Josh Gilliland has an important personal announcement.
Firefly is Still Teaching Contract Law
The comic series Serenity Leaves on the Wind continues both the story of our favorite Firefly class ship AND lessons in contract law.
The basics of contract formation is offer, acceptance, consideration and performance.
Contracts cannot be for an illegal activity, which would be substantive unconscionability, or formed under duress, which would be procedural unconscionability. See, Falls v. 1CI, Inc., 208 Md. App. 643, 664-665 (Md. Ct. Spec. App. 2012) and Rivera v. Rivera, 149 N.M. 66, 72-73 (N.M. Ct. App. 2010).
So, virtually all of Malcolm Reynolds contractual agreements would be unenforceable in Court. Let’s overlook those issues for purposes of understanding formation or the Parol Evidence Rule on the assumption Murray on Contracts did not make it off Earth.
Jayne’s Got a Gun
The contractual issues of Leaves on the Wind begin with Jayne’s cousin offering to tell Bea, the leader of the New Resistance, Jayne’s location in order for Bea to find Serenity. This agreement does have offer, acceptance and performance, but the negotiations were also at gunpoint.
Bea entered into a contract with Jayne Cobb to find Malcolm Reynolds on behalf of the New Resistance after a short negotiation at the Cobb family “estate.” The time between offer and acceptance was extremely short, consisting only of “We need to find Malcolm Reynolds” and presenting Jayne with a briefcase of money when questioned on why.
A contract is not enforceable if it fails to specify all material terms. Sanderford v. Duplin Land Dev., Inc., 531 Fed. Appx. 358, 362 (4th Cir. N.C. 2013). The negotiations between Bea and Jayne contained the specific performance of finding Malcolm Reynolds as a requirement for payment. These conditions for payment would be specific enough to define material terms.
Jayne accepted the verbal terms of finding Mal and visual offer presentation of money with “Well, what are we waiting for?” Jayne accepted Bea’s offer, even though he accepted with a question, because the manner of acceptance demonstrated an intent to accept Bea’s performance contract. This demonstrates mutual assent between the parties, even if acceptance is implied-in-fact from Jayne’s actions instead of an express contract. Murray on Contracts, section 38, citing Day v. Caton, 119 Mass. 513 (1876).
Jubal Early and a Bounty Hunter’s Performance
Early from the episode Objects in Space is once again a threat to the crew as a bounty hunter acting on behalf of the Alliance to capture the crew of the Serenity.
“Bounty hunters” are known as “runners” under some code sections for “someone who hunts another person in return for the payment of a bounty if they succeed in finding and returning them.” Carson v. Vance, 326 S.C. 543, 546 (S.C. Ct. App. 1997), citing S.C. Code Ann. § 38-53-10 (9) (1989). Bounty hunters are generally employed by bail bondsmen. See, S.C. Code Ann. § 38-53-10(10).
Ironically, Early’s contract with the Alliance might be the only legal one in Leaves on the Wind. However, the contract would require “complete performance” in order for Early to be paid, so no Mal, no duty for the Alliance to pay.
Agents of SHIELD Needs a Bow Tie Wearing Judge Facciola
I have enjoyed Agents of SHIELD immensely, but I have been troubled by the total failure to observe the Constitution.
This was evident when Skye was first arrested with a bag over her head, to the unlawful killing of the guards at the “Guest House,” to the large number of warrantless computer searches by hacking.
This culture of unlawfulness in the name of security will likely be a key theme in Captain America The Winter Soldier.
As a preliminary matter, I have had Reddit comments stating that the Constitution does not apply to SHIELD, because it “isn’t American,” but a “world council.”
First off: Wrong. SHIELD was an outgrowth of the “Strategic Scientific Reserve” (SSR) in the post World War 2 Era. Its origins are American, it operates in America and has bases in the United States.
Secondly, there is no way on Earth the United States would let a foreign power operate within the country, not following its laws, complete with military bases that conduct espionage on its citizens and perform arrests. The United States would not tolerate SHIELD as a foreign power occupying any part of the country committing acts of war.
Third, the Constitution is the Supreme Law of the Land. No law may conflict with it. Period. It protects everyone who is a born or naturalized US citizen and those within the United States.
Agents of SHIELD and the previews for The Winter Soldier have a theme that SHIELD operates like the NSA/CIA/FBI/DEA/INS/DOD with a God-complex armed with flying aircraft carriers that conduct law enforcement, espionage, and military operations within the United States.
That should upset anyone with a law degree in the Marvel Universe.
SHIELD apparently can also authorize the use of a nuclear weapon on a US city without Presidential authorization, as seen in the Avengers. I specifically remember from the history books that Senator Barry Goldwater lost the 1964 Presidential Election and got nuked with the Daisy ad after saying local military commanders should have discretionary use of tactical nuclear weapons.
One of the elements on Agents of SHIELD that has troubled me is the lack of any judicial involvement, or repercussions, for their actions. We are a nation of laws and the 4th Amendment is pretty clear about protecting us from illegal searches:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Some Heroes Wear Bow Ties
In the real world, Magistrate Judge John Facciola played his own version of a super hero in an order denying a facially overbroad search warrant of electronic communications.
The Government has gotten into the practice of seeking the “entire universe of information tied to a particular account, even if it has established probable cause only for certain information.” In re Search of Info. Associated with @mac.com, 2014 U.S. Dist. LEXIS 35323, at *8 (D.D.C. Mar. 7, 2014).
The Government has been “asking” service providers in search warrant applications to produce ALL communications connected to an email account, regardless of whether or not they are relevant to the case. In re Search of Info., at *10.
In the present case, the search warrant application was for the investigation of kickbacks and conspiracy involving a defense contractor and sought a specific Apple email address.
The Court blasted drafting errors, noting that the Government used language that would confuse the producing party on what information it must determine to give to the government. In re Search of Info., at *7. The Application stated the provider to produce three months worth of email, yet the Government would only “seize” email relevant to the criminal investigation. In re Search of Info., at *14. As Judge Facciola stated, “This Court should not be placed in the position of compelling Apple to divine what the government actually seeks.” In re Search of Info., at *7-8.
The Court stated the Government’s application sought an Unconstitutional General Warrant. The 4th Amendment protects us from search not based on probable cause and searches should be as limited as possible. In re Search of Info., at *12. These beliefs date back to our Revolutionary War. Searches are not to be a Lewis and Clark expedition through someone’s email or social media accounts. As the Court explained:
Any search of an electronic source has the potential to unearth tens or
hundreds of thousands of individual documents, pictures, movies, or other constitutionally protected content. It is thus imperative that the government “describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.”
In re Search of Info., at *12, citing United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).
The Court explained the Government’s application demonstrated it could describe the relevant items with specificity, yet the Government “has simply chosen not to by pretending that it is not actually “seizing” the information when Apple discloses it.” In re Search of Info., at *14. As the Court explained by citing In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron.Alexis That Is Stored at Premises Controlled by Facebook, Inc., 13-MJ-742, 2013 U.S. Dist. LEXIS 185850, at *9-10 (D.D.C. Nov. 26, 2013):
By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to ‘seize’ everything that is given to it.”
In re Search of Info., at *14.
Judge Facciola denied the application and threw Captain America’s shield at the DOJ with a clear message: Search warrants that fail the Fourth Amendment will be denied. The Court had modified approximately 20 applications for search warrants between September to December 2013 to comply with the Fourth Amendment. No more. Comply or get denied. In re Search of Info., at *21-22.
Why Marvel Needs a Bow Tie Wearing Judge
Comic books and science fiction have a profound way of making social commentary. Perhaps that is the intent of seeing SHIELD conduct massive searches of electronic communications (as seen in the Incredible Hulk) and outright hacking is to get viewers to think about Constitutional rights.
Judge Facciola did not write “Judge Smash!” in his In re Search of Info. Associated with @mac.com order, but it certainly must have felt like a helicarrier crashed into a building for the DOJ lawyers who have been filing applications for general warrants of electronic communications. Agents of SHIELD needs to have a judge send that kind of message.
Agents of SHIELD frequently conducts searches on people without a warrant. Add the arrests without Miranda Rights, torture, beatings of prisoners and murder, and there would extremely intense judicial involvement and Congressional hearings.
The actions on Agents of SHIELD would cause gavels to fly like Mjölnir for the civil rights violations. It would be good to see a bow tie wearing judge call out SHIELD for its ignoring the Constitution in the name of security. The ends do not justify the means when it comes to the Bill of Rights.
I personally would like SHIELD to not have the same moral standing as the Punisher when it comes to upholding the Constitution. I think there is a good chance these issues will come up in Winter Soldier and impact future storytelling on Agents of SHIELD.
Will we see attorneys and judges in the future? Unknown, but it would send the right message that those who take an oath to upload the Constitution should also follow it.
I love the Veronica Mars movie I produced!
As some of you may recall, I was an early backer of the Veronica Mars Kickstarter campaign. The campaign was hugely successful and now the end product – the movie itself – has finally come out. And it was worth every penny!
Two disclaimers up front: First, I loved the movie but am completely unable to tell if it’s enjoyable for those who weren’t already a fan of the TV show. Second, there will be some spoilers ahead so don’t read this if you haven’t seen the movie yet.
Where to begin? The cast was great. Dick is, far and away, the funniest part of the show and I’m glad he got so many great lines. Cliff the criminal defense lawyer represents us lawyers pretty well (all things considered) and I’m always happy when Ken Marino (Vinnie the sleazy PI) shows up. I almost yelled out “Schmidt” when Max Greenfield made his cameo and yes, it was funny to see Dax act as a sleaze trying to pick up his real-life wife in a nightclub. Wallace is as cute as ever but, unfortunately, underutilized once again. Mac, meanwhile, looks hot and I really wish I could rock her hairdo!
The plot was fun and believable. Veronica’s attempts to get out – and stay out – of Neptune and its toxic underbelly were convincing, even though there’s no way she would have made it a year working at a big law firm (I did it for a decade but that’s because I’m not nearly as cool as Veronica!). Keith’s frustration at watching Veronica give up her chance to get out Neptune was tangible. I bought Logan being back in trouble, although joining the Air Force seemed random, forced, and unbelievable (I clearly didn’t donate enough to get creative input on the script). And it broke my heart to see poor Piz get his heart broken.
Most importantly, the ending was satisfied. If your name isn’t Newhart, it’s so easy to goof up the ending (I’m looking at you, Lost, and even you, Seinfeld). But this movie gave me the ending that I wanted (although I didn’t realize that until I saw it). Veronica can’t leave Neptune – she’s got to keep up the fight she started in high school. And I really liked the fact that Weevil (always one of my favorite characters) had to give up living the “good” life and rejoin the gang, just to fight the corrupt police force. And yes, Logan and Veronica belong together.
My love for the show – like the love Logan and Veronica shares – is epic. The movie gave me the ending I needed and wanted and was worth every penny of my investment. Now it’s time to start looking for my next movie project!
What Are the Rules for Digging Up Dead People?
If dead people were suddenly returning from the dead, there is no question there would demands for bodies to be exhumed to determine if the “returned” were who they claimed they were. Resurrection hit the issue head on in the second episode.
What are the requirements for exhuming a dead body?
It is long held precedent that a Court could order a body exhumed for evidence. Moss v. State, 152 Ala. 30 (Ala. 1907). This is true in “cold cases,” because there is no statute of limitations on murder.
California has the following requirements for exhuming a body:
No remains of any deceased person shall be removed from any cemetery, except upon written order of the health department having jurisdiction, or of the superior court of the county in which such cemetery is situated. A duplicate copy of the order shall be maintained as a part of the records of the cemetery. Any person who removes any remains from any cemetery shall keep and maintain a true and correct record showing:
(a) The date such remains were removed.
(b) The name and age of the person removed, when these particulars can be conveniently obtained and the place to which the remains were removed.
(c) The cemetery and the plot therein in which such remains were buried.
If the remains are disposed of other than by interment, a record shall be made and kept of such disposition. The person making the removal shall deliver to the cemetery authority operating the cemetery from which the remains were removed, a true, full and complete copy of such record.
Cal Health & Saf Code § 7500
The law does not want dead bodies disturbed without “substantial reason.” Courts consider such as “substantial reason” as the “public interest, the conventions of common decency, the wish of the decedent, and the prohibitions of religious law.” In re Terra (1952, Cal App) 111 Cal App 2d 452, 244 P2d 921, 1952 Cal App LEXIS 1676.
A child who died 32 years in the past and then returns to life with DNA that matches the deceased child’s parents would be a “substantial reason” for a Court to order a body exhumed. Knowing the truth would be in the public interest for determining parenthood, child custody and whether the reanimated person was who they claimed to be.
Justice for the Abomination
The fate of the Abomination was revealed in the Agents of SHIELD episode TRACKS: held in a cryo-cell in Alaska.
Putting Emil Blonsky, aka the Abomination, in suspended animation is likely the only way they could imprison someone as strong as the Hulk with a really ticked off attitude. While the Abomination could have gotten a life or death sentence for the deaths caused in the Incredible Hulk, being imprisoned in suspended animation poses interesting 8th Amendment issues. Neither alive nor dead, just stuck, frozen in a moment of time.
Is such a punishment Constitutional?
An Abomination in New York
As a preliminary matter, there would be Federal jurisdiction for the US soldiers killed during the battle of the Bronx. See, United States v. Gamez, 301 F.3d 1138, 1148 (9th Cir. Ariz. 2002), citing 18 U.S.C. § 1114, “Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government . . . while such officer or employee is engaged in or on account of the performance of official duties . . . shall [in the case of murder] be punished . . . under section 1111.”
Blonsky could have been tried and convicted of all others killed and injured in New York under a separate state action. However, Rikers Island would be a big play pen for the Abomination, raising the challenge of how to incarcerate the prisoner. The Governor of New York and Mayor of New York City wisely made the economically smart decision and let the Feds handle imprisoning the Abomination.
Federal law states that murder is “the unlawful killing of a human being with malice aforethought.” 18 USCS § 1111(a). First degree murder includes the “willful, deliberate, malicious, and premeditated killing” of a person. Acts committed resulting in death that include arson, escape, murder, kidnapping, treason, and espionage are also first degree murder. Id.
The Abomination killed multiple US soldiers in battle, which involved the destruction of military vehicles, setting fires and downing a US helicopter. These acts are treasonous in nature, given the fact Blonsky was a US soldier who had taken up arms against the US government. There is no question that he could be either executed or put in prison for life. 18 USCS § 1111(b).
The statute does not say “cryo-cell.” Suspended animation could be between execution and life in imprisonment. Would this violate the 8th Amendment?
Purpose of the 8th Amendment
The Eighth Amendment to the US Constitution prohibits the cruel and unusual punishment of prisoners, which embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,” prohibits punishments which are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828-829 (7th Cir. Wis. 2009).
Courts have stated conditions such as denuding prisoners and exposing them to bitter cold in solitary confinement cell for eleven days, depriving them of basic elements of hygiene such as soap and toilet paper, in barren filthy cells without adequate heat would constitute cruel and unusual punishment in violation of the Eighth Amendment. Wright v. McMann, 387 F.2d 519 (2d Cir. 1967).
The Eighth Amendment also protects prisoners against “deliberate indifference” to a serious medical need, but that indifference generally involves the failure to provide medical care. See Kramer v. Wilkinson, 302 Fed. Appx. 396, 400-401 (6th Cir. Ohio 2008), citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).
Off to Alaska
The Abomination was a US soldier whose body, and likely his mental state, was altered by medical experimentation. The first half of these procedures were in the line of duty; the second experiment was not. As such, Blonsky might have had an “insanity defense” that precluded him from being executed. Moreover, there likely is an 8th Amendment duty for SHIELD to medically treat the Abomination to turn Blonsky back into a human being.
Mental defenses aside, there is still the practical issue of where to imprison someone who is 10 feet tall, bullet proof and can knock down buildings.
Federal law gives the following punishments for first degree murder: execution or life in prison. There is no question that the attorneys for the victims and the insurance industry would have demanded a death sentence, but the prosecution had a problem: Can we actually kill the Abomination in a way that complies with the 8th Amendment?
Executing the Abomination could prove difficult. It would be very hard to give him an lethal injection. Moreover, traditional execution methods (such as electrocution) that have been found unconstitutional would likely fail to actually kill Blonsky. While states such as Utah allow prisoners to select their method of execution, such as a firing squad, shooting the Abomination with anything below a low yield tactical nuclear weapon probably would just tickle him. Andrews v. Shulsen, 802 F.2d 1256, 1275 (10th Cir. Utah 1986).
The 8th Amendment prohibits “mutilation and violence” to execute someone, so options such as launching the Abomination into the Sun would quickly violate the Constitution.
Constructing a prison to physically hold the Abomination would be both expensive and likely not possible with existing technology, especially since Reed Richards is with another movie studio. Moreover, it would effectively be solitary confinement for the protection of other prisoners, guards and tri-state area. This raises the issue that there is “a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment.” Thomas v. Bryant, 614 F.3d 1288, at *1311 (11th Cir. Fla. 2010), citing Gates v. Collier, 501 F.2d 1291, 1304 (5th Cir. 1974).
Incarcerating Emil Blonsky in an Alaskan cryo-cell is likely the only option for imprisonment. As such, it would be Constitutional, given the lack of available options to remove his super-powers or build a traditional prison capable of holding him.
What Happens Legally When the Dead Come Back to Life?
The ABC show Resurrection focuses on the emotional roller coaster of the dead returning to life. Highlighting the complexity of these issues, a child who was dead for over 30 years returns to life. A DNA test showed he was the biological child of his surviving parents. Do the parents have a legal obligation to provide for their once dead child?
The law is not designed for resurrection. Marriages end at death. Property is distributed. Funerals are held. Families discuss their thoughts on the afterlife. Sometimes there is litigation with family members who will never speak to each other again.
So…what happens if a dead person comes back to life?
We have a Common Law rule that a person “who has not been heard from for 7 years is presumed dead.” See In re Estate of Dawson, 346 So. 2d 386, 391 (Ala. 1977), Kyser v. McGlinn, 207 Ala. 82, 92 So. 13 (1921); Walker v. Walker, 218 Ala. 16, 117 So. 472 (1928); Eisenberg v. Stein, 222 Ala. 576, 133 So. 281 (1931);
In a New York case from 1900, a wife brought a lawsuit against an insurance carrier for payment of her husband’s $2,000 policy, nine years after he disappeared. The insurance company settled with the wife for $666.00, with the remainder to be held in trust in the event the husband was alive. Twelve days after entering the agreement, the long lost husband was found alive. Sears v. Grand Lodge A. O. U. W., 163 N.Y. 374 (N.Y. 1900).
The Court held the $666.00 had to be paid to the wife, as it was the basis of a settlement agreement that had been lawfully entered into to end the litigation. Additionally, the company planned to hold the remainder in trust in the event the husband was found alive. You cannot contract to end litigation and plan to pay out zero for a settlement. Id.
What legal lessons could we apply to Resurrection? First, marriages end at the death of one spouse (See, Cal Fam Code § 2201). As such, a dead person coming back to life would not reinstate a marriage (or invalidate a subsequent one), because the resurrected spouse had died, thus ending the marriage.
The same argument could be made for insurance policy payments. The insured met the contractual requirement of death, which obligates insurance companies to pay. The fact a person returns to the living after years of being actually dead would not invalidate performance under the policy. The condition for performance was met (death) and policies do not include provisions for the dead returning to life after decades.
Insurance company attorneys would demand a change to all future policies, requiring that in the event of an insured returning back to life, the policy distribution be repaid. Whether or not that would make insurance contracts illusory and not enforceable would have to be tested in Court. Statutes of limitations would also have to be examined.
The dead returning to life would require a fundamental change to our laws over marriages, insurance policies, property rights and inheritance. Society has not planned for resurrections happening, because the dead stay dead. We will continue to explore these issues as the series progresses.