A Public Policy Shootout over Contracts in The Mandalorian

By

-

November 19, 2019

Long, long, ago, in a courthouse far away, it was said that the freedom of contract be not lightly interfered with. Baltimore Ohio c. Railway v. Voigt, 176 U.S. 498, 504-5 (1900). The Mandalorian is a story with parties entering contracts upon contracts. However, what contracts in the first episode were valid and which were not?

The Enforceability of an Oral Contract Entered During a Shootout

The Mandalorian met IG-11 while the droid started an armed assault on a compound holding the Target for their respective bounties. This created an awkward meeting, as the Bounty Hunters’ Creed states that No Hunter Shall Interfere With Another’s Hunt. The Mandalorian made the offer that they split the reward for capturing the Target, to which IG-11 agreed. What was not agreed upon was IG-11’s counter offer to acquire the Reputation Credits for the hunt.

The basics of contract formation are 1) Offer; 2) Acceptance; 3) Consideration; and 4) Performance. Moreover, “All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.” Cal. Civ. Code § 1556. Furthermore, the question for California courts is whether there is mutual assent between the parties, which is “manifested by an offer communicated to the offeree and an acceptance communicated to the offeror.” Donovan v. RRL Corp., 26 Cal.4th 261, 270-71 (Cal. 2001), citing 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 128, p. 153.

From the context of the shootout, the Mandalorian made an offer for he and IG-11 to work together and split the reward. IG-11 accepted this offer verbally and by conduct. However, there was no mutual assent on the issue of IG-11 getting the Reputation Credits for the hunt. While that term was not agreed upon, a court could find there was a contract between the parties to split the profit from the hunt.

IG-11’s Bounty Claim Violated Public Policy

Whoever contracted with IG-11 to kill the Target violated public policy and the Bounty Hunter’s Creed. The Mandalorian was right to take protective measures against IG-11.

The Bounty Hunters’ Creed states that:

In the Hunt One Captures or Kills, Never Both

In cases where the acquisition had been taken alive, that “choice” could not be altered. To kill an acquisition in the course of the hunt was one thing, but to purposely kill an unarmed, helpless being already subdued and unable to resist was seen as simple slaughter and wanton butchery. An acquisition “killed while attempting to escape” however, would be an entirely different matter altogether.

The Mandalorian had a contract to capture the Target; IG-11 had a contract to kill the target. IG-11’s contract to purposely kill an unarmed and helpless being was a gross violation of the Bounty Hunters’ Creed. Whoever hired IG-11 did not want a Bounty Hunter, they wanted a butcher.

A contract to kill someone is not the work of a bail bondsman, but a murder-for-hire contract. It is grossly illegal to contract to kill someone, especially an infant. The legal term is solicitation. Anyone who solicits another to commit murder can be sentenced to state prison for at least three and up to nine years. CA Penal Code § 653f. This raises significant issues as to what kind of puck was issued with a kill order on an infant, the work of a bail bondsmen is to bring someone in, not play hit man.

Contracts cannot violate public policy, which was defined by Lord Brougham, “that no one can lawfully do anything which has a tendency to be injurious to the public welfare.” Maryland C. Co. v. Fidelity Etc. Co., 71 Cal.App. 492, 496-97 (Cal. Ct. App. 1925). A contract is void against public policy if it “clearly contravenes that which has been declared by statutory enactment or by judicial decisions to be public policy, or unless the agreement manifestly tends in some way to injure the public.” Spangenberg v. Spangenberg, 19 Cal.App. 439, 446-47 (Cal. Ct. App. 1912). As murder is clearly defined as being illegal and against public policy, one cannot enter a contract to murder another person.

I Have Spoken

Can Bounty Hunters Use Lethal Force?

By

Josh Gilliland

-

November 18, 2019

0

The Mandalorian is the story of a bounty hunter in the Outer Rim who is no stranger to using lethal force. Is it lawful for a bounty hunter to kill?

As a preliminary matter, many states have stopped using the term “bounty hunter.” In California, such as individual is a “bail fugitive recovery person,” who has extensive statutory requirements, including having both bail and private investigator licenses. CA Penal Code § 1299.02. Other requirements include having proper documentation before apprehending a bail fugitive; must not represent themselves as being with law enforcement; and provide at least six hours of notice to local law enforcement that they are going to apprehend a bail fugitive, absent exigent circumstances. CA Penal Code §§ 1299.05; 1299.06; 1299.07; and1299.08.

There are two big requirements: bail fugitive recovery persons cannot forcibly enter a premise or carry a weapon unless in compliance with state laws. CA Penal Code §§ 1299.09 and 1299.10.

In arguendo that the Mandalorian was in compliance with California gun laws, could a bounty hunter shoot a bail jumper? In a Connecticut case that asked whether warning shots could be fired at a fleeing bail jumper, the answer is “no.” The Court explained, “A bounty hunter’s legal right to seize and hold does not automatically authorize the use of force…” McGibony v. Danaher, No. CV094020419S, 2009 Conn. Super. LEXIS 2609, at *7 (Super. Ct. Oct. 1, 2009).

That is not the end of the analysis. In the first episode of The Mandalorian, there was a fight with a human and a Quarren. The elements of the confrontation include the Mandalorian entering the cantina, not saying anything, and walking up to the bar. The two assailants surround the Mandalorian with claims the Mandalorian spilled the human’s drink when the Mandalorian entered the cantina. The human struck his knife across the Mandalorian’s chest armor and asked if the armor was real Beskar. This contact is technically battery, because the contact was a “willful and unlawful use of force or violence upon the person of another.” Cal. Pen. Code § 242.

The contact of the knife against the armor was the moment the Mandalorian responded to the physical battery upon his person. This triggered classic self-defense analysis. The Mandalorian could have reasonably believed he was in immediate danger of being killed or suffering great bodily harm, because he was surrounded and a knife had made contact with his person; The Mandalorian reasonably believed the use of force was needed to defend himself; and the Mandalorian used no more force than was necessary to defend against the danger. The human assailant was subdued with the use of force, but lethal force was not used on the Quarren until he fired a blaster at the Mandalorian. See, 1 CALCRIM 505 (2018). All of the Mandalorian’s actions were proportional to the threats he faced during the altercation.

Now, we don’t exactly know what Sub Paragraph 16 of the Boadsmen’s Guild Protocol Waiver says exactly, but it is hard to imagine that giving IG-11 a license to storm a stronghold by force…

Mandalorian Podcast on Chapter 1

By

Josh Gilliland

-

November 14, 2019

0

The Mandalorian is here and Gabby Martin, Thomas Harper, and I sat down to discuss the first episode of this awesome series. Can bounty hunters kill bail jumpers? When a contract is unenforceable because it violates public policy? Find out as explore these issues and all want a toy from the big shocker at the end of the episode.

Species Protection for the Zillo Beast

By

Stephen Tollafield

-

November 13, 2019

0

Image showing Zillow Beast from Star Wars: The Clone Wars

“[The beast] has no voice to defend itself. Anakin, we have to be that voice.”

-Senator Padmé Amidala

The tale of the Zillo Beast happened a long time ago in a galaxy far, far away, but Senator Amidala’s quote perfectly captures the conservationist sentiment that prevailed here in the U.S. in 1973 when Congress passed the federal Endangered Species Act (ESA). As the Star Wars saga’s answer to classic kaiju, the Zillo Beast appeared in two episodes of The Clone Wars, Season Two. While battling a Separatist invasion on the planet Malastare, Republic forces unwittingly unearthed the last known specimen of the legendary Zillo Beasts. After subduing the creature, Palpatine ordered Anakin Skywalker and Mace Windu to transport it to Coruscant for study. How might the broad protections of the ESA apply to a creature as rare as the Zillo Beast?

The Malastare Zillo Beast was an “endling”—the term for the last known individual of a species. As an endling, the beast almost certainly would qualify as an “endangered” species, the most at-risk ESA listing classification reserved for wildlife species that are “in danger of extinction.” 16 U.S.C. § 1532(6). This listing category would entitle the beast to the highest level of species conservation protections under the ESA, which prohibit hunting, capturing, and transporting of specimens. 16 U.S.C. § 1538(a)(1). So technically, the removal of the beast from Malastare to Coruscant would violate the ESA and the Jedi could face civil and criminal fines and possibly even a short prison sentence.

However, the ESA provides some limited exceptions to endangered species protections. One exception allows the federal government to issue a permit for the capture and transportation of endangered species for “scientific purposes or to enhance the propagation or survival of the affected species, including . . . acts necessary for the establishment and maintenance of experimental populations.” 16 U.S.C. § 1539(a)(1)(A).

And in fact, after the beast escapes, rampages through Coruscant, and is ultimately destroyed, Palpatine gives a sinister order to clone the Zillo Beast for his dark, secret purposes. This order was the last time the beast was mentioned in The Clone Wars thus far, but in a series with “clone” in the title, it seems very likely that cloning is a viable option for “enhancing the survival of the species” in Star Wars. Granted, here on Earth, cloning technology is not sufficiently advanced to reliably clone animals, and the ESA does not contemplate cloning as a method of species recovery.

But perhaps Palpatine’s cloning program has come to fruition with a new experimental population of Zillo Beasts. In the Star Wars: Age of Resistance – Kylo Ren #1 comic, the new Supreme Leader battles and kills a Zillo Beast on a remote Outer Rim world. Maybe this encounter indicates that Zillo Beasts have recovered as a species thanks to Palpatine’s clone-conservation efforts. On the other hand, if that Outer Rim creature was itself an endling, perhaps Kylo has wiped Zillo Beasts from the galaxy… again? Now more than ever—both in Star Wars and on our planet—strong environmental legal protections are important to stemming the devastating loss of plant and animal species caused by habitat destruction, climate change, and the occasional rampaging Kylo Ren.

Can IG-88 Enter a Contract?

By

Josh Gilliland

-

November 1, 2019

0

The Mandalorian will feature IG-11, an assassin droid, who is seen in a gunfight in the first two previews. This is not the first time we have seen an IG Droid. The first was IG-88, who appeared in The Empire Strikes Back. These autonomous killing machines have appeared in multiple animated series as well. This raises the question; can an IG Droid enter a contract? Bounty hunting is a complicated profession, especially if a bounty hunter does not meet the legal definition of “person.”

Who Can Enter a Contract?

The law states “all persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.” Cal. Civ. Code § 1556, emphases added. There are multiple definitions of “person.” Consider these two examples:

“Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

Cal. Com. Code § 1201(b)(27)

“Person” includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.

Cal. Evid. Code § 175

The legal definition of “person” includes those who are nature born human beings or legal entities that conduct business or services. Moreover, every “person” within a state such as California, is subject to its jurisdiction and entitled to its protection. Cal. Gov’t Code § 270. Furthermore, it is universal language in Constitutions to state that “all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal Const, Art. I § 1, emphasis added.

The law does not address artificial intelligence, however the law does address “artificial persons” such as corporations. This raises the question; can a computer enter a contract? In the 1996 law review article Harvard Journal of Law & Technology that addressed whether computers could enter trading contracts, the essential question was whether the behavior manifested by the computer is roughly approximate to the behavior manifested by a person who understands that his or her actions may lead to the creation of a contract. Tom Allen and Robin Widdison, Can Computers Make Contracts? 9 Harv. J. Law & Tec 25, *39-40 (Winter, 1996).

Does any IG Droid understand that its actions can create a contract? This raises the issue of capacity.

Do IG Droids Have the Mental Capacity to Enter a Contract?

The law defines “capacity” to enter a contract as “a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.” Cal. Prob. Code § 4609.

Case law goes further into describing contract formation requires that parties must have a “mutual understanding of what is being done.” Estate of Ginsberg 11 Cal.App.2d 210, 216 (1936).

IG-88 clearly understood that Darth Vader’s bounty was to capture the Millennium Falcon with the crew alive by any means necessary and no disintegrations. The terms were clear. While we never heard IG-88 speak in a film, the bounty hunter either understood the terms of the contract, and failed to capture the Millennium Falcon, or rejected the terms, and did not attempt to capture the Millennium Falcon.

What Will We See in The Mandalorian?

The ability for IG-88 or IG-11 to be able to enter into a contract will turn on whether they have the same behavior manifested by a person who understands that his or her actions may lead to the creation of a contract. While the law does not define artificial intelligence as a “person,” the law does recognize artificial persons such as corporations. If a IG droid can manifest an understanding that they have a contract, the law could recognize their ability to enter into agreements.

Banking on the Rules of Evidence in The Clone Wars

By

Gabriella Martin

-

October 4, 2019

0

The Clone Wars episodes “An Old Friend,” “The Rise of Clovis,” and “Crisis at the Heart” center the Banking Clan and its role in the Clone Wars. Operating as a galactic IMF and neutral territory, the Banking Clan on the planet Scipio is the economic heart of the galaxy handling funds for both the Republic and the Separatist movement.

The story opens with Senator Amidala traveling to Scipio to obtain aid for those displaced by the ongoing Clone Wars. Enter “traitor to the Republic and known Separatist” Rush Clovis, the representative assigned to discuss the terms of the aid loan with Senator Amidala. If you’re wondering why anyone would put their trust in someone with such a title, I’d remind you that even though the phrase “I have a bad feeling about this” abounds in a galaxy far, far away, no one ever seems to follow that up with a “yeah, you’re right, let’s not do this.” But I digress.

Although Padme initially requests that Clovis be removed from the loan negotiations, she later agrees to work with him to investigate his allegations of fraud and stolen money that has left the bank out of funds. Together they convince the Core Five to allow Padme to enter the vault and accompany the transfer of funds and later devise a plan for Padme to obtain the evidence while the power to the vault is temporarily disabled. While they manage to successfully obtain incriminating evidence, they’re quickly caught with Padme being detained for espionage.

Once rescued by her husband, Anakin, Padme and Clovis return to Coruscant to expose the banking fraud on Scipio.

Oh, Padme (and frankly everyone in the Republic leadership)! If only you had followed the Federal Rules of Evidence. The brief battle at Scipio (deemed a “war”, although I’m not sure this title fits) would have been avoided and the banks may not have ended up in the Chancellor’s control. Although they may have eventually, given how things ended up in Revenge of the Sith, it might have at least been delayed.

The initial drive

The drive that Padme and Clovis bring to the Chancellor in “The Rise of Clovis,” is the first piece of evidence introduced to prove the corruption in the Banking Clan. The Chancellor–as our theoretical judge–asks Clovis to substantiate these claims of corruption. When Clovis presents the drive which shows funds being diverted from the bank into private accounts, Senator Organa rightly demands to know the veracity of the evidence. After all, Clovis’ credibility is questionable. Padme responds by invoking the spirit of the Federal Rules of Evidence of 901. Rule 901 of the Federal Rules of Evidence covers the authentication of evidence. Rule 901(a) states that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Authentication and identification are the conditions precedent to the admission of documents and physical evidence.

In order to identify the drive that Clovis is presenting, Padme tells Senator Organa that it was she who downloaded the files from the Muun mainframe. Given Padme’s knowledge of the files, the Chancellor asks Padme to work with Clovis to investigate the Banking Clan and determine the extent of the corruption.

With the foundational evidence establishing the corruption in the Banking Clan, we can, as Darth Sidious said: “move to the next stage of the proceedings.”

The “smoking gun”

As the investigation continues, it is discovered that the Separatists have not been paying interest on their loans, and yet the Banking Clan is lending credits to the Republic–credits it does not have. However, Padme notes that there is still a critical piece of information missing.

Meanwhile, Count Dooku is tasked with bringing Rush Clovis back into the fold and making him head of the Banking Clan. Dooku uses a droid to send Clovis a message asserting that the Separatist government will support his appointment to the leader of the Banking Clan and providing him with a disc containing the details of the secret Muun accounts.

Clovis takes the disc to Nix Card and the Chancellor who blindly accept this evidence and arrest the Core Five for corruption and embezzlement based on this “smoking gun” showing the secret accounts.

Unlike the disc that Padme brings from Scipio, no one questions the veracity of the disc with the secret accounts. No one asks Clovis to identify the source or authenticity of the evidence.

This is troubling considering the way Clovis’s character has previously been attacked. More importantly, for our purposes anyway, it is concerning given that there’s a clear hearsay objection to be made. The evidence of the secret accounts on the disc is an out-of-court statement being offered to prove the truth of the matter asserted because they are being used to prove the existence of the accounts. The only way to admit the evidence on the disc would be under a hearsay exception–most likely the business records exception (Rule 803(6)). This would require a Muun custodian of the records to testify that the bank records on the disc were kept as part of the ordinary course of business. Testimony would also be required from someone with knowledge of the veracity of the information on the disc. Neither of which happened in this case.

The moral of the story–the Chancellor/Darth Sidious’s plans could have been easily foiled by a legal Jedi with superior knowledge of the rules of evidence.

Were the Clone Soldiers of the 501st Legion Correct to Disobey General Krell?

By

Steve Chu

-

September 30, 2019

0

Star Wars: The Clone Wars presented many memorable story arcs that explored the lives and challenges facing clone soldiers of the Galactic Republic. During a 4-episode arc: Darkness on Umbara, The General, Plan of Dissent, and Carnage of Krell, Republic Clone soldiers are faced with a tall challenge when they are assigned to the command of a General who seems to care little for their lives and treats them only as assets on a battlefield. General Pong Krell repeatedly orders the men under his command to undertake dangerous missions that seem to make little sense. Some of the Clone soldiers begin to question the wisdom of the General’s orders, which prompts a discussion among the clones about what they should do. The soldiers had a duty to follow orders, but how far does this go?

We can look to our own world history for some examples. Different countries have different military traditions. Under the American military system the general rule is that an order can only be disobeyed if it is unlawful. This standard provides enough room for interpretation that courts have trended in different directions over the years, with some courts emphasizing the individual over the military, and others siding with the military over the individual.

One oft-cited example is the My Lai massacre during the Vietnam War, in which 504 people were killed, including young women and children. The incident involved a cover up, and ultimately 14 men were charged, and one person convicted. This incident is often looked to as an example of an illegal order which a soldier would not have to obey.

Other cases have emphasized that one cannot simply rely upon the defense that they were simply following orders. In one well-known American case, during the War of 1812 crew members of an American privateer were tried for stopping and searching a neutral Portuguese vessel on the high seas, when during the stop the American crew assaulted the Portuguese captain and crew and stole valuables. The court rejected the defense advanced by the crew in which they argued that they had simply been following orders. The justice wrote:

This doctrine . . . . alarming and unfounded, is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act. Can it be for a moment pretended, that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not.

The crew was found guilty.

The German military system emphasizes the individual over the military, following a standard whereby a military order is not binding if it is not “of any use for service” or cannot reasonably be executed. German military rules, mindful of history, now forbid the use of the German military to do anything other than defend Germany itself. The German military system emphasizes a military experience built around the inner conscience of each individual. German soldiers can refuse combat assignments or disobey orders with relatively little consequence. This standard has been upheld repeatedly in civil courts.

Most symbolic is the fact that new German soldiers swear their oaths to defend Germany at the Benderblock, a Berlin building where participants of a failed attempt to assassinate Hitler were executed in 1944. Today the building is a museum to German resistance. It is a powerful reminder that new German soldiers are sworn to their oaths not in a place of military obedience, but in a place of military resistance.

This brings up the question, what form of military system would the Old Republic have in place? Given that the Clone Wars aided Palpatine’s consolidation of power, it would seem likely that even if there were some rules to allow for limited judgment by the individual soldier, much of the power would be placed in the hands of the military commanders. By the time of the Galactic Empire, when we see Darth Vader summarily execute officers for alleged incompetence without so much as a trial, there would seem to be very little room for individual judgment. If a soldier objected, it would likely be best to remain quiet rather than risk becoming the victim of a Force choke.

Back to the clone wars episode, after a difficult debate, the clone soldiers continue to follow orders until a fateful confrontation in which it is revealed that they are in fact fighting against another Republic clone trooper regiment. In the heat of battle, Captain Rex senses that something is amiss and discovers the his men are in fact fighting against their own clone brothers. Armed with this knowledge, the clones confront General Krell, who reveals himself to be a traitor, intent upon joining the enemy after first destroying Republic assets. Several clone troopers are killed in the ensuing conflict until General Krell is rendered unconscious. A difficult question now confronts the soldiers: what do they do with the traitorous general?

There is little time for a court martial, and ultimately one soldier cannot bear the betrayal and executes the former General. Ironically, the soldier pulling the trigger is the same soldier who had vigorously defended the General earlier in the story, and could not cope with the idea that their commanding officer had betrayed them. Insubordination, mutiny, and treason. All heavy issues touched upon during this story arc.