The Law of Property: Inside the Classroom with Professor Alex Johnson
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The Law of Property: Inside the Classroom with Professor Alex Johnson


I do want to get to Armory vs. Delamirie today. I don’t want to spend a lot of time on intellectual
property but I do want to try and draw some threads together. Essentially, when you look at INS vs. AP and
Cheney Bros, and also Smith vs. Chanel, Inc., and to a lesser extent White vs. Samsung — which
I’ll talk about in a minute — we’re seeing two competing, if you will, instrumental ends. What we see in INS clearly is a notion of
what is fair. The “f-word”, which we haven’t used very much. Yet. Is it fair to allow INS to appropriate material
produced by AP? And our focus has been on efficiency. What is efficient in these situations? What causes individuals to be incentivized to
produce things, to do something that is productive for society? And essentially, with respect to the animal
cases, fairness and efficiency have lined up. They pointed in the same direction, although
Pierson vs. Post is close, especially if you think about the value of the hunt. But when you get to Keevil and some of the
other cases — basically when we talk about scaring away someone, shooting so that ducks
don’t land, killing a competitor we think those things are unfair. We also think that those things interfere
with the instrumental end. So they’ve lined up. But with respect to INS and with respect to
Cheney Bros. they start to diverge. And when you look at the language that the
Court uses in both INS, when they talk about INS reaping what they have not sown, when
the Court in Cheney Bros., at the end of the opinion, apologetically says he should have
a remedy, we should not have to turn him — him being Cheney Bros. — away because of what
Doris Silk is doing in terms of copying, they’re basically saying that this isn’t fair. And we believe that this unfairness should
provide a remedy. The problem is the fairness issue may interfere
with efficiency. And when we look at efficiency, there are
two sides to efficiency. Clearly we want to incentivize people like
AP to produce the news, we want to incentivize people like Cheney Bros. to produce new designs
and we want to reward them for their product. But there’s a flip side to efficiency which,
of course, are consumers — people who use the products. And if we give to Cheney Bros. a monopoly,
if we give to Cheney Bros. some advantage other than being first, it may interfere with
providing efficiencies to consumers. It may interfere with providing the product
at its marginal cost. It may interfere with providing consumers
with the best price for the item. And then of course, in all of this, we’re
dealing with two different types of goods. With respect to INS, we’ve got news, which
is a public good, and the Court, as we talked about yesterday, says, clearly you can’t own
the news. And it’s kind of striking, the way they describe
the lawsuit and the product. And they say, as between — and only as between
— INS and AP are we talking about this public good as being — this public right, a report
— as being quasi-property. So, as between the two of them and only as
between the two of them will we grant to AP the right — a right of quasi-property in
the news account that cannot be interfered with in the fashion that it was by AP. In most of the cases — and indeed this is
in Doris, or Cheney Bros. — we’re dealing with private goods. And with respect to private goods, the Court
is essentially saying in Cheney Bros. that there is a larger good out there — consumers
— and that the Court has no right to grant a monopoly to Cheney Bros. with respect to
the production of the design. That represents a trade-off and that trade-off
has been decided by Congress. Congress has decided which one of these rights
the individual can use to protect its property right. To provide, in certain instances but only
certain limited instances, a monopoly that’s sanctioned and legitimated by the courts,
by law. And if you do not fall within one of these
three, then we are not going to grant you a monopoly. We are not the legislature, we are the courts. We’re the wrong instrumentality to grant you
that monopoly and if you believe that this copying, be it unfair or not, may interfere
with the instrumental end, cause those not to produce the thing in question, your remedy
is not with the courts — wrong body — your remedy is with Congress. And eventually, as the notes mention, Congress
did amend and you can, in fact, patent designs of the type that were unprotected in the original
lawsuit. So the Court is saying, “We are not the right
body,” but all of this reflects the tension between these two. There has to be a balance between incentivizing
individuals and also making sure you do not create monopolies that have the effect of
harming consumers. And the first place we look to determine whether
that balance has been made correctly is Congress. If you go back to INS vs. AP — as Mr. Bellamy
,who has just come in late, has mentioned after class yesterday — one could make the
argument that it’s too broad, that INS should not have lost that case. But AP could be protected and their protection
was in being first. There’s a value to being first. And indeed there’s some hint of that in the
opinion in Cheney Bros. but the Court narrows it. They say, “we’re not going to expand the hold
in INS. It is sui generis — it is only applicable
to that fact situation, not our fact situation.” And indeed as AP developed, they developed
new models of doing business that precluded entities like INS from stealing their product
and publishing it. Eventually what happened — if you care — is
AP decided for various reasons that the best way to protect their product was to enter
into exclusivity arrangements with publishers and locales. So they could only contract with all the San
Francisco papers or none and therefore they eliminated — does that make any sense? They eliminated the competition. Also one of the big questions — and no one
raised this yesterday — and this usually comes up — and maybe because I took the case
too quickly and didn’t allow enough time for discussion — is one question that’s always
puzzled me — and I’m sure it came to your mind last night — is if INS could telegraph
a story why didn’t AP do it? And if AP had the account and if they had
it overnight, why didn’t they telegraph it at three o’clock and then post the stuff on
the bulletin board at six? Which gives them — I don’t know. We don’t know. But there are those who say, and indeed, if
you look at Douglas Baird’s article, the excerpt from the article on page 63, he makes the
cogent argument that you don’t always reap what you’ve sown and the law does not always
protect you. And the entire article is a critique that
INS vs. AP is somewhat over-broad and there are other ways of protecting AP. I would argue at the end of the day that AP
is unique. It is, as I mentioned in one of the slides,
which are up now on both INS and AP, it is probably more analogous to cable than any
other case. That the Court was really interested in protecting
the business and they thought that the news-gathering operation would be harmed, would be destroyed
if they allowed INS to continue to do what it did. And on that basis it may be something of an
outlier because it does deal with something that’s fairly unique, which is news. But when you get to private items like designs,
which are not protected by these three, Cheney Bros. vs. Doris Silk is in fact the correct
outcome because you do have this tension. And, indeed, if I had more time I have some
notes, but I won’t get in them, which you would — well, if you’re studying copyright
or patent law. What you’re attempting to do in this area
with patents, copyrights and trademarks is to provide the appropriate incentive to individuals
to be first. And there’s an argument made that with respect
to 20-year patents, 70-year copyrights, trademarks, etc., we may have provided too much incentive
because what you’re really doing is rewarding the person who is first and you should only
reward them to the extent that, well, they beat the other person. If they beat the other person in producing
an invention or patent or a drug by a week, then, really, society is only benefited by
a week and their reward should only be the equivalent of that week. But we give them instead — it’s an all or
nothing scheme — we give them instead 20 years. And there’s some fascinating hypotheticals
that I could get into but I don’t have time, most of which involve drugs like Viagra, but
we won’t go there. We’ll do this some other time. So, let us turn to the sweep: Armory vs. Delamirie. And I like to
take a very, I guess, classical approach to analysis of this case initially. What the issues were. What the facts were. How the court decided. And see if we can tease out what’s really
going on with respect to this case. So, let’s see, Ms. Fitch, can you tell us
a little bit about Armory vs. Delamirie? What’s going on here? What are the parties arguing about? So what happened? Ok, so the chimney sweep found a jewel, brought
it to a goldsmith. And the jewel was contained in what? It was in a ring. The jewel was in a ring. And why would the chimney sweep take the jewel
that’s in a ring — like the ring that I’m holding — why would he take it to a goldsmith? Yeah. Get it appraised. Now, here’s what’s kind of interesting, and
I guess this is the first question, does the chimney sweep claim to be the owner of the
jewel? Or the ring in which the jewel is contained? No. Ok. Does the goldsmith claim to be the owner of
the ring or the jewel that’s in the ring? No. Is there a true owner of the ring? Ok, so are we talking about an item that is
unowned? So when you compare this case to Pierson v.
Post, Ghenn v. Rich, Keevil vs. Hickory and Gale how do they differ? So we’re developing rules for what when we’re
talking about wild animals or fumigations resources? What are we trying to do and what’s the instrumental
end there? We’re developing rules for what? Ownership. First, possession. How do we get those things that are unowned
into the hands of private owners and allow those private owners to make that wild thing,
that unowned thing, their own, their private property, because private property, as we’ve
discussed with respect to dim sets is said to be less cost. More efficient, right? And to encourage the development of resources
as opposed to the overconsumption of resources and underproduction of resources. So when we look at the wild animal cases,
and to some extent, these cases — drugs and pets — we’re talking about creating first
ownership. And with the wild animal cases, we’re talking
about taking things out of nature that are unowned and making them owned by someone. For good and very valid reasons. But, Armory represents a shift. In Armory, we come across a case where property
— the ring — is presumptively owned by someone and that someone is not before the court. Right? Neither party is claiming to be the owner. Neither party has documents proving that it’s
the — this is my wife’s ring by the way, it’s not real. That’s cubic, but I think the gold is worth
more now — you know how gold is worth more now, it’s worth a lot of money, so I should
bring it back. Anyway, so don’t let me forget, I’m going
to give this thing to you eventually, but you have to give it back. Definitely have to give it back, for my sake. It’s owned by someone but it’s found and taken
by — is it Armory? Armory is the finder, right? Delamirie was this very famous smithy that
produces all this famous product. Takes it to the shop as you said, to get it
appraised. Then what happens? How much does he offer? By the way, it’s the goldsmith’s apprentice,
and then the goldsmith shows up, offers some money, how much does he offer? Does he offer the value of the jewel? Three half-pence. Anybody have any idea what three half-pence
is worth? Which year are we dealing with? We’re in England, we’re at the King’s Court. 1722. What is three half-pence worth? A lot of money? What do you think? Does it even sound like a lot of money? Three half-pence — nah, it’s a pittance. It’s like a dollar or two. And what does the sweep say in response to
the offer? No. Give me back my thing, right? I want my thing. Now here’s what’s kind of interesting — and
this is going to be important as we go through both this case the Winkfield Doctrine, which
is fast approaching, which is in the notes, and also in Hannah, McAvoy, in fact, maybe
throughout all these cases — when the chimney sweep gives the ring to the goldsmith and
asks the goldsmith to provide an appraisal, is that a lawful act on the part of the chimney
sweep? When the goldsmith accepts the item, takes
out the stone — whether it’s under the pretense of weighing it or actually weighing it — when
the goldsmith accepts the item, is that a lawful act? What sort of lawful act? By the way, who owns the ring during all of
this process? The true owner. Ok. So the true owner is floating out there somewhere
in Merry Old England in 1723. We don’t know who he or — it’s probably she
— but we don’t know who he or she is. But they’re not before us. So, does the goldsmith — does he commit a
trespass by accepting the ring? You know, I hand you the ring, and I say,
“please, weigh that, tell me what it’s worth.” Now, what has just happened between you and
I? I’m not giving you the ring, and you guys
are all witnesses. Did I give her the ring? Is this a gift? We haven’t talked about gifts, right. People do give things, right. But I don’t know you. Why would I give you the ring? Especially my wife’s ring, right? I’d be in big trouble. So, not a gift. And presumably we have no contract. Should I talk about oral contracts and the
statute of frauds? You don’t want to go there, right? Bad memories? Anyway, so there’s no contract. So, what sort of relationship do you and I
have? I’m the chimney sweep, you’re the smithy,
the goldsmith. You’re a professional, right. I’ve gone there and, indeed, I went there
for a purpose. Why would I go to you instead of a baker? Yeah. I mean, would I go to a candlestick maker? Why would I go to you? You’re an expert! So, what is our relationship and why is it
so important? When I hand you the ring. Have you created a tort? Have you stolen the ring when I just handed
it to you? Let me back up. Do you have a car? You drive some place — a restaurant — and
you hand the car keys to the attendant — you’ve done that? What sort of relationship do you have with
the valet? You’ve given them your car, now do they own
your car? They don’t? You’ve given them the car keys and you’ve
left the car. Understood? You just walk away from the car? And just say, “Well it’s understood, of course,
you’re gonna give me your car back.” You come back and the car’s gone. Of course, I didn’t understand that. These people are throwing around car keys,
I just happened to take one and it’s my car, right? What do you think? Ever been to a dry cleaner? What do you do with the dry cleaner? Give them your clothes? Do you expect to give them back? Based on what? You sign a contract? But you gave them your clothes. You’re entrusting them with your clothes for
a certain period of time for a limited purpose. Now this — and it’s kind of interesting that
your book doesn’t mention this — and it’s one of the — I think they missed the boat
here — this you may have talked about in torts — probably not — you do this every
day. This is a bailment. Bailments are useful. Bailments are very important in our society. Bailments occur each and every day millions
of times in the country. We’ve all engaged in bailments. And, as we’ll see as we get into these cases,
there are different types of bailments and in common law, it was very complicated. Back when I went to law school you had to
memorize the 10 or 12 different types of bailments and they caused different duties of care and
it was a pain in the you know what. Today, they’ve pretty much gotten rid of the
duties of care and the different types of bailments. But what is a bailment. How would you characterize a bailment? Entrusting for a limited purpose. You’re not conveying ownership, you’re not
conveying title, you’re not conveying a temporary use, you’re allowing the transfer, allowing
possession to shift from a to b — in this case, from Armory to Delamirie — for a limited
but useful purpose. And the limited but useful purpose is the
appraisal of the jewel to determine whether it’s in fact a real jewel or a piece of glass. That’s a bailment. And as we’ll see, bailments are efficient. We want to encourage them. If we didn’t have bailments, you would need
a contract every time you went to the dry cleaners, every time you turned over your
car keys to a valet and that would really be ultimately inefficient. So we want to encourage bailments. So what Armory did by turning over the ring
with the jewel in it to Delamirie and what Delamirie did in accepting it happens all
the time. Nothing unusual. Something you want to encourage. Then what did Delamirie do with the ring,
in offering the three half-pence or whatever? When Armory said, “I want the ring.” He kept it. He refused to return the jewel. Did he keep the ring? But what’s of value is the jewel in the socket
which is retained by Delamirie. Now, what does Armory do in response now that
goldsmith has refused to return the jewel that was previously contained in the ring? Trover. What’s trover? And what’s the alternative pleading that he
could have used in this case? Which becomes important later. Not in this case, but it becomes important
later when we talk about the true owner showing up and what happens if the true owner shows
up. What’s the alternative action he could have
played — he chose not to, it’s his choice, but he chose not to, and it could have made
a difference. Replevin. Return of the thing. And today, of course, you can plead in the
alternative, pick and choose, but here we’ve got trover, not replevin. I want the money to stand in place. There’s only one problem, is Armory the owner
of the thing? No. He’s not the owner. So what does Delamirie say in response to
the lawsuit? Does he say, “Neither of us has a true right
to the stone”? I’ve got it. I’ve got the jewel. He’s not the true owner. And by the way, if you asked Delamirie — let’s
posit a hypothetical — you asked Delamirie, “Will you turn over the ring to the true owner?” Yes. Sure. This guy’s not the true owner. So therefore I’m going to keep it. Now, this case goes all the way up to the
— which court? Yes, which is the equivalent of their high
court, the equivalent of our Supreme Court today. It’s hard to imagine a case like this, especially
being brought by a chimney sweep winding up in our Supreme Court, but it did for whatever
reason. And how does the court decide? Why? Do they claim that Armory is the owner? No. Ok. So that’s the takeaway. That’s the whole. The finder has rights against all the world
— superior rights as against all the world except the true owner. And who’s the finder in this case? And is Delamirie a true owner? No. So as between the finder and the — and by
the way, in the terminology of bailments, the person who delivers the goods is the bailor,
the person who receives the good is the bailee. So Delamirie is the bailee. So as between the finder and the bailee, who
prevails? The finder. The finder prevails. Now, do you think this — once again, using
the f-word — do you think this is fair? How many of you thought, “That damn goldsmith,
ripping off the poor little chimney sweep.” How many of you felt sympathetic to the chimney
sweep? Come on. Cute little cuddly guy. I think you like this guy. And you said, “Alright! Vindication! The chimney sweep wins!” Right? “That Delamirie overstepped his bounds, Delamirie’s
a bully, the Delamiries of the world –” I once got into a heated debate about 20 years
ago, back when this was more popular. This was really a battle between the rich
and the poor, the communists and the — anyway, it was ridiculous. Anyway, so, and I think that’s the initial
reaction. How could anyone represent Delamirie? How could anyone side with Delamirie? How could anyone even take his case? How could anyone believe that this act — this
heinous act — should be allowed by the Delamiries of the world? Before I turn to you, let me set the stage,
make your argument. What is Armory doing? What’s he doing? What’s his profession? Ok, now, so, I haven’t known any personally
but I’ve been told, how big are chimney sweeps? Smaller than me? Yes, even smaller than me, ok. I’d be a relative giant. Ok, I like that. So, smaller than me. Young or old? Young. Now, typically, what do they do, chimney sweeps,
these people? And how do they do that? They wear a hat! That dislodges the soot and everything as
they go up with brooms and everything, and what happens as they’re dislodging all the
stuff? Comes down, and falls on whom? Them. And so, not only are they small and young,
they’re very dirty, ok? Filthy. Do they come from the learned class or the
lower class? Lower class. Does one — you grow up and say, “Nothing
I like better to do with my life than be a chimney sweep.” Is that what you grow up doing? “I hope I don’t grow beyond four feet because
then I can’t become a chimney sweep.” Is that what happens? But, if it so happens that you’re small of
stature, you can fit in these chimneys, and this is your only job, this is what you do. Now, in order to clean the chimneys, you must
enter what? Where must you enter if you’re a chimney sweep? Homes, right? So, let me put myself in Delamirie’s position. In walks the sweep, three foot six, dirty,
smoky, big hat, let’s say, how old should we make him? Nah, he won’t be seven, he’ll be like 12 or
14. We’ll make him a teenager, 14. 14 years old. If you’re seven back then, you still can’t
be an adult, but if you’re 12, you can contract. And if you’re 12 back then you could sue. So he’s probably over 12. And he may have been a little person. He may have been 30. We don’t know. But we do know he’s a chimney sweep. Short of stature, filthy, lower class. He walks into the finest smithy shop in London
at the time and says what? “You found the ring? You found the ring?” What would you think if you’re Delamirie? You stole it! That little bastard stole the ring! He gets in houses, right? And presumably while the master, the house-owner
wasn’t looking, what did he do? Little five-finger discount there, take the
ring. And now he wants to, in effect, sell the ring. He’s in my shop, he has the ring, I have the
jewel, which is what’s of value, what should I do as a good citizen of London, especially
of the learned and upper class? Keep it for the true owner. Right. I keep it for the true owner. If I let this beggar, this sweep, go on his
way, what’s going to happen to the jewel? He’ll probably go and gamble it, he’s going
to shoot some dice, I don’t know. And what’s going to happen to the jewel eventually? It’s going to be lost. But, if it stays with me, me being of course
the very honest Delamirie, honest smithy, what happens? Right, now, that’s very important. Indeed, the other way you could approach this
case is: what is our instrumental end, with respect to lost goods? Things that are previously owned? Why? Why not finders keepers, losers weepers, anybody
ever heard that? Never heard that? Of course you have. Finders keepers, losers weepers, blah blah
blah. I don’t know the rest of it, but — now is
that the rule? Finders keepers? Yeah — losers weepers? Is that the rule? Do you lose your ownership interest in a thing,
personal property — real property as we’ll see is very different. So now we’re talking only about personal property. Do you lose your ownership interest when you
lose something? No. Does the finder obtain ownership simply by
finding something which is lost? No. So that little ditty is not true. And it raises the question: why not? Why don’t we have a regime in which it’s finders
keepers losers weepers? Our first instrumental end in these cases
is to get the thing back to the true owner. And it’s premised on the notion that we reject
finders keepers losers weepers. Also, and I went over this a little bit too
quickly, if you think about the case from Delamirie’s perspective, Delamirie is not
the bad guy he’s made out to be in the literature. There is as we’ve just discussed a very valid
and rational reason why Delamirie would keep the jewel from his perspective and not be
viewed as a bully or viewed as overreaching or viewed as taking advantage of the poor
chimney sweep. Quite the contrary, it could be argued that
he’s protecting the rights of the true owner. And with all cases, of course, there are two
sides. Otherwise there would be no case. Clearly the chimney sweep believes he has
a claim. Clearly Delamirie, the goldsmith, believes
that the jewel should remain as — well — his, or in his possession until the true owner
shows up. And I don’t think he’s the evil person he’s
made out to be. That’s the first point. Second point, when we look at the instrumental
ends, we have to ask why is it that we care about the true owner when the true owner has
lost something? Why, what do you think? Ok, that would be one reason. What would happen if we lived in — if Virginia
passed a law and said, “We reject the common law rule and today and henceforth, ‘finders
keepers, losers weepers.’ That’s our new law.” The Finders Keepers Losers Weepers Law. And the governor signs the bill. What do you think? How many of you have lost something? How many of you have found something? Pretty much the same, yeah, everyone’s lost
something, found something. Now we live in a world where it’s finders
keepers losers weepers. What do we do? And why would they focus on where all their
possessions are if we had a finders keepers losers weepers rule? Even if they can subsequently prove ownership,
if they lose it, they lose their title and that would increase, or cause people to do
what with respect to their personal possessions? Protecting it. Over-encourage, over-incentivize, if you will,
individuals to protect their rights to personal items. Would they ever let items out of their sight? Out of their control? Secondly, are people pretty careful about
their possessions already? Yeah, do people just sort of say, “Well, I
think I’ll lose something today because, what the hell, it’s still mine. I think I’ll just lose this ring, let me just
set it down here, but it’s still mine. So tomorrow, when I come back, it’ll be there
because we don’t live in a world of finders keepers, losers weepers. It’s still mine!” By the way, it has my initials in it, and
it says UCLA J.D. Class of ’78, so I don’t have to prove all of that. I don’t have the receipt but none of you graduated
from UCLA in 1978. Any of you born in 1978? No hands on that one, I know. Ok, so, I can prove this was mine, right? Later. So I say, “Ok, I can prove it.” Finders keepers, losers weepers. Finders keepers. No finders keepers, I’ll just leave it. It’ll be there tomorrow, right? Let’s do an experiment. I’ll leave a 20. Will it be there tomorrow? What? It’ll be in the lost and found? Ok. All of you found money on grounds, you turn
it in? Money? Ok, like I said, community norms are a little
different here. So I guess, I should actually leave that. I would almost guarantee that would not be
there tomorrow. So then you would say, “Go to the lost and
found?” And say, “I’ve lost my 20 bucks.” And they would say what? “Prove it.” Now, all of you’ve seen the 20 bucks, what
can you claim? Oh, wait a minute, the Honor Code. So, none of you would say, “That’s my 20?” What’s the problem with money? Uh, yeah, I remember the serial number. You know, when people publish things like
money, they never put the amount, right? Or the type, because clearly anybody can claim
it. And so, to prove it, typically, you have to
say it’s this amount in these types of bills, whatever. If I leave this 20 here, and — this would
be interesting. I should do this. I won’t, but — I’ll ask the dean if he’ll
loan me $20 in the law school money and this one winds up in the lost and found. Are there members of the community — or,
excuse me, individuals who are not members of community who travel in this environment? Ok, are they bound by the Honor Code? Would they then take the $20 to the lost and
found? No. So, better yet, if I took the $20 outside
on, what’s that street, Millmont? And I dropped it on Millmont would the $20
be there tomorrow? Would we all agree the $20 would not be there
tomorrow? Odds are pretty good. So, is there a cost to losing things? Yes, we already have incentives to be careful. Even in a world where there is an Honor Code,
even in a world, you know, in which we all aspire to and agree to that: “On my honor,
blah blah blah.” Someone may defect! Especially if the prize is big enough. And indeed, even if there’s no defection,
losing things imposes a cost on the owner. What’s the cost? Think about the $20 bill. What do I have to do in order to get the thing
back? Especially if there are competing claimants? What do I have to do? Let’s say I lost $100,000 yesterday. Somewhere, somebody lost $100,000. So, every day I make a claim. I lost $100,000. Finally I’ll get lucky one day and somebody
will lose $100,000. Do I get the $100,000? What do you think? No, what do I have to do? Prove it! Yes. When you lose things, it shifts the burden
of proof. Indeed, now you cannot claim to be a prior
possessor, you have to claim to be what? The owner. And you have to prove that you are the owner. And you may or may not be able to. So at the end of the day, people are pretty
careful with their possessions. There are costs to losing things that we don’t
want to incur, all other things being equal, and when we live in a world where people are
entitled to keep their possessions even — or keep, their own interest in items, even if
they’ve lost them, they’ve lost dominion and control over them — it encourages pretty
much just the right amount of control over ones items. The investment that one would make in controlling,
maintaining, possessing, whatever adjectives you want to use, their ownership interest
in those items. And so that’s why we reject finders keepers. There are also some other reasons why we want
to at least — I think — give the item in this case to the finder and not the smithy. In addition to protecting the true owner’s
rights, it rewards fairness. I think. I think most people think it’s fairer to give
the item to the chimney sweep than to the smithy. And indeed, I will argue that — and we’ll
see this throughout the cases this is somewhat more efficient — what happens in a world
in which we say, “You, chimney sweep, lose. Delamirie wins because you the chimney sweep
are not the true owner.” What happens in that world? So, let’s say the chimney sweep loses in this
case. And let’s say — and this is all, of course,
hypothetical — the court says, “It’s better to give the thing to Delamirie. And here’s why — and you mentioned this and
I just want to emphasize this before I move on — when someone loses a ring. When someone loses a jewel, where will they
search for the jewel? You’re in London, you lose a jewel, you see
a chimney sweep walking towards you, what do you say? “Sweep, you got my jewel? Sweep, you got my jewel?” Every chimney sweep you see walking by, you
say, “Sweep!” Would you say that? What would you do if you lost a ring or some
item in Merry Old England in 1723? It’s missing. Yeah, I think you’d start with the Delamiries. The goldsmiths of the world. And maybe broaden your search from that. So, let’s say there’s a rational reason, a
hold in favor of Delamirie. Two. One, we might be concerned that the chimney
sweep is a thief and two, if our instrumental end is to get the thing back to the true owner,
the true owner’s more than likely going to visit smith shops, not sweeps. So let’s suppose in an alternative universe
Delamirie wins. Maybe we balanced this out equally so far. Next case: Armory finds another ring. And let’s put aside for the moment that we
think it’s very suspicious that Armory keeps finding these rings. But he finds another. He’s just an incredibly lucky guy. Anyway, he finds a ring, this ring. What does he do? He still doesn’t know what it’s worth. Does he take it to the goldsmith? Really, don’t take it to the goldsmith? Would you take it to the goldsmith? What if you want to sell it, what would you
do? Who would you take it to? If you take it to the goldsmith, what do you
do if the goldsmith is your only valid outlet? No, you don’t contract. What do you tell the goldsmith? It’s mine. So now, in iteration number two, what do you
tell the goldsmith if Armory loses iteration one? When he finds a second ring? And they say, “Where’d you get this ring?” What do you say? “It’s my ring.” Do you say that you found it? So that encourages finders to do what if Delamirie
wins? What does it encourage finders to do? It interferes with the instrumental end. Why? As we’ll see, we don’t have a legal system
that encourages people to lie. We want to have a legal system that encourages
people to tell the truth. And at some point, no matter how honest the
finders of the world are, when this enters into the equation, when you tell the Armorys
of the world, “If you’re a finder you lose as against a bailee — not the true owner
— if you’re a finder you lose against the bailee,” does that seem fair? You’re gonna lie. You’re gonna say, “No, no, I’m the true owner
and therefore I get the thing back.” And if I say I’m the true owner, what happens
to getting the thing back to the true owner? It disappears, it interferes with the instrumental
end. So we don’t want to encourage people to lie. And then you mentioned another point which
is very important, which we’ll come back to over and over again. If Armory loses because Delamirie says, “You
didn’t find it. You’re not the true owner, you’re a thief,”
then what happens in iteration two? And all the iterations that you can think
about, when someone finds something? If Delamirie’s able to say, “You can only
prevail by proving you own the property because I believe you are a thief. Prove you own it.” What does that do to not only Armory, but
all of us. What must we do to protect our interest in
property? Too convoluted? Whose book? My book. Right? How does he prove that he owns it? Do you have the receipt? You still have that receipt? Ok. No receipt? No receipt? What is this with the no name? Of course I’m gonna right my name in the book. Whose book is it? Really? What do you think? Why, how do you prove it? What did you all see? “I saw nothing!” How do you go about proving ownership of things? We talked about this before. Wait a minute, sure they saw me pick up the
book from the desk was it in your hands? Ok, it wasn’t in your hands. But presumably because of the proximity, your
proximity to the book, and the way that people are sitting, it’s your book. He stole this book. He stole it. Prove a negative. He didn’t steal it. How do you prove that? Do all these people watch you 24/7 since you
arrived in Charlottesville? So can you prove you didn’t steal this book? Can you prove you own it? Ahh, you had possession. So, typically, how do we prove ownership? Possession, right? And if possession’s not enough, if possession
is not enough to prove ownership, then I can allege what? Or anybody can allege anything, right, he’s
a thief. And if I can allege he’s a thief and force
him to prove that he’s the owner, then we’re back to this regime again, what do you have
to do to prove ownership, what do you have to carry around every day? A bunch of receipts, a bunch of documents,
a bunch of this, a bunch of that. In order to protect ownership we have to protect
what? Not property, but his possession. His possession of the property. And we have to set up world in which the subsequent
possessor has to document and demonstrate that he or she has a superior claim to the
prior possessor. Typically, ownership, or prior possession. Possession in and of itself is a very valuable
right. And if we allow the Delamiries of the world
to claim that the chimney sweeps of the world are thieves and therefore they should be allowed
to keep the jewel, it allows anyone to challenge anyone’s ownership interest in an item thus
necessitating proof of ownership that is something more than possession and that’s not a good
world. Here’s the other piece of Armory. And I think we can dispose of this fairly
quickly. What was the hold in Armory? What did you say the hold was? Armory wins against all but the –? Then the
first hypothetical after the case is this: here we have Armory and he’s F1. And over here somewhere we have TO and of
course we’ve got Delamirie who’s the bailee. And the court is clearly saying as between
this person and this person, F1 has superior rights to everyone except this, so we can
actually, if you’re mathematically inclined, write it like that. Does that make sense? Now, what happens when — and this is the
first hypo after the case — Armory’s on his way to Delamirie’s shop and he loses the ring? Right? Is that plausible? So, instead of delivering it to bailee, we
now have F1 versus F2. A series of finders. Now, what was the hold in the actual case,
Armory vs. Delamirie? So, now, in the second iteration, not dealing
with the true owner, we’re not dealing with the bailee, who are we dealing with? Two finders. So what does that hold tell us? Who wins? Do we know from Armory, or can you glean from
Armory who wins and why? Just focusing on the hold. So, did the court anticipate this occuring,
a series of finders? No, they didn’t. They anticipated true owner, finder and then
maybe a bailment but not a series of finders and clearly the hold does not tell us who
should win. I think you were about to intuit who should
win correctly. Who should win? Why? What happens if F2 wins? It gets back to the same thing we discussed. You should be able to see this now. If F2 wins because we say F2 is a subsequent
finder, then what happens in the real world? F2 wins. So, what happens in the real world? If the finder who has possession now, F2 prevails
over F1, what does that encourage all of us to do? Look what I just found. Look what I just found! Who are you by the way? You say you’re the true owner, but you’re
not the true owner, what are you? You’re a finder. Prove that you’re the true owner. We’re back to the thief and the true owner. Finder, thief, owner, possessor, it’s all
the same. So if the prior possessor loses, then what
will all the subsequent possessors, all the F2s, claim? I’m a subsequent finder, he’s what? He’s not a thief, I’m not saying he’s a criminal
but what is he? He’s a finder. Prove you’re not a finder. How does he prove he’s not a finder? By proving that he’s an owner. And we’re back to once again — so how do
we protect F1? How would you modify the court’s holding to
take into account a series of finders? So let’s articulate, if you were deciding
this case, knowing that there could be a series of finders, how would you modify the court’s
holding? Could you say that a little louder? Do you really want to make it that broad? What about — see, we keep going — F2 — you
know what’s going to happen right? F1’s gonna lose the thing, F2’s gonna find
it, then who’s gonna show up? F3! And then of course, who’s gonna show up? Law school, exam, who’s gonna show up? F4! Now, F1 versus F2, who wins? F2 versus F3, who wins? Really? F3 versus F4, who wins? F3 versus F4, who wins? F3. F1 versus F4, who wins? F1, why? What are we back to? We’ve already talked about this. Prior possession, right. And the notion of relativity of title, right? Title’s not absolute, even in this setting. The prior possessor has rights superior to
all the world except the true owner. So the finder — how would you modify the
court’s hold in Armory vs. Delamirie? The finder prevails against all but the true
owner and prior possessors. That’s how you modify it. And indeed, of course we’ll talk about tomorrow
in more detail, the true owner’s rights trump but also the prior possessor’s rights also
have to trump the subsequent possessors’ right. That’s the only way we can protect possession
and possession is the only way we can protect ownership short of requiring people to carry
around reams and reams of paper, documentation to prove ownership. And you can draw a line on a computer saying,
“This person’s an owner, this person’s a thief, this person’s a prior possessor,” but in the
real world, you can’t draw those lines. It’s all based on possession. And therefore we have to protect prior possession
and that’s why you were correct when you first said, “They all saw that you had the book
before I had the book.” You had prior possession. Ownership is irrelevant. The real problem, of course, arises — and
you need to think about this for tomorrow — what happens when Delamirie, right, pays,
let’s say, 100 pounds to Armory? So this is the jewel of highest water. The remedy has to be subject to is either
produce the jewel or pay the value of the jewel of the highest water. Let’s suppose it’s 100 pounds. Everybody agree? Comfortable with that? 100 pounds. Delamirie pays the 100 pounds to Armory, right? Armory takes the 100 pounds and of course,
being a chimney sweep, what does he do with it? He blows it. But anyway, a week later, the true owner shows
up and as we’ve posited, hypothesized, the true owner is engaged in a search of which
types of shops? She shows up at Delamirie’s shop and in the
window, she sees what? Yes! She then produces a document from her jeweler
— picture, diagram, drawing, whatever — that irrefutably documents that she’s the owner. What happens then? She asks Delamirie for it back? Right, and Delamirie must do what? Remember, we’re always protecting whose rights? So, wait a minute, Delamirie’s already paid
100 pounds to the sweep and he has to give the jewel back to the true owner. That means he has to pay twice? Is that right? Does that make any sense whatsoever? Now this takes me back to the pleadings. If the cause of action had been replevin,
not trover, what would have happened? If this had been for replevin, what would
Delamirie have been ordered to do? Right. Now the true owner shows up at Delamirie’s
shop. What does Delamirie say? “I didn’t pay for it. I had the ring, the damn court made me give
the ring back to this idiot chimney sweep, Armory. He has the ring. There’s a chimney sweep out there named Armory,
he’s about three feet tall, dirty with a hat. That guy has your ring.” The what does the true owner do? She finds Armory. Do I wind up paying twice if I’m Delamirie? So what’s the better remedy? Trover or replevin? Do you really have to pay twice? It’s a mystery. We’ll take it up tomorrow and move on to Hannah.

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