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The Acolyte and Contract Law

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“You know, your sister being alive doesn’t change anything. You need to kill the Wookie. You made a deal.”

“I don’t need to keep this deal. You were wrong. Osha being alive changes everything. My loyalty is to Osha, not your Master.”

Although The Acolyte largely involves legal issues of crime and criminal procedure, there are occasional civil legal issues embedded in the revenge drama. One such issue centers on the mysterious contract between Mae and the Master, a/k/a the Stranger, d/b/a Qimir.

The exact promises they exchanged are not clear, although presumably Mae promised to be the Stranger’s pupil for life, as seeking an acolyte is the Stranger’s repeated main motivation. In return, it seemed that the Stranger had promised Mae the training, power, and opportunity to exact revenge on the four Jedi that Mae held responsible for Osha’s death. And it would not be a true devil’s bargain without a sinister liquidated damages provision: Mae noted that the Master would kill her if she failed to uphold her end of the deal.

When Episode 4 began, Mae had just learned that Osha was still alive, and her Master (in disguise as Qimir) sensed Mae’s flagging resolve to seek revenge. He admonished her that she could not back out of the deal. But later, after trapping Qimir and preparing to turn herself in, Mae repudiated her contractual obligation in light of Osha’s newly discovered survival.

Given all this, what contract principles govern this dispute over the enforceability of their Faustian agreement?

As a threshold issue, a contract that involves hurting people is not enforceable. Under California Civil Code section 1668, “All contracts which have for their object, directly or indirectly, . . . willful injury to the person or property of another . . . are against the policy of the law.” So Mae never had any legal obligation to perform this unlawful contract.

But assuming that the contract was not for an illegal purpose, Mae likely has good arguments that the newly discovered information of her sister’s survival undermines the enforceability of the bargain.

Mistake

First, a mutual mistake between the contracting parties regarding the facts underlying a contract can cause a critical failure in the requisite meeting of the minds, voiding the contract altogether. 

Many jurisdictions have adopted the formulation of the elements of the mistake defense from the Restatement of Contracts 2d § 152, which requires the party seeking rescission to establish:

  1. a mistake that relates to a basic assumption upon which contract was made; 
  2. that has a material effect upon the agreed exchange; and 
  3. the asserting party must not have assumed the risk of the mistake in the deal.

Frustration of Purpose

Additionally, courts may excuse the performance of a contract where the point of the contract has been somehow erased or frustrated. See La Cumbre Golf & Country Club v. Santa Barbara Hotel Co., 271 P. 476 (Cal. 1928) (hotel company excused from paying flat fee for golf privileges for its hotel guests when hotel burned down). Specifically, to assert the excuse of frustration, a person seeking to avoid their obligation has to show:

  1. a party’s principal purpose is substantially frustrated; 
  2. such party is not at fault; and 
  3. the contract was made on the basic assumption that the cause of the frustration would not occur.

While the frustration excuse is usually applicable where circumstances change after the parties sign a deal, circumstances existing at the time of contract formation may also frustrate the purpose of the agreement. See, e.g., Mariani v. Gold, 13 N.Y.S.2d 365 (Sup. Ct. 1939) (lessees of premises leased for health resort and milk farm could avoid lease after discovering that existing zoning ordinance prohibited this use). And because the facts supporting an existing frustration excuse are often similar to those supporting the defense of mistake, parties may assert both. See United States v. Frownfelter, 626 F.3d 549 (10th Cir. 2010) (noting that “for an agreement to be rescinded under the doctrine of mutual mistake, the party seeking rescission must satisfy a three part test similar to that for frustration of purpose”).

Either way, a court would likely not enforce Mae’s contractual obligation in light of the revelation that Osha is alive. For purposes of the defense of mistake, Osha’s death was the impetus for Mae’s decision to seek revenge—a basic assumption underlying Mae’s deal with the Stranger. Moreover, Osha’s survival has a material effect on the exchange because Mae’s murder of the Jedi has no value as revenge if the Jedi did not actually kill Osha. The mutual mistake of fact underlying their deal means that the contract is void, and a court would likely rescind it.

But even if a court decided that Mae and the Stranger had struck a valid deal, Mae has a strong alternative argument for framing Osha’s survival as an existing frustration of the purpose of Mae’s agreement. The purpose of her agreement to the Stranger’s terms was to acquire the power and opportunity to avenge her sister’s death. The power and opportunity to exact revenge are worthless to Mae—and her purpose “substantially frustrated”—if there is no death to avenge.

The Stranger might argue that while Osha survived, their deal still has value to Mae, such as seeking vengeance for her mother and the destruction of her childhood home. In other words, this situation is like when a party realizes less-than-expected profit from a deal, which courts have held is insufficient frustration to excuse performance. See, e.g., Hiriam Hicks, Inc. v. Synagro WWT, LLC, 867 F. Supp. 2d 676 (E.D. Pa. 2012).

However, Mae could convincingly testify that since Osha’s survival “changes everything,” revenge for Osha was her sole purpose of the contract. Presumably Mae would have been angry and grieved for her other losses, but agreeing to the Stranger’s terms was of value to her only for the singularly painful loss of her twin sister. Her loyalty, after all, “is to Osha,” and no one else. This would likely be a sufficient basis for a court to hold that because of the existing frustration of Mae’s purpose in entering the deal, no duty of performance ever arose, and her continued performance would be excused.

The Acolyte’s cautionary tale of selling a soul for revenge is timeless as one ultimately never gets quite what one bargains for. Mae’s lesson in devil’s deals is a hard one, but fortunately the law of contracts can save the rest of us from a similar fate.

The Kids Are (Hopefully) Alright

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In Episode 2 of The Acolyte, Mae travels to the planet of Olega to exact her revenge on Jedi Master Torbin. To facilitate her clandestine intrusion into the Olega Jedi temple, Mae enlists the help of a local street kid, identified only as the “Olega Urchin.” This adorable scamp’s peripheral involvement in Mae’s crime spree raises numerous legal issues, both substantive and procedural. But to avoid referring to her as the Olega Urchin—and in the grand tradition of Star Wars characters with absurdly on-the-nose names—let’s call her Ada-Bette.

Ada-Bette’s Young Life of Crime

The episode began by showing Ada-Bette’s chain of personal criminal conduct. First, she stole an object from a passing vendor’s cart, likely only a petty theft under California Penal Code sections 484(a) and 488. She then chucked the object, striking a sentry droid guarding the entrance to the Jedi temple. Assuming that droids can be victims of crimes and that the sentry droid counts as an on-duty peace officer, this could constitute a battery of law enforcement under PC 243(b). Once she had the droid’s attention, Ada-Bette distracted it so that Mae could disable the sentry, which might be characterized as criminal obstruction of a peace officer’s duty or employment under PC 148(a)(1). These are certainly significant crimes, but all in a standard day’s work for a streetwise ragamuffin like Ada-Bette.

The real crimes start to pile up once we consider Ada-Bette’s exposure to accomplice liability for aiding and abetting Mae’s subsequent conduct inside the Jedi temple. Penal Code section 31, the California aiding and abetting statute, is not a standalone crime. Rather, it permits the prosecution of an accomplice who assists another perpetrator. To wit, Ada-Bette could be liable under PC 31 for Mae’s further battery/disabling of the sentry droid, burglary (entering the temple with the intent to commit a felony within, PC 459), criminal trespass (PC 602(k)), and the attempted murder of Master Torbin (PC 664/187).

Luckily for Ada-Bette, she would likely not be on the hook as an aider and abetter for Mae’s most serious crimes. To convict under PC 31, the prosecution has to establish, among other things, that the accomplice knew that the perpetrator intended to commit the crimes and that the accomplice intended to aid and abet the perpetrator in their commission. There may be evidence that Ada-Bette knew that Mae wanted to gain unauthorized entry to the temple, which might implicate her in Mae’s droid battery and criminal trespass. However, it seems unlikely that Mae confided in Ada-Bette the full plan to murder Torbin, in which case a prosecutor would have a difficult time tying Ada-Bette to the burglary and attempted murder.

Ultimately, Ada-Bette appears to be a pre-teen child, so any criminal conduct would be resolved through delinquency proceedings in juvenile court under California Welfare and Institutions Code section 707(b). Under Penal Code section 26, children under 14 are presumptively incapable of forming criminal intent—which makes sense where, as here, an impoverished child is developmentally unable to fully appreciate the consequences of some light battery and criminal obstruction when a grown-up offers some much-needed food money in exchange. While juveniles can be prosecuted as adults under PC 707(b) when they are accused of serious crimes, including attempted murder, a court likely would not try a juvenile as an adult without much clearer evidence of an appreciation of wrongfulness than circumstances here suggest. Thus, if anything, Ada-Bette would probably be looking at some juvenile court proceedings to connect her with the social, educational, and counseling services that will hopefully get her on the right track.

Ada-Bette’s Custodial Interrogation

The next time we see her after the episode’s opening sequence, Ada-Bette is very clearly under arrest and not free to leave the Jedi’s custody: a padawan has her by the scruff and orders her to stop resisting his physical restraint. Because this is a custodial situation, Miranda v. Arizona would require officers to admonish the suspect that she has a right to remain silent and a right to an attorney before interrogating her. 

Additionally, many jurisdictions impose additional, more stringent safeguards for the custodial interrogation of minors. This is because children are uniquely vulnerable to pressure from authority figures—research has found that when being questioned by police, 42% of innocent youth falsely confessed to a crime as compared to only 13% of adults. Samuel R. Gross et al., Exonerations in the United States, 1989 Through 2003, 95 J. of Crim. L. & Criminology (2005), available at https://ssrn.com/abstract=753084; Megan Glynn Crane, Childhood Trauma’s Lurking Presence in the Juvenile Interrogation Room and the Need for a Trauma-Informed Voluntariness Test for Juvenile Confessions, 62 S.D. L. Rev. 626, 627 (2017).

For example, under California Welfare and Institutions Code section 625.6(a), when the subject of the interrogation is under 18, as here, police must go beyond just advising the child of their Miranda rights. Before asking any questions, officers must further (1) provide the opportunity for the minor to meet with a lawyer and (2) ensure that the child actually speaks with an attorney, either in person or by telephone or video conference. 

Additionally, while properly Mirandized adults may knowingly waive their Fourth Amendment rights, California law makes the right to an attorney un-waivable for minors. In other words, kids in California always get a lawyer when questioned in custody.

The episode does not show what happened during Ada-Bette’s initial arrest and detention but, given that The Acolyte is all about not giving the Jedi the benefit of the doubt, it seems safe to assume that the Jedi did not observe any constitutional or statutory protections. There certainly is no attorney present when Jecki begins questioning Ada-Bette. Thus, Ada-Bette’s incriminating responses to Jecki’s unconstitutional interrogation would not be admissible in a U.S. court.

Adorably precocious minors getting swept up in interstellar adventures is a ubiquitous staple of the galaxy far, far away. (See, e.g., Broom Boy; Jyn Erso; Boba Fett; Anakin Skywalker; Ahsoka Tano …and literally every other Jedi padawan ever.) Here’s to hoping that Ada-Bette gets some grand adventures of her own, preferably ones that do not involve assisting others’ criminal activities.

WonderCon 2024 Panels for The Legal Geeks

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Our panels at WonderCon 2024 are brought to you by the Letter G for Godzilla and Ghostbusters! We are thrilled to return for two panels highlighting a new “empire” of law! Check out our schedule below.

Friday March 29, 2024 8:00pm – 9:00pm PDT

Godzilla Minus Lawyers 

Lawyers love Kaiju! Just think of all the liability issues after a Godzilla rampage. Will insurance cover a Kaiju stepping on your house? What do you do if you find an orphaned baby? What are the legal ramifications of having secret wives with families in two countries? Those are questions for lawyers! A panel of attorneys and judges discuss Godzilla Minus One, Monarch Legacy of Monsters, and more, celebrating the 70th anniversary of Godzilla. Featuring Circuit Judge John Owens (9th Circuit of Appeals), U.S. Magistrate Judge Stan Boone, Monte Cooper, Esq. (Goodwin), Katrina Wright, Esq. (Best Best & Krieger LLP), Kate Bridal, Esq., and Joshua Gilliland, Esq. (Greenan, Peffer, Sallander, & Lally LLP). Panel organized by The Legal Geeks.

Saturday March 30, 2024 8:00pm – 9:00pm PDT

Ghostbusters: Law of the Afterlife 

Who you gonna call? That’s right, lawyers! Join a panel of lawyers and judges for the 40th anniversary of Ghostbusters ! Is it false imprisonment to capture a ghost? What environmental protection laws are violated by operating the containment unit within a city? Do you have to register a proton pack with the Department of Energy? Was it legal to take the Statue of Liberty on a walk to save the world? Did the Shandor Mining Company comply with all mining requirements for building Gozer’s temple? Bring your Tobin’s Spirit Guide and find out. Featuring Judge Danna Nicholas, Judge Carol Najera, Stephen Tollafield, Esq. (Lieff Cabraser Heimann & Bernstein, LLP), Kathy Steinman, Esq. (San Diego City Attorney’s Office), Christine Peek, Esq., and Joshua Gilliland, Esq. (Greenan, Peffer, Sallander, & Lally LLP). Panel organized by The Legal Geeks.

 

Harmicists: Understanding the Medical Corps in Naruto

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Tsunade and Sakura during the Fourth Great Ninja War

Introduction

For most of Naruto, we are shown that the great nations are constantly involved in conflict. Naruto details that the nations have seen at least three Great Ninja Wars, equivalent to our World Wars, and in the final arc the great nations are embroiled in the Fourth Great Ninja War. Like any nation that fields an army, regardless of size, there will always be some form of medical presence to treat the wounded and dead. In Naruto, this can be found with the presence of the medical corps.

Overtime, medical personnel have developed to become an integral part of any Army and have garnered certain protections as they typically are not involved in fighting. I would say they are fighting adjacent – meaning they can be or are present in the conflict, but are not directly participating in hostilities (DPH). Naruto has shown us that the ninjas in the medical corps can fight just as well or even better than some of the strongest ninjas in other nations.

Throughout this article, the Village Hidden in the Leaves (Hidden Leaf) medical corps will be the subject of comparison to the U.S. Is the U.S. military medical personnel structured differently from Naruto’s Hidden Leaves’ or are the two similar?  Also, how we would classify the Hidden Leafs’ medical corps in a conflict? What kinds of protections would they have? If any? Could their actions even be permissible?

Classifying Conflicts and Conflict Participants

Within an armed conflict there are different subsets of populations that have different protections. First, we have combatants which are typically found in international armed conflicts (IAC). Under Common Article 2 of the 1949 Geneva Conventions (GC) IAC occurs when two sovereign states enter an inter-state conflict with one another. An example of this kind of conflict is Russia and Ukraine. To be classified as a combatant, Art. 4 of GCIII states one must: 1) wear arms openly; 2) wear a fixed symbol; 3) adhere to a chain of command; and, 4) adhere to the principles of armed conflict. They get POW status if captured which means they get all the protections the GCs can provide.

A non-international armed conflict (NIAC) occurs when a sovereign state is involved in an armed conflict with a non-state group. Generally, members in a NIAC are unprivileged belligerents and only Common Article 3 (CA3) and Additional Protocol II (AP II) protections will apply. This means the unprivileged belligerents get a much smaller range of protections.

Now, regardless if we have an IAC or NIAC, there are classes of people that must be protected at all times. These are civilians and non-combatants. All the GCs and APs are very clear that civilians are to be protected at all times and that parties to a conflict must ensure that they mitigate harm to them to the best extent possible. Lastly, we have non-combatants e.g. medical and religious personnel. Traditionally, non-combatants receive many protections and if captured they are to perform their specialties without discrimination to those in the detention area. Knowing the different roles will help.

Background of Medical Personnel

Medical personnel are non-combatants and are heavily protected within the GCs. Specifically, medical personnel, performing exclusively medical actions, must be respected and protected at all times. This absolute protection is lost if they engage harmful acts against the enemy. AP I, Art. 15 expands on this protection and applies it to civilian medical personnel. Now, there is no longer a distinction and all are protected. U.S. Department of Defense (DoD) Law of War Manual, para. 4.10.1 does allow for medical personnel to engage in hostilities if it is for self-defense from an unlawful attack. Further, according to U.S. DoD Law of War Manual, para. 4.9.2.2, the U.S. combatant must be designated as a medical personnel to receive the protections. Simply having the training or performing medical actions does not grant a combatant protection.

Parties to the conflict must endeavor to have their civilian and military medical personnel clearly identified. States need to do this because in conflict it would be difficult to distinguish between medical and non-medical personnel and the harming of medical personnel could put the harming party in hot water. Medical personnel are distinguished through the use what the GCs call the distinctive emblem – a red cross emblazoned on a white background. When military medical, and now civilian, personnel are in use they have to have this symbol displayed on flags, on armbands, and all equipment they are using. Attacking anyone or object that is using this symbol constitutes a war crime and is a non-starter.

During times of conflict parties can mutually come together to create hospital zones. These zones are mutually agreed upon as a site to keep wounded and sick outside of the combat zone and will be protected at all times. When these are created, the International Committee of the Red Cross and those states protecting the wounded and sick can work together to make these locations well known.

The Medical Corps

Konoha Medical Corps Symbol

The Hidden Leafs’ medical corps are similar to how some modern states structure their military medical personnel. The Hidden Leafs’ military medical personnel are subdivided into two types: the medic corps and medical-nin. The medic corps are composed of ninjas who primarily are removed from combat and work and sustain hospital facilities; however, they do have the capacity to enter combat. Like the emblazoned red cross, the Hidden Leafs’ military medical personnel have a distinct emblem, the Konaha Medical Team Symbol (Konaha Symbol) that helps denote their designation to ensure protection. The medical-nin are medics assigned to squads to provide medical support when needed during missions. This is similar to combat medics in the U.S. military who provide aid to teammates on the front lines. For the medical-nin and medic corps, there are four laws the Hidden Leafs ’ binds them to if they want to serve in that capacity and they are:

  1. No medic ninja shall ever stop medical treatment until the lives of their party members have come to an end.
  2. No medic ninja shall ever stand on the front lines.
  3. No medic ninja shall ever die until they are the last of their platoon.
  4. Only those medic ninja who have mastered theStrength of a Hundred Techniqueof the ninja art Creation Rebirth are permitted to discard the above-mentioned laws.

For most of Naruto, these laws are adhered to. Specifically, the second clause holds strong weight which is why the conflict arcs don’t see many military medical personnel at the front lines. Now, the fourth law negates the second clause and reads “only those medic ninja who have mastered the Strength of a Hundred Technique of the ninja art Creation Rebirth are permitted to discard the above-mentioned laws.” This really only applies to Tsunade, the creator of these laws, and her student Sakura. It seems to be a bit different from the U.S. approach. Here, almost all military medical ninjas are designated as medical personnel and cannot engage in hostilities. The U.S. applies a more flexible approach as it deploys combat medics who perform both medic and combatant functions without official designation. Naturally, the lack of medical designation and therefore emblem use allows for the combat medics to be attacked. This is a risk that only Tsunade and Sakura share in Naruto.

Removal from Combat

Sakura healing Naruto outside of combat

When conflicts erupt, states have an inherent obligation to remove people from the battlefield who are hors de combat. What does this phrase mean? It means “out of the fight” and covers individuals who cannot fight back because they are wounded, sick, dead, who’ve surrendered or been captured. This is a foundational rule to international humanitarian law and is enforced in IACs and NIACs. States need to focus on fighting those who fight back and must protect those who cannot fight back. Generally, states endeavor to remove those deemed hors de combat from the battlefield to areas where they can be protected and receive medical attention. The Hidden Leaf follows this approach too. The easiest example is in Naruto’s final arc where Sakura oversees a military field hospital where the wounded and dead from Madara’s and Obito’s attacks are deposited. The field hospital is removed from the battlefield and all the military medical personnel perform lifesaving actions on all ninjas regardless of the Village they are from. This ensures the medic corps maintains their quasi-neutral function. Further, Sakura’s field hospital displays the Konaha Symbol much like U.S. military hospitals display the Red Cross to ensure it is immune from attacks. Lastly, when a white Zetsu attacks the field hospital only Sakura prepares to engage while the other medical ninjas adhere to the second law and stand down. Now, if this was the U.S. Field hospital medical personnel may be able to defend themselves as an attack on a hospital is unlawful and they would be performing a self-defense action.

 Conclusion

At first blush, it would seem that the Hidden Leaf and the U.S.’ approach to military medical personnel are radically different. However, upon closer inspection, the Hidden Leaf approach to structuring the medical corps and the rules imposed upon those ninjas mirrors the U.S.’ format. Both the Hidden Leaf and the U.S. recognize the inherent imperative to have these personnel protected because of their specialized role that they play. Neither the Hidden Leaf or the U.S. wants to violate the rules that they use to govern their actions, because if they do it negates the purpose of having them in the first place. Therefore, the continued application of the laws and strict adherence allows for the protected roles to remain and encourages other states or villages to mirror their actions without fear that their military medical personnel will be harmed.

 

Ninjas on the Open Water: Understanding Pirates in Boruto – Next Generations

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Funato Clan Flag

Introduction

In Boruto: Next Generations, the most recent concluded story arc sees Boruto Uzamaki traveling to and then dealing with the Land of Water’s largest threat to its sovereignty in recent years: the Funato Clan.

The Funato Clan is a small, but mighty clan that exists within the Land of Water’s territory. In the Land of Water, the Funato clan is treated as a pariah because the clan terrorizes the Land of Water on the open sea. It also has a reputation, that is substantiated, for having its members killed early on in their clan membership if they are perceived as possessing some form of “weakness.” This has led the Land of Water to have captured the Funato Clan’s leader to try and prevent larger conflict. This backfired.

Within Boruto’s time in the Land of Water we see the Funato Clan break out their imprisoned leader, see the Funato Clan recompose their forces and then assault the Land of Water. This leads us to ask a few questions. Is the Funato Clan a group of ninjas that are engaged in piracy? If so, does piracy fall under international law and how should the Land of Water approach their actions? Does the actions taken by Funato extend past simple piracy and escalate into a form of armed conflict? If so, what kind of conflict has formed and what are the constraints? This article will answer this question set.

Piracy

The Jolly Roger – the most famous pirate flag

We know from the show that the Funato Clan terrorizes their fellow citizens on the open water and has generated substantial fear amongst the citizens of the Land of Water. Before we can apply the label of “pirates” to the Funato Clan, we have to see if their actions check off a few boxes. These boxes are provided in Article 101 of The United Nations Convention on the Law of the Sea (UNCLOS). The boxes are as follows:

  1. Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

a. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

b. against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

  1. Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; and,
  2. Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

I will say that the idea of “private ends” within this UNCLOS definition of piracy is at best murky under international law and there is hot debate about if this should be read broadly or very narrow. This article will take the broader path and go with the idea that it represents private interests which can at times include political actions akin to insurgency.

The Funato Clan meets the piracy requirements laid out in Article 101 pretty easily. First, the Funato Clan regularly has its ships attack Land of Water’s ships, private trading companies’ ships, and has attacked Land of Water’s air vessels. These attacks are for the private gain of the Funato Clan as they seek to harm the Land of Water’s economy and to capture ships containing stored goods. Further, these attacks occur on the high seas outside of the jurisdiction of the Land of Water. Lastly, the Funato Clan members were aware of their actions and voluntarily participated in the actions. They are pirates. But, have they become something more?

Evolution of Status

In Boruto we see the Funato Clan evolve from pirates to something even more dangerous – a non-state terrorist organization. How does this happen?

The Funato Clan initially kept its attacks to ships and planes on the high seas with the mission to collect goods to re-establish its organization and maintain its “fearsome” reputation within the Land of Water. However, this shifted when it began to target the Land of Water’s political leadership, other nation’s military members, and attacked small villages within the Land of Water. Further, the Funato Clan seeks to advance political messages via fear and wants to topple the Land of Water’s government by eliminating the Mizukage (equivalent to a Head of State). Lastly, the Funato Clan holds an island that belongs to the Land of Water and uses that as a base of operations. With the Funato Clan now being a non-state terrorist organization, and recognizing that they have taken direct action against the Land of Water, we have to ask…have they created a form of armed conflict under international law?

The Land of Water’s Naval Fleet

Under international humanitarian law (IHL), there are two forms of armed conflict – international armed conflict (IAC) and non-international armed conflict (NIAC). International armed conflict is where we have two sovereign states fight against each other (imagine Russia fighting Ukraine). NIAC is where a sovereign state fights a non-state actor (imagine the U.S. fighting the Taliban). But, at what level do we consider that a conflict is actually occurring? There is no bright line test that we can use to determine this threshold. Instead, practitioners look at the collection of facts to see if the state government due to the level of intensity has to use its armed forces to combat the non-state terrorist organization. Some of the factors practitioners consider are: number, duration, intensity of armed encounters, number of casualties, the kinds of weapons used in the fights, the types of units used in the fights, etc. Here, the Funato Clan has deployed multiple units against the Land of Water’s Mizukage, its private sector, and against multiple civilian villages.

The Funato Clan has used land forces, special forces (the unit used to break the Funato Clan leader out of his cell in prison), and armed naval vessels. The Funato Clan has killed many civilians and military individuals. Safe to say, that an armed conflict is occurring, specifically, a NIAC as the Funato Clan is a non-state terrorist organization fighting a sovereign state – the Land of Water.

When it comes to armed conflicts under IHL, the four Geneva Conventions and the two accompanying additional protocols come into play. However, NIACs do not get the same level of treatment as IACs and a much smaller portion of the Geneva Conventions apply…namely additional protocol two (APII). Here, APII sets the parameters on how the Land of Water can deal with the Funato Clan in terms of protections, targeting, etc. One of the central concerns is what classification would fall upon the Funato Clan during the NIAC because different classifications either provide certain protections and some negate most protections. The classification of members of non-state actors flips between combatants (they get all protections) and unprivileged belligerents (who get the bare minimum of protections) and the debate continues to rage. To be classified as a combatant there are four elements that the members have to meet: they need to carry arms openly, adhere to a chain of command, wear a symbol openly, and follow IHL rules. I would argue that the Funato Clan does not meet this threshold: namely, they fail the final prong as they have openly attacked civilians which is a direct violation of the Fourth Geneva Convention. Therefore, they are unprivileged belligerents who get minimal protections. The Land of Water must therefore hold the Funato Clan accountable for its violations of IHL. But how?

Accountability Measures

The Land of Water has two vehicles where they can hold the Funato Clan accountable: UNCLOS and the Geneva Conventions. First, universal jurisdiction under UNCLOS gives us the means to hold the Funato Clan accountable for their actions as pirates. Universal jurisdiction is the idea that any state can hold the organization, individual accountable because the action(s) committed violate a jus cogens norm, a norm that all states agree should not happen – here, piracy.

The Geneva Conventions allow us to hold them accountable as a non-state terrorist organization. Here, the Land of Water can directly hold them accountable in their national courts because the Funato Clan violated the Geneva Conventions when it attacked and killed civilians, when they attacked government facilities and leaders. The Funato Clan members as unprivileged belligerents in a NIAC do not get absolved for their actions and can and should be held liable to the fullest extent of the Land of Water’s justice system.

In re: Ezra Bridger’s Lightsaber

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“True, he constructed it, and by all accounts, it served him well. Then he passed it on to you. You have since made your own modifications. So it is now your lightsaber.” – Huyang

In the final episode of Star Wars: Rebels, Ezra handed his lightsaber to Chopper before sneaking off to surrender to Thrawn. Chopper gave it to Sabine, and she used it to help the rebels escape the Imperial Command Center.

By the beginning of Ahsoka, Sabine had modified Ezra’s lightsaber. In Episode 2 of Ahsoka, Huyang remarks that, after her modifications, the lightsaber is now Sabine’s. While I certainly share Huyang’s enthusiasm for lightsabers, I would respectfully disagree with Huyang’s take on property law.

A photograph of Sabine's lightsaber from Ahsoka, displayed in a museum-like glass case
Exhibit A: The lightsaber in question (Lucasfilm booth, SDCC July 2023)

Gift

If Ezra had gifted the lightsaber to Sabine, then she would be entitled to do as she pleased with it, including modifying it to her heart’s content. Gifting an item of personal property transfers title to the property from the giver to the recipient, who thereafter owns the property outright. See Cal. Civil Code § 1146.

As an aside, the circumstances of Ezra’s relinquishment of his lightsaber raise an interesting question about the nature of the gift. On one hand, if Ezra meant merely to gift the lightsaber as a sign of affection, the gift would be inter vivos, an ordinary gift between living parties. On the other hand, if Ezra expected that his gambit with Thrawn’s ship and the purrgil would cause his death, the gift would be a gift causa mortis, which is sort of a quasi-testamentary gift given under an apprehension of imminent death.

Either way, a legal gift requires intent, delivery, and acceptance, and the circumstances in the Rebels finale raise questions regarding at least intent and delivery. Burkle v. Burkle, 141 Cal. App. 4th 1029 (2006). First, it seems unlikely that Ezra intended to gift the lightsaber to Chopper, to whom he delivered the item. One shudders to contemplate the havoc that Chopper could inflict with such a weapon, but more than that, astromechs like Chopper are more frequently mere custodians (see, e.g., Return of the Jedi). If anyone, it’s more likely Ezra intended it to be a gift for Sabine, who had already demonstrated her aptitude with the Darksaber and with whom Ezra shares a close, affectionate relationship. But in that case, it’s curious that he did not give it to her directly even though he had the opportunity when silently communicating with her in the Rebels finale his intent to sneak off and surrender. So even if Sabine could establish intent, notwithstanding Huyang’s comment that Ezra “passed it on to you,” the lightsaber was probably not a legal gift as Ezra arguably did not actually or symbolically deliver it to Sabine’s possession. See Cal. Civil Code § 1147 (for unwritten gifts, requiring actual or symbolic delivery of object to recipient).

In any event, Sabine herself does not seem to interpret the transfer as a gift, as she still refers to it as “Ezra’s lightsaber” in Ahsoka. Under these circumstances, Sabine would have no right to alter Ezra’s personal property, and the modifications certainly would not result in transferring title to her.

Gratuitous Deposit

Alternatively, personal property left in the physical custody of another raises the issue of bailment, where the owner transfers possession but not title to a bailee. The lightsaber’s bailment here would be best described as a situation where the bailee, Sabine, receives the benefit of possession, and the owner, Ezra, receives no reciprocal benefit, such as a rental fee. California regards this kind of bailment as a “gratuitous deposit” under Civil Code section 1844. California law requires a bailee of this kind of deposit to “use, at least, slight care for the preservation of the thing deposited.” Cal. Civ. Code § 1846(a).

Framing Sabine’s possession of the lightsaber as a gratuitous deposit would be better for her in terms of avoiding trouble for its modifications. She could argue that adding embellishment to the nozzle and polishing up the hilt did not impair the lightsaber’s function or value. She could argue that the modifications added value given her reputation and skill as an artist and reflected “at least, slight care” for the lightsaber’s preservation while in her custody.

However, as with all deposited property, California law would require Sabine to return the lightsaber to the owner when demanded. So assuming that her and Ahsoka’s quest is successful, what happens if Ezra is unhappy with the modifications to his lightsaber while it was in Sabine’s care?

This triggers a concept called accession, which is the addition of value to bailed property by the expenditure of labor or the addition of new materials. See Cal. Civ. Code § 1025 et seq. Since Ezra owns the principal lightsaber, Ezra would be entitled to entirely reclaim the newly embellished lightsaber, although he may be obligated to reimburse Sabine for her effort and materials. Id. § 1025. Alternatively, he could demand that the new ornamentation be removed and his property restored to its original condition. Id. § 1026.

However, given that Sabine’s modifications likely do not exceed the value of the overall lightsaber, the modifications would not result in transferring ownership to her, despite Huyang’s evaluation.

What will Ezra think of Sabine’s additions to his lightsaber? Will he ultimately gift it to her in a way that results in an effective transfer of title? It looks like Sabine, Huyang, and Ahsoka will have to travel to a galaxy even farther, farther away to answer these and many other questions.

This post was composed during the 2023 WGA and SAG-AFTRA strikes. We acknowledge that this show would not exist without the labor of currently striking artists and are grateful for their hard work.

San Diego Comic Con 2023 Panels for The Legal Geeks

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We are returning to San Diego Comic Con! You can see us Thursday and Saturday at 700 pm each night! Below is our panel schedule.

Thursday 

@thelegalgeeks

See you at San Diego Comic Con for Indiana Jones and the Raiders of the Lost Lawsuit!

♬ original sound – TheLegalGeeks

7:00PM – 8:00PM Indiana Jones and the Raiders of the Lost Lawsuit You throw me the idol, I throw you the whip, is the beginning of legal analysis for Dr. Indiana Jones. Did Indy and Marion Ravenwood have a valid partnership agreement to find the Ark of the Covenant? Did Satipo breach his fiduciary duty to Indiana at the Temple of the Chachapoyan Warriors? Does the insanity defense apply to anyone who drank the Blood of Kali? Did Germany actually declare war on Dr. Jones Senior and Junior? And if the US Government classifies the Ark of the Covenant as Top Secret, what is necessary to declassify it for a FOIA request? This is the time when a fedora is proper courtroom attire, so join our team of lawyers and judges for fortune and glory, featuring Circuit Judge John B. Owens (9th Circuit Court of Appeals), US Magistrate Judge Steve Chu, Christine Peek, Mark Zaid, Michael Dennis, and Joshua Gilliland. Presented by The Legal Geeks. Room: Grand 12, Marriott Marquis San Diego Marina

Saturday

@thelegalgeeks

At San Diego Comic Con, on Saturday, 7:00PM – 8:00PM, Lawyermania – Guardians of the Law – It’s time to shrink down complex legal issues from Guardians of the Galaxy Vol 3 and Ant-Man and the Wasp Quantiumania with lawyers and judges! What was the legal justification for the Council of Kangs to sentence Kang the Conqueror to the Quantum Realm? Did Kang and Janet Van Dyne have an enforceable contract to repair Kang’s ship? Was there a deed of title for the sale of Knowhere? Is building a city in the corpse of a Celestial desecration of a corpse? Join our team of legal heroes for their analysis of the latest films in the Marvel Cinematic Universe, featuring Judge Carol Najera, Crystal Swanson, Stephen Tollafield, Kathy Steinman, Nari Ely, and Joshua Gilliland.  Presented by The Legal Geeks. Room: 25ABC. #sandiegocomiccon #sdcc

♬ original sound – TheLegalGeeks

7:00PM – 8:00PM, Lawyermania – Guardians of the Law – It’s time to shrink down complex legal issues from Guardians of the Galaxy Vol 3 and Ant-Man and the Wasp Quantiumania with lawyers and judges! What was the legal justification for the Council of Kangs to sentence Kang the Conqueror to the Quantum Realm? Did Kang and Janet Van Dyne have an enforceable contract to repair Kang’s ship? Was there a deed of title for the sale of Knowhere? Is building a city in the corpse of a Celestial desecration of a corpse? Join our team of legal heroes for their analysis of the latest films in the Marvel Cinematic Universe, featuring Judge Carol Najera, Crystal Swanson, Stephen Tollafield, Kathy Steinman, Nari Ely, and Joshua Gilliland.  Presented by The Legal Geeks. Room: 25ABC