’s fees at least, then unconstitutional takings could be avoided; but completely discounting this factor would surely be perilous to any democratic, common law country.

(B) But keep in mind however, that Captain Arango is not alone in his treasure hunt. Today, metal detectors have become part of a huge industry. Many coins and other treasures on battlegrounds have simply gone to finders who have invested money into the detectors and labor in their search for coins and other battleground treasures. By rewarding & protecting industry like for those who buy and use metal detectors for treasure hunting, governments could protect citizens’ interests while possibly upholding some of their relevant rights as well.

QUESTION 2: Comments: Team: DLM (Labor/Industry): Largely Non-Responsive.

Sense of Task/Substantive Argument: Weak. You were asked to discuss whether it would be useful to employ the ACs factor re labor/industry to help resolve disputes between OOs and finders of sunken treasure found in international waters. You don’t do this at all.

(A) Looked at most generously, this is a discussion of an alternative to the ACs (OO always wins or OO’s country of origin nationalizes the treasure), which would still leave it outside the scope of what you were asked to do. This analysis completely ignores what you were told to assume, which is that Spain is the OO. It can’t be a Taking for a court to decide under the ACs that the OO retains property rights any more than it was a taking for the court to return the value of the pelts to the OOs in the fox-fur cases. From one perspective, Arango is a thief who was aware of Spain’s claim and so there’s no reason to reward his labor. But in any event, nothing we’ve studied makes failure to reward labor the equivalent of taking property. Don’t try to make constitutional arguments beyond the scope of what you’ve studied. Moreover, Takings Law is a product of the U.S. Constitution, not the common law, and varies greatly even among Western democracies.
(B) The “huge” metal detecting industry you describe has nothing to do with Sunken Treasure in International Waters. Moreover, on public battlefields, these folks labor at the sufferance of the government, which could surely claim things left on its own land (by OOs long dead and mostly impossible to trace) for itself if it chose to do so. And of course, the detectors are not allowed to “find” things on other people’s private land. Finally, none of the ACs discuss protecting the F’s labor, so you’d need to explain why the ACs even address these detectors.

QUESTION 1: Submission: Team: FJRS (Labor/Industry)

(A) Rewarding & protecting investment, labor, and industry is a helpful factor in resolving disputes about the recovery of sunken treasure because the sunken treasure industry is expensive, labor intensive, and valuable.

(B) (1) Treasure entails a significant amount of labor to locate and acquire. Labor is required in establishing ownership in the treasure. For example, boats may have to travel across international waters to foreign countries, possibly fight to take possession of the treasure, and plan accordingly to transport the treasure.

(2) The labor in finding sunken treasure is equally substantial. One must research the possible location of the sunken treasure and then physically search from a boat in an attempt to detect the location of the sunken treasure. After finding the sunken treasure, there is further labor involved in recovering the sunken treasure from the bottom of the ocean. Divers and equipment must be sent down to the floor of the ocean.

(3) Here, the original owners of the treasure, did not attempt to recover the sunken treasure after the ship sunk. They have not done any labor that should be rewarded.

(C) In addition to labor, one has to make monetary investments to recover sunken treasure. In order to find sunken treasure one needs to buy a boat and the necessary technology and equipment to search for the sunken treasure. The divers must be paid to swim down and retrieve the treasure. The investment of time is also significant because recovering sunken treasure is an open-ended endeavor that can last for years.

(D) Due to the demands for investment and labor, the industry of recovering sunken treasure should be protected. If the industry were not protected, it would disincentivize people from attempting to recover sunken treasure. Sunken treasure sitting at the bottom of the ocean benefits no one. By protecting the industry, the sunken treasure would be of some use.

QUESTION 1: Comments: Team: FJRS (Labor/Industry): Pretty Good

Sense of Task:

Q1 v Q2: Mostly on task. You slip briefly into Q1 at (B3).

This Case v. All Cases: Generally Good.

Substantive Argument: Pretty Good

Good idea to delineate F’s labor at (B2) and (C), but probably a little more detail than you need and no reason to treat physical labor and monetary investment as separate categories.
Good idea to emphasize incentives to recover treasure; helpful to also explain a little more clearly why we want treasure recovered.
Helpful to be clear that ACs don’t reward labor of F and explain a little more explicitly why they should be read to do so here.
Treatment of OO labor is a little confusing. You describe it (B1) and say it is equal to F’s labor, but don’t defend that this type of labor is worth rewarding. You then say Spain didn’t do any labor worth rewarding without explaining how that relates to (B1). Finally, you don’t explain how ACs allow you to resolve a dispute where both OO and F have labored substantially. If you mean that OO loses credit for earlier labor by failing to pursue, need to be more explicit.

Accuracy: Fine

Presentation: Reasonably clear but wordy. Lot of Passive Voice.

QUESTION 1: Submission: Team:GHJP (Labor/Industry)

(A)(1) Courts deciding escaped animal cases sought to reward and protect the investment and labor of those involved in the respective industry, and the courts ought to give the equivalent rewards and protections to the finder of a sunken treasure as well.

(2) Protecting the finder of a sunken treasure would be beneficial to the public because more people would be encouraged to explore the bottom of the sea and recover items of historical and financial value, thus having a positive external effect on the general economy.

(3) As Judge Livingston reasoned in his dissent in Pierson, fewer people would be willing to make the significant investment of time, energy, capital and labor to recover these valuable items if the original owner were to have legal claim on the treasure once it was recovered.

(B) (1) In a way, analyzing labor and investment rightly serves as a starting point in the process of determining who gets property ownership over something, whether it is an animal or a sunken treasure.

(2) Courts usually give significant weight to an individual’s investment and labor and compare it against the other individual’s claim in order to make their decision.

(3) Recovering a sunken treasure will most likely require that the finder put forth a significant amount of labor and investment.

(4) Weighing the finder’s efforts against the original owner’s claim will be helpful in determining who should get property rights in sunken treasure cases.

QUESTION 1: Comments: Team: GHJP (Labor/Industry): Pretty Good Overall

Sense of Task: Good

Substantive Arguments:

(A) + (B3) = Solid argument that supporting F’s labor would be a good idea. Might be a little more explicit that ACs don’t address F’s labor, so you are extending them. Good in (A2) explaining why labor is useful. Good idea to note the need for labor in (B3) (might delineate more and might put with related argument in (A)). Good use of point from Pierson dissent.
(B1): Might defend rightly more and recognize that most ACs do not start with labor. Also, because this is an escape case, we’re really addressing Q of whether OO retains property.
(B2) & (B4):Problematic. ACs do not weigh OO’s labor against finder nor do they provide a formula for doing so. Thus, need much clearer defense of why, if you want to do this sort of balance, the ACs are useful.

Accuracy/Clarity: A Few Concerns (Couple listed under arguments)