SUB-ASSIGNMENT 3C: ARGUMENTS 2-5
BETTER STUDENT ANSWERS WITH MY PRELIMINARY COMMENTS
Each team’s Alternative is reproduced in green above their argument.
ACs Better than Alternative
QUESTION 2 SUBMISSION: Team: ACHU
Alternative: Museum Display & Variation on Salvage. If a discovered ship is clearly identifiable with markings from the original owner’s country, then the finder will return the treasure, as well as disclose the ship’s location, to one of the country’s museums Then, the finder will receive compensation for his labor and finding in an amount determined by the historical significance and the amount of treasure found. The finder will also receive recognition and fame for his finding, especially if it is of substantial value. If a ship is found and the original owners cannot be clearly identified, then the finder will take the ship and treasure to his own country’s national museum for preservation and then will receive the same compensation and recognition that the original owner’s country would have awarded.
(A) It is preferable to apply the escaping animal cases to the current fact pattern because the factors that the cases use would help promote treasure hunting. This endeavor is good for historical purposes, a country’s economy, and the public good with regard to educational purposes. By applying the escape cases, treasure hunters will be more willing to continue their search because even though they are not the original owners of the ships and treasure, they will still have the possibility of reaping the benefits of their labor.
(B) When a ship goes down in the middle of the ocean and centuries pass, the likelihood of the ship and treasure ever being found is very minute. The more seasons that pass over the ocean and the more storms, hurricanes, and typhoons that stir up the water, the more the ship gets buried deeper within the ocean floor. If the country that originally claims the ship does not immediately and continuously search for the lost vessel, the ship can be considered abandoned, which is similar to stopping a pursuit for a lost animal. The more time that passes and the less effort the country puts into looking for the ship will strengthen the notion of abandonment as well as the finder’s claim.
(C) If a country decides to re-establish its search centuries later, a court may decide that too much time and distance has passed from the original escape of the possession to the present hunt. The ship is not likely to be where it was last seen, similar to an animal that swims miles away from its last known location, as was the case with the sea lion in Mullett. Centuries will have passed since the ship was under the original country’s possession and control, similar to the escape cases when just a couple of months pass and the court believes that is too much time to return the property to the original owner.
(D) In order to discover the remains of a lost ship, extensive labor and expensive equipment must be involved. However, many countries claiming to be the original owners of a ship and its treasure may not have the resources to go on treasure hunts. In order for many of these lost ships to be found, there need to be private investors who are willing to put forth the time, money, and labor to search the ocean for the ship. For people to be willing to do this, they need to be reassured that their efforts will be rewarded. The factors from the escaping animal cases reflect the understanding that effective labor should be rewarded. Such effective labor includes taking the time and money to train an animal. Manning. Here, the finder is the one who produces the most efficient labor because his labor produces results (the ship and treasure).
(E) A treasure hunter looking for a lost ship can be compared to the whaling cases insofar as the industry only survives if there is a finder who recovers the whale. Treasure hunting is an industry, like whaling, that needs the protection and support of the court. To protect the treasure hunting industry, courts should reward the finder. This is critical for the industry because it allows the world to recapture its history.
(F) Overall, the factors from the escaping animal cases are good ways to help promote the treasure hunting industry and ensure that people will continue to search the ocean floors for these hidden gems since the escape cases would probably reward the finder. In the long run, rewarding the finder is beneficial for the local community, world history, and a country’s economy.
QUESTION 2 Preliminary Comments: Team: ACHU (Gesundheit!): Generally Solid Work
This is a strong set of arguments about why the escape factors from the ACs are likely to support the finder in these cases and thereby encourage the good work of treasure recovery. Two non-trivial concerns:
- Probably overstates the strength of F’s position under the animals cases by ignoring marking/F’s knowledge, which usually will strongly point to OO.
- Missing the other half of the comparison argument: Why does the alternative provide insufficient incentives for treasure recover?
QUESTION 3 SUBMISSION: Team: CDG
Alternative: Finder always wins in international waters.
(A) (1) Animals cases would be preferable in that they consider time as a factor.
(2) The alternative rule would always allow the finder to win. However, you can think of some circumstances when it might seem unfair to award property rights to the F over the OO.
(3) In the sunken treasure scenario, it could be a relatively short period after escape when finder gains possession. Generally, the shorter the timespan, the stronger the property rights should be in the OO as the F will have spent less time searching with respect to the OO.
(4) Animals cases account for this and would probably allow Spain a reasonable amount of time to recover the sunken treasure. After enough time has passed, then perhaps Spain would forfeit property rights. That bright-line distinction of when too much time has passed would be hard to determine, but it would result in a more equitable outcome on balance; sometimes the F wins and sometimes the OO wins.
QUESTION 3 Preliminary Comments: Team: CDG: Pretty Good. A Little Too Focused on a Single Factor as Opposed to ACs as a Set.
- Generally good idea that we probably want OO’s rights to start strong and get weaker as time passes. I think lot more reasons for this than simply F will have spent less time searching, so this could have been laid out more thoroughly.
- Good acknowledging line-drawing problem as weakness of argument. To make it seem less a problem, might try to indicate factors court could use to help draw line.
- Ideally in (4) should talk not about Spain, but about OOs more generally.
Alternative Better than ACs
QUESTION 4 SUBMISSION: Team: BBHH
Alternative: Registry Combined with Salvage: Create an online database for owners to declare their lost treasures and for [give] all others to have notice thereof. Upon a wreck, the person or country who owns the materials of wreckage must declare ownership immediately using the database.
- After this initial declaration, the owner then has ten years to recover treasure; after ten years, an original owner’s property rights in the treasure automatically divests and [the treasure] becomes available for any potential finder to retain.
- At the moment the database is created, all past wreckage is grandfathered in, and the ten-year time limit begins. [MAF: Clever idea, although in case of Spain, great-great-great-granfathered]
- During the ten-year time period, any person other than the original owner who finds the wreck will retain 40% of the wreckage value. [MAF: This last struck me as a little hard on the OO; might give a 10-year
(A) One reason that our proposed alternative method for resolving sunken treasure disputes is preferable to the rules of the escaped animals cases is that sunken treasure is much less mobile than animals. A treasure chest may drift with the tide when it first sinks, but the drift will be negligible because most treasure chests are extremely heavy and dense. Further, once a chest has fallen to the ocean floor, it will most likely get lodged in the sand and become entirely immovable absent human intervention. Conversely, animals continue to move after their initial escape. The speed and distance at which an animal travels will depend on the animal’s species and degree of its domestication, but generally escaped animals move quickly and cover a large distance in a short time.
(B) (1) The mobility of escaped property is significant because it prescribes the timeframe within which the owner’s pursuit might lead to retrieval and outside of which pursuit would be improbable.
(2) A ship owner or nation, after having lost a sunken treasure, [ordinarily] need not pursue the treasure immediately because the probability of retrieval does not decrease with time. Because the treasure remains lodged, the original owner may actually increase the odds of recapture by taking more time to amass information about the shipwreck and to develop technology to locate it. On the other hand, an animal owner may have only minutes or hours to recapture an animal before the recapture is rendered improbable by the growing radius of searchable land. See Albers.
(3) Thus, courts dealing with animal cases have taken into account the immediacy of pursuit and the distance between the sites of the animal’s escape and subsequent finding. In dealing with an immovable object, however, courts need not consider time and distance in the pursuit of sunken treasure the same way they did with animals. Rather, our rules sets one fixed time period that should be sufficient for all original owners to amass more information and develop better technology to increase their chances of recovering their treasures.
QUESTION 4 : Preliminary Comments: Team: BBHH: Quite Solid Overall.
- Nice idea to use factual difference as basis for comparison between ACS and alternative. Good choice and good description of factual difference; solid on why it might make ACs problematic.
- Good idea that fixed time period gives OOs time for sensible planning & recovery. Argument is undercut by inclusion of salvage rights in the alternative during the ten-year grace period after registration. Looks like if OOs don’t act very quickly, they risk losing almost half the value. Thus, would be helpful to deal with the significance of the salvage rights as part of this argument.
QUESTION 4 SUBMISSION: Team: BOT
Alternative: Museum Display & Modified Version of Salvage: If an individual finds sunken artifacts in international waters which at one point belonged to a sovereign nation but have been effectively abandoned for many years, then the finder must return the physical artifacts to the original owner sovereign nation. The sovereign nation must put them on permanent display in a museum or other collection charging admission, and the finder retains full interest in the proceeds from the public display of the artifacts. [MAF: This is a very cool idea. Lots of administrative problems (can OO cheat F by charging one cent per museum visit?; Will F be able to raise money for exploration based on slow future income stream? etc.) but might well be able to work them out.]
(A)(1) Our alternative is a better approach than the escaping animals cases because it is essentially a win-win situation for both parties. Our approach recognizes that property bestows various rights, and those rights can be divided peacefully among multiple parties when multiple valid claims are presented.
(2) Absolute possession of the entire bundle of rights which property confers is an extreme solution because it completely denies the rights of one party and awards them to another. Even if someone has compelling but incomplete evidence that they should retain possession of an object, they lose 100% of the rights to it under the escaping animals cases. So, we choose to strike a balance.
(B) (1) Arango, as a treasure hunter, undoubtedly spends a lot of time, work, and money scanning the ocean for lost treasure. It is probably safe to say that Arango is hunting for treasure not because he has a particular interest in finding and displaying old statues in his home, but because he hopes to realize the monetary value of the treasures that he finds on the ocean floor.
(2) Conversely, the government of Spain, the original owner (after all, it was the government of Spain that commissioned this new world looting mission hundreds of years ago), is probably more concerned with the cultural value of the treasure. Even if they had been awarded absolute property rights, Spain would probably preserve and display the treasure in a museum as many countries do with artifacts of cultural significance.
(C) (1) Keeping in mind that Arango and Spain are interested in different parts of the rights to the treasure, our variation on salvage rewards both of them.
(2) For finding the treasure and as an incentive to keep treasure hunting, Arango is awarded a stream of income funded by the tickets that people buy to the permanent display of the treasure. (3) Spain is awarded physical possession of the treasure and is allowed to display them as a cultural collection at home forever. Under our alternative, both Arango and Spain are [or should be!] satisfied with the outcome.
(4) Finders are incentivized to keep finding, and original owners are rewarded for past labor and investment.
QUESTION 4: Preliminary Comments: Quite Solid
- Good idea at (A) contrasting split in interests with winner-take-all ACs.
- Nice defense at (B) & (C) that the particular split in rights created by this alternative lines up well with the interests of the parties in the hypo. Could bolster a bit by suggesting that parties in other sunken treasure cases are likely to share these interests.
- (C4) Nice ideas about incentives & rewards at the end. Could develop with more defense that we want more treasure hunting and that OOs like Spain need rewards for their labor (Aztecs might disagree!!)
QUESTION 5 SUBMISSION: Team: HLS
Alternative: Registry system for lost and found items at sea. A neutral party would be responsible for maintaining the registry system and delegating lost and found items to the proper owners. Owners of lost or missing items at sea are required to fill out a claims report and submit it to the registry system. Similarly, finders are required to register items found at sea. When a finder registers an item, the original owner has a specific timeframe to register a claim for his missing item before the registry manager gives property rights to the finder. If the original owner registers a claim before the item is found, the original owner will maintain ownership upon the missing item’s registration. When a match occurs between a missing and found item, the registry manager will grant ownership of the found item to its original owner. Additionally, when the original owner claims the item, the original owner will reward the finder with 15 percent of the item’s value. This practice will incentivize finders to register discovered property.
(A) (1) The registry system is preferable to the escaping animals cases because it draws a clear line whether the original owner of property abandoned it. Abandonment of property is a factor considered whether the original owner rightfully should maintain property rights in the property.
(2) Often when chasing an escaped animal there are extraneous circumstances that stop pursuit and courts do not consider that as abandoning pursuit. Albers. Also, abandonment can be clear [supported] by the lack of effort to maintain possession of the property or claiming ownership after an extended period of time. Mullet. In either case courts have had to balance efforts and intentions of the original owner to meet the abandonment element.
(3) However, with the registration system it is clear when an original owner abandons the item because it happens when the original owner does not register a claim for a missing item within the timeframe.
(4) When someone’s property “escapes” from their possession and they still want it but do not have the resources to retrieve it, by registering it the registration system it will continue their lack of abandonment indefinitely.
QUESTION 5 Preliminary Comments: Generally Solid although probably more focused on single aspect of ACs than is ideal.
- I like the thrust of (A2): that abandonment [combined with pursuit] ends up being pretty mushy and subjective. As I indicated on the text, Mullett doesn’t address this point, but I think the escaping ACs generally support the argument that lack of follow-through counts against the OO, though as the students here suggest, it’s unclear how much.
- (A3) is clear explanation of why alternative is more certain.
- (A4) is a related policy argument: that OO can retain interest even if can’t immediately afford recovery. This is a nice idea; helpful to explain more why we would want this to be true.