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MUSIC: Gilbert

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Title: PowerPoint Presentation Author: Fajer, Marc A. Last modified by: Fajer, Marc A. Created Date: 9/18/2012 6:49:17 PM Document presentation format – PowerPoint PPT presentation

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Title: MUSIC: Gilbert


1
MUSIC Gilbert Sullivan PIRATES OF PENZANCE
(1879) Welsh National Opera Charles Mackerras,
Conductor Recording 1993
2
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Taming (or Other Investment in Animal)
  • Marking (or F Likely Aware of OO)
  • Emotional Bond
  • Short Time/Distance from Escape

3
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Taming (or Other Investment in Animal)
  • No Evidence of Taming/Training
  • Probably Significant Investment
  • Might be Important under Manning
  • See Reference to Menagerie Animals
  • No Evidence of Emotional Bond

4
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Marking Blemishes
  • As I.D., Probably Better Than Crest
  • More Permanent
  • Others Unlikely to Have Same
  • As Notice to Finder, Probably Weaker
  • Could Occur Naturally in Wild
  • Unless Scarring Pattern Unnatural (E.g.,
    Imprint of Collar or Net

5
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Short Time/Distance from Escape
  • Escape a few days after OO regained it
  • Cf. Manning Owned for 2 Years
  • Not Helpful to OO of Sea Lion
  • Little Additional Investment
  • No Emotional Bonding

6
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Short Time/Distance from Escape
  • 2. Captured 2 Weeks/70 Miles from Home
  • Cf. Manning 5 days/Nearby in Same Town
  • Significance?

7
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Short Time/Distance from Escape
  • 2. Captured 2 Weeks/70 Miles from Home (v.
  • 5 days/Nearby in Same Town)
  • Longer Time Distance Might Mean
  • Less Training or Likelihood of Return
  • OO Less Likely to Recover
  • Animal More Likely to Have Returned to Wild
  • BUT 70 Miles for Sea Lion Probably Much Less
    Than for Canary

8
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Short Time/Distance from Escape
  • 3. Claimed by OO 1 Year After Found
  • Cf. Manning 1 Day After Found
  • Significance?

9
OXYGEN DQ46 Applying Manning s Factors to
Facts of Mullett
  • Short Time/Distance from Escape
  • 3. Claimed by OO 1 Year After Found (v. 1 Day)
    Could Mean
  • Insufficient Pursuit by OO
  • Significant Investment by F

10
OXYGEN DQ45 Applying Manning s Factors to
Facts of Mullett
  • Short Time/Distance from Escape
  • Evidence Here
  • Escape a few days after OO regained animal
  • Captured 2 Weeks/70 Miles from Home
  • OO discovers animal about 1 year later
  • Factor Help OO Under Manning?
  • All Worse than Facts in Manning, year to discover
    may suggest weak pursuit
  • Maybe 70 miles not far for sea lion?

11
OXYGEN DQ45 Applying Manning s Factors to
Facts of Mullett
  • Factors Together
  • Taming No Evidence (But Lot of )
  • Marking Good I.D. Not Strong re Notice
  • Emotional Bond No Evidence of
  • Short Time/Distance from Escape Worse than
    Manning, Especially Year to Discover

12
OXYGEN DQ45 Applying Manning s Factors to
Facts of Mullett
  • Factors Together
  • Taming No Evidence of (though )
  • Marking Good I.D. Not Strong re Notice
  • Emotional Bond No Evidence of
  • Short Time/Distance Worse than Manning, Esp.
    Year
  • Pretty weak case for OO under Manning unless
    court considers investment very important.

13
OXYGEN DQ45 Articulating Manning
Holding Nature of the Exercise
  • Lots of Ways to Articulate Manning Holding
  • Can Include or Exclude Particular Facts
  • Can Describe Facts More Specifically or More
    Generally
  • Squirrel Hypo in DQ 45 designed to get you to
  • Play with the holding in the way that litigators
    do
  • Find one plausible version helpful to clients
    position.
  • Requested Work-Product is Simply a Version of
    Manning Holding (Helpful to Assigned Client)

14
OXYGEN DQ45 Articulating Manning
Holding Nature of the Exercise
  • Squirrel Hypo in DQ 45 designed to get you to
  • Play with the holding in the way that litigators
    do
  • Find one plausible version helpful to clients
    position.
  • Good Way to Start
  • Apply Manning Factors to Hypo
  • Determine strengths weaknesses under Manning
    of your clients position.

15
OXYGEN DQ45 Articulating Manning
Holding Apply Manning Factors
  • Taming (or Other Investment in Animal)
  • Marking (or F Likely Aware of OO)
  • Emotional Bond
  • Short Time/Distance from Escape

16
OXYGEN DQ45 Articulating Manning
Holding Apply Manning Factors
  • Taming (or Other Investment in Animal)
  • Emotional Bond
  • Responded to Name (Trained)
  • Comfort with Humans
  • OO Owned for Three Months
  • No Prior Escape Return
  • More Helpful to Amy (OO) or Brandon (F)?

17
OXYGEN DQ45 Articulating Manning
Holding Apply Manning Factors
  • Emotional Bond (Going Forward)
  • Rest of escape cases arise in commercial
    contexts (fur fox farming whaling) where
    emotional bond is not going on
  • Im not going to include emotional bond in
    applications of Manning in these contexts
  • Menagerie Animals suggests not necessary for
    Manning
  • You can bring it back for other problems we do to
    the extent you think its relevant.

18
OXYGEN DQ45 Articulating Manning
Holding Apply Manning Factors
  • Marking (or F Likely Aware of OO)
  • Recognizable from Markings
  • Comfort with Humans
  • More Helpful to Amy (OO) or Brandon (F)?

19
OXYGEN DQ45 Articulating Manning
Holding Apply Manning Factors
  • Short Time/Distance from Escape
  • Time Escape to Find Unclear
  • Distance Escape to Find Across Town
  • Time Find to OO Claim 2 Months
  • More Helpful to Amy (OO) or Brandon (F)?

20
OXYGEN DQ45 Articulating Manning
Holding Relevance of Facts
  • Helpful to A
  • Owned for 3 Months
  • Responds to Name
  • Comfortable w Humans
  • Identifying Markings
  • Helpful to B
  • Squirrel Travels Across Town
  • No Prior Return
  • 2 Months Before Found
  • Markings Not Man-Made (apparently)

21
OXYGEN DQ45 Articulating Manning
Holding Nature of the Exercise
  • Squirrel Hypo in DQ 45 designed to get you to
  • Play with the holding in the way that litigators
    do
  • Find a plausible version helpful to clients
    position.
  • Apply Manning Factors to Hypo Determine
    Strengths Weaknesses of Clients Position.
  • Try to craft holding that emphasizes strengths
    and minimizes weaknesses.

22
OXYGEN DQ45 Articulating Manning Holding
  • Sample for Amy (narrow version includes almost
    all helpful facts)
  • OO retains property rights in an escaped animal
    f.n.
  • that was previously under the owners control,
  • that responded to its name when called,
  • that had distinctive markings,
  • that had been missing for a short period of time
    and was located by the owner soon after
    arguable.

23
OXYGEN DQ45 Articulating Manning Holding
  • Samples for Amy (broader versions focuses on a
    few key facts)
  • OO retains property rights in an escaped animal
    f.n. that is
  • tamed to the extent that it knows its name and
    remembers its name after a significant period of
    time
  • tamed, trained to answer by name, and marked in
    such a way as to make identification
    straightforward

24
OXYGEN DQ45 Articulating Manning Holding
  • Sample for Amy (a little too broad)
  • OO retains property rights in an escaped animal
    f.n. if it accidentally escapes from their
    immediate possession and comes under the control
    of another person.
  • Good idea to use language from case BUT
  • No limit on time and distance
  • No reference to taming or marking
  • Looks like OO always wins case doesnt say that.

25
OXYGEN DQ45 Articulating Manning Holding
  • Sample for Brandon (narrow version includes
    almost all helpful facts)
  • OO retains property rights in an escaped animal
    f.n.
  • that was previously owned for two years,
  • that had escaped and returned before,
  • that had been missing for only a few days, and
  • that owner located day after it was found.

26
OXYGEN DQ45 Articulating Manning Holding
  • Sample for Brandon (Focusing on Time as Key
    Element)
  • OO retains property rights in an escaped animal
    f.n. that had been possessed by the OO prior to
    escape for an amount of time substantially
    greater than the amount of time the animal was at
    large and substantially greater than the amount
    of time that the animal was possessed by the
    finder.

27
OXYGEN DQ45 Articulating Manning Holding
  • Sample for Brandon (ME Conceding Taming)
  • OO retains property rights in an escaped animal
    f.n. that
  • was tamed
  • had a distinctive man-made mark
  • and was claimed shortly after escape

28
Mullett v. Bradley BRIEF KRYPTON
  • Statement of the Case
  • Mullett ???
  • sued Bradley
  • for cause of action
  • seeking remedy

29
Mullett v. Bradley BRIEF KRYPTON
  • Statement of the Case
  • Mullett, original owner of an escaped sea lion,
  • sued Bradley ???
  • for cause of action
  • seeking remedy

30
Mullett v. Bradley BRIEF KRYPTON
  • Statement of the Case
  • Mullett, OO of an escaped sea lion,
  • sued Bradley, who purchased the animal from its
    finder
  • for cause of action ???
  • seeking remedy

31
Mullett v. Bradley BRIEF KRYPTON
  • Statement of the Case
  • Mullett, OO of an escaped sea lion, sued Bradley,
    who purchased the animal from F
  • for conversion
  • seeking remedy ???

32
Mullett v. Bradley BRIEF KRYPTON
  • Statement of the Case
  • Mullett, OO of an escaped sea lion, sued Bradley,
    who purchased the animal from F, for conversion
    seeking damages.

33
Mullett v. Bradley BRIEF KRYPTON
  • Procedural Posture
  • The lower court dismissed the complaint. The
    plaintiff appealed.
  • After a Trial or on a Dispositive Motion?
  • How do you know?

34
Mullett v. Bradley BRIEF KRYPTON
  • Procedural Posture The lower court dismissed the
    complaint after a trial. The plaintiff appealed.
  • The complaint was dismissed on the merits. (Top
    p.41)
  • Statements referring to evidence and proof, e.g.,
    The evidence not only fails to show that there
    was any animus revertendi on its part, but the
    inference from the facts proven is quite the
    contrary. (Long para. mid-p.41)

35
Mullett v. Bradley BRIEF KRYPTON
  • Facts Relevant to Analysis
  • P placed sea lion he owned on island in Atlantic.
    Sea lion escaped. P made no effort to recapture
    it.
  • Fisherman found sea lion in Atlantic 2 weeks
    later, 70 miles from the island. Fisherman sold
    it to D.
  • A year later, plaintiff recognized the sea lion
    and demanded its return. D refused.
  • ADDITIONAL FACT NOT FOUND IN FACT SECTION OF
    OPINION?

36
Mullett v. Bradley BRIEF KRYPTON
  • Facts Relevant to Analysis
  • Sea lions are native to Pacific Ocean not found
    in the Atlantic.
  • P placed sea lion he owned on island in Atlantic.
    Sea lion escaped. P made no effort to recapture
    it.
  • Fisherman found sea lion in Atlantic 2 weeks
    later, 70 miles from the island. Fisherman sold
    it to D.
  • A year later, plaintiff recognized the sea lion
    and demanded its return. D refused.

37
Mullett v. Bradley BRIEF KRYPTON
  • Before Doing Issue/Holding, Well Examine the
    Three Factors that the Court adopts from the
    English Common Law

38
DQ47 Mullett Factors KRYPTON
  1. Abandonment If Abandoned, to Finder
  2. Intent to Return (Animus Revertendi/AR) If not
    abandoned animal has AR, to OO
  3. Return to Natural Liberty (NL) If no intent to
    return, and animal has returned to NL, to Finder

39
DQ47 Mullett Factors KRYPTON
  • For Each Factor, Well
  • Define Discuss How to Prove
  • Discuss Why It Is Relevant to OO/F Disputes
  • Discuss Evidence Outcome in Mullett
  • Discuss How It Would Apply to Facts of Manning
    (Next Class DQ48 Uranium)

40
DQ47 Mullett Factors KRYPTON ABANDONMENT
  • Define Discuss How to Prove
  • No Definition in Case Usually Means
    Intentionally Giving Up Property Rights in
    Something.
  • Look for act by OO indicating intent to
    relinquish ownership.
  • Negligence in caring for the animal or in
    maintaining possession is insufficient.

41
DQ47 Mullett Factors KRYPTON ABANDONMENT
  • Why Relevant to OO/F Disputes?
  • Typically, we allow people to choose to give up
    property rights if they want to
  • Maybe unfair to return to OO, esp. if F aware of
    act of abandonment or has invested in animal

42
DQ47 Mullett Factors KRYPTON ABANDONMENT
  • Evidence Outcome in Mullett
  • Evidence of Abandonment Here?

43
DQ47 Mullett Factors KRYPTON ABANDONMENT
  • Evidence Outcome in Mullett
  • Evidence of Abandonment Here?
  • Investment, but low commercial value
  • Left unenclosed on island
  • No pursuit (BUT court says reasonable to think
    hopeless)
  • Outcome in Mullett?

44
DQ47 Mullett Factors KRYPTON ABANDONMENT
  • Evidence Outcome in Mullett
  • Outcome in Mullett?
  • Counsel for the defendant suggested that the
    animal had been abandoned by the plaintiffs . It
    is, however, unnecessary to pass upon this, in
    view of the conclusion to which we have come that
    the plaintiff had lost his right of property in
    the sea lion because it had regained its
    natural liberty without any intention of
    returning. (Last para.)

45
DQ47 Mullett Factors KRYPTON ANIMUS
REVERTENDI (AR)
  • Define Discuss How to Prove
  • Animus Revertendi is Intent to Return in
    Latin. In this context, means animal out of OOs
    immediate control intended to return home
  • How do you prove what goes on in mind of animal?

46
DQ47 Mullett Factors KRYPTON ANIMUS
REVERTENDI (AR)
  • Define Discuss How to Prove
  • Animus Revertendi is Intent to Return
  • Blackstone Can only show by usual custom of
    returning.
  • Why Relevant to OO/F Disputes?

47
DQ47 Mullett Factors KRYPTON ANIMUS
REVERTENDI (AR)
  • Why Relevant to OO/F Disputes?
  • Shows labor/training by OO
  • Shows connection betw OO and animal
  • Reasonable for OO to let loose
  • Evidence in Mullett?

48
DQ47 Mullett Factors KRYPTON ANIMUS
REVERTENDI (AR)
  • Evidence Outcome in Mullett
  • Evidence
  • No prior returns
  • Leaves soon after placed on island
  • Travels 70 miles in 2 weeks with no return
  • Outcome?

49
DQ47 Mullett Factors KRYPTON ANIMUS
REVERTENDI (AR)
  • Evidence Outcome in Mullett
  • Evidence
  • No prior returns
  • Leaves soon after placed on island
  • Travels 70 miles in 2 weeks with no return
  • Outcome No AR

50
DQ47 Mullett Factors KRYPTON Return to
NATURAL LIBERTY (NL)
  • Court Defines NL
  • NL that which the animal formerly enjoyed,
    namely, to provide for itself, in the broadest
    sense which the phrase may be used.
  • Regained NL when, by its own volition, it has
    escaped from all artificial restraint and is free
    to follow the bent of its natural inclination.
  • How Would You Prove?
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