Did Loki get a Fair Trial from the TVA?

June 16, 2021

The Time Variance Authority put Loki on trial with the punishment tantamount to a death sentence that looked like traffic court. The entire proceeding raised the issue of what is a “fair” trial? While there is the legal maxim that a defendant is “entitled to a fair trial but not a perfect one,” an administrative proceeding without attorneys pushes that precedent to absurdity. State v. J.A.W., No. A-5255-17T4, at *24 (N.J. Super. Nov. 12, 2020).

There are multiple troubling issues with the lack of fairness in Loki’s trial. The first is there was no pretense of an attorney to assist in Loki’s defense. Federal Courts first gave this right to those accused of crimes in Federal cases, which was expanded to the States in Gideon v. Wainwright. The Due Process Clause of the 14^th Amendment and the Sixth Amendment require criminal defendants to have effective counsel. Loki had nothing but a ticket to nonexistence.

Courts have quoted the axiom “It is beyond cavil that a fair trial may be obtained without a jury.” Com. v. Wharton, 495 Pa. 581, 599-600 (Pa. 1981). This is born from the fact a fair trial requires an impartial and properly instructed jury. Rivera v. Illinois, 556 U.S. 148 (2009). While there can be an exception in a case with substantial publicity, Loki was not on trial in New York City for his war of aggression against the Earth; he was on trial for violating the “sacred timeline.” This sounds more like a trial in the Star Chamber than any trial concerned with fundamental fairness.

Verdict: the TVA has unjust trials lacking fairness.

Loki Glorious Purpose Podcast

Josh Gilliland

June 13, 2021

The God of Mischief has his own new Disney+ series and we covered the multiverse of legal issue in “Glorious Purpose.” From 1970s decor to fair trials, and the MANY crimes of Loki, we had a great time discussing Loki.

Export Control Licensing of MechaGodzilla

Josh Gilliland

June 1, 2021

In Godzilla vs Kong, the real monster is a Florida billionaire who decided to build a giant robot and ship the components to Hong Kong through a hyperloop connecting the two cities. Shipping weapons to the People’s Republic of China raises significant red flags, including violating export control licensing. That is the polite way of saying the United States does not want private companies accidently improving the military of countries hostile to the United States. One such example was Loral Space Systems accidently improving the accuracy of China’s ICBMs in the 1990s by providing improvements to guidance systems for launching satellites.

Responsibilities of the President of the United States include:

(1) In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services. The items so designated shall constitute the United States Munitions List.

(2) Decisions on issuing export licenses under this section shall take into account whether the export of an article would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements.

(3) In exercising the authorities conferred by this section, the President may require that any defense article or defense service be sold under this chapter as a condition of its eligibility for export, and may require that persons engaged in the negotiation for the export of defense articles and services keep the President fully and currently informed of the progress and future prospects of such negotiations.

22 U.S.C. § 2778(A)(1) and (2).

A giant robot in the shape of Godzilla with missiles and lasers absolutely would be covered under the control of arms exports and imports. Shipping the material in secret from Florida to China through a hyperloop over 8,500 miles long clearly was done to avoid inspection and all those “pesky” regulations. Moreover, the transcontinental hyperloop raises serious issues of not filing permits for soil removal, which can cause property damage across the United States. Furthermore, an accident with those weapons in transit can further pose a risk to human life.

Export control licensing exists to protect the United States from an arms race and keep nations hostile from improving their military. In Godzilla vs Kong, Apex ignored these laws. After the final battle between the titans, removing the wreckage would be highly problematic, as the People’s Republic of China would claim jurisdiction for remediating MechaGodzilla, raising the exact threat export control licensing is supposed to prevent.

Analysis of The Patch Act on The Falcon and the Winter Soldier

Josh Gilliland

April 22, 2021

Forcibly removing people from their homes never ends well. The Falcon and the Winter Soldier episode 5, “Truth,” had the “Global Repatriation Council” debate the “Patch Act,” which would return people back to their countries of origin in order to reestablish borders. There is a lot wrong with it, from both a storytelling perspective and legally.

The premise of the fictional Global Repatriation Council is to help those who had “vanished” after Thanos’s Snap to return to their lives. Spider-Man Far from Home referenced this challenge, where Aunt May reappeared in her apartment to find a new family living there and five years had passed. Being the super aunt she is, May organized a fundraiser with the friendly neighborhood Spider-Man to help those who had returned.

Falcon and the Winter Soldier have turned this societal challenge on its head, with those who survived the Snap being forced out of their homes to make way for the returned. Legally that makes zero sense. It means probate laws were ignored for five years. It is one thing for those who “returned” to be in camps in order to rebuild their lives, it is another to toss people on the street who lived someplace for years.

The Global Repatriation Council appears similar to the United Nations, expect it exists for the specific purpose of helping people reset, restore, and rebuild. Such an international organization would require a charter and exist by treaty.

A US Senator represented the United States at the GRC meeting. That’s just wrong. No Senators go to the United Nations to represent the country; that is the job of an ambassador, appointed by the President, and confirmed by the Senate. Moreover, a Senator bragging about the ability to send US Troops to remove human beings from cities is horrific on multiple levels, starting with the fact the PRESIDENT is the Commander in Chief of the military. No Senator can do a damn thing to issue an order to the military, short of a subpoena to appear at a committee hearing. Senators do not deploy troops.

The GRC debating the Patch Act is further problematic, because a vote by an international organization does not automatically become a law. Flashing back to School House Rock, any treaty voted on by the GRC would still need to be ratified by the US Senate. Even then, there likely would need to be enabling legislation to enforce the treaty.

This should go without saying, but the United States cannot enact a treaty that would violate the Constitution. For example, say the UN voted on a treaty to strip voting rights of all women. It is gender-based discrimination that violates the 19^th Amendment to the Constitution. That would not fly.

The Patch Act was described as the military removing people from different countries and returning them to their country of origin. This is the stuff of fascism, with the military removing people from a country without due process of law. While immigration is exclusively Federal jurisdiction, anyone in the United States is protected by the Constitution and cannot be denied Due Process of law. Soldiers removing people from their homes and placing them in trains, planes, or trucks, lacks any form of Due Process. It also raises the issue of the military being used for law enforcement, which is prohibited under the law.

The United States Congress needs to be alerted within 48 hours of US troops being placed in harm’s way. The army sent out to different countries to remove human beings and ship them to other countries reeks of the Indian Removal Act. No member of Congress should think, “YES, this is what our military is meant to do” and sign a check for a new trail of tears.

As stated before, none of this makes sense from a storytelling perspective. The world went on living as best it could after 50% of humanity disappeared. The very idea that the “vanished” have displaced survivors is opposite of the truth.

Was Hayley Travis Negligent in Pacific Rim The Black?

Josh Gilliland

April 8, 2021

In Pacific Rim The Black, Hayley Travis, a minor living in a community of children for 5 years, found an abandoned Jaeger, activated it, and in a series of events, the Kaiju known as Copperhead killed Hayley’s entire community. Hayley blamed herself for the incident.

Is Hayley legally correct in considering herself the cause of her friends’ deaths?

Drifting with Negligence

The question to determine Hayley’s responsibility for the deaths of others is whether she was negligent. Negligence has its origins in Common Law and has been codified in code sections across the planet. California jury instructions define Negligence as follows:

Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A person can be negligent by acting or by failing to act. A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

CACI No. 401. Basic Standard of Care

Since Hayley is a minor, she is not held to the same standard as an adult. The jury instructions state that a “child is required to use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation.” CACI No. 402. Standard of Care for Minors.

Hayley’s actions are critical in determining whether she was negligent. Below are the relevant facts of Hayley’s actions after finding the Jaeger designated Atlas Destroyer:

Introduced herself to the Jaeger’s AI “Loa”;

Skipped through the virtual training that required 6 months by saying “next”;

Loa informed Hayley the walk cycle training would start once her copilot arrived;

Hayley’s brother Taylor discovered her and the two argued;

Loa announced, “Commencing Walk Cycle”;

Loa started opening the hangar doors and triggered alarms;

Copperhead was attracted to Shadow Basin by the activity.

Hayley’s Standard of Care

Let’s face it, kids since the 1950s have been dreaming of finding a giant robot. The issue for Hayley after that dream came true is, did she use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation?

There is a Jaeger size exception to a child’s standard of care and that is whether they are engaged in an adult activity, such as driving. Prichard v. Veterans Cab Co. 63 Cal.2d 727, 732 (1965).

There is a strong argument that taking a Jaeger in combat is an adult activity. However, as Taylor had been a training cadet while a minor, there appears to be a grey zone with Jaeger training beginning with minors. As Hayley was trying to learn how to use Atlas Destroyer, it is not unreasonable to hold her to the reduced standard of care for minors.

Regardless of the standard that applies, Hayley was on actual notice the walk cycle training would start once her copilot arrived. Hayley had no idea what that entailed, because she skipped through the entire pilot training course catalog. If we compare taking a Jaeger for a walk to taking a car for a spin, Hayley did not bother to look in the owner’s manual for the instructions. This on its face seems unreasonable.

Was Hayley the Cause of Copperhead Discovering Shadow Basin?

Causation is the legal concept that connects a person’s actions to the harm that follows those actions. California follows the “substantial factor” test, which states:

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

CACI No.430.Causation: Substantial Factor

Should Hayley have considered that engaging Atlas Destroyer’s walk cycle would have been a substantial factor in attracting a Kaiju to Shadow Basin? Stated more plainly, would taking a giant robot for a walk attract a Kaiju?

The answer to this question undoubtedly is YES. Hayley witnessed a Kaiju attack their parents’ Jaeger five years earlier. The community of child had purposively laid low to avoid being discovered by Kaiju. Starting a giant robot without any regard for the risk, whether as an adult of child, was wildly negligent.

There are issues such as the fact Hayley could skip through training simply by saying next, or the fact there was not a confirmation command from Loa that can mitigate Hayley’s actions, but there is no way around the fact that her actions were a substantial factor in getting her friends killed. That said, suing a teenager who is living in a post-apocalyptic wasteland is the definition of “judgment proof.” Sue the company that made a giant robot without a child safety lock.

On the Basis of XB

Josh Gilliland

March 23, 2021

Star Trek Picard introduced the concept of “XBs” (for Ex-Borg) who were the “most despised people” in the galaxy. Given the Borg Collective is comparable to Soviet Communism forcefully assimilating all in their path for the “collective” good, it is easy to see why there would be a bias against XBs. However, like those who suffered under the heel of Soviet oppression, XB’s were victims of Borg totalitarianism.

Given the prospective discrimination against XBs, what are the possible legal protections for them?

Prohibition Against Racial Discrimination

If XBs are considered a race, the 14^th Amendment prohibition on racial discrimination is a means of protecting the rights of Reclaimed Borg.

Section 1 to the 14^th Amendment to the US Constitution prohibits states from depriving individuals of life, liberty, and property, without due process of law and equal protect of the law. A universe of civil rights laws have been enacted to prohibit racial discrimination, such as the ability to enter contracts under 42 U.S.C. § 1981.

The issue with XBs is that the Borg assimilated thousands of species. Any XB is still a member of their original species, just that the Borg assimilated them. This would make discrimination against someone who is an XB is not because of race, but because they were assimilated. For example, a Vulcan who was assimilated is still a Vulcan. The XB does not lose the fact they are a member of their species. This would move discrimination out of a racial basis and into the fact they are survivors of being members of the Borg.

Prohibition Against Discrimination on the Basis of a Disability

The prohibition against discriminating against individuals with disabilities is a stronger means to protect XBs. The Americans with Disabilities Act (ADA) was enacted because Congress identified a history of irrational employment discrimination where society isolated and segregate individuals with disabilities. Board of Trustees of Univ. of Alabama v Garrett, 531 U.S. 356 (2001), citing 42 U.S.C. 12101(a)(2).

The ADA states that no “entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. A “Qualified individual” is someone who, with or without reasonable accommodation, “can perform the essential functions of the employment position that such individual holds or desires. ” 42 U.S.C. § 12111(8).

A “disability” is defined as a physical or mental impairment that substantially limits one of more major life activities. 42 U.S.C. § 12102(1)(A). “Major life activities” can include any of the following, but are not an exhaustive list: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. § 12102(2)(A). Major life activities also include bodily functions, such as normal cell growth, neurological, and other bodily functions. 42 U.S.C. § 12102(2)(B).

Reclaimed Borg includes individuals who have endured physical mutilation and are missing arms, eyes, and other body parts. Moreover, XBs would have been dependent on having functional cortical nodes to control their remaining cybernetic implants in order to live. All of these physical conditions would limit the “major life activities,” of XBs, because of their experience being assimilated and reclaimed. As such, XBs would fall under the protection of the ADA and related laws to protect individuals with disabilities from discrimination.

Review of Falcon and the Winter Soldier with Mark Zaid

Josh Gilliland

March 21, 2021

The Falcon and the Winter Soldier is everything from action packed spy story to character study of healing after extreme trauma. It is also filled with a multiverse of legal issues.

Mark Zaid joined me for our first video podcast on Get Vokl exploring these issues. Check out the video or recording below for our analysis of the Falcon’s rescue mission to save an Air Force officer, the conditions of Bucky’s pardon, and the legal mess after half of the planet went from missing to returned after The Blip.

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