Space Force: Civil War

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August 27, 2018

Unless you’ve been avoiding all news, then you know that President Trump has ordered the creation of the U.S. Space Force—a sixth branch of the U.S. military that would oversee war-fighting in the final frontier. Under the newly-formed Space Command, a four-star flag officer will lead the Space Operations Force and Space Development Agency to “strengthen security, ensure our prosperity and . . . carry American ideals into the boundless expanse of space.” While additional details are scant, we here at The Legal Geeks have decided that one critical issue must be decided first and foremost: Will the Space Operations Force be modeled after the U.S. Marine Corps or the U.S. Army?

Tapping our contributing blogger talent pool, we have enlisted the top military legal minds to solve this problem. Thomas Harper—Han Solo fanboy and U.S. Army Judge Advocate—believes that the Space Force should take its cues from the pride of ole’ George Washington himself, the U.S. Army. Caesar Kalinowski IV—Philip K. Dick devotee and former U.S. Marine—contends that calling the interplanetary troops anything other than Space Marines is tantamount to blasphemy.

Because settling the issue is needed before Thanos is prosecuted for murdering half of Earth and faces a Space Force firing squad, we asked them to make their case. So should it be Space Marines or Space Soldiers?

Thomas Harper

“Experience teaches us that it is much easier to prevent [a hostile war mongering alien race] from posting themselves than it is to dislodge them after they have obtained possession [of the Earth].” – George Washington, 1776

General Washington, were he here today, would no doubt proclaim (after first seeking some modern dental care) his beloved U.S. Army as the obvious choice to form the backbone of the new Space Force™. Although the Marine Corps may seem like a tantalizing choice, it’ll take more than the few and the proud to defend our blue marble against the evil that undoubtedly lurks in the great beyond. Enter the U.S. Army, the nation’s go-to force when you need to get embroiled in a long-term conflict far from home, whether that’s across the globe, or across the stars.

At its core, the Army has the perfect origin story to lend to the Space Force. As the very first military branch (we beat the Marines by a whole five months), the original Continental Army was proudly formed out of citizen-soldiers who comprised militias in each of the 13 colonies, as opposed to a few drunken brawlers at a bar. While the modern Marine Corps has admittedly expanded its recruiting beyond the bar at your local Applebee’s, the Army has always truly been a force comprised of the average American. Likewise, the Space Force should model itself on those same humble roots, representing a true cross-section of America as it whoops ass around the solar system.

General Veers & the Imperial Army: The Galaxy’s choice delivery mechanism for peace, prosperity, and a steady supply of crayons for all the Space Marines out there.

The fatal flaw in using the Marine Corps as a model comes from the Corps’ own recruiting motto, “The Few, The Proud, The Marines.” After all, why would you use a scalpel when you can wield a sledgehammer, especially a space-sledgehammer? When it comes to slugging it out across the galaxy, we need a numerically superior force capable of going toe-to-toe with any hostile alien force. Sci-fi has repeatedly proven that there is strength in numbers: Darth Vader didn’t roll around the galaxy far, far away with a small contingent of Marines, he brought an entire legion of troops to smash Rebel scum. When it was time to take the fight to the Bugs in Starship Troopers, it was the iron fist of the mighty Mobile Infantry that delivered the haymaker on Earth’s behalf (please ignore the inconvenient fact that Robert Heinlein was a U.S. Naval Academy graduate).

With a current strength of just shy of one million active, reserve, and National Guard soldiers (compared to a measly ~200,000 Marines), the Army is the only military branch capable of marshaling the sheer numbers it will take to defend our space borders. Despite its size, the Army also has the ability to strike quickly. Rapid deployment forces like the 82^nd Airborne Division and 75^th Ranger Regiment are capable of having combat troops en route to fight within 18 hours. Perhaps the Marine Corps can rapidly assemble a force to tag along if the Uranus Embassy needs some guards, though.

The Marines Corps’ sci-fi prowess encapsulated in a single photo.

It also bears mentioning that, while the Marines have a vaunted place in sci-fi, they seem to get their asses kicked left and right. In Aliens, it was a pissed off civilian pilot with a Class 2 rating in a Power Loader who took down the Queen, rather than the force of Colonial Marines. Meanwhile in the Battlestar universe, the Colonial Viper Squadron pilots always seem to be the ones doing the heavy lifting against the Cylons. With such a suspect record, the Space Force is better served looking elsewhere for inspiration.

Finally, when planning the newest military branch, the coolness factor is an absolutely essential consideration. Coolness is something the Army has in spades. In real life, all the coolest service members wore Army green, including General Patton, Colin Powell, Clint Eastwood, Jimi Hendrix, and even Ice T. The Army’s legend looms just as big on the screen, boasting legends like Johnny Rico and Dutch in Predator. Meanwhile the Marines are stuck with duds like Private Hudson from Aliens.

While the Marine Corps may very well form the eventual backbone of the Space Force, it’s a virtual certainty that the Army will be close behind to bail them out when they eventually call “Game over, man!” In the meantime, surely this Space Force will need Space JAGs, right? You know where to find me.

Caesar Kalinowski IV

All Hail Saint Mattis of Quantico, aka Mad Dog Mattis, aka The Warrior Monk, aka The Patron Saint of Chaos.

Although Secretary of Defense and former Marine General James Mattis initially seemed bearish on the idea of a Space Force, I have to assume it was only because he always assumed the Marine Corps would take over that role. As a fundamental Mattisonian, I too had expected that the U.S. would simply give Marine Lance Corporals some space suit training and then send them into orbit to wreak havoc at a bar on the Moon until they were needed to police call space trash. But now that the President has announced that an entirely separate force be created, it’s obvious to me that we should create the Marine Corps Part II: Marines in Space.

First, the history of the Marine Corps is pretty much the history of all space troops. In 1775, the Marine Corps was born in a bar called Tun Tavern during the American Revolution. The bar’s owner, Robert Mullan, became the Corps’ first Captain and recruiter—allegedly luring drunks and degenerates to fight in the new force with promises of cold beer and steady pay. Like the infamous Mos Eisley Cantina, Marine recruits from this “wretched hive of scum and villainy” were loaded half-drunk onto ships to fight the British in the hostile waters of the Caribbean. I mean, who else would sail into enemy territory with no reinforcements except men with nothing to lose and a voracious appetite for conquest and booze? Similarly, we should expect that the first people recruited to stand watch on an asteroid base are going to be folks with (1) little left on Earth to miss, (2) a desire for adventure, and (3) more than a few screws loose. If that doesn’t sound like a Marine, I don’t what does.

Three hots, a cot, and all the space rum you can drink

Second, Space Marines have already played a prominent role in nearly every outer space battle. From the Colonial Marine Corps in Aliens and Battlestar Galactica to the EarthForce Marine Corps of Babylon 5, Space Marines have been kicking butts and taking names for decades. Even the mighty Chinese Space Defense Force was defeated by U.S. Colonial Marines at the Battle of Tannhäuser Gate, asserting American dominance during off-world colonization in Blade Runner. So if Space Marines are good enough for sci-fi legends James Cameron and Ridley Scott, why would we even look elsewhere now?

Third, the American space mission demands a small, flexible Space Force that acts as a force-in-readiness just like the Marine Corps does today. The current Corps is America’s first response force—small (~200,000 personnel), fast (able to place Marines on the ground in less than 24 hours), and designed solely “to locate, close with and destroy the enemy by fire and maneuver or to repel the enemy’s assault by fire and close combat.” In the open expanse of space, America will not be able to send large amounts of troops on short notice to defend distant outposts. Accordingly, the Space Operations Force will need to be staffed by a small number of expertly trained fighters, capable of hopping the nearest transport to fight skirmishes off the Belt of Orion at a moment’s notice.

Obviously, like real Marines today, every Space Marine is going to be jacked and equipped with a chainsword

The U.S. Army, however, is a large (~2.1 million Active and Reserve soldiers), clunky, bureaucratic organization that needs four field-grade officers to sign out a pen. How could we depend on them to respond quickly when they can’t even mobilize troops for 72 hours? See Thomas F. Lippiatt, et al., Mobilization and Train-up Times for Army Reserve Component Support Units, RAND Corporation Published Research. The answer is we cannot. We must have fit and fast Space Marines, not slow soldiers whose current mission includes “providing prompt, sustained, land dominance.” See Army Mission Statement.

Ultimately, the Space Force cannot just sit on space bases providing “prompt” support; instead, it instead must draw on the Marine Corps’ historic mission of delivering proven results in expeditionary and asymmetrical warfare. And Secretary Mattis, in case you’re reading this, I’m totally open to being your new Assistant Secretary of Defense for Space.

We need you … to police call all of this space trash, Private

Thomas Harper

Thomas is the Senior Legal Advisor in International Humanitarian Law for the American Red Cross. He is a Major in the U.S. Army Reserves serving as a Judge Advocate General (JAG) officer. Thomas leads the Red Cross IHL Program, which carries out the Geneva Conventions obligation of educating the American public about the rules of war. During his time in the JAG Corps, he has served in a variety of positions, including as an Operational Law attorney advising on the law of war and rules of engagement in Afghanistan.

After completing more than 7 years on active duty, he now serves in the Army Reserves as a senior military defense counsel, representing accused soldiers in complex cases. While he loves all things geek, he is a massive Star Wars fan, collector, and trivia fiend. Follow his ramblings about the galaxy far far away on Twitter at @thomasLharper.

Defending the Ghost for her Crimes in Ant-Man and The Wasp

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Josh Gilliland

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August 21, 2018

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The Ghost phasing through the mold of villains in Ant-Man and the Wasp by being an adversary who was a victim seeking a cure, not someone intent of causing massive carnage or revenge (see Red Skull, Loki, Whiplash, Ultron, HYDRA, Abomination, or The Hand, to name a few). The fact the Ghost is someone seeking a cure for a physical illness caused by an experiment, she actually has legal defenses for a jury.

Ghost Stories

Ava Starr was injured as a child by energy from the Quantum Realm in an experiment conducted by her “egghead” father Elihas Starr. Ava’s physical condition from the accident was being out of phase with the universe. Ava was taken in by SHIELD to become a field agent used for clandestine missions with her abilities to pass through solid objects. Ava’s abilities were exploited by SHIELD (which had been compromised by HYDRA). She was later cast out on her own after SHIELD fell (as seen in Captain America The Winter Soldier and Agents of SHIELD).

Starr’s physical condition deteriorated to the point she going to cease to exist. Her body kept phasing, resulting in her being in a state of pain and mental distress. She had to sleep in a chamber designed by Bill Foster to slow her decay from existence.

The Ghost committed multiple forms of assault, larceny, and burglary, or larceny to steal a miniaturized building, in order to find a cure for her condition. The most challenging of her crimes is the killing the corrupt FBI Agent Stoltz in order to acquire Hank Pym’s laboratory. While the FBI agent was on the take from the criminal Sonny Burch, the death of a Federal agent causes a significant problem in defending Starr.

Lay the Ghost of Crimes to Rest

The Ghost’s crimes were in the city and county of San Francisco. However, the Ghost did kill a Federal agent, so Ava Starr could be prosecuted in both California and Federal Court for her separate crimes.

There are two plausible defenses for Ava Starr. The first is the medical necessity defense and the other insanity.

The common law medical necessity defense has the same elements as the necessity defense. A defendant can argue the necessity defense when for any criminal act, except taking an innocent human life. People v. Trippet, 56 Cal. App. 4th 1532, 1538, (1997), citing People v. Pena 149 Cal. App. 3d Supp. 14, 22 (1983). The six elements to the defense require the defendant to prove:

The act charged as criminal must have been done to prevent a significant evil;
There must have been no adequate alternative to the commission of the act;
The harm caused by the act must not be disproportionate to the harm avoided;
The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm;
Such belief must be objectively reasonable under all the circumstances; and
The accused must not have substantially contributed to the creation of the emergency.

Trippet, at *1538, citing Pena, at pp. Supp. 25-26.

Focusing only at the available state charges of assault and larceny, the Ghost does have a chance to argue a medical necessity defense:

The attempted theft of technology to access the Quantum Realm was done to prevent her imminent death, which would be a “significant evil.”
The technology was only available from the black market dealer who was selling it to Hope van Dyne;
The act of stealing the technology was not disproportionate to the harm avoided, which was her death. However, this argument is weakened by every assault Starr commits;
Starr had the good-faith belief that stealing the technology to access the Quantum Realm was the only way to prevent her death;
The theft of technology to access the Quantum Realm was objectively reasonable. Each assault does undermine the reasonableness under all the circumstances;
As to the accused must not have substantially contributed to the creation of the emergency, it was the criminal actions of Sonny Burch that caused the escalation of violation that Starr responded to in order to acquire the technology. Moreover, Ant-Man and the Wasp did break into Starr’s hideout, which makes their kidnapping a legal mulligan.

In a prior case, the necessity defense was not available to a cult de-programmer who kidnapped a cult member to “rescue” them, because the family’s knowledge of the cult was four or five years earlier. Moreover, there was no knowledge of imminent physical harm. People v. Patrick 126 Cal. App. 3d 952 (Cal. App. 4th Dist. Dec. 18, 1981). This case is distinguishable from Ava Starr’s case, because she personally had a reasonable belief to justify her actions. Starr’s danger was imminent and she had a rational belief her life was in danger.

Pale as a Ghost

Ava Starr could argue that at the time she killed FBI Agent Stoltz, she was suffering from years of physical pain from phasing in and out of reality, thus did not understand the wrongfulness of her actions. See, 18 U.S.C.S. § 17. The insanity defense is rarely effective, but there is a good argument to be made that Starr had a mental disease from her years of suffering, which caused her to not understand that killing Stoltz was wrong.

Expert testimony would be needed to explain the impact of constant physical pain caused by the exposure to the Quantum Realm upon Ava Starr. First, a psychologist could report on Starr’s mental state from a lifetime of a physical condition causing her to phase through objects. Second, the psychologist could further opine on the effect of a child being trained by SHIELD/HYDRA to conduct assassinations and espionage operations. Third, the physical impact of constant pain for years upon Starr’s mental state would need to be offered as expert opinion for the jury to consider. All of these factors could show Starr did not understand the wrongfulness of killing Agent Stoltz.

Don’t Give Up the Ghost

The Ghost was a victim of her father’s experiments that resulted in her being exploited as a weapon by HYDRA agents within SHIELD and a lifetime of physical pain. Such nightmarish conditions could drive someone mad to the point they only want the pain to stop. Ava Starr’s mind was clearly haunted by suffering and sought relief. That resulted in extreme actions, but not ones that a jury should render a life sentence for surviving.

Gattaca and the Law of Designer Babies

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Caesar Kalinowski IV

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August 13, 2018

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“I belonged to a new underclass no longer determined by social status or the color of your skin. No, we now have discrimination down to a science.” – Vincent Anton Freeman

From the ubiquitous grade school novel Brave New World, to the 1997 cult classic Gattaca, sci-fi writers love the idea of genetically tinkering with babies. Also known as “test tube” or “designer” babies, future science promises prospective parents the option of creating the newborns with perfect features and genetics. Because fellow Legal Geek blogger Thomas Harper and I both recently became first-time fathers, I thought we should explore our options in case helicopter parenting doesn’t work and our wives want to remove our less-admirable genetic traits next time.

In Gattaca, Ethan Hawke’s Freeman fights his way through life with poor eyesight and a heart defect after his parents made him “the old fashioned way.” His brother, however, was brought into the world in what was now called “the natural way.” Parents using that process get their first choice for all attributes. Gender screening, defect screening, physical attribute choice. Hell, for an extra $5,000 the embryo could have genes spliced into it to have enhanced musical or mathematical skills.

The “old-fashioned way” versus the new “natural” way. The new way does seem less fun.

Today, designer babies are the product of Preimplantation Genetic Diagnosis (“PGD”), which “is a procedure that identifies genetic defects in early embryos conceived via In Vitro Fertilization techniques.” Bratislav Stankovic, “It’s A Designer Baby!” Opinions on Regulation of Preimplantation Genetic Diagnosis, UCLA J.L. & Tech., 2005, at 3, 1. But PGD isn’t only used for screening out defects, it can also allow parents to select some physical traits, gender, and create a donor offspring for a preexisting sibling in need of a stem cell. Susan M. Wolf, et al., Using Preimplantation Genetic Diagnosis to Create a Stem Cell Donor: Issues, Guidelines & Limits, 31 J. L. Med. & Ethics 327 (2003).

While illegal in a number of countries, the United Kingdom’s ethics body has recently come out in favor of PGD if it is used in the future child’s best interests. The United States government, however, has largely stayed out of regulating PGD despite U.S. researchers already using the technique to genetically modify embryos. The Food and Drug Administration has issued a final rule regulating certain uses of human cells, tissue, and cellular and tissue-based product. See Human Cells, Tissues, and Cellular and Tissue-Based Products; Establishment Registration and Listing, 66 FR 5447-01. Identifying future concerns, the U.S. National Academies of Science, Engineering, and Medicine published a 261-page report suggesting limitations on the technology but agreeing that it is permissible if researchers meet strict criteria.

My son pondering why he was so lucky to get all of my wife’s features except for his dad’s enormous noggin

Acknowledging a woman’s privacy rights, the Supreme Court in Roe v. Wade held that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” 410 U.S. 113, 154 (1973) (emphasis added). Accordingly, several states have enacted laws regulating embryo research, including some with felony penalties for violations. Michigan law prohibits nontherapeutic research if “the research substantially jeopardizes the life or health of the embryo.” Mich. Comp. Laws § 333.2685. Minnesota law bans all research “except to protect the life or health of the [embryo],” Minn. Stat. § 145.422, and Pennsylvania makes it a felony to perform any type of research on an unborn child, 18 Pa. Cons. Stat. § 3216. See also Me. Rev. Stat. tit. 22, § 1593; La. Stat. Ann. § 9:129.

Critics of PGD and genetically-engineered babies often associate the process with the eugenics practices of the early 20^th century, such as the forced sterilization of disabled persons to remove unwanted traits from society. See Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding sterilization law because “society can prevent those who are manifestly unfit from continuing their kind”). The high cost of PGD procedures also means that it is functionally only available for the wealthy elite, subtly encouraging a culture of selectivity and discrimination based on “desirable” traits. Greedy medical clinics will likely jump at the chance to cater to the whims of these “buyers,” disregarding ethical concerns and turning “the process of having child into a consumer experience, giving it a measurable, commodified value.” Stankovic, “It’s A Designer Baby!”, at 3, 34. So what controls or criteria should—and can—be implemented to address the obvious pitfalls of this technology?

A very technical diagram of how babies are genetically modified

The U.S. Constitution does not explicitly mention reproduction, but that does not mean the Supreme Court has avoided the topic. Abortion, which can implicate the rights of the both the mother and child, has been upheld with certain cabining concepts. First, the Court has ruled that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 846 (1992). Because viability has been the benchmark, protecting the rights of embryos in PGD may turn on establishing the fertilized ovum’s personhood. See Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. Chi. L. Rev. 381, 400 (1992).

Second, the Court has also commented on the broad category of permissible state interests in the reproductive realm. “[T]he state interest in [protecting] potential human life is not an interest in loco parentis, for the fetus is not a person . . . . [This interest] is not grounded in the Constitution. It is an indirect interest supported by both humanitarian and pragmatic concerns[.] The State may also have a broader interest in expanding the population, believing society would benefit from the services of additional productive citizens– or that the potential human lives might include the occasional Mozart or Curie. These are the kinds of concerns that comprise the State’s interest in potential human life.” Casey, 505 U.S. at 915. Accordingly, the Court is likely to leave the question of where to draw the ethical and prudential lines around PGD to the states.

So now EV gets her dad’s genes and taste in comic books? Something must be done.

But state statutes have been deemed unconstitutional on the basis of violated fundamental liberty interest, or on grounds of vagueness regarding what constitutes “experimentation” or “therapeutic.” See Lawrence v. Texas, 539 U.S. 558 (2003); Lifchez v. Hartigan, 735 F. Supp. 1361 (N.D. Ill. 1990); Margaret S. v. Edwards, 794 F.2d 994, 999 (5th Cir. 1986). What level of scrutiny these potential PGD laws are tested under, however, is not entirely clear. While state laws that “impinge on personal rights protected by the Constitution are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest,” no enumerated personal rights pertaining to reproduction and genetic modification exist. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 433 (1985). Therefore, because unmodified embryos are also not a protected class, it’s likely the courts will review future state laws under the easily-met rational basis test. Stankovic, “It’s A Designer Baby!”, at 3, 13.

In conclusion, the technology for genetically designing babies that first seemed so ridiculous in Gattaca is knocking on the door of reality. While the federal government is likely to cede regulation of PGD to the states (at least initially), state laws will likely be subject to scrutiny under the Fourteenth Amendment’s Equal Protection Clause or Due Process Clause. And because U.K. and U.S. medical boards have deemed the practice ethically sound at least in theory, I’d imagine that we will start to see these issues crop up sooner than later. So the only remaining question is, do Thomas and I talk our wives into making our next children football or electric guitar prodigies?

Probate Law in the Aftermath of Infinity War

By

Josh Gilliland

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August 9, 2018

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Thanos turned half of all life to ashes at the climax of Avengers Infinity War. A universal death date for half of every person on Earth would pose many challenges, such as who died? Were the deaths proportional across cities or were some places hit harder than others? There are people key for delivering services for societies to function. Did 80% of doctors in Los Angeles turn to dust, while only 20% of doctors in New York City? How many people who can run a nuclear power plant are left alive? And the big one: How many Probate Judges were not turned to dust?

Many people have well dynamic estate plans. This could cover anything from wills for distribution of property to trusts providing financial support to where they went to college. Those who die without a will have their property distributed according to intestate succession. In a world where 50% of the U.S. died at once, courts would be flooded with survivors trying to put society back together.

Probating Wills

Estate law is governed by each state. While there can be variations, generally states have very similar requirements based on centuries of probating estates.

The most basic will is a statutory will, which is a form document where the testator (person creating the will) fills in the blanks of the pre-printed will, signs it, and has witnesses who observe the testator sign the will, before signing the will in the presence of the testator. Cal. Prob. Code § 6221. Having one of these wills is better than nothing, but it might be lacking for more thoughtful estate planning.

An attorney ideally prepares formal wills after careful consultation on the wishes of the testator. Formal wills require the testator to sign the will in the presence of the two attesting witnesses, or acknowledge their signature to each attesting witness separately, and declare to them that his signature is on the will. Witnesses are required to sign the will and list their addresses. N.Y. Est. Powers & Trusts Law § 3-2.1.

A holographic will is not as cool as it sounds. These wills are not video form wills created by a Stark Industries app, but a testimonial document that is in the testator’s own handwriting that cover the material provisions of a will and signed. These wills do not need to be witnessed. However, undated holographic wills can be subject to challenge if it contains provisions that conflict with a formal will. Cal. Prob. Code § 6111.

Intestate Succession

People who die without a will have their estate disposed of through intestate succession to surviving heirs. This can also cover property not covered in a will. Cal. Prob. Code § 6400. It is easiest to think of intestate succession as flowcharts contingent on whether there is a surviving spouse.

If the descendant has no one who falls under intestate succession, then the property would go to the state (the legal term is “escheat”). Cal. Prob. Code § 6404

What Will Happen to the Courts in the MCU?

Courts across the United States would be flooded if half the population turned to dust. County offices would literally and figuratively be buried in the dust of deceased as they processed death certificates. State Courts that already do not have enough judges currently would have LESS judges to handle the flood of probate cases. For example, San Francisco has a population of 870,887 people. Assuming the courts hear 40 cases a day, the influx of 435,444 probate petitions would shatter the court system.

Consider the family of Hank Pym, Janet van Dyne, and Hope van Dyne. All three characters died in the mid-credits scene of Ant-Man and the Wasp. It is highly likely that there are no other surviving family members. If Hank Pym had a will, the probating of his technology could go to a colleague in the event he had no surviving family. However, there is a strong (and terrifying) likelihood that all of Pym’s technology could escheat to the state if not covered by a will and there is no one to take by intestate succession.

The other nightmare scenario related to probate is the payouts for life insurance policies would cause that industry to collapse. Assuming the US population in the MCU is 326,766,748, then 163,383, 374 people died at the end of Infinity War. Assuming 20% had life insurance policies there would be approximately 32,676,675 life insurance claims. If each insurance policy was for $150,000, the total payout would be $4,901,501,220,000.

There would need to be Federal bailouts to keep life insurance companies out of bankruptcy. The process for payouts would likely be protracted, as survivors would need to acquire death certificates from counties. As there is only dust left of Thanos’s victims, identifying people would be ripe with fraud, as there is no way to identify a pile of dust. Insurance companies would fight paying out survivors to avoid a total melt down of the market.

All of these issues would fall to already taxed Courts, which would be operating at half of capacity with a massive increase in case load. However, ideally the Avengers do not spend time figuring out how to help probate courts, but how to undo the damage created by Thanos. It would be easier to figure out how to respond to mass resurrection of victims instead of probating universal genocide.

Did Hela Commit Desecration of Corpses in Asgard?

By

Josh Gilliland

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August 3, 2018

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Hela in Thor Ragnarok used the Eternal Flame to reanimate the honored dead of Asgard for her personal mindless army. Could the descendants of those soldiers sue Hela for desecration of a corpse?

Law of the Dead

It has been long established since the time of Ginnungagap that the “family of the deceased has a legally recognized right to entomb the remains of the deceased family member in their integrity and without mutilation.” Koerber v. Patek, 123 Wis. 453 (1905). As such, the next of kin have a claim against whoever mutilates a corpse. Id. This is a personal right of the family of the deceased to bury a body and an actionable wrong. Carney v. Knollwood Cemetery Ass’n, 33 Ohio App. 3d 31, 36, (1986). The recognized basis for damages is for emotional suffering. Id. Courts have held that direct blood descendants have standing to sue for desecration of a corpse. Carney, at *37.

Statutes prohibiting the removal of human bodies have been found to apply to bodies that have been deceased for thousands of years. State v. Redd, ,992 P.2d 986, 990-91 (1999 Sup.Ct.). The purpose of applying the law to all dead bodies is to protect the remains of pioneers buried laid to rest in crude graves, war dead, or victims of accidents or crimes. Id.

Raising Hela

Hela entered the tomb of the honored dead by breaking through the ceiling of the tomb. This action would be the willful destruction of a tomb (and likely a monument) or possibly defacing. Many states have laws prohibiting the destruction of tombs and gravestones, which Hela clearly violated. See, Tenn. Code Ann. § 46-1-313.

Hela’s use of the Enteral Flare disturbed the corpses of Asgard’s honored dead. This patently violated the integrity of the bodies, infusing them with an unnatural life. The bodies did not appear to return to their living state, but remained decayed. Moreover, the bodies acted as decomposed drones that followed Hela’s orders to attack the citizens of Asgard. Any descendants who saw their reanimated ancestors murder their fellow citizens would suffer emotional harm (and be in mortal danger as well).

Hela would be subject to the lawsuits by the direct descendants of the honored dead who were reanimated by the Eternal Flame. This act did not restore them to life, but used their putrefied remains to butcher Asgardians. While desecration of the corpse cases are not normally class actions based on supernatural actions, there is a first time for everything.

Hela could also be prosecuted for defacing the tomb of the honored dead and reanimating them. Her actions violated the letter and spirit of the law that protects bodies from being mutilated.

A defense attorney might argue Hela was the rightful queen of Asgard, thus could violate corpses and murder the citizens of Asgard. The problem with that position, is a leader is never justified in murdering their people. Thor was right to defend the Asgardian people from extermination. Moreover, if ever there is a time for a revolution, it is when a ruler decides to slaughter her people.

The Court Martial of Poe Dameron at San Diego Comic Con

By

Josh Gilliland

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July 30, 2018

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The Legal Geeks and the Rebel Legion Sunrider Base present the Mock Court Martial of Poe Dameron, recorded live at San Diego Comic Con on July 20, 2018. Based on the events of The Last Jedi, Poe stands accused of disobeying General Leia Organa and leading a mutiny aboard the Resistance flagship Raddus against Vice Admiral Amilyn Holdo. Lawyers for the prosecution and defense, including a U.S. Army JAG attorney, will take on Poe’s case in front of United States Magistrate Judge Mitch Dembin. Participating attorneys include Steve Chu, Thomas Harper, Christine Peek, and Megan Hitchcock. Rebel Legion members Rachel Williams portrayed General Leia Organa and Marcus Holt as Poe Dameron. Special thanks to Riley Blanton of the Star Wars Report for helping film and edit this recording.

SDCC 2018 After Action Report

By

Josh Gilliland

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July 27, 2018

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The 2018 San Diego Comic Con was the best we have ever had at a con. Our two Star Wars panels had 500 people attend, with excellent audience questions, and a standing ovation after our Mock Court Martial of Poe Dameron. We had a rapid-fire discussion of the legal issues in the Marvel Netflix shows, including an attendee who began her question with, “I go to all of your panels.” She was from New York and we are grateful to see people so interested in the practice of law.

Judges on Star Wars

A huge thank you to Circuit Judge John B. Owens, Magistrate Judge Stacie Beckerman, Magistrate Judge Mitch Dembin, CA Judge Carol Najera, and NY Judge Matthew Sciarrino for their legal analysis of The Last Jedi and Solo. The Judges all showed their geek cred with chambers photos of their Star Wars collectables to kick off the panel. We also had excellent audience questions, which are included on the panel recordings.

Our mission was community outreach, because the “law” can be extremely complex. However, there is no better foil than Star Wars to understand the law. Tune in to our panel to hear the many legal issues from The Last Jedi and Solo, covering the duty to rescue, negligence, Droid Rights, military tribunals, and more.

Defending the Defenders

The Marvel Netflix shows Daredevil, Jessica Jones, Luke Cage, Iron Fist, and The Defenders, are all overflowing with legal issues. CA Judge Carol Najera, NY Judge Matthew Sciarrino, Christine Peek, Jordon Huppert, Megan Hitchcock, and Thomas Harper, joined us for a deep dive into the law of the Defenders.

Creating a Mock Trial

A Star Wars mock trial needs witnesses who can testify to events. The Rebel Legion Sunrider Base had two outstanding volunteers to join our team. Marcus Holt and Rachel Williams are two amazing cosplayers who love their characters. Both learned their respective witness statements and practiced with their attorneys on how to do a direct examination. Additional practices were scheduled over videoconference on how to answer questions on cross-examination. Judges also assisted with mentoring on how be on the witness stand.

Poe Dameron Witness Statement

Following canon and staying true to the characters was pivotal in having a successful mock trial. Witness statements were prepared based on the film, with supplemental details from the book and Wookieepedia.

Statement of General Leia Organa

The attorneys decided to wear Resistance uniforms for the mock trial. The mother of one of the defense attorneys had years of experience making costumes for Renaissance fairs and volunteered to make the jackets. She did a stunning job with the guidelines from the Rebel Legion.

Mock Court Martial of Poe Dameron

We wanted to address the complex issues of Star Wars The Last Jedi to help fans find a resolution to the actions of Captain Poe Dameron. Star Wars aspires to the high ideas of heroes standing up to fascism, whether it was the Empire or First Order. Being a nation of laws, our disputes are resolved in courts. Those who are charged with a crime have the right to counsel and a fair trial.

Highly skilled trial attorneys were recruited to represent Poe Dameron and the Resistance in order for the case to be fully litigated. The “facts” of the underlining charges against Poe Dameron can be summarized as follows:

Insubordination when then Wing Commander Dameron disregarded General Leia Organa’s order, shut down his radio, and ordered the bomber squadron to attack the First Order Dreadnought Fulminatrix. All eight bombers and forty crewmembers were lost in the attack.

Mutiny when Captain Dameron conspired with Lieutenant Kaydel Ko Connix, Rose Tico, and Finn to organize a plan to infiltrate the First Order Mega-Class Star Dreadnought Supremacy without the knowledge of his commanding officers.

The end result of Captain Dameron’s mutiny was the transmission of Admiral Holdo’s plans to Finn and Rose, which allowed the information to ultimately fall into the hands of the First Order. The First Order used this information to shoot down numerous unarmed Resistance transports escaping the Raddus.

Captain Dameron’s attorneys argued a strong defense based on mistake of fact that Vice Admiral Holdo was a traitor. The Defense arguments invoked the Clone Troopers who followed Order 66 without question (who also have a strong insanity defense); the Clone Troopers of the 501^st who questioned the loyalty of General Krell and did not blindly follow orders that would have led to ruin; and looking to the namesake of the Raddus with the heroes of Rogue One for violating orders to steal the Death Star plans. Moreover, the Defense highlighted that Captain Dameron had witnessed civilians murdered by the First Order and was tortured by Kylo Ren days, if not hours, before the evacuation of D’Qar.

I thought the Defense could have carried the day with their argument. The attorneys argued with courage, resolve, and great empathy for Captain Dameron.

The Prosecution had a powerful case against Captain Dameron where General Leia Organa testified to the events around the evacuation of D’Qar and the escape from the Raddus. From the Prosecution’s opening statement to closing argument, there was no escaping the fact that Poe Dameron disregarded General Organa’s order to break off the attack on the First Order Dreadnought Fulminatrix. That attack resulted in the loss of entire bomber squadron and three X-wings.

The Prosecution attorneys did a masterful cross-examination of Captain Dameron, where he admitted to both disregarding orders and seizing control of the Raddus at gunpoint. The Prosecution drove home the loss of life that was a direct result of Captain Dameron disclosing Vice Admiral Holdo’s evacuation plan that was overheard by DJ and sold to the First Order. The Prosecution made clear it was Captain Dameron’s actions that cost the Resistance lives on two separate occasions.

Prosecution Cross-Examination of Captain Poe Dameron

Trials are the main way we resolve conflict. The justice system is the forum for wrongs to be righted. More importantly, our system is predicated on fundamental fairness for the accused to have a defense. In our mock trial, the defendant had attorneys with years of trial experience who had deep knowledge of Star Wars canon. The prosecution and defense both forcefully argued their case. Everyone put in substantial time preparing their witnesses and arguments. Job well done to all of the attorneys and witnesses for bringing this case to life.

We were extremely humbled by the positive reception to the mock trial. From everyone who live Tweeted the proceedings, to the standing ovation at the end, to the article in SyFy, thank you. We are glad you enjoyed the mock trial.