Did Mitch and Tiff have a Duty to Rescue in Camp Cretaceous?

February 1, 2021

In this latest installment of InGen’s unfortunate prehistoric endeavors, we meet six teenagers who arrive at Jurassic World just prior to the 2015 incident with the Indominus Rex and begin to settle in at Camp Cretaceous before all hell breaks loose. In the first season, the campers survived multiple encounters with “Toro” the Carnotaurus sastrei as well as fan favorites like the enormous Mosasaurus maximus and the peaceful Parasaurolophus walkeri. While visiting Dr. Wu’s genetics lab, the group befriended a slightly-asymmetrical Ankylosaurus magniventris, whom they named Bumpy and later reunited with in the wilds of the park. While their Camp Cretaceous experience is cut short (not unlike every other Jurassic adventure we’ve witnessed so far), the teens find themselves with plenty of time to soak up the dino experience as they are accidentally left behind when the evacuation boats leave the island. Although the camp counselors are concerned for their charges, it is unclear how soon any potential rescue mission could be undertaken given the physical and political state of the island.

In the second season, the abandoned teens of Camp Cretaceous learn that their new prehistoric neighbors are not the only deadly creatures to roam Isla Nublar. Midway through the season, they encounter a deadly new enemy: eco-tourists.

Well, not actual eco-tourists. More like the “eco-tourists” we saw in Jurassic Park 3. In true Jurassic Park fashion, this couple fills the role of hunters who are only there to chase and shoot at the exotic beasts (and likely anyone that gets too much in their way). However, Mitch and Tiff are not in it for the money or fame like other armed antagonists in the franchise. They’re simply trying to assist the doomed creatures and “preserve their memory,” albeit in a manner that also furnishes Mitch’s “man cave” and lets Tiff release some of her repressed marital anger.

Armed with luxury yurts, assorted weapons, a black-market Jurassic World tablet without a signal, and the nauseating overuse of the term “babe,” the hunters see the campers as equal parts park guides and dino bait. They brought their own tracker, Hap, who breaks the mercenary-with-a-heart-of-gold mold but fails to actually track their unique prey. Although the couple ultimately refuses to transport the campers off the island unless Darius leads them to the “one-stop dino-hunting shop,” it is understandable why the campers trusted the couple’s original assurance of rescue without consideration or compensation.

The campers, like most non-lawyers, would assume that Mitch, Tiff, and Hap were bound to help the stranded adolescents after rescuing them from the C. nasicornis. In addition to the campers’ minority, there is the implicit assumption that these adult newcomers should offer to help. After all, they are there in a comfortable situation with their peacock soap displays and pre-pasted toothbrushes versus simply trying to survive like newly-Ramboesque Ben and the other campers. Morality aside, whether Mitch and Tiff had a legal obligation to use their resources to help the teens will turn on whether there was a duty to rescue.

Duty to Rescue

Jurisdiction is a large factor in determining whether a duty to rescue exists here. In an earlier post, the legal jurisdiction to determine InGen’s liability to the park guests and employees was discussed in favor of California’s jurisdiction despite InGen’s possible desire for Costa Rican law. Since Mitch and Tiff chartered their own ship to Isla Nublar despite the UN quarantine on the island and plan to convert and abscond with partial Jurassic World assets, the couple appears to be independent from Masrani Global (InGen’s successor and owner of the property). Without this corporate connection, we must trek into the murky, blood-drenched legal waters that surround this island 120 miles west of Costa Rica.

As other sources have noted, the 99-year lease of the island to California-based InGen is one factor contributing to a jurisdictional fog not unlike the eponymous cloud coverage of the island itself.[1] To further complicate matters, it appears that both U.S. and Costa Rican law have been applied to different activities on and around the island. While both nations have laws that prohibit shipping lanes and fly zones near the island, the U.S. has also controlled activities and access to the island via the Gene Guard Act of 1997 (revised in 2003).[2] The ambiguous jurisdiction of the island itself and the independent nature of the parties involved will require a more broad look at whether there is a duty to rescue owed to the campers.

Reasonable Duty to Rescue – Civil Law Jurisdictions

If Costa Rican law applies to Isla Nublar, there may be a general duty to rescue as is common in civil law countries, including most in Latin American. While not absolute, this duty would require civilians to intervene and rescue others so long as it is reasonable and does not endanger the rescuer. Under this duty, Mitch and Tiff would likely be held to owe a duty to rescue the campers since the couple had the means to transport the youths off the island and to safety without endangering their own lives. In fact, taking the campers off the island immediately after the C. nasicornis rescue would have saved at least four lives that were lost as part of Mitch and Tiff’s bloody search for the perfect accent piece.

If U.S. law applies, then there is no general duty to rescue even if it means leaving someone to die or suffer grave injury.[3] Unlike the required standard of care for affirmative actions, a general omission, such as the refusal to aid another who is in peril, does not need to be reasonable. Therefore, even though there is an extremely high risk that the minor campers face mortal danger while stranded on an island overrun by dinosaurs, Mitch and Tiff could legally go about their business without so much as a passing glance in the absence of a duty to rescue. However, a special relationship or statute could create such a duty. The Restatement of Torts, Second sets forth examples of special relationships that could trigger this duty. Rest.2d Torts, § 314A:

(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give the first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Although Mitch and Tiff offer to rescue the campers using their boat, this gesture does not transform them into a common carrier and create a duty to rescue. Similarly, the fact that the couple welcome the campers into their little illegal settlement and seem to offer them access to at least one of the yurts does not qualify them as innkeepers or possessors of land, who owe a greater legal duty to guests. Therefore, the strongest argument for a duty under § 314A would be that there is a duty based on the custodial relationship they create with the teens.

Duty to Rescue – Custodial Relationship

While their initial interactions were pleasant as the couple invited the adolescents to roam about their settlement so they could partake in some food and refresh, all good things must come to an end. In this case, the shift to Mitch and Tiff forcefully taking custody over the three campers in their vicinity occurs when their true business on the island is revealed and the teens reject their pitch that taxidermy is the new immortality. In case there was any doubt of the campers’ volition in their trek to the watering hole, the couple is clearly angered when one of their captees escape. If the custodial role has been assumed and the individuals in custody have been deprived of their normal opportunities for protection, the analysis shifts to whether Mitch and Tiff satisfied their duty of care by protecting the campers in their custody against unreasonable risk of physical harm.

Mitch and Tiff arguably breached their duty to protect Darius, Sammy, and Yasmina the moment they decided to delay their departure from the island and instead head to the dinosaur watering hole, where they hoped to encounter carnivores and large herbivores. While taking unarmed minors to rendezvous with large, unrestrained prehistoric reptiles seems to clearly qualify as an unreasonable risk of physical harm, we need not deal in hypothetical attacks because the group has a run-in with the Tyrannosaurus rex prior to reaching their destination. Although the risk of encountering the mighty queen of the dinosaurs seems high considering the frequency of T. rex encounters throughout the franchise, this was no chance encounter. Darius was actually leading his captors directly to this deadly nest in hopes of escape. This raises the question as to whether Darius and Sammy were still owed protection from their custodians as they sought out this unreasonable risk of physical harm. To further complicate matters, Darius and Sammy manage to steal the couple’s guns and run off to hide just prior to the actual attack.

Although Mitch and Tiff were temporarily parted from their hunting rifles and without physical custody of the campers, it seems like they should still be viewed as custodians at the time of the attack. Although Darius misled the couple to Main Street instead of the watering hole, he did so under the duress of their rescue ultimatum and the unspoken threat of their guns. As such, Darius was only acting through what channels he had available for his best chance at survival and not the “normal opportunities for protection” that he would have been afforded but for his being held against his will. Assuming that Mitch and Tiff remained the custodians from the time of their attempted escape through the T. rex attack, there are several actions and indicators that the couple were not providing the required protection.

First, in response to Tiff’s exasperation when Darius and Sammy run off with their guns, Mitch comments that it may be easier for the couple if the teens are alive. Although it is chilling to hear that Tiff is more indifferent to their deaths, one cannot ignore the implication here that living teens could still function as bait for carnivorous prey or even a distraction for others prey. The focus here is clearly on the benefit to the couple, not the long-term protection of the campers themselves.

Second, Tiff attempts to use her electrical baton to shock one of the hiding campers, only to accidentally electrocute a life-size cutout of the celebrity camper, Brooklyn. This attempt to inflict physical harm would directly violate the duty to protect the intended individual. Immediately after this failed attack, Tiff threatens the campers to dissuade them from trying to run again, thus attempting to reestablish physical custody over them.

Finally, when the T. rex arrives and coincidentally helps to re-arm the dastardly hunters, the couple chooses to abandon Darius and Sammy to the beast while they make their exit, guided by the now-connected tablet. Once more, the campers are forced to try and save themselves with the scarce opportunities available as they are finally freed from the couple’s custody. It is unclear why the couple did not take advantage of the distraction created by the campers to take out the T. rex now that they were armed, except perhaps to allow the beast to eliminate the Darius and Sammy. In fact, when they meet again, Tiff expressly states that she had hoped the fierce predator would have eliminated Darius.

Duty to Rescue – Continued Undertaking

The duty to rescue can also be created through action, such as a voluntary undertaking to aid or protect another. Rest. 2d Torts, § 324:

One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

Mitch and Tiff had no special relationship with any of the campers prior to taking custody of Darius, Sammy, and Yasmina. Therefore, when the couple and Hap rescued the five campers from the C. nasicornis, they took charge of others who were helpless without having a legal duty to do so. As a result, the three adults were obligated to “exercise reasonable care to secure the safety” of the campers they rescued and, should they discontinue their aid or protection, they could not leave the rescuees in a worse position. While Mitch and Tiff might have argued that their aid and protection was limited to the discrete rescue from that one dinosaur, a court would have likely found that their statements following the encounter suggest that the rescue included but was not limited to that event. In fact, when Darius first asks the rescuers who they are, Tiff responds “after all that, maybe you should call us your salvation.” Given the context of their situation, salvation for the campers would not necessarily be surviving one more dinosaur attack but rather an escape from the island of dinosaurs. Additionally, shortly after they arrive at the adults’ settlement, Mitch tells the campers that once their boat returns, they would “get (them) back to the mainland.” This appears to extend their commitment to protecting and ultimately rescuing the campers, even if the couple knew that they could easily depart at any time. In the meantime, the couple invites the campers to stay in their settlement, enjoying their food and amenities rather than returning to their own tree-based shelter with impenetrable canned peaches.

In contrast to Mitch and Tiff’s deceptions and promises, their hired guide and muscle, Hap, actually commits to his rescuer duties, even pushing the couple to protect the campers to the detriment of their expedition. This is why Hap does everything in his power to protect the campers around him from any bodily harm. Hap going beyond reasonable care to give the utmost care provides a foil for the abysmal protective care given by Mitch and Tiff.

As mentioned before, when their secret is revealed, the couple terminates their prior plan to assist in favor of using passage on their vessel as an incentive. Both this shift in commitment and their initial delay in helping the campers depart from the island can constructively be seen as discontinuing their aid or protection. The formal abandonment of any effort to aid the campers could also be when the couple leaves Brooklyn and Kenji to their own devices after returning to camp for their weapons, or when they make no effort to save Darius and Sammy from the T. rex, or any of the times they menacingly brandish their weapons and threaten the teenagers.

To find Mitch and Tiff liable for failing to satisfy their duty to rescue, the campers would need to demonstrate that they suffered any bodily harm and that they are now in a worse position than if no aid had been rendered. Since none of the campers appeared to be injured while within the couple’s charge, despite the couple exercising less than reasonable care, they would need to satisfy Rest. 2d Torts, § 324(b) by showing that they are in a worse position than when they met Mitch and Tiff. It is unclear what potential rescue opportunities the campers might have missed due to their distraction with Mitch and Tiff or if being abandoned at the dock while Tiff sailed off on the boat put them in a dangerous situation. However, there is one product of this abandoned rescue that will likely pose trouble next season. While the campers attempted to save Darius and Sammy from the couple, Kenji accidentally triggered the release of the specimen in room E750. Although Kenji was acting in character pushing the button like a starving Skinner pigeon in that scenario, he likely would not have acted that way if the campers had stumbled into the room in a different, less time-sensitive situation. Next season, the campers could be in a far worse position than facing down a C. nasicornis should this new, ominous creature cross their path.

[1] Franklin Webb, Mount Sibo: Life at the Edge of Chaos, DINOSAUR PROTECTION GROUP (February 4), http://www.dinosaurprotectiongroup.com/volcano.html.

[2] Zia Rodriguez, What Killed the Gene Guard Act?, DINOSAUR PROTECTION GROUP (February 23), http://www.dinosaurprotectiongroup.com/what-killed-the-gene-guard-act.html.

[3] People v. Oliver, 210 Cal. App. 3d 138, 147 (1989).

Can the Scarlet Witch and Vision Legally Get Married?

Josh Gilliland

January 25, 2021

Marvel’s WandaVision asks the age-old question, can a mutant (or Inhuman or altered human) and an android have a loving marriage in a situational comedy? The series echoes themes from the 1980s Vision and Scarlet Witch limited series, The West Coast Avengers (hint: the US Government was not happy about the time Vision took over the nuclear arsenal), with a dash of Avengers Disassembled and House of M. There is a lot of source material to explore in this show.

Wanda and Vision are living in a small town with no memory of how they got there, but are claiming to be married. At the conclusion of the first episode, Wanda creates wedding rings for them and they exchange vows on the couch.

So…could a woman marry a robot?

More Human Than Human

Courts have stated that a “robot is not an animate object. It is not a living thing; it is not endowed with life. A robot is a mechanical device or apparatus, a mere automaton, that operates through scientific or mechanical media.”[1]

The Vision is definitely a machine without a skeleton, but he is clearly is an animate object and behaves like he has life, from telling jokes to singing. To say otherwise is right up there with saying someone’s golden retriever has no soul.

Case law is no less heartwarming on artificial intelligence, stating AI includes “expert system,” which are “are a class of computer programs that were first developed in the 1960’s. They seek to emulate the decision-making of human experts in a field of expertise (e.g. chemistry, medicine, geology). An expert system stores knowledge obtained from human experts in a ‘knowledge base.’” A “decision module” inference engine is “programmed to selectively apply expert rules stored in the knowledge base in order to resolve problems.”[2]

Defining life has both biologic and legal norms to meet, which also have significant controversy. The Supreme Court entered the firestorm of what is “life” in the abortion cases from Roe v Wade to Planned Parenthood v. Casey. The question of whether or not a state has an interest in promoting the “potentiality of human life” turns on whether or not that life is viable. As such, the state cannot put on an undue burden on a woman’s fundamental right to an abortion before a fetus is viable.[3]

How can these cases be applied to determining whether or not Vision is “alive”? If a robot’s programming gives it the ability to identify itself as an individual, be self-aware, and viable to survive on its own, does that make it alive? Would a court hold a robot that could think for itself and feel emotion be property? Or a new form of artificial life?

The law is not designed for “robots” to be recognized with human rights. First, biology defines life as 1) a distinctive characteristic of living organisms from dead organism or non-living things, as specifically from the capacity to grow, metabolize, respond to stimuli, adapt, and reproduce.[4] Secondly, the law defines a “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”[5]

Robots are not defined as a species by the law. They also do not meet all the elements for “life” as we currently define it. However, the capacity to grow does not need to be in the physical sense, but intellectually and emotionally. Is the robot self-aware? Does the robot have goals? Does it adapt to its environment, or does it need updated programming?

Vision is self-aware, experiences emotions, and is not limited by his original programming. All of those factors would give a Court pause in finding he is not “alive.” A judge would recognize something new would be happening and a country founded on personal freedom would want to know more before issuing an order.

We’re Going to the Chapel

Marriage is “a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary.”[6] The key to all marriages is that the marriage is between two human beings and there is consent.

Marriage is a Fundamental Right that has been the subject of large volumes of case law. States have put both reasonable and unreasonable restrictions on marriage, such as the reasonable requirement that the parties to be over the age of consent. However, there are examples such as Loving v. Commonwealth of Virginia, where the state enacted the following abomination[7]:

Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.

The United States Supreme Court was unanimous in finding Virginia’s racially based prohibition on marriage violated the Equal Protection Clause of the Constitution. Chief Justice Earl Warren explained[8]:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Would a Court apply this logic to a human who wanted to marry a robot? In the era of Marriage Equality, perhaps, if the robot possessed artificial intelligence to the point it was self-aware and felt love.

There are many legal limitations on marriage. Bigamy is the act of marrying one person while still legally married to another.[9] The law only allows a person to have one spouse at a time.[10] The Federal government prohibited bigamy in US Territories after the Civil War.[11] States also prohibit people from having multiple spouses. Courts have also refused to find a “religious exemption” for those claiming having more than one spouse is part of their faith. [12]

States also have strict prohibitions on incestuous marriages between family members. Courts have cited three reasons for not allowing incestuous marriages, besides the “GROSS, What’s Wrong with You” reaction[13]:

(1) [Incestuous marriages] are forbidden by ecclesiastical law (see Old Testament, Leviticus 18: 6-18);

(2) Inbreeding is thought to cause a weakening of the racial and physical quality of the population according to the science of eugenics; and

(3) [P]revent the sociological consequences of competition for sexual companionship among family members.

There is the fourth reason that such marriages immediately make people think of dueling banjos, thus requiring the strict enforcement for public safety, because Burt Reynolds will not always be there to save you.

I, Do

Justice Kennedy in Obergefell v. Hodges, the Marriage Equality case, outlined four legal principles and historical traditions supporting that holding that marriage is a fundamental for same-sex couples under the Constitution:

1) The right to personal choice regarding marriage is inherent in the concept of individual autonomy;

2) The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals;

3) The right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education; and

4) Marriage is a keystone of our social order.

How would a court apply Obergefell to a human-robot marriage? As to the first point, there is no question that the human being has a concept of individual autonomy. Would the same be true for the AI robot?

A human-robot marriage would require a court to accept a new definition of “person” to include robots. A court would be more inclined to accept personhood if the robot was more like the Vision and not Robby the Robot. A judge would want to see humanity reflected in the robot, not a lack of it.

The third point gets tricky. One could argue a human-robot marriage would be physically impossible for procreation. Options for children would range from adoption to the human spouse either being artificially inseminated or having a surrogate mother. Or in Wanda’s case, reality altering magic.

Marriage is a keystone for our social order. That social order is broad enough for same-sex marriages, but might not be for human-robot. County clerks selectively reading the Three Laws of Robotics could throw massive fits in refusing to issue marriage licenses on cable news.

Courts would not expand marriage rights to robots unless the robot was substantially “human.” The law does not allow inter-species marriages. While many people might feel they did marry a gorilla, no one has a right to marry an animal. Robots with advanced AI might be in the same category.

What does this mean for Wanda and Vision? Perhaps a Court would find he is meets all of the requirements to be a legal human. There are strong arguments for such a finding. However, there is the real issue the law is not designed to answer such questions without legislation or Constitutional Amendment.

[1] Lewis Galoob Co. v. United States, 66 Cust. Ct. 484 (Cust. Ct., 1971).

[2] Vehicle Intelligence & Safety, LLC v. Mercedes-Benz USA, LLC, 2014 U.S. Dist. LEXIS 130809, 5-7 (N.D. Ill. Sept. 18, 2014).

[3] Planned Parenthood v Casey, 505 U.S. 833, 873, 876-78.

[4] Biology Online, Life, http://www.biology-online.org/dictionary/Life

[5] 16 U.S. CODE § 1532(16).

[6] CA Fam. Sec. 300(a) (California Code (2015 Edition))

[7] Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

[8] Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

[9] Westlaw Black’s Law 9th Dictionary App.

[10] See, Antony T. v Rosemarie B.T., 41 Misc. 3d 1208(A), 1208A (N.Y. Sup. Ct. 2013), citing 11 NY Prac, New York Law of Domestic Relations § 9:5.

[11] See, Cannon v. United States, 6 S.Ct. 278, 116 U.S. 55, 29 L.Ed. 561 (1885):

‘Every person who has a husband or wife living, who, in a territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman in a territory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead; nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court; nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract.’

[12] State v. Holm, 137 P.3d 726, 2006 UT 31 (Utah, 2006).

[13] Loughmiller’s Estate, Matter of, 629 P.2d 156, 229 Kan. 584 (Kan., 1981), citing 52 Am.Jur.2d, Marriages § 62, p. 915.

Wanda and Vision’s Duty to their Dinner Guests

Josh Gilliland

January 18, 2021

What is your liability if your boss comes to dinner at your house and chokes on a piece of food? The Scarlet Witch and Vision had to face that threat in the first episode of WandaVision, where the real danger was not chewing enough before swallowing food.

Mr. Heart, from Computational Services, required employees to have him over for dinner in order to be considered for promotion. A bad dinner could result in being terminated. This situation made Mr. and Mrs. Heart “business visitors” in Wanda and Vision’s home, because the Hearts were there for “a purpose directly or indirectly connected with business dealings between them.” O’Keefe v. S. End Rowing Club, 64 Cal. 2d 729, 735, (1966). As such, the Hearts were “invitees,” because the dinner party involved “some matter of mutual business interest or advantage.” Id. This meant that Wanda and Vision owed the Hearts a duty of “reasonable care under all the circumstances.” Ruhs v. Pacific Power Light, 671 F.2d 1268, 1272 (10th Cir. 1982).

People are responsible for “an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” Cal. Civ. Code § 1714.

It requires a serious suspension of disbelief that Wanda’s cooking was responsible for Mr. Heart not chewing his food before swallowing. While there is the possibility food was not properly prepared, the idea that Wanda created the situation where Mr. Heart bit off more than he could chew is highly problematic.

This was not a situation where a homeowner hosting a dinner party did not immediately clean up a spill and a dinner guest had a slip and fall as a basis for liability. Those kinds of affirmative facts of negligence are not present with Mr. Heart’s lack of chewing. Corrado v. Delzotti, 15 A.D.2d 527 (N.Y. App. Div. 1961).

Case law has held that the duty owed to an invitee in a restaurant is to summon medical assistance during a medical emergency, not actually providing first aid. Drew v. LeJay’s Sportmen’s Cafe, Inc., 806 P.2d 301, 306 (Wyo. 1991). In the Drew case, the victim had a 2-inch by 2-inch chunk of meat lodged in his trachea that likely would have required surgery. Id. The Defendant contacted 911 for assistance. Moreover, the opinion noted that at that time, there were an estimated 270 billion meals consumed in the U.S., with only 3,000 choking death each year. The idea of a food server having to face a choking victim was remote. That said it would be a wise business practice for anyone in food service to know the Heimlich maneuver. “Eat at your own risk,” is a horrible marketing campaign for a restaurant.

Wanda and Vision were morally correct to not let Mr. Heart choke to death. Vision’s intervention was less traumatic than performing an “upper chest thrust” to remove the obstruction from Mr. Heart’s trachea. While their duty was likely limited to calling 911, knowing the signs of choking and how to perform the Heimlich maneuver is basic human decency in the 21^st Century.

Can Banthas be Used as Live Bait?

Josh Gilliland

January 5, 2021

The Mandalorian, season two, Chapter 9, The Marshal, included Tuskin Raiders using Banthas as live bait for hunting a Krayt Dragon. Would such a use of a domesticated animal violate any cruelty to animal laws in the United States?

Cruelty to animals in California is defined as follows:

(a) “ …every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of a crime punishable pursuant to subdivision (d).”

(d) A violation of subdivision (a), (b), or (c) is punishable as a felony by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment, or alternatively, as a misdemeanor by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment.

Cal. Pen. Code § 597.

Leaving a bantha out for a Krayt Dragon as a snack, is intentionally leaving an animal to be killed by an apex predator, which sounds like cruelty to animals. Moreover, the waiting for a Krayt Dragon to strike is clearly freighting for the bantha, which could make it qualify as torture. However, that is not the end of the analysis. Animals such as worms are used as live bait in fishing, which has been rejected as a slippery slope for being cruelty to animals. See, In re William G, 52 Md. App. 131, 133 (Md. Ct. Spec. App. 1982).

Given the massive size of a Krayt Dragon, coupled with the ability to tunnel and spray acid venom, it is fair to compare a bantha being used as bait like a worm to catch a fish. However, it is worth noting that the bantha were not being used like a “bait animal,” which is when a small dog, cat, or raccoon, is placed in front of a treadmill for a “fighting dog” to chase for exercise. See, Ware v. State, 949 So. 2d 169, 174 n.7 (Ala. Crim. App. 2006). Those situations would clearly be cruelty to animals, but nothing like that happens with a bantha being used with explosives to kill a Krayt Dragon.

Star Wars Article IV: The Phantom Guarantee

Andrew Soboeiro

January 2, 2021

So this is how liberty dies— with thunderous applause!” Stated in response to Palpatine’s rise from Chancellor to Emperor, these words capture one of the most important themes in Star Wars. The franchise highlights just how easily freedom and democracy can diminish in the face of fear and crisis. There’s no clearer reminder that the price of liberty is constant vigilance.

The most visible democratic backsliding in Star Wars is the fall of the Galactic Republic itself and its replacement with the Galactic Empire. But beneath this surface is a subtler but more sinister democratic deficit: that of the local governments on individual planets. The Galactic Republic appears to have no Guarantee Clause, and does nothing to ensure republican governance on its constituent worlds. This failure sets the stage for democratic decline in that universe while providing a stern warning for our own.

Guarantee Clause Guide

The Guarantee (or Guaranty, depending on whom you ask) Clause is found in Art. IV § 4 of the US Constitution. It states that “the United States shall guarantee to every State in this Union a Republican Form of Government.” The Clause enshrines a federal interest in the structure of state government and limits how states may conduct their internal affairs.

In theory, federal courts could read the Guarantee Clause as a license to strike down state policies that they deem insufficiently republican. But in practice, the courts have refused to assert this power. Beginning with the 1849 case Luther v. Borden, the Supreme Court has treated Guarantee Clause claims as non-justiciable. Luther, 48 U.S. 1 (1849). Where federal courts have struck down states’ election systems, they have generally relied on other provisions of the Constitution, most notably the Fourteenth and Fifteenth Amendments. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); Baker v. Carr, 369 U.S. 186 (1962).

As with many constitutional provisions, however, just because the federal courts have not used it does not mean the Guarantee Clause has no significance. Congress has frequently intervened in state election systems, notably by passing statutes like the Voting Rights Act and approving constitutional provisions like the Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments. Thus, the United States has at least partially fulfilled its duty to guarantee republican state governments, even if it has not done so through the courts.

Sovereignty in Star Wars

However significant the Guarantee Clause is in our republic, there appears to be no equivalent in the Galactic Republic. Between the Prequels and the Clone Wars, we see myriad planets under Republic suzerainty, and the vast majority of them seem anything but republican. Most planets appear to be monarchies, including Naboo, Dac, Mandalore, and Onderon. Some of these are elective monarchies, but we are not told who may vote for the monarch. If the vote were restricted to the nobility, as many real-world elective monarchies are, that would hardly be a republican form of government. Worse yet, the few planets that are not monarchies, like Scipio and Cato Neimoidia, are governed by corporations.

The lack of any meaningful local democracy helps explain why the Galactic Republic was so vulnerable to Palpatine’s machinations. The Prequels and Clone Wars show us how dysfunctional and oppressive planetary governments are: from the rampant corruption on Mandalore to Naboo’s de facto apartheid system to the outright slavery on Tattooine and Zygerria, myriad local rulers blatantly violated the rights of their subjects.

With this background, it’s unsurprising why most Senators would respond to Palpatine’s megalomaniacal speech with “thunderous applause.” Why should they object to autocracy on Coruscant when that’s exactly what they thrived under on their home planets? Nor should rank- and-file citizens be any more concerned about the Republic’s downfall, given how little it protected their rights. In the immortal words of Mr. Plinkett, “if you were an average Joe, the rise and fall of the Empire might not have even affected your life in the least bit!”

The Shape of Things to Come?

The United States has often fallen short of its obligation to ensure republican state governance, most notably during the Jim Crow era, when both Congress and the Supreme Court flatly refused to take action against widespread racist disenfranchisement. See, e.g., Giles v. Harris, 189 U.S. 475 (1903) (finding the most sophomoric technicality to justify not overturning Alabama’s racist election laws). Today, we’re witnessing a new wave of state disenfranchisement and federal enablement.

Since 2010, state governments have enacted a slew of laws weakening their republican foundations, both by making it harder to vote and by gerrymandering voters out of any practical legislative power. The federal government initially countered this democratic backsliding through the Preclearance regime, a provision of the Voting Rights Act that required DoJ approval for changes in many states’ voting laws. But in Shelby County v. Holder, the Supreme Court made this provision unenforceable. Shelby County, 133 S. Ct. 2612 (2013). Combined with the rise of the openly authoritarian Trump Administration, this trend has made a dead letter of the Guarantee Clause.

Some in the federal government have pushed back against this trend. Notably, House Democrats have passed a number of bills to strengthen republican principles at all levels of government, including the For the People Act and the John R. Lewis Voting Rights Act. But these bills died in the Senate, and given the persistence of the filibuster, that doesn’t seem likely to change anytime soon.

Star Wars offers us a warning ahead of these dark democratic times. Even ifthere is no Dark Lord of the Sith (&I wouldn’t be too confident about that with Mitch McConnell’s around), our democracy is at serious risk from bottom-up decay. Unless Congress or the courts get serious about the Guarantee Clause, it won’t be long before liberty dies-perhaps not with thunderous applause, but instead so quietly that many of us won’t notice.

Legal Analysis of Airplane!

Josh Gilliland

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We said goodbye to 2020 with our review of Airplane! Join Jessica and I for our legal analysis and review of this cult classic.

Legal Review of The Mandalorian Chapter 9

Josh Gilliland

November 2, 2020

Gabby Martin, Thomas Harper, Nari Ely, and I sat down to review the first episode The Mandalorian, season 2, The Marshal. Needless to say, we loved it. Wait until you have watched The Marshal before listening to our analysis. We cover the legality of killing a dangerous wild animal, the defense of others, and a lot of contract law.

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